Telangana High Court

B.P. Acharya, Ias Retd. vs The State Of Telangana on 25 November, 2022

Bench: Ujjal Bhuyan

      THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN

             CRIMINAL REVISION CASE No.615 of 2021

ORDER:

Heard Mr. T.Pradyumna Kumar Reddy, learned Senior

Counsel for Mr. T.Anirudh Reddy, learned counsel for the

petitioner and Mr. K.Surender, learned Special Public

Prosecutor for Central Bureau of Investigation (CBI) (as his

Lordship then was) for the respondent.

2. This revision has been filed under Sections 397 and 401

of the Code of Criminal Procedure, 1973 (Cr.P.C) against the

order dated 09.09.2021 passed by the learned Principal

Special Judge for CBI Cases, Hyderabad, in Memo

S.R.No.1166 of 2016 in C.C.No.8 of 2012.

3. By the aforesaid order, learned Principal Special Judge

for CBI Cases, Hyderabad (briefly, 'the CBI Court' hereinafter)

had taken cognizance of the offence against the petitioner as

accused No.9 in C.C.No.8 of 2012 under Section 13(2) read

with Section 13(1)(c) and (d) of the Prevention of Corruption

Act, 1988 (briefly, 'the PC Act' hereinafter) and directed

issuance of summons to the petitioner as accused No.9.

4. The challenge has been made on the ground that

petitioner has filed criminal petition No.13236 of 2018 before

this Court for quashing C.C.No.8 of 2012 qua the petitioner as

accused No.9. CBI had filed charge sheet against the petitioner

under Section 120B read with Sections 420, 409 and 477A of

the Indian Penal Code, 1860 (IPC) and Section 13(2) read with

Section 13(1)(c) and (d) of the PC Act. At the time of filing the

charge sheet on 31.03.2012, CBI had informed the CBI Court

that sanction for prosecution under Section 19(1) of the PC Act

of the petitioner for commission of offences under the PC Act

was awaited from the competent authority. CBI only pressed

the charges under the IPC saying no sanction was required for

the same under Section 197 of Cr.P.C. This Court while

issuing notice had stayed further proceedings in C.C.No.8 of

2012 qua the petitioner. Notwithstanding such stay, impugned

order was passed.

4.1. Another ground of challenge is that after the sanction

was granted by the competent authority on 18.03.2016, on the

basis of which CBI had filed Memo SR No.1166 of 2016 before

the CBI Court, petitioner had filed a representation on

01.04.2016 before the Central Government to review the

sanction accorded to prosecute the petitioner under the PC

Act. During pendency of such representation and outcome of

review not decided, CBI Court ought not to have passed the

impugned order.

4.2. It has also been contended that after PC Act was

amended on 26.07.2018, Section 13(1)(d) was omitted from the

PC Act. CBI Court had taken cognizance on 09.09.2021 under

the omitted provision which has vitiated the order of

cognizance insofar PC Act is concerned.

5. Petitioner in this case is Sri B.P.Acharya, a retired public

servant belonging to the Indian Administrative Service (IAS). At

the relevant point of time, he was serving as Chief Managing

Director of Andhra Pradesh Industrial Infrastructure

Corporation (briefly, 'the Corporation' hereinafter).

6. One P.Shankar Rao, former M.L.A., and late Yerran

Naidu, former M.P., had filed W.P.Nos.794 and 6604 of 2011

respectively before the then High Court for the composite State

of Andhra Pradesh alleging corruption against late

Y.S.Rajasekhara Reddy, former Chief Minister of Andhra

Pradesh, his son Sri Y.S.Jagan Mohan Reddy and others and

sought for investigation into such allegations of corruption by

the CBI. By the order dated 10.08.2011, the erstwhile High

Court of Andhra Pradesh directed CBI to investigate the

allegations. Following the High Court order, CBI, Anti

Corruption Bureau (ACB), Hyderabad registered a case on

17.08.2011 being R.C.19(A)/2011-CBI-HYD against seventy

four accused persons under various provisions of the IPC,

such as, Section 120B read with Sections 420, 409 and 477A

IPC and also under the provisions of Sections 6, 12, 13(2) read

with Section 13(1)(c) and (d) of the PC Act.

7. After completing investigation, CBI filed charge sheet

before the CBI Court in final report form under Section 173 of

Cr.P.C. In the said charge sheet, as many as fourteen persons

were named as accused including Sri Y.S.Jagan Mohan Reddy

as accused No.1 and Sri Vijay Sai Reddy as accused No.2.

Petitioner was named as accused No.9. All the accused

persons were charged for committing offences under Section

120B read with Sections 420, 409 and 477A IPC along with

Section 13(2) read with Section 13(1)(c) and (d) of the PC Act.

8. The charge sheet is prefaced by a brief narration of facts

starting from institution of the two writ petitions and the order

passed by the High Court. It was stated that late

Y.S.Rajasekhara Reddy, father of accused No.1, was sworn in

as Chief Minister of Andhra Pradesh on 14.05.2004. Both late

Y.S.Rajasekhara Reddy and his son had adopted several

ingenious ways to amass illegal wealth resulting in public

injury. Modus operandi of the duo was to dole out public

properties, licences, allotting/granting various projects,

Special Economic Zones (SEZs), mining leases, ports, real

estate permissions etc., by violating established norms and

procedures of the Government for quid pro quo. As part of quid

pro quo, the beneficiaries paid bribes to accused No.1 under

the guise of purchasing shares of companies floated by

accused No.1 at huge and unsubstantiated premia.

9. Thus, all the accused were charged with committing the

offences of criminal conspiracy, criminal breach of trust by

public servant and agent, cheating, forgery for the purpose of

cheating, using forged document as genuine, falsification of

accounts, taking gratification for exercise of personal influence

with public servants to show favour or disfavor to any person,

public servant obtaining valuable thing without consideration

from person concerned, in proceeding or business transacted

by such public servant, abetting a public servant to obtain

valuable thing for himself or for any other person, without

consideration from person connected in proceeding or

business transacted by such public servant, criminal

misconduct by abusing his official position, obtaining for

himself or for any other person any valuable thing or

pecuniary advantage etc. The charge sheet filed on 31.03.2012

mentioned that no sanction for prosecution is required for the

offences committed by the accused public servants under

Sections 120B, 409 and 420 IPC for the purpose of taking

cognizance. Insofar sanction for prosecution under Section

19(1) of the PC Act for commission of offence under Section

13(2) read with Section 13(1)(c) and (d) of the PC Act is

concerned, the same was awaited from the competent

authority in respect of the petitioner and three others.

10. The charge sheet was taken on file by the CBI Court,

whereafter C.C.No.8 of 2012 was registered. Cognizance

against the petitioner as accused No.9 was taken on

27.04.2012 under Section 120B read with Section 409 and

420 IPC.

11. In the meanwhile, CBI had sent a requisition to the

competent authority for according sanction to prosecute the

petitioner under Section 19(1) of the PC Act for offences

committed under Section 13(2) read with 13(1)(c) and (d) of the

PC Act.

12. Thereafter, petitioner filed criminal petition No.13236 of

2018 before this Court under Section 482 of Cr.P.C to quash

C.C.No.8 of 2012 qua the petitioner i.e., accused No.9. This

Court had passed an order on 04.04.2019 staying further

proceedings in the trial Court including appearance of the

petitioner. This order dated 04.04.2019 was extended from

time to time, whereafter because of Covid-19 pandemic Courts

started functioning virtually with only urgent matters being

taken up.

13. In the interregnum, Sri Rajkishan Vatsa, Under Secretary

to the Government of India acting as the competent authority

accorded sanction on 18.03.2016 under Section 19(1) of the

PC Act to prosecute the petitioner for the offences under the

PC Act. It was thereafter that CBI filed Memo SR.No.1166 of

2016 requesting the CBI Court to take on board the sanction

order as an additional document and thereafter to take

cognizance under Section 13(2) read with 13(1)(c) and (d) of the

PC Act against the petitioner as accused No.9.

14. This was objected to by the petitioner contending that

petitioner had filed a review application before the Central

Government to review the sanction granted. The same was

pending. Therefore, cognizance should not be taken on the

basis of the sanction granted under Section 19(1) of the PC

Act. Further, there was a stay order of the High Court

operating.

15. The matter was heard at length by the CBI Court which

framed two issues for consideration - firstly, as to whether

petitioner had the right of audience at the pre-cognizance

stage; secondly, as to whether cognizance of offence under the

PC Act should be taken against the petitioner. By the order

dated 09.09.2021, CBI Court allowed Memo SR No.1166 of

2016 and took cognizance of offence under Section 13(2) read

with Section 13(1)(d) of the PC Act against the petitioner as

accused No.9. Consequently, CBI Court directed issuance of

summons to the petitioner for appearance before the CBI

Court.

16. Aggrieved, the present revision case has been filed.

17. Learned Senior Counsel for the petitioner in his extensive

arguments contended that when there is a stay order by this

Court staying all further proceedings, CBI ought not to have

passed the order dated 09.09.2021 taking cognizance under

the PC Act. That apart, taking cognizance of an offence is not a

mechanical exercise. Being part of the judicial process, it must

reflect due application of mind. Reliance has been placed on

the decision of the Supreme Court in State of Himachal Pradesh

v. M.P.Gupta1. Emphasizing on the need for obtaining previous

sanction from the appropriate government under Section 197

of Cr.P.C, learned Senior Counsel for the petitioner has placed

(2004) 2 SCC 349

reliance on the decision of the Supreme Court in N.K.Ganguly v.

Central Bureau of Investigation2. He submits that this aspect was

gone into by this Court in criminal petition No.13236 of 2018,

whereafter stay of further proceedings in C.C.No.8 of 2012 was

ordered.

17.1. Learned Senior Counsel has referred to the amendment

brought to the PC Act by the Prevention of Corruption

(Amendment) Act, 2018 whereby Section 13(1)(d) of the PC Act

has been completely omitted. Therefore, CBI Court could not

have taken cognizance on 09.09.2021 of an alleged offence

under an omitted provision. Omission of a provision would

mean as if the said provision never existed. In this connection,

reference has been made to a constitution bench judgment of

the Supreme Court in Kolhapur Canesugar Works Limited v. Union

of India3. According to him, Parliament had consciously omitted

Section 13(1)(d) from the PC Act to allay apprehension of

public servants that actions taken bona fide in the discharge of

official duties would be given a criminal colour and thereby

they would be roped in a criminal prosecution.

(2016) 2 SCC 143

(2000) 2 SCC 536

17.2. Learned Senior Counsel also submits that though

petitioner was a public servant belonging to IAS, he was

nonetheless serving the State Government during the relevant

period as Chief Managing Director of the Corporation.

Therefore, not only sanction of the State Government is

required under Section 197 of Cr.P.C, but also the Central

Government is required to give due credence to the

recommendations of the State Government while considering

sanction under Section 19 of the PC Act. When a public

servant is working under a State Government or State

Government Corporation, sanction must be obtained from the

State Government.

17.3. Learned Senior Counsel has placed reliance on several

other judgments in support of his contentions.

18. Responding to the above submissions, learned Special

Public Prosecutor for CBI referred to Section 30 of the PC Act

as well as Section 6 of the General Clauses Act, 1897 on the

question of effect of repeal. From a careful reading of the

aforesaid provisions, he submits that omission of Section

13(1)(d) from the PC Act can only be with prospective effect. In

this connection, he has placed heavy reliance on a decision of

this Court in V.D.Rajagopal v. State of Telangana4.

18.1. Insofar scope of interference in matters relating to taking

cognizance by a criminal court is concerned, he has placed

reliance on a decision of the Supreme Court in Nupur Talwar v.

Central Bureau of Investigation5. He submits that Supreme Court

has made it very clear that correctness of an order whereby

cognizance of an offence has been taken by the Magistrate,

unless it is perverse or based on no material, should be

sparingly interfered with. He has also elaborately referred to

the order of the CBI Court dated 09.09.2021 and submits

therefrom that the said order is a reasoned one passed with

due application of mind and thus calls for no interference.

Therefore, he seeks dismissal of the criminal revision case.

19. In reply, learned Senior Counsel for the petitioner has

submitted written arguments and once again reiterated the

judgment cited by him. He has also referred to the Central

(2019) 2 ALD (Crl) 836

(2012) 2 SCC 188

Bureau of Investigation (Crime) Manual, 2005, more

particularly to Chapter VII thereof dealing with prosecution. He

submits that as per the CBI Manual itself it is necessary for

the prosecuting authority to have the previous sanction of the

appropriate administrative authority for launching prosecution

against a public servant under Section 19 of the PC Act. Such

sanction is also necessary under Section 197(1) of Cr.P.C if the

public servant is accused of any offence alleged to have been

committed by him while acting or purporting to act in the

discharge of official duties. Viewed in the above context, it is

evident that CBI Court had erred in taking cognizance of the

offence under the PC Act and, therefore, order dated

09.09.2021 is liable to be set aside.

20. Submissions made by learned counsel for the parties

have received the due consideration of the Court.

21. Substance of the allegations against the petitioner as

contained in the charge sheet has been taken note of. It has

also come on record that insofar cognizance by the CBI Court

against the petitioner (accused No.9) for having committed

offence under Section 120B read with Sections 409 and 420

IPC, it was taken on 27.04.2012; whereafter petitioner made

his appearance before the CBI Court.

22. Thereafter, petitioner filed criminal petition No.13236 of

2018 before this Court under Section 482 of Cr.P.C to quash

proceedings in C.C.No.8 of 2012 qua the petitioner. This Court

passed an order dated 04.04.2019 staying further proceedings

in C.C.No.8 of 2012 qua the petitioner. The said order was

extended from time to time till the functioning of the Courts

was disrupted from March, 2020 due to Covid-19 pandemic.

23. From the charge sheet itself, we find that sanction for

prosecution of the petitioner under Section 19(1) of the PC Act

was awaited. Subsequently, Under Secretary to the

Government of India accorded sanction under Section 19(1) of

the PC Act on 18.03.2016. Relevant portion of the order dated

18.03.2016 reads as follows:

AND WHEREAS, the Central Government, after carefully considering the facts as emanating from records, as assimilated and placed by the Investigating Agency before the competent authority, is fully satisfied that a prima facie case has been made out for prosecution of Shri B.P.Acharya, IAS (AP/TG:83), for offences under

Section 13(2) read with 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 and substantive offences thereunder and that he should be prosecuted before the Court of Law for the aforesaid offences in the interest of office.

24. Thereafter, CBI filed Memo SR No.1166 of 2016 before

the CBI Court for taking cognizance of the offence under

Section 13(2) read with Section 13(1)(d) of the PC Act.

25. Opposing the same, petitioner filed a memo contending

that such cognizance should not be taken.

26. CBI Court referred to a decision of the Patna High Court

in Halimuddin Ahmad v. Ashoka Cement Limited6, whereunder

Patna High Court held that the test to be applied while

considering whether the accused should be summoned or not

is, whether there is sufficient ground for proceeding against

the accused. Sufficiency has to be judged from the complaint,

the solemn affirmation and the evidence, if any, on record.

Defence of the accused is not a material to be considered at

the stage of taking cognizance. CBI Court also referred to a

decision of the Supreme Court in Asian Resurfacing of Road

1976 Crl.LJ 449

Agency Private Limited v. Central Bureau of Investigation (Criminal

Appeal Nos.1375-1376 of 2013, decided on 28.03.2018), which

clearly says that challenge to an order framing charge should

be decided expeditiously.

26.1. In the above backdrop, CBI Court held that it was not

necessary to hear the petitioner while taking the sanction

order dated 18.03.2016 on record as an additional document

and on that basis, for taking cognizance against the petitioner

for offence under Section 13(2) read with Section 13(1)(d) of the

PC Act.

26.2. Insofar stay granted by this Court in criminal petition

No.13236 of 2018 is concerned, CBI Court noted that last time

this Court had extended the interim stay was on 06.08.2021.

By the said order dated 06.08.2021 this Court had extended

the interim stay till 18.08.2021 only. Thereafter, CBI Court

found that there was no further extension of stay and

accordingly proceeded to deal with Memo SR No.1166 of 2016.

27. From the above, a view can be taken that this Court in

criminal petition No.13236 of 2018 had granted stay in so far

prosecution of the petitioner for the IPC related offences are

concerned. However, as noted by the CBI Court, even there

also there is no continuation of stay after 18.08.2021.

Technically speaking, there was no bar on the CBI Court to act

on the sanction granted by the Central Government under

Section 19(1) of the PC Act. Insofar submission of

representation by the petitioner to the Secretary to the

Government of India, Department of Personnel and Training to

review the sanction order is concerned, CBI Court has rightly

held that such representation would not come in the way of

the CBI Court in taking cognizance under the PC Act. There

was nothing on record to show any consideration of the said

representation or any decision of the Central Government

reconsidering the sanction granted. In such circumstances,

CBI Court held as follows:

17. Prima facie case is made out against Sri B.P.Acharya/A-9 under Section 13(2) r/w 13(1)(c) & (d) of the P.C. Act, 1988, the same is reiterated in the sanction order, as stated in para No.11 supra. The memo filed by CBI is allowed, sanction order dated 18.03.2016 in File No.107/15/2012-AVD.I is taken on record as additional document No.287 and further cognizance against Sri B.P.Acharya/A-9 is taken under Section 13(2)

read with 13(1)(c) & (d) of the P.C. Act, 1988. Hence, points No.1 & 2 are answered accordingly.

28. As regards contention of the petitioner that sanctioning

authority could not have granted sanction to prosecute the

petitioner under Section 13(1)(c) & (d) of the PC Act since

Section 13(1)(d) of the PC Act stood omitted by the Prevention

of Corruption (Amendment) Act, 2018, the said issue is no

longer res integra. In V.D.Rajagopal (supra), one of the

arguments advanced was on similar lines. It was contended

that petitioner in that case was entitled to the benefit of

amended PC Act which came into force with effect from

26.04.2018. Therefore, prosecution of the said petitioner under

Section 13(1)(c) and (d) of the PC Act was liable to be quashed.