Telangana High Court

B. Uma Maheshwar vs The State Of Telangana on 10 April, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

       THE HONOURABLE DR.JUSTICE G. RADHA RANI

              CRIMINAL REVISION CASE No.24 of 2024

O R D E R:

This Criminal Revision Case is filed by the petitioner -respondent No.2

aggrieved by the order dated 18.12.2023 in Crl.M.P.No.1405 of 2023 in C.C.No.70

of 2015 on the file of the Court of the Special Judge for Trial of SPE & ACB Cases

at Karimnagar.

2. Crl.M.P.No.1405 of 2023 is filed by the respondent No.1 - Special Public

Prosecutor for withdrawal of prosecution against the petitioner - A2 under Section

321 of the Code of Criminal Procedure in respect of the offences punishable under

Sections 13(1)(a)&(d) read with 13(2) of the Prevention of Corruption Act, 1988

(for short, 'P.C. Act') read with Sections 120-B and 34 of the IPC.

3. The allegations against the petitioner were that he worked as Additional

Superintendent of Police (Operations), Adilabad and also worked as Sub-

Divisional Police Officer, Adilabad Sub-Division from 04.07.2011 to 03.12.2011

and during his tenure, he received Rs.30,000/- on 31.10.2011, Rs.30,000/- on

14.11.2011 and Rs. 30,000/- on 30.11.2011 towards monthly bribe through one S.

Vilas Reddy from the Adilabad liquor syndicate headed by the respondent No.2 in

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respect of 10 wine shops for doing official favour of not taking any action against

the said wine shops for violation of the provisions of the Excise Act, 1968 and the

Rules made thereunder and licensing conditions, such as sale of liquor over and

above MRP rates, operation of belt shops, sale of liquor beyond the prescribed time,

sale of loose liquor for consumption at the wine shops, and causing pecuniary

advantage of Rs.90,000/- to the petitioner herein.

4. The case of the prosecution, as per the charge sheet filed by the Inspector of

Police, ACB Karimnagar Range, Adilabad was that on credible information, a

surprise check was conducted at Karimnagar Town on 13.12.2011 by intercepting

a car belonging to the Officials of the Excise Department and Rs.3,62,640/- was

seized from them under the cover of panchanama. As it was suspected to be

amount collected as bribe for favouring the owners of the wine shops, a case vide

Cr. No.15/RCO-ACB-KNR/2011 under Section 13(1)(a)& (d) of the P.C. Act,

Sections 34, 120-B IPC & Sec 41(1)(a) and 102 Cr.P.C., was registered by the

ACB Karimnagar Range on 14.12.2011.During the course of investigation, it was

revealed that the above money was collected illegally from owners of some wine

shops of Karimnagar District, who formed themselves as a group (informally

called as Syndicate) for not taking any action for violation of Excise laws, Rules

and Licence permissions, etc.. Subsequently, the Inspector, ACB, Karimnagar

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Range conducted search on 16.12.2011 in the premises of Praja Wines Godown

cum Liquor Syndicate office at shop No.2, New ward No.21, near NTR Chowk,

Adilabad Town and seized 2 registers relating to accounts of wine shops of the

Liquor syndicate containing particulars of payments and expenditure, etc. of the

syndicate. They also contain entries pertaining to the illegal amount paid to the

public servants on different dates, during the period from October 2011 to

December 2011.Based on the seized records, the D.S.P., ACB, Karimnagar Range

prepared an occurrence report and scrutiny report and submitted the same to the

DG, ACB, AP, Hyderabad. The DG, ACB, Hyderabad ordered to register a case

of Criminal Misconduct under the P.C. Act and to investigate into the allegations

and a case in Cr. No.03/RCO-KNR/2012 under Sections 7, 8, 12 &13(1) (a) (d)

read with 13(2) of the P.C. Act and Sections 120-B, 34 & 109 of IPC of ACB of

Karimnagar Range, Adilabad was registered on 25.01.2012 and investigated into.

The investigation revealed that, the petitioner worked as Additional Superintendent

of Police (Operations), Adilabad and also worked as SDPO, Adilabad Sub-

Division form 04-07-2011 to 03-12-2011. During his tenure, the petitioner allowed

irregularities in the 10 wine shops vide GSL No. (1). Ravanna Wines, Adilabad;

GSL No. (2) Praja Wines Adilabad; GSL. No. (3) New Praja Wines, Adilabad;

GSL.No. (4) Adilabad Praja Wines; GSL. No. (5)Krishna Wines Bela; GSL. No. (6)

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Vinayaka Wines Bela; GSL. No.(7) Navadurga Wines, Jainad; GSL. No.(8) Seven

Hills Wines Bhoraj of Jainad Mandal; GSL. No.(09) Bhavani Wines, Talamadugu;

and GSL. No.(10) Balaji Wines, Sunkidi of Talamadugu Mandal of Adilabad

syndicate in violation of Excise Act and Rules. He also allowed the licensees to run

212 belt shops (unlicensed shops) in his limits. In abuse of his official position, the

petitioner received an amount of Rs.30,000/- on31-10-2011, Rs.30,000/- on 14-11-

2011, and Rs.30,000/- on 30-11-2011 towards monthly mamools (bribes) through

Sri S. Vilas Reddy. All three entries were noted in Register No-1 vide page

Numbers 33, 47 and 64 which were seized from the Liquors Syndicate office of

A-1. Thus, the petitioner received a total amount of Rs.90,000/- from the Adilabad

syndicate to avoid harassment and not to book cases under A.P Prohibition &

Excise Act and to over look various omissions, commissions, violation of

conditions laid down in the licenses, violation of rules and provisions of Excise

Act by the liquor syndicate, as the police officials were empowered to book the

cases under special and local laws in due course of maintenance of law & order.

He also allowed to do the business beyond the prescribed business hours and

thereby caused pecuniary advantage to owners of the wine shops located in his

jurisdiction.

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4.1. After obtaining Prosecution orders from the competent authority against the

petitioner Sri B. Uma Maheshwar (AO-2), charge sheet was filed before the Court

which was numbered as C.C.No.70 of 2015 and the case came up for examination

of the accused on 09.01.2024. The Government after re-examination of the entire

matter, taking into consideration the representation of Sri B. Uma Maheshwar,

Additional Superintendent of Police & RV&EO, Kadapa, A.P State formerly

Additional SP(Operations), Adilabad, T.S have decided and issued orders to drop

further action against him, withdrawing the prosecution vide G.O.Rt.No.1678,

dated 25.08.2023. The said G.O was filed before the Court of Special Judge for

SPE & ACB cases, Karimnagar through Learned Special Public prosecutor vide

CrI.MP.No.1405 of 2023 in CC.No.70 of 2015. On 18-12-2023, the learned

Special Judge for Trial of SPE and ACB cases, Karimnagar dismissed the said

petition.

5. Aggrieved by the said dismissal of the petition, the petitioner preferred this

revision contending that the court below erred in law and failed to appreciate the

facts and circumstances involved in the present case and that the continuation of

the proceedings against the petitioner was not permissible in the eye of law, as per

the law laid down by the Hon'ble Apex Court in V.K. Sukla Vs. CBI, wherein it

was held that when there was no evidence against the petitioner except the non-

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incriminating material such as loose sheets with regard to the alleged complaint

and the said evidence was of such a nature which could not be converted into legal

evidence and once the Government of Telangana after considering all the aspects

involved in the matter and by duly taking into account of the same issued the

orders in G.O.Rt.No.1678, Home (Special) Department, dated 25.08.2023,

withdrawing the prosecution launched against the petitioner by duly dropping

further action in the matter, the Court below ought to have allowed the application

instead of dismissing the same and prayed to allow the criminal revision case by

duly setting aside the order in Crl.M.P.No.1405 of2023 in C.C. No. 70 of 2015, on

the file of the Court of the Special Judge for Trial of SPE & ACB Cases, at

Karimnagar.

6. Heard Sri Ch. Venkat Raman, learned counsel for the petitioner and Sri

V. Ravi Kiran Rao, learned Senior Counsel representing Sri V. Rohit, learned

counsel for the respondent No.1 - complainant - ACB.

7. Both the learned counsel for the petitioner and the learned senior counsel for

respondent No.1-complainant argued in a similar manner, as the State itself filed

the petition under Section 321 of Cr.P.C. through the Special Public Prosecutor for

withdrawal of the prosecution basing on G.O.Rt.No.1678, Home (Special)

Department, dated 25.08.2023. The learned senior counsel submitted that basing

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on the names mentioned by the liquor syndicate that they paid mamools to the

petitioner, the case was registered. The Special Public Prosecutor by taking into

consideration all the circumstances pertaining to filing of the charge sheet and the

G.O. issued by the Government to withdraw the prosecution orders against the

petitioner-accused filed the petition under Section 321 Cr.P.C. The trial court

failed to observe that the Government had issued G.O. for not any extraneous

consideration. There were no malafides in issuing the G.O.. The application was

made in good faith without any extraneous or political considerations. The

Government need not give any elaborate reasons in the G.O. while giving orders

for withdrawing the prosecution and relied upon the judgments of the Hon'ble

Apex Court in State of Kerala Vs. K. Ajith & Ors. 1 and of the erstwhile High

Court of Andhra Pradesh in K.V.V. Krishna Rao Vs. State of Andhra Pradesh

and Ors. 2 and of the High Court of Delhi in L.K. Advani Vs. Central Bureau of

Investigation 3 on the aspect that entries in dairies disclosing acceptance of

payment of illegal gratification by petitioners, the said diaries not being books of

accounts do not come within the ambit of Section 34 of Indian Evidence Act. The

alleged entries in diaries and loose sheets were not admissible in evidence unless

there is corroborative evidence.

2021 Crl.L.J. 4058

2003 (1) ALD (Crl.) 457 (AP)

1997 Crl.L.J.2559

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8. Now the point for consideration before this Court is:

Whether the order passed by the learned Special Judge for Trial of SPE & ACB Cases at Karimnagar in dismissing the petition filed by the petitioner under Section 321 of Cr.P.C. for withdrawal of the prosecution vide Crl.M.P.No.1405 of 2023 in C.C.No.70 of 2015 is in accordance with law or the same was liable to be set aside?

9. As seen from the charge sheet, there was no aggrieved person or

complainant, who gave report to the police. The case was registered basing on the

surprise check conducted by the ACB officials on the car belonging to the officials

of the Excise Department wherein an amount of Rs.3,62,640/- was seized under the

cover of panchanama. They suspected that the above amount was collected as

bribe from the owners of some wine shops of Karimnagar District and alleged that

the owners of wine shops of 10 in number formed into a group (informally called

as Syndicate) and was giving bribe to the excise and police officials for not taking

any action against them for violation of Excise laws, Rules and Licence conditions

and were allowing them to conduct sales of liquor over and above the MRP rates,

for operation of illegal belt shops, sale of liquor beyond the stipulated hours of

business, sale of loose liquor for consumption at the shops. During the course of

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investigation, they conducted search on 16.12.2011 in the premises of Praja Wines

Godown cum Liquor Syndicate office at shop No.2, New ward No.21, near NTR

Chowk, Adilabad Town and seized 2 registers relating to accounts of wine shops

of the Liquor syndicate containing particulars of payments and expenditure, etc. of

the syndicate. It was alleged that the two registers contained entries pertaining to

the illegal amounts paid to the public servants on different dates, during the period

from October 2011 to December 2011.

10. Basing on such investigation, they filed charge sheet against five persons.

A1 was a private person, who was alleged to be the Syndicate leader of the 10 wine

shops located at Adilabad Town and at the surrounding places, AO-2 was the

Additional Superintendent of Police (Operations), Adilabad, AO-3 was the Circle

Inspector of Police, Adilabad, AO-4 was the Prohibition & Excise Inspector,

Adilabad and AO-5 was the Deputy Commissioner (retired), Prohibition & Excise,

Adilabad District. The Government issued sanction to prosecute AOs-2, 3 & 4 as

A5 was retired from service, no sanction order was obtained. While the matter was

posted 'for examination of accused' on 09.01.2024, at that stage, the Government

issued G.O.Rt.No.1678 Home (Special) Department, dated 25.08.2023 issuing

orders withdrawing prosecution against the petitioner herein. In the reference, the

Government mentioned a letter addressed by the petitioner herein dated 21.12.2020

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wherein the petitioner stated that the case pertaining to Sri T. Ramprasad Rao,

ASP Kothagudem and Sri P. Narasimha, Deputy Commissioner, Prohibition and

Excise, Adilabad against whom similar allegations were made were discharged by

the Special Judge for Trial of SPE & ACB Cases, Karimnagar vide order dated

30.08.2019 in Crl.M.P.No.562 of 2016 in C.C.No.70 of 2015 and also requested to

withdraw prosecution against him, as all his promotions were pending due to the

false case foisted against him.

11. The Government stated in the G.O. that after re-examination of the entire

matter and taking into consideration the representation submitted by Sri B. Uma

Maheshwara Rao, Additional Superintendent of Police & RV & E, Kadapa, A.P.

State, formerly Additional SP (Operations), Adilabad, T.S., decided and ordered to

drop further action against him on the allegation, duly withdrawing the prosecution

orders charge sheeted against him in C.C.No.9 of 2013 in the Court of the Special

Judge for SPE & ACB Cases, Karimnagar.

12. The Special Public Prosecutor in the petition filed by him in

Crl.M.P.No.1405 of 2023 stated that

"...on perusal of the Government order and the material evidences available on record and on application of the mind independently and for the reasons accorded by the

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Government, I am satisfied that the case was fit for withdrawal from prosecution in accordance with the settled principles of law as laid down by the Hon'ble Supreme Court of India"

and sought permission to withdraw the case of prosecution against the respondent-

accused No.2 (petitioner herein).

13. The learned Special Judge for trial of SPE & ACB cases Karimnagar in its

order dated 18.12.2023 held that:

".. the learned Special Public Prosecutor for trial of SPE & ACB Cases, Karimnagar mechanically averred therein the conditions requisite for filing petition under Section 321 of the Code of Criminal Procedure. From the contents of the petition, the manner in which the learned Special Public Prosecutor for trial of SPE and ACB cases, Karimnagar formed his alleged independent opinion in order to arrive to the conclusion that such withdrawal of the prosecution would serve public interest, cannot be inferred. The circumstances of the case indicates that the learned Special Public Prosecutor for trial of SPE & ACB cases, Karimnagar has been solely guided by G.O.Rt.No.1678 Home (Special) Department dated 25.08.2023 and that he did not apply his independent mind to the facts of the case"

and further held that the learned Special Public Prosecutor for trial of SPE & ACB

cases failed to make out a cogent case that withdrawal from prosecution of the

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respondent-AO-2 in respect of the offences alleged against him would advance the

cause of public justice and serve the public interest and dismissed the petition.

14. In L.K. Advani Vs. Central Bureau of Investigation (3 supra), which was

similar to the facts of the present case, it was alleged that:

"Jain brothers lobbied with different public servants and government organizations in the power and steel sectors of the Government of India for securing various contracts with an intention of getting illegal kickbacks from them and that they received amounts from foreign countries through hawala channels as kickbacks from the foreign bidders of certain projects and making payments to influential political leaders and public servants of high status and accepting official favours from them. Some note books, diaries and files were alleged to be seized from the residence of the one J.KJain during the course of his house search and it was noted in the dairies that they paid certain amounts to Shri L.K.Advani and Shri L.K.Advani along with others was charged for the offences under Section 120-B Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988."

15. It was held by the Delhi High Court that:

"Admittedly there is no evidence on record except the alleged entries in the said diaries and the loose sheets, to prima facie prove the factum of conspiracy. There is also no evidence to prima facie suggest that the said entries were made in reference

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to the common intention of the conspirators after it was first entertained.

The alleged accounts were maintained by Shri J.K.Jain for the benefit of his employees to let them know as to what were the amounts received and disbursed by them. It can thus be safely inferred therefrom that the payees of the said amounts were not at all interested in the maintenance of the alleged accounts.

94. The entries in the said diaries and loose sheets, even if they are considered as a piece of evidence admissible under the Evidence Act, the same are of little help to the prosecution. The entries therein can at the most be said to be a document within the meaning of Section 3 of the Evidence Act. However, mere production of the said documents does not lead us anywhere unless the contents of the said documents are proved by proper evidence.

98. Admittedly there is no evidence with the prosecution to prove the contents and the truth of the entries in the said diaries and loose sheets, except the report of the fingerprint and handwriting expert and the statement of certain witnesses which would simply prove the handwriting of Shri J.K. Jain and signatures of Shri S.KJain.

101. In the present case, there is no evidence against the petitioners except the diaries, note books and the loose sheet with regard to the alleged payments. The said evidence is of such a nature which cannot be converted into a legal evidence against the petitioners.

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102. There is no evidence with regard to the monies which are alleged to have been received by Jains for the purpose of disbursement. There is no evidence with regard to the disbursement of the amount. Then there is no evidence with regard to the fact to prove prima facie that the petitioners i.e. Shri L.K.Advani and Shri V.C. Shukla accepted the alleged amounts as a motive or reward for showing favour or disfavour to any person and that the said favours and disfavours were shown in the discharge of their duties as public servants as contemplated by S.7 of the Act. Thus, the Court has to presume the above facts in the absence of any evidence in connection therewith to frame charges against the petitioners and quashed the charges against them."

(emphasis supplied)

16. The present case is also similar to the facts of the above case. Except the

entries in diaries and the evidence of the hand writing expert and the statements of

some of the witnesses, there was no other evidence to prove the disbursement of

the amount or that the petitioner accepted the said amount as a motive or reward

for showing any official favour to the wine shop owners, who formed into a

Syndicate.

17. The High Court of Andhra Pradesh in K.V.V. Krishna Rao Vs. State of

Andhra Pradesh and Ors. (2 supra) held that:

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"16. It is to be noted that Section 321 of Cr. P.C. does not postulate that the Government should assign reasons before instructing the Public Prosecutor to take steps for withdrawal of the prosecution and also no notice to the de facto complainant is contemplated under the said section.

What all is intended is that if the Government is of the view that the charge against any person can be withdrawn, it can instruct the Public Prosecutor appropriately. However, just because it was not stated in the provision that the Government should assign reasons or apply its mind before issuing any instructions to the Public Prosecutor, it does not automatically mean that the Government has no reasons or that it did not apply its mind at all for instructing the Public Prosecutor. Such a decision of the Government to instruct Public Prosecutor to file a petition under Section 321 of Cr. P.C. will indubitably be upon a genuine source of information."

18. As observed by this Court in the above judgment that just because the

Government had not stated or assigned reasons for issuing instructions to the

Public Prosecutor, it does not automatically mean that the Government had no

reasons or that it did not apply his mind for instructing the Public Prosecutor.

19. The Hon'ble Apex Court in State of Kerala Vs. K. Ajith & Ors.(1 supra)

on examining the various judgments holding the field on the said aspect held that:

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" 23. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:

(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:

(a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

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(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

(d) The grant of consent sub-serves the administration of justice; and

(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to

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apply the correct principles in deciding whether to grant or withhold consent."

"58. The test which has been laid down in the decisions of this Court commencing with Ram Naresh Pandey (supra) in 1957, spanning decisions over the last 65 years is consistent. The true function of the court when an application under Section 321 is filed is to ensure that the executive function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The court will grant its consent if it is satisfied that it sub-serves the administration of justice and the purpose of seeking it is not extraneous to the vindication of the law. It is the broad ends of public justice that must guide the decision. The public prosecutor is duty bound to act independently and ensure that they have applied their minds to the essential purpose which governs the exercise of the powers. Whether the public prosecutor has acted in good faith is not in itself dispositive of the issue as to whether consent should be given. This is clear from the judgment in Sheonandan Paswan (supra). In paragraph 73 of the judgment, Justice V Khalid has specifically observed that the court must scrutinize "whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law". Good faith is one and not the only consideration. The court must also scrutinize whether an application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given."

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20. The Hon'ble Apex Court in State of Odisha v. Chandrika Mahapatra 4

held that:

"when the evidence collected during the investigation was meager, no useful purpose would be served for proceeding with the case against the accused and it was a legitimate ground for withdrawal of the case. The Government might have issued the G.O., on considering all the above aspects. Though the Special Public Prosecutor had not specifically stated the reasons considered by him stated that on considering the material evidences available on record and on application of the mind independently and also for the reasons accorded by the Government, he was satisfied that the case was fit for withdrawal for prosecution."

21. Considering the above judgments of the Hon'ble Apex Court and the

principles reiterated therein, as the evidence gathered against the petitioner is

meager, except the entries in the registers there is no other evidence in the present

case also and considering all the issues only the Government issued the G.O.

withdrawing the prosecution and the Special Public Prosecutor also filed the

petition under Section 321 of Cr.P.C., it is considered fit to allow the revision

setting aside the orders of the learned Special Judge for Trial of SPE & ACB Cases

at Karimnagar in Crl.M.P.No.1405 of 2023 in C.C.No.70 of 2015 dated 18.12.2023

and the petition is allowed permitting the prosecution to withdraw the case against

(1976) 4 SCC 250

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the petitioner - AO-2 under Section 321 of Cr.P.C. and the petitioner - AO-2 is