IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH TUESDAY, THE THIRD DAY OF JUNE, TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO CRIMINAL PETITION No.11649 of 2010 Between: J.Ganesh . PETITIONER/ACCUSED And The State, rep.by its Inspector of Police, Anti Corruption Bureau, Visakhapatnam, Rep.by Special Public Prosecutor for ACB Cases, High Court of A.P.Hyderabad . RESPONDENT The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL PETITION No.11649 of 2010
ORDER:
The criminal petition is filed by the petitioner/accused under Section 482 Cr.P.C. to quash the proceedings in C.C.No.21/2006 on the file of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam.
I have heard Sri B.Adinarayana Rao, learned senior counsel appearing for the petitioner and Sri M.B.Thimma Reddy, learned standing Counsel, appearing for the respondent.
The case of the prosecution is that while the petitioner was working as Forest Range Officer, the officials of the Anti Corruption Bureau (hereinafter referred to as ‘ACB’) conducted raid on his house as well as the houses of his father and his relatives and having found that the petitioner was in possession of disproportionate assets worth Rs.1,65,20,480-34 ps, registered a case in Cr.No.5/RC-WLR/2002 and after conducting investigation filed charge sheet, which is now pending in C.C.No.21/2006 on the file of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam.
The case of the petitioner is that his father is a Landlord and his father also took several acres of land on lease and increased his holdings from 20 acres to 54 acres; the petitioner got married in the year 1989 before joining the service; his wife was in possession of landed property, she applied for a bank loan for the purpose of purchasing land. According to the petitioner, the ACB included the income of his wife and father in his assets and erroneously arrived at the opinion that he held assets which are disproportionate to his known sources of income. It is further alleged by the petitioner that the ACB gave a report to Income Tax Department and the Income Tax Officer, Ward-1, Anakapalle considering the assets of the petitioner passed an order under section 143(3) r/w.Sec.147 of the Income Tax Act, 1961 on 31.01.2003; against the said order, the petitioner filed an appeal to the Commissioner of Income Tax (Appeals)-I, Visakhapatnam in ITA No.59/ACIT/C-5(1)/VSP/04-05 and the appellate authority considering various aspects, on 15.12.2004 held that the Assessing Officer is not justified in adding the assets of the wife and father of the petitioner and accordingly allowed the appeal.
Aggrieved by the said order, the ACB authorities filed an appeal before the Income Tax Appellate Tribunal, Visakhapatnam Bench, Visakhapatnam in ITA.No.129/Vizag/2005, but the Tribunal, vide orders dated 02.12.2009, dismissed the said appeal, confirming the orders of the Commissioner of Income Tax observing that the properties of the wife and father of the petitioner cannot be tagged on and shown as income of the petitioner.
On the basis of the aforesaid orders passed by the Income Tax Authority, the petitioner made a representation on 14.12.2006 to the Government of Andhra Pradesh and the Government of Andhra Pradesh having considered various aspects and going through the order passed by the Income Tax Appellate Tribunal, issued G.O.Ms.No.104 Environment, Forests, Science & Technology (For.IV) Department, dated 10.10.2007 deleting the expenditure, income and assets claimed by the family members of the petitioner from the income of the petitioner.
It is submitted on behalf of the petitioner that in spite of issuance of the aforesaid G.O.Ms.No.104, the petitioner was informed by his counsel in the ACB Court that the Government passed G.O.Ms.No.156 Environment, Forests, Science & Technology (For.IV) Department, dated 28.11.2008, which has not been communicated to him, purporting to cancel G.O.Ms.No.104 Environment, Forests, Science & Technology (For.IV) Department, dated 10.10.2007. The grievance of the petitioner is that G.O.Ms.No.156, dated 28.11.2008 takes away the right of the petitioner given under G.O.Ms.No.104, dated 10.10.2007. His further contention is that he was not heard before issuing the G.O.Ms.No.156, dated 28.11.2008 and the said G.O.was not at all communicated to him.
The petitioner questioned the G.O.Ms.No.156, dated 28.11.2008 before the Andhra Pradesh Administrative Tribunal, Hyderabad in O.A.No.7373/2010 and the Andhra Pradesh Administrative Tribunal, Hyderabad suspended the G.O.Ms.No.156, dated 28.11.2008 which superseded G.O.Ms.No.104, dated 10.10.2007. The version of the petitioner is that the order passed by the Andhra Pradesh Administrative Tribunal, Hyderabad which is a judicial body to decide the l i s between the public servant and the Government except for a limited judicial review has to be obeyed. According to the petitioner, when the said order of the Andhra Pradesh Administrative Tribunal, Hyderabad was brought to the notice of the Special Judge, ACB Cases, Visakhapatnam, the learned Judge said that it is not binding on him and he wanted to proceed with the case. Therefore, the petitioner contends that in view of the order passed by the Income Tax Appellate Tribunal and the Andhra Pradesh Administrative Tribunal, proceeding with the proceedings in C.C.No.21/2006 on the file of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam is wholly unjustified and without jurisdiction. On the aforesaid grounds, the petitioner sought to quash the entire proceedings in aforesaid criminal case.
In the counter affidavit, the respondent/ACB contended that the Government after due consideration of final report submitted by the investigating officer, issued the order of sanction to prosecute the petitioner vide G.O.Ms.No.13 Environment & Forest Department, dated 27.01.2006, thereafter the charge sheet came to be filed on 02.03.2006 by the investigating officer; and the Special Judge took cognizance of the case.
Nextly it is contended by the respondent/ACB that the petitioner after taking cognizance of the offence against him by the Special Judge, approached the Government and made a representation to reconsider the sanction order without notice to the respondent/ACB, and the Government again issued another G.O.Ms.No.104, dated 10.10.2007, modifying the earlier G.O.Ms.No.13, dated 27.01.2006 and conveyed it to the respondent/ACB, upon which, the respondent/ACB addressed a letter dated 26.12.2007 to the Government Environment & Forest Department requesting to refer the matter to Law Department for considered opinion and subsequently, the Law Department considering the judgments of the Apex Court and various High Courts, opined that G.O.Ms.No.104, dated 10.10.2007 cannot be modified. It is the contention of the respondent/ACB that when the Special Judge is seized of the matter on any specific complaint, no parallel enquiry can be taken up. Thus, after considering the matter in detail, the Government have issued G.O.Ms.No.156, dated 28.11.2008 wherein G.O.Ms.No.104, dated 10.10.2007 was rescinded.
In the additional counter respondent/ACB contended as follows: The properties standing in the name of the father of the petitioner cannot be declared that they were purchased out of legal source of income. The petitioner was found in possession of disproportionate assets to the known source of income to the tune of Rs.1,65,20,480/-. Merely because the property stood in the name of income tax assessee, it cannot be a ground to hold that it actually belongs to him. If this proposition is accepted, it will go disastrous consequences, it will give an opportunity to corrupt public servants to amass property in the name of known persons, pay income tax on their behalf and then be out from the mischief of law.
It is further contended by the respondent/ACB that G.O.Ms.No.104, dated 10.10.2007 was issued subsequent to taking cognizance of offence by relying upon sanction order in G.O.Ms.No.13, dated 27.01.2006 and therefore, G.O.Ms.No.104 is of no consequence and the validity of the charges has to be decided by the Court of law. According to respondent, the Government has rightly rescinded the orders issued in G.O.Ms.No.104, dated 10.10.2007 by virtue of G.O.Ms.No.156, dated 28.11.2008. Contending as above, the respondent/ACB sought to dismiss the criminal petition.
Sri B.Adinarayana Rao, learned senior counsel, appearing for the petitioner would contend that after thoroughly considering the material available on record, the Government have passed G.O.Ms.No.104, dated 10.10.2007 directing to delete the assets of the father and wife of the petitioner from his income and without there being any fresh or additional material, the Government ought not to have rescinded the said G.O.Ms.No.104. The learned senior Counsel further contended that unless any fresh material is brought on record, the earlier order cannot be reviewed. In support of his contention, the learned senior counsel appearing for the petitioner relied on a judgment of the Apex Court in State of H.P. v. Nishant Sareen[1] wherein the Supreme Court held as under:
“It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems a sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 Cr.P.C has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorized to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise.
A change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course.”
On the other hand, the learned standing Counsel, appearing for the respondent/ACB would submit that after an order was passed by the Government granting permission to prosecute him, the petitioner, without notice of the respondent/ACB, approached the Government and obtained G.O.Ms.No.104, dated 10.10.2007 and the said G.O. ought not to have been passed by the Government contrary to the initial sanction order passed vide G.O.Ms.No.13, dated 27.01.2006 and therefore, by passing G.O.Ms.No.156, dated 28.11.2008, the Government rightly rescinded G.O.Ms.No.104, dated 10.10.2007. In support of his contention, the learned standing counsel for ACB, relied on a judgment of the Apex Court in State of M.P. v. Awadh Kishore Gupta[2] wherein the Supreme Court held as follows:
“Exercise of power under Section 482 of Cr.P.C in a case under Prevention of Corruption Act, 1988 is an exception and not the rule. It was not proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether the conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It was erroneous to assess the material before it and conclude that the complaint cannot be proceeded with.
Inherent jurisdiction though wide has to be exercised sparingly and cautiously (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. Thus, without going into the question of conviction or acquittal, where on consideration of allegations in the light of the statement made on oath or the complainant it appears that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, and proceedings cannot be quashed.”
Having gone through the rival submissions and the ratio laid down in the aforesaid judgments relied upon by either side, I am of the view that there is prima facie material against the petitioner/accused in the charge sheet filed by the ACB. This Court while exercising jurisdiction under Section 482 of Cr.P.C is not supposed to evaluate the evidence though it can scrutinize the allegations. Initially, the competent authority after applying its mind, passed an order vide G.O.Ms.No.13, dated 27.01.2006, permitting to prosecute the petitioner/accused. Subsequently, the other two G.Os viz., G.O.Ms.No.104, dated 10.10.2007 and G.O.Ms.No.156, dated 28.11.2008 came to be passed, one is basing on the representation made by the petitioner and the other one is basing on the representation made by the ACB. Since the matter is pending trial before the learned Special Judge for ACB Cases, Visakhapatnam, I am of the view that it is not proper to express any opinion as to the merits of the rival contentions.
This Court would be justified to quash the criminal proceedings only if there is any abuse of process of law and miscarriage of justice. In the present case, as already stated, there is prima facie material against the petitioner/accused. The validity and effect of all the aforementioned three G.Os has to be examined by the learned trial Court in the course of trial.
For the foregoing reasons, I am of the view that this is a case wherein the petitioner/accused has to be tried for the offence alleged and the charge sheet cannot be quashed in exercise of powers under Section 482 of Cr.P.C.
Therefore, without expressing any opinion as to the merits of the case, I dismiss this Criminal Petition considering that this is not a fit case to quash the proceedings in C.C.No.21/2006 on the file of the III Additional District & Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam at the threshold.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 03.06.2014 Dsr
[1] (2010) 14 SCC 527
[2] (2004) 1 SCC 691