Section 409 IPC and Section 13(2) read with Section 13(1)(d) of the P.C.Act. - Sec.19 of the Act - Sanction for prosecution - charge sheet filed after retirement - quash petition - whether writ is maintainable when discharge petition is available - their lordships of Apex court held that the petitioner succeeded in showing that the prosecution failed to obtain approval and permission from the concerned Government to prosecute him. Consequently, the case against the petitioner is not maintainable and is accordingly quashed. Consequently, the criminal petition is allowed. =Criminal Petition No.5027 of 2014 09-7-2014 V.Suryanarayana Petitioner/Accused The State, Rep. by the Inspector of Police, CBI, ACB, Hyderabad, Through the Spl. PP., High Court of A.P., Hyderabad Respondent = 2014- July- Part - http://judis.nic.in/judis_andhra/filename=11611

Section 409 IPC and Section 13(2) read with Section 13(1)(d) of the P.C.Act. - Sec.19 of the Act - Sanction for prosecution - charge sheet filed after retirement - quash petition - whether writ is maintainable when discharge petition is available - their lordships of Apex court held that the petitioner succeeded in showing that the prosecution failed to obtain approval and
permission from the concerned Government to prosecute   him.  Consequently, the case against the petitioner is not maintainable and is accordingly quashed.  Consequently, the criminal petition is allowed.  =

whether C.C.No.19
of 2013 deserves to be quashed or otherwise, I may
answer the question
whether the petitioner should be
directed to approach the Trial Court and seek for the
relief of discharge.
In PADAL VENKATA RAMA REDDY    
v. KOVVURI SATYANARAYANA REDDY , the Supreme        
Court noticed:
13. It is well settled that the inherent powers under
Section 482 can be exercised only when no other
remedy is available to the litigant and not in
a situation where a specific remedy is provided by the
statute.
It cannot be used if it is inconsistent with
specific provisions provided under the Code =

The gravamen of the charge,
however, is that the petitioner misappropriated a sum of
Rs.1,44,381/- through cheques for Rs.56,283/-,
Rs.35,069/- and Rs.53,029/-.  The petitioner thus
allegedly committed offences under Section 409 IPC as
well as under Section 13(2) read with Section 13(1)(d) of
the P.C.Act.
The charge-sheet was however laid on
27-6-2013, by Sri Sudhakar after the retirement of the
petitioner. =
the petitioner succeeded in showing
that the prosecution failed to obtain approval and
permission from the concerned Government to prosecute
him.  Consequently, the case against the petitioner is not
maintainable and is accordingly quashed.  Consequently,
the criminal petition is allowed.
2014- July- Part - http://judis.nic.in/judis_andhra/filename=11611
HONBLE Dr. JUSTICE K.G.SHANKAR      

Criminal Petition No.5027 of 2014

09-7-2014

V.Suryanarayana Petitioner/Accused  

The State, Rep. by the Inspector of Police, CBI, ACB, Hyderabad, Through the
Spl. PP., High Court of A.P., Hyderabad Respondent

Counsel for the Petitioner: Sri Ch.Gangaiah Naidu,
                            Senior Counsel
Counsel for Respondent:Sri P.Kesava Rao,
                        Spl. Standing Counsel

<Gist:

>Head Note:

? Cases referred:
1.(2011) 12 SCC 437
2.2014 (1) ALD (Crl.) 304 (SC)
3.2000 (4) ALD 663
  4. AIR 1998 SC 2985
  5. 2000 (1) SCR 417
  6. AIR 1999 SC 2405


HONBLE Dr. JUSTICE K.G.SHANKAR      

Criminal Petition No.5027 of 2014

Date: 09-7-2014


Order:

        The sole petitioner is the sole accused in C.C.No.19
of 2013.  He seeks for quashment of C.C.No.19 of 2013
on the file of the Principal Special Judge for CBI Cases,
Hyderabad against him for the offences under Section
409 IPC and under Section 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act, 1988
(the P.C.Act, for short).
     2. Before going into the question whether C.C.No.19
of 2013 deserves to be quashed or otherwise, I may
answer the question whether the petitioner should be
directed to approach the Trial Court and seek for the
relief of discharge.  In PADAL VENKATA RAMA REDDY     
v. KOVVURI SATYANARAYANA REDDY , the Supreme          
Court noticed:
13. It is well settled that the inherent powers under
Section 482 can be exercised only when no other 
remedy is available to the litigant and not in
a situation where a specific remedy is provided by the
statute.  It cannot be used if it is inconsistent with
specific provisions provided under the Code [vide
Kavita v. State (2000 Cri LJ 315 (Del)) and B.S. Joshi v.
State of Haryana ((2003) 4 SCC 675)].  If an effective
alternative remedy is available, the High Court will not
exercise its powers under this section, specially when
the applicant may not have availed of that remedy.

     Therefore, when the petitioner has the alternative
remedy of approaching the Trial Court for discharge, is it
necessary to entertain this application ?

     3. In Umesh Kumar v. State of Andhra Pradesh ,
the Supreme Court referred to PADAL VENKATA RAMA      
REDDY (1 supra) and observed that filing of a petition
under Section 482 Cr.P.C before framing of the charges
or before discharge application was filed or even during
the pendency of the case before the Court concerned is
not prohibited and that the High Court cannot reject
a petition for quashment merely on the ground that the
accused could argue legal and factual issues at the time
of framing of the charges.  The Supreme Court, however,
clarified that when there is some substance in the
allegations and material exists to substantiate complicity
of the petitioner, the full conspectus of the case should
be examined before the Trial Court.  Therefore, whether
there is any substance in the allegations deserves to be
examined in this case.  That apart, legal pleas have been
raised by Sri P.Gangaiah Naidu, learned Senior Counsel
for the petitioner regarding the very maintainability of the
complaint.  Consequently, this petition is disposed of on
merits.
     4. The petitioner was appointed as a Civil
Supervisor in the Fisheries Corporation in 1978.  He was
promoted as Deputy Executive Engineer (DEE, for short)
in 1989; and was promoted as Executive Engineer
(EE, for short) in the year 1992.  Between 1995 and
2012, the petitioner was deputed to work in a Public
Sector Undertaking, Kakinada under the Fisheries
Department of the Government of Andhra Pradesh.

     5. ESI Corporation, New Delhi, entrusted its civil
works to Andhra Pradesh Fisheries Department.
An agreement was drawn between ESI Corporation and  
the Andhra Pradesh Fisheries Department.  It is the case
of the Central Bureau of Investigation (CBI, for short)
that the petitioner, as the EE of the A.P. Fisheries
Department opened accounts in the State Bank of India
and Corporation Bank.  The petitioner allegedly entrusted
the construction work to a local Civil Contractor.  Certain
amounts were allegedly released by ESI Corporation.
The petitioner deposited an amount of Rs.One Crore with
the Corporation Bank, Jubilee Hills Branch, Hyderabad.
Similarly, cheques for Rs.1.26 Crores issued in the name
of the EE, Fisheries Department were encashed by the
petitioner albeit the works entrusted at Visakhapatnam
and Vijayawada were not carried out.  Thus far, there is
no dispute.
     6. It is alleged by the prosecution that an amount of
Rs.56,283/- and another amount of Rs.35,069/- were
deposited by the petitioner in the Bank of Maharashtra,
Khairatabad Branch, Hyderabad in his personal accounts
when he received the cheques for the said amounts
without any authority or permission to open or operate
bank accounts in his official capacity.  The accounts were
maintained in the name of the Commissioner, Fisheries
Department at Government Treasury and that the
petitioner allegedly abused the official position as
a public servant and fraudulently obtained orders for
award of civil works.  The gravamen of the charge,
however, is that the petitioner misappropriated a sum of
Rs.1,44,381/- through cheques for Rs.56,283/-,
Rs.35,069/- and Rs.53,029/-.  The petitioner thus
allegedly committed offences under Section 409 IPC as
well as under Section 13(2) read with Section 13(1)(d) of
the P.C.Act.
     7. The petitioner retired from service on 30-4-2012.
An Inspector of Police of the CBI, by name
Sri G.Sudhakar registered a case in Crime
RC 04(A)/2011-CBI-HYD 2011, dated 28-01-2011 under  
Section 409 IPC and under Section 13(2) read with
Sections 13(1)(c) and (d) of the P.C.Act.  The case was
registered on source information allegedly received by
Sri Sudhakar.  The charge-sheet was however laid on
27-6-2013, by Sri Sudhakar after the retirement of the
petitioner.  The learned Senior Counsel for the petitioner
contended that (a) there was no sanction under Section
19 of the P.C.Act to prosecute the petitioner,
(b) the investigation was not conducted by an officer of
the rank of Deputy Superintendent of Police or above,
(c) Sri Sudhakar was the complainant, Investigating
Officer and the person who laid the charge-sheet and
(d) the allegations do not constitute either the offence
under Section 409 IPC or the offences under Section
13(2) read with Sections 13(1)(c) and (d) of the P.C.Act.
He consequently submitted that the case is liable to be
quashed against the petitioner.

     8. Sri P.Kesava Rao, learned Special Standing
Counsel for CBI, on the other hand, contended that
under Section 17(a) of the P.C.Act, Sri Sudhakar was
competent to investigate the case, consent of the State
Government was obtained through G.O.Ms.No.109,  
Home (SC.A) Department, dated 07-5-2010, that the
sanction under Section 19 of the P.C.Act was not
necessary as the petitioner retired from service, that the
complainant was not Investigating Officer and the
charge-sheet was not filed by the Investigating Officer
and that the case consequently is maintainable.
He further asserted that prima facie case is made out
against the petitioner, so much so, it is a fit case to
proceed with the trial of the case.

     9. In Maddu Lakshmana Rao v. State of Andhra
Pradesh , placing reliance upon Bhagwan Singh v. State
of Rajasthan [1975 SCC (Crl.) 737], it was noted that the
complainant being the Investigating Officer has far
reaching significance effecting the credibility of the
prosecution case.  The Supreme Court pointed out that
the question of complainant being the Investigating
Officer was raised at the earliest possible stage when the
investigation was still in progress and that there was no
point in allowing the investigation to continue with such
an infirmity.  The Supreme Court consequently quashed
investigation subsequent to the recording of the FIR.
The learned Senior Counsel contended that where
Sri Sudhakar is the complainant as well as the
Investigating Officer, the investigation is liable to be
quashed.  In Maddu Lakshmana Rao (3 supra), the
Supreme Court quashed the case from the stage after
filing of the FIR but not the entire case.

     10. The learned Special Standing Counsel for CBI,
on the other hand, submitted that the Investigating
Officer and the complainant are not one and the same.
He submitted that the case was registered on source
information which is evident from column No.6 of the
FIR.  He submitted that the Investigating Officer was not
the complainant and that the claim of the petitioner that
the complainant and the Investigating Officer are one and
the same and that the investigation consequently is liable
to be quashed cannot be accepted.

     11. As rightly submitted by the learned Special
Standing Counsel for CBI, the source information led to
the filing of the FIR.  Indeed, the FIR is a suo motu action
on the part of Sri Sudhakar who investigated the case.
However, where Sri Sudhakar acted on source
information, the contention of the learned Senior Counsel
for the petitioner that the complainant and the
Investigating Officer are one and the same and that the
very FIR therefore is liable to be quashed cannot be
accepted.  This defence consequently is not accepted.
     12. The learned Senior Counsel for the petitioner
contended that the allegations do not constitute the
offence under Section 409 IPC as well as under
Sections 3(2) read with Section 3(1)(d) of the P.C.Act.
Section 409 IPC imposes penalty for criminal breach of
trust by a public servant or by a banker, merchant or
agent.  There is no dispute that the petitioner is a public
servant.  However, did he commit the offence of criminal
breach of trust ?
     13. The case of the prosecution is that monies were
entrusted to the petitioner by the ESI Corporation.
If there was any criminal breach of trust on the part of
the petitioner, ESI Corporation would be the sufferer
which would have raised a claim that the petitioner
committed criminal breach of trust.  The learned Senior
Counsel for the petitioner pointed out that
ESI Corporation did not raise any contention that the
petitioner committed criminal breach of trust.  It is the
source information which disclosed that the petitioner
committed criminal breach of trust.  It is not as though
the case is at the investigation stage.  Even after the
completion of the investigation and even after laying of
the charge-sheet, there was no complaint whatsoever
from the ESI Corporation that the petitioner committed
criminal breach of trust.
     14. Indeed, the petitioner has taken a two-fold
stand regarding Rs.1,44,381/-.  His first stand is that he
has dispersed as much as Rs.7.26 Crores.
It is contended by the learned Senior Counsel for the
petitioner that if there was any intention on the part of
the petitioner to commit criminal breach of trust, the
amount would have been huge money and not a mere  
Rs.1,44,381/-.  Such a contention however cannot be
sustained as the criminal breach of trust of Re.1/- or
Rs.One Crore is equally punishable.  It can be argued
that the petitioner had opportunity to commit breach of
trust to the extent of this much of money only.  At any
rate, whether the petitioner had intention and the
requisite mens rea to commit criminal breach of trust is
a question of fact which cannot be decided in this
petition.
     15. The 2nd contention of the learned Senior
Counsel for the petitioner regarding the amounts is that
the petitioner received those cheques towards his
TA (Travelling Allowance) claim.  Admittedly, the cheques
were issued in the name of the petitioner.  If they were
not issued in the name of the petitioner, the question of
Bank of Maharashtra accepting the cheque would not
have arisen.  ESI Corporation would not have issued
cheques in the name of the petitioner if the amounts sent
were in connection with the construction and payable to
the Andhra Pradesh Fisheries Department and not to the
petitioner.  However, this defence again is a matter of
evidence which cannot be gone into in this petition.
I therefore do not hold that on merits, no case is made
out against the petitioner.
     16. The learned Senior Counsel for the petitioner
also raised objections under Sections 19 and 17 of the
P.C.Act.  Under Section 17 of the P.C.Act, no Police
Officer below the rank of an Inspector of Police in the
case of Delhi Special Police Establishment shall
investigate any offence punishable under this Act.
The investigation was conducted by Sri Sudhakar who is
an Inspector of Police.  However, the investigation was
conducted by the Delhi Special Police.  As rightly
submitted by the learned Special Standing Counsel for
CBI, the investigation of the case by an Inspector of the
Delhi Special Police Establishment is permissible in view
of Section 17(a) of the P.C.Act.

     17. The learned Senior Counsel for the petitioner
placed reliance upon Section 17(c) of the P.C.Act which
contemplates that a Deputy Superintendent of Police or
a Police Officer of equivalent rank alone is entitled to
investigate any offence punishable under the P.C.Act in
residuary circumstances not covered by Sections 17(a)
and 17(b).  Where the case is covered by Section 17(a),
the question of Section 17(c) being applicable does not
arise.  Indeed, Section 17 of the P.C.Act is mandatory.
However, where Sri G.Sudhakar is an Inspector of Police
of the Delhi Special Police Establishment, Section 17(a) of
the P.C.Act empowers him to conduct the investigation.
I therefore reject the contention of the learned Senior
Counsel for the petitioner that the investigation is bad
being in violation of Section 17 of the P.C.Act.

     18. The learned Senior Counsel for the petitioner
also submitted that as the petitioner is a public servant,
sanction under Section 17(1)(a) of the P.C.Act is
necessary.  The petitioner is the employee of Fisheries
Corporation.  He was on deputation with the Fisheries
Department of the Government of Andhra Pradesh.
In either event, the petitioner is a Government Servant
under Section 19 of the P.C.Act.  Previous sanction of the
Government or the competent authority is necessary to
prosecute any public servant for various offences
including the offence under Section 13 of the P.C.Act.
Where the petitioner is a Government Servant,
prosecution of the petitioner without prior sanction is
impermissible.
     19. The learned Special Standing Counsel for CBI
contended that the petitioner was dismissed from service
and was not in employment by the time the charge-sheet
was laid.  On the other hand, the learned Senior Counsel
for the petitioner contended that the petitioner retired
from service on 30-4-2012 and that he was not dismissed
from service.  The charge-sheet was laid on 27-6-2013.
By then, the petitioner was no more in service.
It is contended by the learned Special Standing Counsel
for CBI that as the petitioner was no more in service,
sanction of the Government or the competent authority
to prosecute the petitioner was not necessary.

     20. The learned Special Standing Counsel for CBI
placed reliance upon State through CBI v. Raj Kumar
Jain .  In that case, CBI intended to approach the Court
under Section 173(2) Cr.P.C seeking for the discharge of
the accused.  The offence involved was under Section 5(1)
of the Prevention of Corruption Act, 1947.  CBI wanted to
seek for discharge on the ground that prima facie case to
substantiate the charges has not been found against the
accused.  The Supreme Court held that prior sanction for
prosecution need not be obtained by CBI before it seeks
for discharge of the accused.  In the present case,
CBI insists upon proceeding against the petitioner.
This decision therefore is not an authority to show that
prior sanction to prosecute a public servant is not
necessary.
     21. The learned Senior Counsel for the petitioner
submitted that the prosecution is in respect of the alleged
misconduct on the part of the petitioner while the
petitioner was discharging duties as a public servant and
that the sanction is sine qua non before the Court can
take cognizance of the offence.  The learned Senior
Counsel for the petitioner placed reliance upon G.SAGAR
SURI v. STATE OF U.P.  as well as in Parkash Singh
Badal v. State of Punjab [Appeal (civil) 5636 of 2006] in
support of his contention.  In these cases, the Supreme
Court observed that whether a public servant retired
from service or is in service, to prosecute such a public
servant under the provisions of the P.C.Act, there shall
be sanction under Section 19 of the P.C.Act if the alleged
offence was committed by an employee during the course
of his employment.
     22. The learned Special Standing Counsel for CBI
placed reliance upon State of Kerala v. V.Padmanabhan 
Nair  and Raj Kumar Jain (4 supra), where it was
observed that when a public servant retired from service,
sanction under Section 19 of the P.C.Act is not
necessary.
     23. In V.Padmanabhan Nair (6 supra), case was
instituted against the Government Servant under Section
406 read with Section 120-B, IPC.  The Supreme Court
held that the sanction for prosecution was not necessary.
In the present case, the offence that is sought to be
prosecuted is under Section 13(2) read with Section
13(1)(d) of the P.C.Act.  On the face of Section 19 of the
P.C.Act which bars prosecution without sanction, this
decision regarding prosecution under Section 406 read
with Section 120-B, IPC has no relevance.

     24. Further, in view of the latter view of the
Supreme Court in Raj Kumar Jain (4 supra), I agree with
the contention of the learned Senior Counsel for the
petitioner that the sanction under Section 19 of the
P.C.Act is necessary before the petitioner is prosecuted.

     25. The learned Special Standing Counsel for CBI
placed reliance upon G.O.Ms.No.109 submitting that the
sanction was accorded by Government to prosecute the
petitioner.  The Notification was to the effect that the
Government of Andhra Pradesh accorded consent to the
members of the Delhi Special Police Establishment for
the investigation of offence confining to the case
PE.01/2010-H, being enquired into by the CBI against
the petitioner.  It is contended by the learned Special
Standing Counsel for CBI that the State Government
thus accorded sanction.
     26. The present case is in respect of FIR in Crime
RC.04(A)/2011-CBI-HYD 2011, dated 28-01-2011.   
The learned Special Standing Counsel for CBI, however,
contended that sanction was with reference to
Preliminary Enquiry 01/2010-H.  There is no correlation
between the sanction and the present case.  Where it is
evident that there was no sanction to prosecute the
petitioner under Section 19 of the P.C.Act and where the
sanction through G.O.Ms.No.109 is not correlated to the
present case, I agree with the learned Senior Counsel for
the petitioner that the prosecution has failed to show
that the sanction was accorded by the competent 
authority or by the State Government to prosecute the
petitioner for the offence under Section 13(2) read with
Section 13(1)(d) of the P.C.Act.
        27. Thus, although the petitioner failed in
establishing that the Investigating Officer had no power
to investigate the case under Section 17 of the P.C.Act,
although the petitioner failed to show that the offences
under Section 409 IPC and under Sections 13(2) read
with Section 13(1)(d) of the P.C.Act are not applicable to
the case of the petitioner and although the petitioner
failed to show that the Investigating Officer was the
complainant himself, the petitioner succeeded in showing
that the prosecution failed to obtain approval and
permission from the concerned Government to prosecute  
him.  Consequently, the case against the petitioner is not
maintainable and is accordingly quashed.  Consequently,
the criminal petition is allowed.  The miscellaneous
petitions, if any, pending in this petition shall stand
closed.
_____________________  
Dr. K.G.SHANKAR, J.  
09th July, 2014.

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515