Criminal Revision Case No.1582 of 2016 09-02-2017 B. Gunasekhar Babu..... PETITIONER/A.8 The State of A.P., rep. by Standing Counsel

THE HONBLE DR. JUSTICE B. SIVA SANKARA RAO        

Criminal Revision Case No.1582 of 2016

09-02-2017

B. Gunasekhar Babu..... PETITIONER/A.8  

The State of A.P., rep. by Standing Counsel for SPE & ACB Cases, Andhra
Pradesh, High Court of A.P., Hyderabad...... RESPONDENT  

Counsel for Petitioner: Sri Virupaksha Dattatreya
                         Gouda, Advocate

Counsel for Respondent :  Sri Udaya Bhaskara Rao,
                           SC for ACB & Spl. P.P.              
                       
<GIST:

>HEAD NOTE:  

?Cases referred

1. (1979) 3 SCC 4
2. (1977) 4 SCC 39
3. (1980) 1 SCC 250 (2-JB)
4. AIR 1971 SC 520
5. (2005) 1 SCC 568
6. (2012) 9 SCC 460


HONBLE Dr. JUSTICE B. SIVA SANKARA RAO      


CRIMINAL REVISION CASE No.1582 of 2016    


ORDER :

        The revision petitioner is the Inspector of Police, who is none
other than Accused No.8 in C.C.No.98 of 2013, an outcome of 
Crime No.15/RCO-ACB-KNR/2011, registered on 14.12.2011 for   
the offences punishable under Sections 13(1)(a) and (d) of the
Prevention of Corruption Act, 1988 (for brevity the Act) and
Sections 34 and 120-B of IPC, which is based on occurrence report
of the Deputy Superintendent of Police, Anti-Corruption Bureau
(ACB), Kurnool, from a surprise check conducted on 13.12.2011 by 
intercepting a TATA Victa vehicle belonging to the officials of Excise
Department and Rs.3,62,640/- seized from them under the cover of
panchanama and the source of money could not be explained by  
the officials as that was suspected to be the amount collected
towards bribe for favouring the owners of Wine Shops, in
registering the above crime and from the investigation, including on
the searches conducted and seizures effected, the ACB officials filed
the final report that was taken cognizance for the offences referred
supra by the learned Special Judge for Trial of SPE and ACB Cases,
Kurnool.

2.      It is thereafter on supply of copies to the accused and in the
course of hearing on charges, the petitioner/A.8 filed
Crl.M.P.No.254 of 2015 in C.C.No.98 of 2013 under Section 239
Cr.P.C., seeking for his discharge, saying that the investigation and
the cognizance order of the Special Judge are unsustainable and
baseless for there are no grounds to frame any charge against him,
in particular.

3.      It is after contest, by the impugned order dated 03.11.2015 in
Crl.M.P.No.254 of 2015 in C.C.No.98 of 2013, the learned Special
Judge dismissed the discharge petition and the same is the subject
matter in the present Criminal Revision Case.

4.      Before coming to the contentions in the grounds of revision
vis--vis oral submissions of the learned counsel for revision
petitioner/A.8 impugning the discharge petition dismissal order, it
is needful to mention the facts that are all covered by revision
petition vis--vis the discharge petition before the Court below.

5.      As per the prosecution version from the investigation of the
crime supra, A.1  K. Dayakar Reddy is the leader of a Liquor
Syndicate of Yemmiganur, Kurnool District, and he conspired with
A.2 to A.7 (viz., A.2  C.V. Raghava Reddy; A.3  G. Ravi Kumar;
A.4  K. Sankar Reddy; A.5  K. Virupaksha Reddy; A.6  Y.
Sreenivasulu Goud; and A.7 -  C. Sidda Ramappa) and operated the
Syndicate that was running 8 Wine Shops, out of which 7 are
situated in Yemmiganur Town and Mandal and one is at
Divandinne Village Yemmiganur Mandal. On 13.12.2011, the
aforesaid vehicle belonging to the Excise officials, on a surprise
check conducted in Kurnool Town, was intercepted and a sum of
Rs.3,62,640/- was seized by the ACB officials, who registered a
case and the investigation disclosed that Wine Shop Syndicate
leaders, who developed illegal nexus with the officials of Excise and
Police and others to win over the Law Enforcing Agency and to
overlook various omissions and commissions done by the Liquor
Syndicate and in the course of search on 17.12.2011 by the
Dy.S.P, ACB, Kurnool, at the office of Liquor Syndicate, bearing
Door No.1-1589, Gandhinagar, Yemmiganur, two Registers i.e.,
Books of Accounts of Liquor Syndicate for the period from
01.12.2011 to 14.12.2011 and 29.10.2011 to 16.12.2011 when
seized under Mediators Report, and on verification it disclosed that
A.1 to A.7 made payments to the Government officials, including
the Excise officials and that the Excise officials received a sum of
Rs.1,93,000/- towards mamool and the Police officials received
Rs.95,000/- towards mamool. The revision petitioner/A.8, who
worked as Inspector of Police, Yemmiganur, at that time, was paid
Rs.20,000/- by the Liquor Syndicate as monthly mamool, as
disclosed from the said two seized Registers, particularly entry in
page-12 of Register No.1, and the same is also supported by oral
evidence of one Sri B. Murali Krishna, PC-2635 (LW.19) and also by
the disclosure statements of A.1 to A.7 leading to discovery of facts.
The final report from the investigation filed against the revision
petitioner/A.8 is for the offences punishable under Sections 7,
13(2) r/w. 13(1)(a) and (d) of the Act and Sections 34 and 120-B of
IPC.

6.      The discharge petition of the revision petitioner/A.8 before the
learned Special Judge is with the contentions that the Books of
Accounts even shown contained C.I. mamool of Rs.25,000/- and
Police officials mamool of Rs.95,000/- among others, the ACB
officials failed to collect any material to link to it to show that the
said C.I. found in the Books of Accounts in any manner to array as
A.8 and the Books of Accounts are not legally admissible. The
statement of Sri Murali Krishna  LW.19 under Section 161
Cr.P.C., through investigation showing that the Liquor Syndicate of
A.1 to A.7 was paying monthly mamools to the Police and Excise
officials for not booking cases against them or that on 12.01.2011,
said Murali Krishna  LW.19 collected a sum of Rs.20,000/- from
the Liquor Syndicate of Yemmiganur, as per the instructions of the
revision petitioner/A.8 as bribe/mamool and handed over the same
to the petitioner/A.8 and said statement of LW.19 is also
inadmissible in evidence, as given by him in abetting the
commission of crime and he is also an offender and there is no
permission of the prosecution by tendering any pardon to an
accomplice, like LW.19, and the statement of LW.12  G.
Amareswarappa is only a hearsay and hence inadmissible in
evidence and that cannot be used for framing charges.

7.      The contentions in opposing the petition by the Public
Prosecutor, representing the ACB officials before the lower Court
are, that the investigation discloses of Rs.1,93,000/- towards
mamools received by the Excise officials, besides police officials
received Rs.95,000/- and the monthly mamool of Rs.20,000/- paid
to the revision petitioner/A.8 by the Liquor Syndicate of A.1 to A.7
as disclosed from the seized records of Liquor Syndicate, apart from
Rs.1,50,000/- paid to A.9 and his staff by the Liquor Syndicate.
The prosecution from the investigation cited 68 witnesses and filed
90 documents in support of their contention, all of which
establishes the complicity of revision petitioner/A.8 to the crime
and the statement of LW.19  Murali Krishna is clear, besides that
of LW.12  G. Amareswarappa, of the said Murali Krishna collected
Rs.20,000/- from the Liquor Syndicate on 12.12.2011 as per the
instructions of the revision petitioner/A.8 and handed over the
same to him on the same day. Later LW.19  Murali Krishna came
to know that the said amount received by petitioner/A.8 is in
allowing contraventions of Excise Laws and the Rules committed by
the Liquor Syndicate and the revision petitioner/A.8, being a Public
Servant, conspired with the Liquor Syndicate of A.1 to A.7, having
received the mamool of Rs.20,000/- is nothing but illegal
gratification to do official favour, thereby punishable for the
offences shown in the charge sheet and the discharge petition
deserves dismissal.

8.      It is from this, the learned Special Judge dismissed the
discharge petition by order dated 03.11.2015 with observations,
after discussing the legal position elaborately and from the rival
contentions with reference to the provisions and propositions, that
the contents of Books of Accounts show the C.I. mamool of
Rs.25,000/- and other Police official mamool of Rs.95,000/-,
statement of LW.19  Murali Krishna shows that on 12.12.2011 he
collected a sum of Rs.20,000/- from the Liquor Syndicate as per
the instructions of the revision petitioner/A.8 and handed over the
same to him and by then he does not know, but later came to know
of the same that the revision petitioner/A.8 collected the said
amount from the Liquor Syndicate as bribe and there is a prima-
facie case made out against the revision petitioner/A.8 therefrom,
besides the disclosure statements of A.1 to A.7, in support of it, of
the facts discovered and the charge sheet also refers the cell
phones and the incoming and outgoing call records obtained from
the Network Service Providers between A.1 to A.7 and A.8 in almost
regular touch with each other and thus, there is a prima-facie
accusation to sustain the cognizance taken to frame charges, for no
grounds to discharge the petitioner/A.8.

9.      In the revision, by reiterating the contentions referred supra,
learned counsel for the revision petitioner/A.8 referred to the
expression of 2-Judge Bench of the Apex Court in UNION OF INDIA
v. PRAFULLA KUMAR SAMAL , wherein on the scope of Section 227    
Cr.P.C. and the powers of the Special Judge, it was observed that
he shall not act as a trial Judge, but should weigh evidence
(material) and form an opinion only on the limited question of
whether prima-facie case is made out. Except in cases of grave
suspicion, which the accused is unable to explain, he is empowered
to be discharged in passing order of discharge by the Special
Judge. The word not a sufficient ground for proceeding against the
accused used in Section 227 of Cr.P.C., clearly shows that the trial
Judge is not a mere Post Office to frame charge at the behest of the
prosecution, but has to exercise his Judicial mind to the facts of
the case in order to determine, whether a case for trial has been
made out by the prosecution. For that conclusion, the Apex Court
in PRAFULLA KUMAR SAMAL (supra) also referred the earlier  
decision of it in STATE OF BIHAR v. RAMESH SINGH , which  
speaks of a strong suspicion against the accused enables the Court
to think of a ground for presuming that the accused committed an
offence, then it is not open for the Court to say that there is no
material to proceed with by framing charge, and what is required is,
if the material, if brought in evidence in chief, through respective
witnesses, without cross-examination and without rebuttal
evidence by the accused, if a ground for proceeding for trial, that is
more than sufficient to frame the charge.

10.     The other decision relied is another 2-Judge Bench of the
Apex Court in STATE OF RAJASTAN v. GURUCHARAN DAS        
CHADHA , which is a case under Prevention of Corruption Act,
referring to the scope of the Special Judge to frame charge where in
coming to the conclusion upholding the remand order of the High
Court, for reconsideration of framing of charge by the Apex Court, it
referred the Apex Courts expression in P. SIRAJUDDIN ETC. v.
STATE OF MADRAS , saying where the evidence relied on by the  
prosecution consisted of statements signed by the makers that
were shown obtained under inducement, threat or promise and
that were obtained even before the FIR was lodged, those were
observed as inadmissible and thereby cannot form the subject
matter of charge.

11.     Learned counsel for the revision petitioner/A.8 placed
reliance on a 2-Judge Bench decision of the Apex Court in P.
SIRAJUDDINs case (supra), wherein it was observed that in a case
under Prevention of Corruption Act, of preliminary enquiry before
lodging FIR, a necessity, if any, in affirming the Madras High
Court judgment and it was observed further, while referring to
chapter-XIV from Sections 160 to 173 of Cr.P.C., that those
provisions are aimed at securing fair investigation into the facts
and circumstances of a criminal case and clearly with an idea that
no one should be put to harassment of a criminal trial, unless there
are good and substantial reasons for holding it, thereby empowers
the Police Officer to release the accused from the custody, if no
sufficient evidence during investigation and even to file a final
report after completion of investigation. It was observed on facts
further that there can be no excuse for the Directorate of Vigilance
and Anti-Corruption for proceeding in the manner adopted in
preliminary enquiry before lodging the FIR. The omission to do so
ought not to have been allowed. The steps taken in the preliminary
enquiry were grossly irregular and unfair. In the said case, it was
also observed at para-26, in particular, that in our view, granting
of immunity to two persons, who are sure to be examined as
witnesses for prosecution, was highly irregular and unfortunate. It
was rightly pointed out by the High Court that neither Cr.P.C. nor
Prevention of Corruption Act recognises the immunity from
prosecution given under these assurances and that grant of pardon
was not in the discretion of the Police authorities.

12.     Coming to the other decision placed reliance is of the Madras
High Court in SIRAJUDDIN in AIR 1968 MADRAS 117, which is  
none other than the expression covered in appeal before the Apex
Court in SIRAJUDDINs case (supra) that no way requires further
repetition, but for to consider whether in the case on hand, is there
any person supposed to have been shown as accused or co-accused  
was accorded immunity by police by simply examined them as  
witnesses to let off them from their complicity, if any.

13.     In fact, the 3-Judge Bench expression of the Apex Court in
STATE OF ORISSA v. DEBENDRANATH PADHI , observed on the        
scope of pre-charge enquiry and consideration of material by
referring Section 227 of Cr.P.C., that the record of the case used
therein to mean the record of the case and the documents
submitted therewith, which relate to the case and the documents
referred in Section 209 Cr.P.C. by the prosecution and hearing the
submissions of the accused used in the Section to mean from the
record of the case filed by the prosecution with the documents
submitted by the prosecution. What is required therefrom is that
there should be a prima-facie accusation to frame the charge. It is
observed that on the face of the material, if the accusation
sustains, charge can be framed.

14.     Even in AMITH KAPOOR v. RAMESH CHANDER , a 2-Judge        
Bench of the Apex Court, referring to the decision in RAMESH
SINGH of 1977 (supra) observed that, the Court after considering
the record of the case i.e., with the documents submitted by the
prosecution, the final report and after hearing the parties, shall
frame charge, if there are grounds for presuming that the accused
committed the offence. Such presumption is not a presumption of
law and, as such, what is required is satisfaction of the Court in
relation to the existence of constituents of offence and the facts
leading to that offence are sine-qua-non for exercising of such
discretion. The Court at that stage, in framing a charge under
Section 228 Cr.P.C., is not concerned with the proof, but merely a
strong suspicion that the accused has committed offence. The final
test of guilt is not to be applied at the stage of framing of charge,
the presumption that the accused has committed the offence, if
there is a prima-facie material as contemplated by Section 228
Cr.P.C. to be drawn for framing charge. Thus, the legal position is
very clear that a strong suspicion of commission of an offence by
the accused from the prima-facie accusation and not ultimate result
in the case from the full dressed trial is required in framing of
charge.

15.     Once such is the position of law, coming to the facts, leave
about the statement of LW.12  G. Amareswarappa, the statement
of LW.19  Murali Krishna about his collection of the amount of
Rs.20,000/- at the instance of the petitioner/A.8 from A.1 to A.7
and handing over the same to the petitioner/A.8, what he stated
was, the purpose he does not know by then and it is later he came
to know of the same is an illegal gratification/bribe, in the form of
monthly mamool. If he deposed the same, it is a part of
appreciation of evidence on admissibility, for nothing shown prima-
facie inadmissible. There is nothing even from said version to say
the police granted him immunity to save any of his complicity to
apply the ratio in SIRAJUDDINs case (supra).

        Further, there is no basis to say that LW.19 is an accomplice
or  co-accused and could have been charge sheeted, as what he
stated is, he simply collected the amount at the instance of the
petitioner/A.8 from A.1 to A.7 and handed over the same to the
petitioner/A.8, without knowing the purpose and the
consequences, but only later he came to know of the same. If that
is the issue, it is difficult to say that he is an accomplice or
co-perpetrator of the crime.

16.     Further, once the entries in the Books of Accounts are
relevant and admissible, leave about the evidentiary value of it, as
held by the learned Special Judge, all these constitute prima-facie
accusation to frame charge. The contention that all those are with
no basis and are ultimately insufficient to sustain the accusation, if
put to trial, are premature to decide.

17.     In view of the above, there are no grounds to interfere with
the impugned discharge dismissal order dated 03.11.2015 passed
by the learned Special Judge.

18.     Accordingly, the Criminal Revision Case is dismissed. As a
sequel, miscellaneous petitions pending, if any, in this revision
shall stand closed.
____________________________________    
Dr. JUSTICE B. SIVA SANKARA RAO    
09.02.2017

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