Or. VI, rule 17 and Or.2, rule 2 of C.P.C- suit for possession and injunction - I.A. for amendment for declaration of title - after filing written statement - objection is barred by limitation and barred by Or.2, rule 2 of C.P.C. - trial court allowed this petition - Revision - their lordships dismissed the same holding the lower court is correct = CIVIL REVISION PETITION No. 87 OF 2014 11-07-2014 Kamal Ashok Futnani... PETITIONER G. Nalini RaoRESPONDENT = 2014- july-part -http://judis.nic.in/judis_andhra/filename=11689

   Or. VI, rule 17 and Or.2, rule 2 of C.P.C- suit for possession and injunction - I.A. for amendment for declaration of title - after filing written statement  - objection is barred by limitation and barred by Or.2, rule 2 of C.P.C. - trial court allowed this petition - Revision - their lordships dismissed the same holding the lower court is correct =

the petitioner for the relief of recovery of possession
and mandatory injunction in respect of the suit schedule
property.  The petitioner opposed the suit by filing a written
statement.  During the pendency of the suit, the respondent
filed I.A No. 3421 of 2011 under Order VI Rule 17 read with
Section 151 of CPC and Rule 28 of the Civil Rules of Practice,
with a prayer to permit her to amend the plaint, mainly to
incorporate the prayer of declaration of title.=
The application was opposed
by the petitioner by filing a counter.  Objection was raised as
to the limitation as well as maintainability.  According to her,
the relief of declaration of title in respect of sale deed of the
year 1992 is barred by limitation.  Another contention was
that once the respondent failed to incorporate the prayer for
declaration of title in the suit, it is not permissible for her to
claim it at a later point of time, and that it is barred under
Rule 2 of Order II CPC.=
The trial Court allowed the I.A., through the order dated
08-11-2013.  Hence the revision.=

The C.R.P is, therefore, dismissed.  However, it is left
open to the petitioner to file an additional written statement
dealing with the aspect introduced through the amendment,
raising all the contentions available to her, within four weeks
from today.
2014- july-part -http://judis.nic.in/judis_andhra/filename=11689
HONBLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 87 OF 2014  

11-07-2014

Kamal Ashok Futnani... PETITIONER  

G. Nalini RaoRESPONDENT    


Counsel for the Petitioner: Ms. Manjari S. Ganu

Counsel for the Respondent: Sri K. Vivek Reddy


<GIST:

>HEAD NOTE:  

? Cases referred
1.      2011 (2) ALD 101 (SC)
2.      2001 AIHC 2353

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 87 OF 2014  

Dated:11-07-2014

ORDER:


      The respondent filed O.S No. 715 of 2008 in the Court of
IX Additional Chief Judge, City Civil Court, Hyderabad
against the petitioner for the relief of recovery of possession
and mandatory injunction in respect of the suit schedule
property.  The petitioner opposed the suit by filing a written
statement.  During the pendency of the suit, the respondent
filed I.A No. 3421 of 2011 under Order VI Rule 17 read with
Section 151 of CPC and Rule 28 of the Civil Rules of Practice,
with a prayer to permit her to amend the plaint, mainly to
incorporate the prayer of declaration of title.
      In the affidavit filed in support of the I.A., the
respondent stated that in the written statement filed by her,
the petitioner claimed pleaded rival title to the property on the
basis of a sale deed dated 31-10-1996 and since
she (the respondent) purchased the property earlier point of
time i.e., on 21-01-1992, the necessity has arisen for seeking
the relief of declaration of title.  The application was opposed
by the petitioner by filing a counter.  Objection was raised as
to the limitation as well as maintainability.  According to her,
the relief of declaration of title in respect of sale deed of the
year 1992 is barred by limitation.  Another contention was
that once the respondent failed to incorporate the prayer for
declaration of title in the suit, it is not permissible for her to
claim it at a later point of time, and that it is barred under
Rule 2 of Order II CPC.

      The trial Court allowed the I.A., through the order dated
08-11-2013.  Hence the revision.

      Ms. Manjari S. Ganu, learned counsel for the petitioner
submits that the relief of declaration of title is sought almost
as the very basis for the relief of recovery of possession and
mandatory injunction and once it is referable to the same
cause of action, it ought to have been claimed in the suit, at
the inception itself.  She contends that apart from being
barred by limitation, the amendment is impermissible under
Order II Rule 2 CPC.  She has placed reliance upon the
judgment of the Supreme Court in Van Vibhag Karamchari  
Griha Nirman Sahkari Sanstha Maryadit (Regd.) v.
Ramesh Chander and others  and of the Bombay High   
Court in Shakuntala J. Gujar v. Dilip R. Pawar .

      Sri K. Vivek Reddy, learned counsel appearing for
Sri Pratik Reddy, learned counsel for the respondent, on the
other hand, submits that the question of limitation can
certainly be raised at the trial of the suit and it cannot be
treated as a bar for seeking amendment at this stage.  He
further submits that the plea referable to Rule 2 of
Order II CPC is totally impermissible.  According to the
learned counsel, it is only when a subsequent suit is filed in
respect of a claim, which could have constituted the subject
matter of an earlier suit that the prohibition contained under
Order II gets attracted and the question of an amendment in
the same suit being barred under Rule 2 of Order II CPC does
not arise.

      The suit was filed initially for the relief of recovery of
possession and mandatory injunction.  The respondent based
her claim to the suit property, on a sale deed dated
21-01-1992.  In her written statement, the petitioner came
forward with an independent title to the property on the
strength of a sale deed of the year 1996.  Faced with this
situation, the respondent filed an application, with a prayer to
permit her to amend the plaint, to incorporate the prayer for
declaration of title, as well as the factual background in the
body of the plaint.  The opposition to this is on two grounds.
The first is on limitation and the second is about the joinder
of causes of action.  The learned counsel for the petitioner, in
all fairness submitted that the question of limitation, being a
mixed one of fact and law, can be dealt with in the suit itself
by getting an issue framed thereon.  The emphasis is only on
the plea referable to Rule 2 of Order II CPC.

      It is too well known that the objective underlying Rule 2
of Order II CPC is to ensure that if on the basis of a particular
cause of action, the plaintiff is entitled to claim more reliefs
than one, he shall be under obligation to claim of them, in the
same suit.  If for any reason he wants to defer the claim that
arose out of the same cause of action, he must obtain the
specific permission of the Court in this behalf.  A subsequent
suit in relation to one of the reliefs which arose out of the
same cause of action that constituted the basis for reliefs in
the earlier suit: is barred.  Order II Rule 2 CPC reads:

      Suit to include the whole claim:- (1) Every
suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of
action; but a plaintiff may relinquish any portion of his
claim in order to bring the suit within the jurisdiction
of any Court.
      (2) Relinquishment of part of claim:- Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or
relinquished.
       (3) Omission to sue for one of several reliefs:- A
person entitled to more than one relief in respect of the
same cause of action may sue for all or any of such reliefs,
but if he omits, except with the leave of the Court, to sue for
all such reliefs, he shall not afterwards sue for any relief so
omitted.

      On a close analysis of this, what becomes clear is that the
occasion to press Rules 2 and 3 of Order II CPC into service would
arise if only the plaintiff who filed one suit by pleading a cause of
action, files another suit in respect of a relief which could have
been claimed on the basis of the same cause of action, pleaded in
the earlier suit.  In a way, it can be said that the principle
underlying therein is a facet of constructive res judicata.  The
words shall not afterwards sue occurring in Rule 2 become
significant.  Suing afterwards; can be only through a suit, filed
afterwards.  It is rather difficult to read the prohibition contained
in this provision against an amendment in an existing suit.   In the
instant case, the bar referable to Order II Rule 2 is sought to be
pressed into service, in the very first or only suit filed by the
respondent herein.

      Reliance is placed upon the judgment of the Supreme Court
in Van Vibhag Karamchari Griha Nirman Sahkari  
Sanstha Maryadits case (1 supra).  That was a case in
which the relief of declaration of tile was claimed by way of
amendment in an existing suit and that in turn resulted in
change of the forum.  The relief claimed through amendment
was found to be barred under the provisions of the Urban
Land Ceiling Act as well as by limitation.  The relevant portion
of the judgment of the Supreme Court reads:
33.  This Court is, therefore, of the opinion that the
appellant had the cause of action to sue for Specific
Performance in 1991 but he omitted to do so.  Having
done that, he should not be allowed to sue on that
cause of action which omitted to include when he filed
his suit.  This Court may consider its omission to
include the relief of Specific Performance in the suit
which is filed when it had cause of action to sue for
Specific Performance as relinquishment of that part of
its claim.  The suit filed by appellant, therefore, is hit
by the provisions of Order 2 Rule 2 of the Civil
Procedure Code. 
34.  Though the appellant has not subsequently filed a
second suit, as to bring his case squarely within the
bar of Order 2 Rule 2, but the broad principles of
Order 2 Rule 2, which are also based on public policy,
are attracted in the facts of this case.
35.  Even though the prayer for amendment to include the
relief of specific performance was made about 11 years after
the filing the suit, and the same was allowed after 12 years
of the filing of the suit, such an amendment in the facts of
the case cannot relate back to the date of filing of the
original plaint, in view of the clear bar under Article 54 of
the Limitation Act.
36.  Here in this case, the inclusion of the plea of Specific
Performance by way of amendment virtually alters the
character of the suit, and its pecuniary jurisdiction had
gone up and the plaint had to be transferred to a different
Court.

      On a close analysis of the facts of the case before the
Honble Supreme Court, one finds that the reasons that
weighed with their Lordships to reject the relief claimed by
way of amendment are mostly referable to the reasons
mentioned in paragraphs 35, 36 and 37 and what is observed
in para 34 is an obiter.  The words broad principles and
public policy were employed by their Lordships to connote
that.  Their Lordships did not undertake any elaborate
discussion with reference to Order II Rule 2 CPC obviously
because the situation does not permit.  A passing reference
which does not have any direct impact on the result of the
case cannot be treated as a ratio.
      The Bombay High Court in Shakuntala J. Gujars case
(2 supra) made a similar passing observation in para 5 as
under:
      In my view, even if we were to hold that the
proposed amendment was not time-bared, even then
the application deserves to be rejected, for the
mandate contained in O.2, R.2, sub-rule (2) it was not
open to the petitioner to set up a new claim on the
basis of the same cause of action or pray for new
reliefs as was sought to be done by way of this
application.  Order 2, R.2 clearly stipulates that the
petitioner could have set up such a new claim provided
he had obtained leave of the Court while instituting
the suit itself.  This, obviously, was not done in the
present case, and, therefore, even on this count the
petitioner cannot be permitted to carry out the
proposed amendment which purports to seek new   
relief which the petitioner could have included while
instituting the suit field by him in July, 1990.


      With due respect to the learned Judge of the Bombay
High Court, who delivered the judgment, when the mandate 
under Order II is that all the reliefs referable to a cause of
action, must be claimed in the same suit and the effort of the
plaintiff is only in that direction, it becomes somewhat
impermissible to treat such effort as having been barred
under the provision.

      The C.R.P is, therefore, dismissed.  However, it is left
open to the petitioner to file an additional written statement
dealing with the aspect introduced through the amendment,
raising all the contentions available to her, within four weeks
from today.
      The miscellaneous petitions filed in this revision shall
also stand disposed of.  There shall be no order as to costs.
___________________________    
L. NARASIMHA REDDY, J    
11h July, 2014

Sec.482 of Cr.P.C.- No two complaints on same set of facts maintainable - when first complaint was referred as mistake of fact - another complaint by spouse on the same set of facts not maintainable is abuse of process - their lordships held that In the present case, the registration of Crime No.38 of 2011 against the petitioners herein under Sections 420, 193, 198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of 2010 as mistake of fact, would certainly amount to abuse of process of the court. There is a Bar under law to register second F.I.R. in respect of the same incident basing on the same set of facts. Viewed from factual or legal aspects, it is a fit case to quash the proceedings in Crime No.38 of 2011 of Gara Police Station, Srikakulam District against the petitioners by invoking the inherent jurisdiction under Section 482 Cr.P.C not only to prevent abuse of process of law but also to secure the ends of justice. In the result, the Criminal Petition is allowed and the proceedings in Cr.No.38 of 2011 of Gara Police Station, Srikakulam District against petitioners/A.1 to A.6 are hereby quashed.=CRIMINAL PETITION No.3712 OF 2011 23-07-2014 Bondi Janaki and Others...PETITIONERS 1.State of A.P., rep. by its Public Prosecutor 2.Bondi Korlayya...RESPONDENTS = 2014- July- Part - http://judis.nic.in/judis_andhra/filename=11692

 Sec.482 of Cr.P.C.- No two complaints on same set of facts maintainable - when first complaint was referred as mistake of fact  - another complaint by spouse on the same set of facts not maintainable is abuse of process - their lordships held that In the present case, the registration of Crime No.38 of 2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of 2010 as mistake of fact, would certainly amount to abuse of process of the court.  There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of facts.  Viewed from factual or legal aspects, it is a fit case to quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking the inherent jurisdiction under Section 482 Cr.P.C not only to prevent abuse of process of law but also to secure the ends of
justice.  In the result, the Criminal Petition is allowed and the proceedings in Cr.No.38 of 2011 of Gara Police Station, Srikakulam District against petitioners/A.1 to A.6 are hereby quashed.=

The marriage of the first petitioner was
performed with the deceased in the year 2003. The deceased
died on 20.05.2005 while working as seaman in Wilco Ship
Management & Travels Private Limited, Mumbai.  The employer
of the deceased called the first petitioner and the parents of the
deceased for settlement and receiving of the compensation
amount of the deceased.  For one reason or the other, no
settlement was arrived at between the first petitioner and the
parents of the deceased.  Therefore, the employer of the
deceased deposited an amount of Rs.33,85,762/- before the
Commissioner for Workmens Compensation Act-cum-Labour    
Court at Mumbai.  The first petitioner herein filed Application
(WCA) No.398/A-48 of 2006 on the file of the Commissioner for
W.C. Act & Judge, XI Labour Court at Mumbai and the same
was allowed on 10.08.2006 awarding compensation of
Rs.28,85,762/- to the first petitioner and Rs.2.50 lakhs to each
of the parents of the deceased.
        While the things stood thus, the mother of the deceased
filed a private complaint on the file of the Judicial Magistrate of I
Class, Srikakulam under Section 200 Cr.P.C. against the first
petitioner for the offences under sections 193, 198, 199, 209,
420, 464 and 465 IPC. The learned Magistrate referred the said
complaint to the Station House Officer, Gara under Section 156
(3) Cr.P.C. for investigation and submission of report.  After
receipt of the complaint, the Station House Officer, Gara Police
Station, registered a case in Crime No.82 of 2010 under Sections
193, 198, 199, 209, 420, 464, 465 IPC and Section 156(3)
Cr.P.C. After conducting investigation, the Investigating Officer
referred the case as mistake of fact and issued a notice to the
de-facto complainant.  In the notice, it is stated that if the
defacto-complainant is not satisfied with the result of the final
report, she can approach the concerned Magistrate Court.
        On 12.04.2011, the father of the deceased i.e., 2nd
respondent herein submitted a complaint to the Station House
Officer, Gara Police Station alleging that the petitioners herein
forged the signature of the then village sarpanch and gave false
evidence before the Labour Court, Mumbai.  Basing on the said
complaint, the Station House Officer Gara P.S registered a case
in Cr.No.38 of 2011 for the offences under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC against the petitioners herein.
Feeling aggrieved by the registration of the criminal case, the
petitioners filed the present Criminal Petition.=

 In the present case, the registration of Crime No.38 of
2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of
2010 as mistake of fact, would certainly amount to abuse of
process of the court.  There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of
facts.  Viewed from factual or legal aspects, it is a fit case to
quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking
the inherent jurisdiction under Section 482 Cr.P.C not only to
prevent abuse of process of law but also to secure the ends of
justice.
        In the result, the Criminal Petition is allowed and the
proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District against petitioners/A.1 to A.6 are hereby
quashed.  As a sequel, miscellaneous petitions, if any pending in
this Criminal, Petition shall stand closed.
2014- July- Part - http://judis.nic.in/judis_andhra/filename=11692
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        

CRIMINAL PETITION No.3712 OF 2011    

23-07-2014

Bondi Janaki and Others...PETITIONERS  

1.State of A.P., rep. by its Public Prosecutor
2.Bondi Korlayya...RESPONDENTS    

Counsel for Petitioners : Sri B.M. Patro

Counsel for Respondent No.1: Additional Public Prosecutor
Counsel for Respondent No.2: Sri Kuriti Bhaskara Rao

<GIST:

>HEAD NOTE:  

? Cases referred

  (2010) 12 SCC 254
2 (2001) 6 SCC 181
3 (2013) 5 SCC 148
4 (2013) 2 SCC 435
5 (2010) 8 SCC 775
6 (2013) 7 SCC 45
7 (2012) 1 SCC 130
8 (2010) 8 SCC 775
9 (1982) 1 SCC 466
10 AIR 1992 SC 604
11 (2000) 2 SCC 636
12 (2008) 12 SCC 531
13 AIR 1960 SC 866
14 AIR 1982 SC 604
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY        
CRIMINAL PETITION No.3712 OF 2011    
ORDER:
        This petition is filed under Section 482 Cr.P.C. to quash
the proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District.
        The factual matrix, leading to the filing of the present
petition, are as follows:
        First petitioner is the wife, 2nd respondent is the father and
the de-facto complainant in Cr.No.82 of 2010 of P.S. Gara is the
mother of one Bondi Bhujanga Rao (hereinafter referred to as
the deceased).  The marriage of the first petitioner was
performed with the deceased in the year 2003. The deceased 
died on 20.05.2005 while working as seaman in Wilco Ship 
Management & Travels Private Limited, Mumbai.  The employer  
of the deceased called the first petitioner and the parents of the
deceased for settlement and receiving of the compensation
amount of the deceased.  For one reason or the other, no
settlement was arrived at between the first petitioner and the
parents of the deceased.  Therefore, the employer of the
deceased deposited an amount of Rs.33,85,762/- before the 
Commissioner for Workmens Compensation Act-cum-Labour     
Court at Mumbai.  The first petitioner herein filed Application
(WCA) No.398/A-48 of 2006 on the file of the Commissioner for
W.C. Act & Judge, XI Labour Court at Mumbai and the same  
was allowed on 10.08.2006 awarding compensation of  
Rs.28,85,762/- to the first petitioner and Rs.2.50 lakhs to each
of the parents of the deceased.
        While the things stood thus, the mother of the deceased
filed a private complaint on the file of the Judicial Magistrate of I
Class, Srikakulam under Section 200 Cr.P.C. against the first
petitioner for the offences under sections 193, 198, 199, 209,
420, 464 and 465 IPC. The learned Magistrate referred the said
complaint to the Station House Officer, Gara under Section 156
(3) Cr.P.C. for investigation and submission of report.  After
receipt of the complaint, the Station House Officer, Gara Police
Station, registered a case in Crime No.82 of 2010 under Sections
193, 198, 199, 209, 420, 464, 465 IPC and Section 156(3)
Cr.P.C. After conducting investigation, the Investigating Officer
referred the case as mistake of fact and issued a notice to the
de-facto complainant.  In the notice, it is stated that if the
defacto-complainant is not satisfied with the result of the final
report, she can approach the concerned Magistrate Court.
        On 12.04.2011, the father of the deceased i.e., 2nd
respondent herein submitted a complaint to the Station House
Officer, Gara Police Station alleging that the petitioners herein
forged the signature of the then village sarpanch and gave false
evidence before the Labour Court, Mumbai.  Basing on the said
complaint, the Station House Officer Gara P.S registered a case
in Cr.No.38 of 2011 for the offences under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC against the petitioners herein.
Feeling aggrieved by the registration of the criminal case, the
petitioners filed the present Criminal Petition.
        Heard the learned counsel for the petitioners, the learned
counsel for the 2nd respondent and the learned Additional Public
Prosecutor appearing for the State.
        The learned counsel for the petitioners submitted that it is
a fit case to quash the proceedings in view of the principles viz.,
1) registration of second FIR in respect of an act or omission on
the part of an individual or individuals, which constitute the
alleged offence, is not legally sustainable; and 2) there is
abnormal delay in lodging the complaint. To substantiate the
submissions, the learned counsel has relied upon the following
decisions:
        I.      Babubhai v State of Gujarat

21.     In such a case the court has to examine the facts and
circumstances giving rise to both the FIRs and the test of sameness is
to be applied to find out whether both the FIRs relate to the same
incident in respect of the same occurrence or are in regard to the
incidents which are two or more parts of the same transaction. If the
answer is affirmative, the second FIR is liable to be quashed. However,
in case, the contrary is proved, where the version in the second FIR is
different and they are in respect of the two different incidents/crimes,
the second FIR is permissible. In case in respect of the same incident
the accused in the first FIR comes forward with a different version or
counter claim, investigation on both the FIRs has to be conducted.
        II.     T.T.Antony v State of Kerala

27. A just balance between the fundamental rights of the citizens
under Articles 19 and 21 of the Constitution and the expansive
power of the police to investigate a cognizable offence has to be
struck by the court. There cannot be any controversy that sub-
section (8) of Section 173 CrPC empowers the police to make further
investigation, obtain further evidence (both oral and documentary)
and forward a further report or reports to the Magistrate. In Ram Lal
Narang Vs. State (Delhi Admn.) {(1979) 2 SCC 322} it was, however,
observed that it would be appropriate to conduct further
investigation with the permission of the court. However, the sweeping
power of investigation does not warrant subjecting a citizen each
time to fresh investigation by the police in respect of the same
incident, giving rise to one or more cognizable offences, consequent
upon filing of successive FIRs whether before or after filing the final
report under Section 173(2) CrPC. It would clearly be beyond the
purview of Sections 154 and 156 CrPC, nay, a case of abuse of the
statutory power of investigation in a given case. In our view a case of
fresh investigation based on the second or successive FIRs, not being
a counter case, filed in connection with the same or connected
cognizable offence alleged to have been committed in the course of
the same transaction and in respect of which pursuant to the first
FIR either investigation is underway or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit case for
exercise of power under Section 482 Cr.P.C. or under Article
226/227 of the Constitution.
        III.    Surender Kaushik v State of Uttar Pradesh

24. From the aforesaid decisions, it is quite luminous that the
lodgment of two FIRs is not permissible in respect of one and the
same incident. The concept of sameness has been given a restricted
meaning. It does not encompass filing of a counter FIR relating to the
same or connected cognizable offence. What is prohibited is any
further complaint by the same complainant and Ors. against the same
accused subsequent to the registration of the case under the Code, for
an investigation in that regard would have already commenced and
allowing registration of further complaint would amount to an
improvement of the facts mentioned in the original complaint. As is
further made clear by the three-Judge Bench in Upkar Singh v Ved
Prakash, (2004) 13 SCC 292, the prohibition does not cover the
allegations made by the accused in the first FIR alleging a different
version of the same incident. Thus, rival versions in respect of the
same incident do take different shapes and in that event, lodgment of
two FIRs is permissible.
        IV.     Udai Shankar Awasthi v State of U.P. ,
47. The instant appeals are squarely covered by the observations
made in Kishan Singh (dead) thr. L.Rs. v Gurpal Singh and Ors. ,
(Supra) and thus, the proceedings must be labeled as nothing more
than an abuse of the process of the court, particularly in view of the
fact that, with respect to enact the same subject matter, various
complaint cases had already been filed by Respondent No. 2 and his
brother, which were all dismissed on merits, after the examination of
witnesses. In such a fact-situation, Complaint Case No. 628 of 2011,
filed on 31.5.2001 was not maintainable. Thus, the Magistrate
concerned committed a grave error by entertaining the said case, and
wrongly took cognizance and issued summons to the Appellants.
        V.      Harivadan Babubhai Patel v State of Gujarat
12. In this context, we may refer with profit to the authority in State
of H.P. v. Gian Chand, (2001) 6 SCC 71, wherein a three-Judge
Bench has opined that the delay in lodging the FIR cannot be used as
a ritualistic formula for doubting the prosecution case and discarding
the same solely on the ground of delay. If the explanation offered is
satisfactory and there is no possibility of embellishment, the delay
should not be treated as fatal to the case of the prosecution.

13. In Ramdas. v. State of Maharashtra, (2007) 2 SCC 170, it has
been ruled that when an FIR is lodged belatedly, it is a relevant fact of
which the court must take notice of, but the said fact has to be
considered in the light of other facts and circumstances of the case. It
is obligatory on the part of the court to consider whether the delay in
lodging the report adversely affects the case of the prosecution and it
would depend upon the matter of appreciation of evidence in totality.

14. In Kilakkatha Parambath Sasi v. State of Kerala, (2011) 4
SCC 552 : AIR 2011 SC 1064, it has been laid down that when an FIR
has been lodged in a belated manner, inference can rightly follow that
the prosecution story may not be true but equally on the other side, if
it is found that there is no delay in the recording of the FIR, it does
not mean that the prosecution story stands immeasurably
strengthened. Similar view has also been expressed in Kanhaiya Lal
v. State of Rajasthan, (2013) 5 SCC 655 : 2013 (6) SCALE 242.
        On the other hand, the learned counsel for the 2nd
respondent contended that there is no bar to register a second
crime if the facts and circumstances of a particular case so
warrant.
        To substantiate his argument, the learned counsel for the
2nd respondent has drawn my attention to the ratio laid down in
Shivshankar Singh v State of Bihar , wherein the apex Court held as
under:
                18. Thus, it is evident that the law does not prohibit filing or
entertaining of the second complaint even on the same facts provided
the earlier complaint has been decided on the basis of insufficient
material or the order has been passed without understanding the
nature of the complaint or the complete facts could not be placed
before the court or where the complainant came to know certain facts
after disposal of the first complaint which could have tilted the
balance in his favour. However, second complaint would not be
maintainable wherein the earlier complaint has been disposed of on
full consideration of the case of the complainant on merit.
        The learned Additional Public Prosecutor submitted that a
second complaint is maintainable only in exceptional cases.
        Let me consider the facts which gave rise for registration of
two F.I.Rs in the light of the principle enunciated in the cased
cited supra.
        One of the allegations in Cr.No.82 of 2010 and 38 of 2011
is that the petitioners herein have forged the signature of the
then sarpanch of the village and created a legal heir certificate,
dated 28.03.2006. During the course of investigation, the
investigating officer in Cr.No.82 of 2010 collected the signatures
of the then Sarpanch of the village from the Gram Panchayat
office. He also examined the then Sarpanch by name Varadi
Gurumurthy to ascertain whether the legal heir certificate bears
his signature or not.  On verification, the said Gurumurthy
admitted that the legal heir certificate, dated 28.03.2006 bears
his signature.  The Investigating Officer compared the signatures
of Gurumurthy on the legal heir certificate with the admitted
signatures of Gurumurthy that were called for by him from the
Gram Panchayat Office. A perusal of the final report clearly
reveals that Gurumurthy admitted his signature on the legal
heir certificate dated 28.03.2006. In such circumstances the
contention of the de-facto complainants in both the complaints
that the legal heir certificate is forged one, prima facie, is not
tenable either on facts or on law.
        The substance of both the complaints is that the
petitioners herein gave false evidence before the Labour Court at
Mumbai that the de-facto complainants were neither dependants
nor legal heirs of the deceased. A perusal of Section 2 (d) of the
Workmens Compensation Act clearly demonstrates that the
dependants of the deceased workman alone are entitled to
compensation.  It is a known fact that distribution of
compensation amount among the dependents of the deceased  
depends upon various factors like age, dependency, future needs
etc of the claimants.  The Labour Court at Mumbai has taken
into consideration the age of the de facto complainants and the
first petitioner herein and apportioned the compensation in the
following manner:
First petitioner                                        : Rs.28,85,762/-
De facto complainant in Cr.No.82/2010   : Rs.2,50,000/-
De facto complainant in Cr.No.38/2011   : Rs.2,50,000/-
        Apart from this, the de-facto complainants have received
an amount of Rs.6.00 lakhs from an insurance company in
respect of a policy taken by the deceased.  After perusing the
order of the Labour Court, prima facie, it is not possible to arrive
at a conclusion that the Labour Court passed the orders basing
on the false evidence adduced by the petitioners, as alleged by
the second respondent.   If really the de facto complainants are
not satisfied with the award passed by the Labour Court,
Mumbai, two options are left over to them viz., 1) to file a
petition before the Labour Court for setting aside the same
thereby to pass orders afresh after affording reasonable
opportunity to them, or 2) to file an appeal challenging the order
passed by the Labour Court before appropriate appellate forum
by taking leave, if necessary.
        The de facto complainants in both the crimes have not
resorted to any of such remedies available to them under law.
Unless and until the order of the Labour Court is set aside by a
competent Court, the same is binding on the parties to the
proceedings.  The fact remains that the de facto complainants in
both the crimes have received the compensation in pursuance of
the orders of the Labour Court without any protest.
        Further, the Labour Court at Mumbai has not made any
remarks against the petitioners herein. In such circumstances,
the contention of the de facto complainants in both the crimes
has to be scrutinised meticulously.  Even if the allegations made
against the petitioners are ex facie taken to be true and valid,
the same, prima facie, do not satisfy the ingredients of the
alleged offences.  Having accepted the compensation without any
protest, the de facto complainants are estopped from challenging
the same.  The petitioners 2 to 4 are the own brothers of the first
petitioner.  It is a known fact that the brothers will extend their
full cooperation to a widowed sister if exigency so warrants.
Mere accompanying of the petitioners 2 to 4 with the first
petitioner to Mumbai and Gram Panchayat Office by itself will
not constitute an offence.
        The de-facto complainant in Cr.No.82 of 2010 did not
choose to file a protest petition as contemplated under Section
190 (1) (a) Cr.P.C. after receipt of the notice from the Court.  The
second respondent herein filed the present complaint in all
probabilities after he came to know about the result of the
investigation in the earlier crime. It is not the case of the second
respondent that himself and his wife are not residing under the
same roof. The second respondent herein, being the husband of
the de facto complainant in Cr.No.82 of 2010, precluded to plead
ignorance of the result of the investigation in Cr.No.82 of 2010.
It is not uncommon that the wife and husband after mutual
consultations and discussions only take decision in the family
affairs.  In the instant case, the de facto complainants in both
the crimes have grievance against the first petitioner for the
reason that she was awarded major portion of the compensation.
In such circumstances, one cannot independently approach the
police without consulting the other spouse.  Though two
complaints are filed by two different persons, the ultimate object
of both the de facto complainants is one and the same i.e. to
somehow trouble the first petitioner.
        A perusal of the averments in the complaint prima facie
demonstrate that both the de-facto complainants are not
satisfied with the amount of compensation awarded to them. An
act or omission on the part of an individual may constitute an
offence. The set of facts in both the complaints which give rise to
the alleged offence is one and the same.  The Labour Court at
Mumbai passed orders on 10.08.2006.  The second respondent  
filed the complaint on 12.04.2011. There is a delay of nearly five
years in lodging the complaint.  It is a settled principle of law
that mere delay in lodging complaint by itself is not a sufficient
ground to disbelieve the version of the prosecution/complainant,
provided that the complainant offers a satisfactory or reasonable
explanation for such delay.  There is no change of circumstances
in between the date of passing of the orders by the Labour Court
at Mumbai and lodging of present complaint.  The only change
of circumstance in between this period is that Cr.No.82 of 2010
was referred as mistake of fact.
        There is every possibility for lodging the present complaint
by the second respondent with an ulterior motive to outsmart
the provisions of Cr.P.C., thereby to continue the criminal
proceedings against the petitioners more particularly against the
first petitioner, even after closing Crime No.82 of 2010 filed by
the wife of second respondent.  A perusal of the allegations made
in the complaint clearly demonstrates that the defacto-
complainants were very much frustrated with the amount
awarded to them by the Labour Court.  By any means to get
some share out of the compensation amount awarded to the first
petitioner by the Labour Court, filing of criminal cases by the
defacto-complainants one after the other is nothing but abuse of
process of law.  One should not be allowed to use the criminal
court as instrumentality to take personal vengeance by filing
frivolous and vexatious complaints.
        In Kishan Singh Vs. Gurpal Singh  the Supreme Court
observed as follows:
   In cases where there is a delay in lodging an FIR, the court
has to look for a plausible explanation for such delay. In the
absence of such an explanation, the delay may be fatal. The
reason for quashing such proceedings may not be merely that
the allegations were an afterthought  or had given a coloured
version of events. In such cases the court should carefully
examine the facts before it for the reason that a frustrated
litigant who failed to succeed before the civil court may initiate
criminal proceedings just to harass the other side with mala
fide intentions or the ulterior motive of wreaking vengeance on
the other party. Chagrined and frustrated litigants should not
be permitted to give vent to their frustrations by cheaply
invoking the jurisdiction of the criminal court. The court
proceedings ought not to be permitted to degenerate into a
weapon of harassment and persecution. In such a case, where
an FIR is lodged clearly with a view to spite the other party
because of a private and personal grudge and to enmesh the
other party in long and arduous criminal proceedings, the court
may take a view that it amounts to an abuse of the process of
law in the facts and circumstances of the case. (Vide
Chandrapal Singh v. Maharaj Singh , State of Haryana v.
Bhajan Lal , G. Sagar Suri v. State of U.P  and Gorige Pentaiah
v. State of A.P )
        The Apex Court in R.P.Kapoor v. State of Punjab , held as
hereunder:
"Cases may also arise where the allegations in the F.I.R. or the
complaint even if they are taken at their face value and accepted in
their entirety do not constitute the offence alleged. In such cases, no
question of appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In this case it would
be legitimate to the High Court to hold that it would be manifestly
unjust to allow the process of the criminal court to be issued against
the accused person."
        In State of Haryana v. Bhajanlal  the Apex Court after
having surveyed the entire case law on the point has laid down
certain indicia with reference to which, a High Court may in
exercise of powers under Article 226 of the Constitution of
India or under Section 482 Cr.P.C may interfere in proceedings
relating to cognizable offences to prevent abuse of the process
of any court or otherwise to secure the ends of justice.
        In the present case, the registration of Crime No.38 of
2011 against the petitioners herein under Sections 420, 193,
198, 465, 209, 199 r/w 34 of IPC, after referring Crime No.82 of
2010 as mistake of fact, would certainly amount to abuse of
process of the court.  There is a Bar under law to register second
F.I.R. in respect of the same incident basing on the same set of
facts.  Viewed from factual or legal aspects, it is a fit case to
quash the proceedings in Crime No.38 of 2011 of Gara Police
Station, Srikakulam District against the petitioners by invoking
the inherent jurisdiction under Section 482 Cr.P.C not only to
prevent abuse of process of law but also to secure the ends of
justice.
        In the result, the Criminal Petition is allowed and the
proceedings in Cr.No.38 of 2011 of Gara Police Station,
Srikakulam District against petitioners/A.1 to A.6 are hereby
quashed.  As a sequel, miscellaneous petitions, if any pending in
this Criminal, Petition shall stand closed.
_________________________  
T.SUNIL CHOWDARY, J    
Date 23.07.2014

Sec.57 and 213 of INDIAN SUCCESSION ACT - in A.P. No probate is necessary for joining as legal heir under Will - Trial court dismissed the I.A. - their lordships held that 1) It is not necessary for the executor or legatee of a Will to obtain Probates of the Wills in the State of Andhra Pradesh (Also in the Telangana State after its formation). (2) For considering an application to come on record as the legal representative of a deceased party, the Court need not undertake a roving enquiry on the validity of the Will(s). A summary enquiry into the claim of execution of the Wills is enough for the Courts to permit a person who claims to be the legal representative of the deceased party to come on record for the limited purpose of continuing the proceedings. (3) The burden lies on the executant or legatee to prove the Will(s) propounded by him in the suit or final decree or other proceedings, as the case may be, as per the provisions of Chapter V of the Indian Evidence Act, 1872, if he asserts any right over the property of the party based on the Will(s) after his coming on record. The Civil Revision Petition is accordingly allowed.=C.R.P.No.1349 of 2013 10-7-2014 Naram Bhoomi Reddy (died) Per L.R. Naram Raghunath Reddy.. Petitioner Naram Venkat Reddy and another .. Respondents = 2014 -July- Part - http://judis.nic.in/judis_andhra/filename=11674

Sec.57 and 213 of INDIAN SUCCESSION ACT - in A.P. No probate is necessary for joining as legal heir under Will - Trial court dismissed the I.A. - their lordships held that 
1)     It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2)     For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s).  A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3)     The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.
The Civil Revision Petition is accordingly allowed.=

The petitioner filed the above mentioned I.A. before the lower
Court for coming on record as the legal representative of the sole
plaintiff, who died after obtaining preliminary decree dated 11-2-2009
for partition. 
It is the pleaded case of the petitioner that he is the nephew
of the plaintiff who died leaving behind two registered Wills dated
4-6-2004 and 12-3-2009 bequeathing the properties which are the
subject matter of the suit, in his favour.
The respondents filed a counter-
affidavit wherein they have mainly pleaded that the petitioner has not
obtained the Probate of the Wills under the Indian Succession Act, 1925,
(for short "the Act") in the absence of which he cannot be impleaded as
the legal representative of the deceased plaintiff.
The Court below, by
the order assailed in this Revision Petition, dismissed the application by
accepting the objection of the respondents that the petitioner cannot
represent the deceased plaintiff unless he obtained the Probate of the
Wills.=
whether the proponent of a Will who seeks to come on record
is liable to obtain Probate thereof?
It is thus abundantly clear that under two contingencies alone, the
necessity of obtaining Probate or Letters of Administration would arise
i.e., (i) where Wills and Codicils were made by any Hindu, Buddhist,
Sikh or Jain on or after 1-9-1870 within the territories which were
subject to the Lieutenant Governor of Bengal or within the local limits of
the ordinary original civil jurisdiction of the High Courts of Judicature of
Madras and Bombay; and (ii) where such Wills and Codicils were made  
outside the above mentioned territories i.e., the territories mentioned in
clause (a) of Section 57, but they relate to immovable properties situated
within those territories or limits.  In other words, obtaining of Probates
or Letters of Administration can be insisted only if the Wills or Codicils
are made within the territories of Bengal, Madras and Bombay, or even
if they were made outside these territories, the properties in respect of
which Wills and Codicils are made, are situate within those territories.
The State of Hyderabad not having been within the jurisdiction of the
Madras High Court at any point of time, the provisions of Sections 57
and 213 of the Act had no application to this territory at any point of
time.  On the formation of Andhra State after separation from the
Madras State, it was not necessary for the people of that State to obtain
Probates or Letters of Administration under the Wills relating to
properties situated within the jurisdiction of the Madras High Court.
        The above being the true purport of the statutory provisions, a
brief debate on the case law is needed.
(1)     It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2)     For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s).  A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3)     The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.=
The Civil Revision Petition is accordingly allowed.
   
Before closing this case, I will suffer qualm of conscience if
I desist from expressing my feelings.
Regrettably, the Counsel for the
parties, both before the lower Court as well as before me, failed to place
the correct legal position relating to Probates.
A lawyer is a student
forever.
He must show unwavering dedication and unflinching loyalty
to the profession.
He needs to be abreast of the change in both statutory
and Judgmental law.
It is trite that a Judgment is as good in quality as
the quality of assistance the Court gets from the Bar.
Failure of the Bar
to assist properly would lead to the Courts taking erroneous decisions,
such as the one in the present case.
Modern day lawyers are blessed, as
they need not have to flip through the piles of digests as the yester years
lawyers were compelled to do to pick up case law.
With the availability
of sophisticated Information Technology, the latest legal position is just
a click away from them.
Therefore, if the correct legal position is not
placed before the Court by any lawyer, it is not because of paucity of
time, but it could be only due to lack of will on his part to gather latest
legal position.
Complacency on the part of the Bar retards growth of
knowledge and it eventually results in rendering poor and incorrect
Judgments by the Courts.
Due to prohibitively high volume of work-
load a Judge is saddled with, it is highly difficult, nay, impossible for
him, to undertake research on his own in every case.
Unless the Bar
leads the Court towards right direction by placing the relevant facts and
the latest law, there is bound to be the risk of the society receiving more
and more faulty Judgments.
I conclude this Judgment with the fond
hope that the Bar will understand these feelings in right spirit and focus
more on improving quality of preparation and presentation of cases
before the Courts.

2014 -July- Part - http://judis.nic.in/judis_andhra/filename=11674
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.1349 of 2013

10-7-2014

Naram Bhoomi Reddy (died) Per L.R. Naram Raghunath Reddy.. Petitioner  

Naram Venkat Reddy and another  .. Respondents        

Counsel for petitioner : Sri Keerthi Prabhaker

Counsel for respondent No.1 : --
 Counsel for respondent No.2 : Sri Pavan Kumar Sharma

<GIST:

>HEAD NOTE:  

?CASES REFERRED:    
1. 1979(2) ALT 347 (DB)
2. AIR 1996 S.C. 1807
3. 1997(5) ALT 459
4. AIR 2001 A.P. 326
5. AIR 1982 A.P. 410


HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        
C.R.P.No.1349 of 2013
Date : 10-7-2014

The Court made the following:

ORDER:
     This Civil Revision Petition arises out of order dated 24-9-2012 in
I.A.No.1019 of 2010 in O.S.No.283 of 1997 on the file of the learned I
Additional Senior Civil Judge, Ranga Reddy District, at L.B. Nagar,
Hyderabad.
     The petitioner filed the above mentioned I.A. before the lower
Court for coming on record as the legal representative of the sole
plaintiff, who died after obtaining preliminary decree dated 11-2-2009
for partition.  It is the pleaded case of the petitioner that he is the nephew
of the plaintiff who died leaving behind two registered Wills dated
4-6-2004 and 12-3-2009 bequeathing the properties which are the
subject matter of the suit, in his favour.  The respondents filed a counter-
affidavit wherein they have mainly pleaded that the petitioner has not
obtained the Probate of the Wills under the Indian Succession Act, 1925,
(for short "the Act") in the absence of which he cannot be impleaded as
the legal representative of the deceased plaintiff.  The Court below, by
the order assailed in this Revision Petition, dismissed the application by
accepting the objection of the respondents that the petitioner cannot
represent the deceased plaintiff unless he obtained the Probate of the
Wills.
        At the outset, it needs to be observed that the order of the lower
Court is hard to decipher, in particular, paragraph-8 thereof.  Be that as it
may, the main question that was required to be considered by the lower
Court was whether the proponent of a Will who seeks to come on record
is liable to obtain Probate thereof?  On this aspect, the lower Court as
well as the Counsel appearing for the parties have failed to notice the
correct legal position governing the Probates in the erstwhile State of
Hyderabad (later, part of the State of Andhra Pradesh).  I therefore feel
the necessity of briefly explaining the law on the field.
        The Act inter alia deals with Probate of Wills.  Two statutory
provisions of the Act are relevant for the present purpose.  They are
Sections 57 and 213.  Therefore, it is necessary to consider these
provisions, which, to the extent they are relevant, are reproduced herein
below :
Section 57:  Application of certain provisions of Part to a class of
Wills made by Hindus, etc.  The provisions of this Part which
are set out in Schedule III shall, subject to the restrictions and
modifications specified therein apply 
(a)     to all Wills and codicils made by any Hindu, Buddhist, Sikh
or Jain, on or after the first day of September, 1870, within
the territories which at the said date were subject to the
Lieutenant Governor of Bengal or within the local limits of
the ordinary original civil jurisdiction of the High Courts of
Judicature at Madras and Bombay; and  
(b)     to all such Wills and codicils made outside those territories
and limits so far as relates to immovable property situate
within those territories or limits; and
(c)         


Section 213 : Right as executor or legatee when established :

(1)     No right as executor or legatee can be established in any
Court of justice, unless a Court of competent jurisdiction in
India has granted probate of the Will under which the right is
claimed, or has granted letters of administration with the
Will or with a copy of an authenticated copy of the Will
annexed. 
(2)     This section shall not apply in the case of Wills made by
Muhammadans, and shall only apply   
(i)     in the case of Wills made by any Hindu, Buddhist,
Sikh or Jain where such Wills are of the classes
specified in clauses (a) and (b) of S. 57; and
(ii)    in the case of Wills made by any Parsi dying after
the commencement of the Indian Succession   
(Amendment) Act, 1962, where such Wills are  
made within the local limits of the ordinary original
civil jurisdiction of the High Courts at Calcutta,
Madras and Bombay and where such Wills are   
made outside those limits, in so far as they relate to
immovable property situate within those limits.

A plain reading of the provisions quoted above would show that under
Section 57 of the Act, the applicability of the provisions set out in
Schedule III thereof is restricted to all Wills and Codicils made by any
Hindu, Buddhist, Sikh or Jain on or after 1-9-1870 within the territories
which at the said date are subject to Lieutenant Governor of Bengal or
within the local limits of the ordinary original civil jurisdiction of the
High Courts of Judicature of Madras and Bombay and to all such Wills
and Codicils made outside those territories and limits so far as they
relate to immovable property situated within those territories or limits.
Sub-section (1) of Section 213 of the Act declares that unless the
executor or the legatee secures a Probate of the Will under which the
right is claimed or Letters of Administration with the Will, he cannot
establish any right in any Court of justice.  Sub-section (2) thereof, while
exempting Muhammadans from the application of sub-section (1),
reaffirms the application of sub-section (1) only to the categories of
persons mentioned in clauses (a) and (b) of Section 57 of the Act.
     It is thus abundantly clear that under two contingencies alone, the
necessity of obtaining Probate or Letters of Administration would arise
i.e., (i) where Wills and Codicils were made by any Hindu, Buddhist,
Sikh or Jain on or after 1-9-1870 within the territories which were
subject to the Lieutenant Governor of Bengal or within the local limits of
the ordinary original civil jurisdiction of the High Courts of Judicature of
Madras and Bombay; and (ii) where such Wills and Codicils were made  
outside the above mentioned territories i.e., the territories mentioned in
clause (a) of Section 57, but they relate to immovable properties situated
within those territories or limits.  In other words, obtaining of Probates
or Letters of Administration can be insisted only if the Wills or Codicils
are made within the territories of Bengal, Madras and Bombay, or even
if they were made outside these territories, the properties in respect of
which Wills and Codicils are made, are situate within those territories.
The State of Hyderabad not having been within the jurisdiction of the
Madras High Court at any point of time, the provisions of Sections 57
and 213 of the Act had no application to this territory at any point of
time.  On the formation of Andhra State after separation from the
Madras State, it was not necessary for the people of that State to obtain
Probates or Letters of Administration under the Wills relating to
properties situated within the jurisdiction of the Madras High Court.
        The above being the true purport of the statutory provisions, a
brief debate on the case law is needed.
        A Division Bench of this Court, in A.S. Murthy Vs. D.V.S.S.
Murthy , analysed the above mentioned provisions and held in
unequivocal terms that the provisions of Section 213(1) of the Act do not
apply to the State of Andhra Pradesh and that therefore, there is no
necessity for obtaining the Probate of the Wills executed by the persons
residing in the State of Andhra Pradesh in respect of the properties
situated therein.
        In T.V. Narayana Vs. Venkata Subbamma , which arose from  
the State of Andhra Pradesh, the true position with regard to the
provisions of Sections 57 and 213 of the Act was not placed before the
Apex Court.  The Supreme Court has proceeded on the view that the
executor or the legatee under a Will is liable to obtain Probate and that in
a suit for bare injunction, the validity of the Will cannot be adjudicated.
        A learned single Judge of this Court in M. Narayana Vs. M.
Suryakantham , while following the Judgment of the Division Bench
of this Court in A.S. Murthy (1-supra) and while holding that there is
no need for obtaining Probates in respect of the Wills executed in the
State of Andhra Pradesh, observed that this issue did not fall for
consideration of the Supreme Court in T.V. Narayana (2-supra).
Another learned Judge of this Court in Gangavath Lalu Vs. Gangavath
Tulsi , while following the Judgment in A.S. Murthy (1-supra) held at
para-16 as under :
        A plain reading of Sections 213(2) and 57 of the Act would
make it clear that whatever prohibition contained in sub-section
(1) of Section 213 has no application in respect of Wills executed
by Hindus within the State of Andhra Pradesh in respect of
immovable properties situated within the territorial limits of the
State of Andhra Pradesh.  It is not necessary to obtain probate of
a Will or letters of administration.  The Wills upon which
reliance is sought to be placed can always be permitted to be
proved in any civil proceeding. (Emphasis added)

        Before the lower Court, the Counsel for the petitioner has placed
reliance on the Judgment of a learned Judge in Tynala Musalaiah Vs. J.
Mohanraj and others , without relying on the Division Bench
Judgment in A.S. Murthy (1-supra).  The learned Judge, in that case,
considered the provisions of Section 213(1) of the Act and held that a
Probate is required to be obtained by the executor or the legatee, albeit,
while holding that such a necessity would arise only after the legal
representative who seeks to come on record in place of the plaintiff
based on the Will, coming on record and at the trial of the proceedings
for establishing his right.  A reading of this Judgment would show that
the learned Judge has not undertaken specific discussion on the effect of
sub-section (2) of Section 213 and the provisions of Section 57 of the
Act.  The Judgment of the Division Bench of this Court in A.S. Murthy
(1-supra) was also not noticed by the learned Judge.  With due respect
to the learned Judge, the Judgment in Tynala Musalaiah (5-supra), to
the extent that it has held that under sub-section (1) of Section 213 of the
Act, obtaining of Probate of a Will is mandatory, is per incuriam, as it
has not only failed to discuss the provisions of Section 213(2) and 57 of
the Act, but it has also failed to notice the Judgment of the Division
Bench in A.S. Murthy (1-supra).  But this Court fully concurs with the
opinion of the learned Judge in Tynala Musalaiah (5-supra) to the
extent that the purpose of permitting a person claiming to be the legal
representative of the deceased plaintiff to come on record, is to continue
the proceedings and that the necessity of proving the Will propounded
by him will arise at the time when the legal representative, after his
impleadment, asserts his right over the subject matter of the property
under the Will.
     From the discussion undertaken above, the following principles
emerge :
(1)     It is not necessary for the executor or legatee of a Will to
obtain Probates of the Wills in the State of Andhra
Pradesh (Also in the Telangana State after its formation).
(2)     For considering an application to come on record as the
legal representative of a deceased party, the Court need
not undertake a roving enquiry on the validity of the
Will(s).  A summary enquiry into the claim of execution
of the Wills is enough for the Courts to permit a person
who claims to be the legal representative of the deceased
party to come on record for the limited purpose of
continuing the proceedings.
(3)     The burden lies on the executant or legatee to prove the
Will(s) propounded by him in the suit or final decree or
other proceedings, as the case may be, as per the
provisions of Chapter V of the Indian Evidence Act, 1872,
if he asserts any right over the property of the party based
on the Will(s) after his coming on record.
     The lower Court committed a grievous error in dismissing the
petitioners application contrary to the settled legal position.  Hence, the
order under revision is not sustainable.
     The petitioner averred that the sole plaintiff executed two Wills in
his favour.  He has also produced the two Wills before the lower Court.
At this stage, no further enquiry into the validity of the Wills is needed.
He is therefore permitted to come on record as the legal representative of
the deceased plaintiff.  The petitioner shall however have to prove the
Wills on the application of the provisions of the Indian Evidence Act,
1872 in the final decree proceedings.
     On the analysis as above, I.A.No.1019 of 2010 is allowed.
     The Civil Revision Petition is accordingly allowed.
     Before closing this case, I will suffer qualm of conscience if
I desist from expressing my feelings.  Regrettably, the Counsel for the
parties, both before the lower Court as well as before me, failed to place
the correct legal position relating to Probates.  A lawyer is a student
forever.  He must show unwavering dedication and unflinching loyalty
to the profession.  He needs to be abreast of the change in both statutory
and Judgmental law.  It is trite that a Judgment is as good in quality as
the quality of assistance the Court gets from the Bar.  Failure of the Bar
to assist properly would lead to the Courts taking erroneous decisions,
such as the one in the present case.  Modern day lawyers are blessed, as
they need not have to flip through the piles of digests as the yester years
lawyers were compelled to do to pick up case law.  With the availability
of sophisticated Information Technology, the latest legal position is just
a click away from them.  Therefore, if the correct legal position is not
placed before the Court by any lawyer, it is not because of paucity of
time, but it could be only due to lack of will on his part to gather latest
legal position.  Complacency on the part of the Bar retards growth of
knowledge and it eventually results in rendering poor and incorrect
Judgments by the Courts.  Due to prohibitively high volume of work-
load a Judge is saddled with, it is highly difficult, nay, impossible for
him, to undertake research on his own in every case.  Unless the Bar
leads the Court towards right direction by placing the relevant facts and
the latest law, there is bound to be the risk of the society receiving more
and more faulty Judgments.  I conclude this Judgment with the fond
hope that the Bar will understand these feelings in right spirit and focus
more on improving quality of preparation and presentation of cases
before the Courts.
________________________  
Justice C.V. Nagarjuna Reddy
Date : 10-7-2014

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.