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TMI Blog2013 (9) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Home Affairs, Union of India, purported to have been written by one Shri M.A. Khan (Member of Parliament) enclosing a representation of All India Banjara Seva Samithi (hereinafter referred to as the 'Samithi') asking for an impartial enquiry against Shri V. Dinesh Reddy, the then DG (Vigilance and Enforcement) Department-Respondent No. 2 alleging that he had amassed disproportionate assets in the name of his wife and her power of attorney holders. A large number of documents were annexed in support of the allegations in the complaint. The Joint Secretary, Ministry of Home Affairs forwarded the said complaint to the Chief Secretary, Govt. of A.P. on 5.5.2011 for enquiry into the matter. The said letter was received by the Chief Secretary, Govt. of A.P. on 23.5.2011. On the same day, a letter purporting to have been sent by Shri M.A. Khan, M.P., was received by Govt. of A.P. through Shri V. Dinesh Reddy - Respondent No. 2, wherein it had been alleged that the letter sent by the Central Government to the Chief Secretary, A.P. had not been authored by Shri M.A. Khan, M.P. B. When the Chief Secretary, A.P. was examining the matter, Shri V. Dinesh Reddy,-Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the State Government on 27.8.2011. Shri T. Sunil Reddy was remanded to judicial custody on 27.8.2011. It was during that judicial custody on 3.9.2011 that his statement was recorded a second time Under Section 161 Code of Criminal Procedure wherein he named Umesh Kumar, Appellant. On being enlarged on bail on 5.9.2011, Shri T. Sunil Reddy made an application on 7.9.2011 Under Section 306 Code of Criminal Procedure to become an approver. H. Umesh Kumar, Appellant, asked the Govt. of A.P. to hold an investigation on the basis of the certified copy of the sale deeds against Respondent No. 2. In the meanwhile, on 26.9.2011, the Investigating Officer filed a statement in the court that unless the said Shri T. Sunil Reddy was granted pardon, there would be no evidence against Umesh Kumar. The trial court vide order dated 10.10.2011 accepted the application of Shri T. Sunil Reddy and granted him pardon and made him an approver. However, the said order dated 10.10.2011 was quashed by the High Court vide judgment and order dated 1.4.2012 in Writ Petition No. 31927 of 2011 filed by Umesh Kumar, Appellant. I. After completing the investigation, a charge sheet dated 14.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been in contact with Shri M.A. Khan, M.P., and created a situation where the enquiry could be directed only against Umesh Kumar, Appellant. In spite of the fact that this Court passed an order on 24.7.2013 directing the Chief Secretary, A.P. to disclose whether any enquiry had ever been made against the said Respondent No. 2 with respect to disproportionate assets, the Chief Secretary, A.P. had not submitted any clear cut reply to this Court. The Chief Secretary gave an evasive reply without disclosing any fact in this regard. The evidence collected illegally is admissible in law. Thus, the Govt. of A.P. should have conducted inquiry against Respondent No. 2 on the basis of the sale deeds annexed along with the complaint. There is collusion between the State Government and Respondent No. 2 discriminating against the Appellant. The High Court ought to have quashed the whole charge sheet being a product of mala fides and illegal activities of the State and Respondent No. 2. Thus, the appeal filed by Umesh Kumar deserves to be allowed and appeal filed by the State is liable to be dismissed. 5. Shri R. Venkataramani, learned senior counsel appearing for the State has submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.A. Khan, M.P., suggests that various properties had been purchased by Respondent No. 2 as benami and the copies of the sale deeds etc. filed along with the said letter fortify the same. The Government of India wrote a letter to the Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in respect of alleged disproportionate assets made by the Respondent No. 2 by purchase of huge lands either by himself or in the name of his wife or through benamis. Shri M.A. Khan, M.P. vide letter dated 23.5.2011 pointed out to the Central Government that he had not signed the complaint and his signature had been forged. Umesh Kumar, Appellant had asked the State Government to conduct an enquiry in respect of the disproportionate assets of the Respondent No. 2. The memo dated 2.8.2011 issued by the Govt. of A.P. revealed that Respondent No. 2 had conducted an enquiry in the matter of the letter purported to have been sent by Sh. M.A. Khan, M.P. He reached the conclusion that the complaint had been filed with the forged signature of Shri M.A. Khan, M.P., and made a request to the State Government to order a CID probe into the matter of forgery, criminal conspiracy, and cheating as no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar police officer and the officer submitted the report, but before reaching the Government, Respondent No. 2 directed that an FIR be lodged against Umesh Kumar, Appellant and an investigation be conducted. The report was sent to the State Government subsequent thereto, and even on that report the State Government had never taken any decision whatsoever, and in the meanwhile the charge sheet was filed. (V) The charge sheet was filed under various provisions of the Indian Penal Code and some of them are exclusively triable by the Court of Sessions and not by the magistrate. There are no committal proceedings till now in the case. Therefore, the stage of framing the charges or considering an application for discharge has not yet arrived. (VI) Shri T. Sunil Reddy had not disclosed the name of Umesh Kumar, Appellant in his first statement. However, subsequently when he was in police custody and his statement was recorded a second time he revealed his name. He was also granted pardon and made an approver by the order of the trial court and the said order has been set aside by the High Court at the behest of Umesh Kumar as referred to hereinabove. (VII) Various oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shwanath Agrawal AIR 2012 SC 586; and Kishore Samrite v. State of U.P. and Ors. (2013) 2 SCC 398). 12. In view thereof, if any person has forged in a letter under the name of the Samithi and forged the signature of Shri M.A. Khan, M.P., the matter being of grave nature requires investigation and, in view of above, we cannot find fault with the action initiated against Umesh Kumar, Appellant. Once criminal law is put in motion and after investigation the charge sheet is filed, it requires scrutiny in the court of law. However, before the charges could be framed, Umesh Kumar, Appellant, approached the High Court Under Section 482 Code of Criminal Procedure for quashing of the charge sheet. The scope of Section 482 Code of Criminal Procedure is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Code of Criminal Procedure; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 14. In State of Bihar v. P.P. Sharma and Anr. AIR 1991 SC 1260, this Court dealt with an issue of whether an application Under Section 482 Code of Criminal Procedure for quashing the charge sheet should be entertained before cognizance is taken by a criminal court and held as under: Quashing the charge-sheet even before cognizance is taken by a criminal Court amounts to killing a still born child. Till the criminal Court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground alternative remedies provided by the Code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit on the guise of prima facie evidence to stand on accused for trial amounts to pre-trial of a criminal trial.... It is not to suggest that under no circumstances a writ petition should be entertained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct further investigation under the provisions of Section 173(8) Code of Criminal Procedure If the case is triable by the Court of Sessions, the magistrate would commit the case to the said court Under Section 209 Code of Criminal Procedure It is for the court to examine whether there is sufficient material collected during investigation and filed along with the charge sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges Under Section 228 Code of Criminal Procedure At this stage the remedy available to the accused is to ask for discharge Under Section 227 Code of Criminal Procedure In case charges are framed the accused has to face the trial, charges can be added/altered at any stage of the trial, before the pronouncement of the judgment to suit the evidence adduced before the court, under the provisions of Section 216 Code of Criminal Procedure The only legal requirement is that a witness has to be recalled as provided Under Section 217 Code of Criminal Procedure when a charge is altered or added by the court. 20. In the instant case, charge sheet had been filed and the cognizance had been taken by the magistrate concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage..... (Emphasis added) The Court set aside the order of the High Court and left it open to the trial court to modify the charges in accordance with the evidence adduced before it. (See also: Sohan Lal and Ors. v. State of Rajasthan AIR 1990 SC 2158) 23. A Constitution Bench of this Court reiterated a similar view in CBI and Ors. v. Keshub Mahindra etc. AIR 2011 SC 2037 observing that when the charges are framed, the court makes an endorsement till that stage. So charges are framed on the materials produced by the prosecution for framing the charges "at that stage". Such indication is necessary otherwise the provisions contained in Sections 216, 323, 386, 397, 399, 401 etc. Code of Criminal Procedure, would be rendered nugatory and denuded a competent court of the powers under those provisions. The court cannot be restrained from exercising its powers either Under Section 323 or Section 216 Code of Criminal Procedure 24. The High Court was approached by Umesh Kumar, Appellant Under Section 482 Code of Criminal Procedure at a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law. (Vide: Yusufalli Esmail Nagree v. The State of Maharashtra AIR 1968 SC 147; Magraj Patodia v. R.K. Birla and Ors. 1970 (2) SCC 888; R.M. Malkani v. State of Maharashtra AIR 1973 SC 157; Pooran Mal v. Director of Inspection, Income-Tax, New Delhi and Ors. AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600). 28. In such a fact-situation if illegally collected material can be examined by the court of law, we fail to understand how the State Government could not examine the contents of the complaint on the basis of the annexed copies of sale deeds etc. During the arguments of this case, our conscious was shocked as to the manner the State of Andhra Pradesh has misdirected itself and abandoned the most relevant issue i.e. complaint against Shri V. Dinesh Reddy - Respondent No. 2 and concentrated exclusively against Umesh Kumar, Appellant. Thus, vide order dated 24.7.2013, we have asked the Chief Secretary of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rishan Chander Nayar v. The Chairman, Central Tractor Organisation and Ors. AIR 1962 SC 602; Chhotan Prasad Singh and Ors. v. Hari Dusadh and Ors. AIR 1977 SC 407; and M. Veerabhadra Rao v. Tek Chand AIR 1985 SC 28). 31. In view of the above, we have no hesitation to hold that the Chief Secretary had the audacity not to ensure the compliance of the order of this Court dated 24.7.2013, and we have no words to express our anguish and condemn the attitude adopted by the Chief Secretary. More so, holding such a responsible post in the State, he must have some sense of responsibility and should have been aware of what are the minimum requirements of law, and even if he did not know he could have consulted any law officer of the State before filing the undated affidavit. 32. Be that as it may, facts of the case warranted some enquiry in respect of the allegations of acquiring huge properties by Shri V. Dinesh Reddy - Respondent No. 2. The State took the courage to flout the order of the Central Government and did not look into the contents of the complaint and misdirected the enquiry against Umesh Kumar, Appellant. In such a fact-situation, this Court would not fail in its duty to dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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