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2014 (6) TMI 1059
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....a. The petitioner cannot be faulted for having scrupulously implemented the directives of the policy decision of a popular political Government elected by a democratic process in the country in due discharge of her service conditions. The action of the investigating agency to implicate the public servants who implemented the policy decisions of the Government of a polity ignoring the fact that their role is only to guide the State in implementation of its policy legally but not to appreciate and critically analyse the policy formulated by the Cabinet. Having failed to differentiate the subtle distinction and disillusioned itself of the role of the public servant, the respondent erred in implicating the petitioner in the impugned proceedings as A.7 relegating it to be only a persecutor rather a prosecutor in the case of the petitioner. It is also submitted that the impugned proceedings are also vitiated for illegal mode adopted by the investigation agency in initiating the proceedings without following the mandatory provisions of law. The procedure followed by the investigation agency in trying to implicate the petitioner without obtaining the sanction from the concerned Gove....
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....C Department is only to the extent of referring the applications of the prospective entrepreneur to the APIIC for verification of their credentials to see that the policy implemented in accordance with law. The rest of the role is with the nodal agency like APIIC, the Revenue, Finance etc. This fact was clearly ignored to be taken note of by the investigation agency during the course of its investigation and therefore it is wholly vitiated. It is further submitted that three applications of the entrepreneurs who intended to commence their activities in the field of the Information Technology in the State of Andhra Pradesh made applications for allotment of lands. In fact M/s. Indu Projects Ltd (A.4) made application in the month of October, 2005 and further requested for the same on 16.11.2005 to the APIIC, the nodal agency as well as marking a copy of the same to the IT&C Department. As the same was not in the prescribed format it was asked to file an application in the said format to enable the State to consider the request. The similar three applications of the entrepreneurs referred to above on 13.12.2005 were directed to be filed in the prescribed format by the departme....
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....st. They have also not found fault with the manner of movement of the file or for that matter any illegalities as are now being alleged. In fact upon being reposted as Principal Secretary, IT& C, on 23.3.2010, the petitioner having noticed the lack of progress in the project of A.5 recommended for resumption of the lands after the field inspection as a remedial measure for the deviation of the terms of the agreement by A.5. The said proposal was sent to the Minister, IT& C and is pending consideration even as on this date which is a factor which was lost sight of by the respondent agency to test the bonafides of the petitioner and her commitment for upholding the interests of the State in precedence to any individual interests. The said factor would go a long way in disproving the allegations against A7 and the alleged conspiracy with the other accused. The entire investigation by the premier department like the C.B.I. is motivated and makes it apparently clear that that it is interested to have some credibility projected to its investigation by implicating some senior officer too in the charge sheet along with A.1, A4, A5 and others. The respondent acted illegally in conclu....
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....e sheet, a factor which goes a long way in the contradictions in the case of the prosecution. The lands were given on agreement to sale and not directly sold during the tenure of the petitioner. However, the APIIC much after the tenure of the petitioner seems to have alienated the land and violated the terms and conditions of the MOU prepared and finalised by the petitioner while she was in office. This is lost sight of by the CBI therefore the investigation against A7 is wholly vitiated thereby. The CBI further relies upon the statement of the Chief Secretary to allege that he did not see the Cabinet Memorandum and the petitioner deliberately circulated the Draft Cabinet Memorandum to the Minister of IT and also to the Chief Minister and got placed it before the Cabinet on 29.4.2006 without it being referred to the Chief Secretary. The said allegation is without any regard for truth as the files categorically demonstrates the notings of the then Chief Secretary and also the other officers like the Additional Secretary, Joint Director(Promotions) of IT&C Department and others and the fact that it is not a Tabled Item but is an Agenda Item as finalized and included by the Chi....
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....retary to the Cabinet, the Chief Secretary can voice his dissent, rejection, deferment of the proposal even during the meeting of Council of Ministers i.e., in the Cabinet Meeting, if he feels that the proposal is not in order or for that matter not legal. A Cabinet meeting cannot be held without the presence of the Chief Secretary. In fact it is the Chief Secretary, who presents the Agenda in the Meeting, advises on all aspects and facilitates the Cabinet meeting. Once a decision has been taken by the Council of Ministers, the same would come up before the Chief Secretary for the fourth occasion at the time of signing the Resolution of the Cabinet. When the amendments were proposed by the entrepreneurs in the impugned proceedings the same was again circulated to the Cabinet by the IT & C Department after following the entire procedure as aforesaid. The same has been initiated by the Chief Secretary as could be seen in Page 28 of the Note Sheet. The said fact demonstrates that the then Chief Secretary has not only perused the file once but had ten occasions to see the file and appreciate the legality thereof on all the occasions is a factor which was deliberately ignored by ....
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....ons of three companies namely M/s. Brahmani Infra Tech Pvt. Ltd., M/s. Stargaze Properties Pvt. Ltd and A4 Company in the same file which transactions also were under the scrutiny of the investigation agency which ultimately were found to be clear without any quid pro quo deal insofar as the other two companies namely, M/s. Brahmani Infra Tech Pvt. Ltd., M/s. Stargaze Properties Pvt. Ltd., are concerned as reflected in their Memo dated 23.9.2013 before the Court of the Principal Special Judge for CBI Cases, Hyderabad. The same should have been the case with the proposal of A5 the Special Purpose Vehicle of A4 sent along with the said two companies stand on the same footing and there cannot be any different yard stick of appreciation for the sake of implicating the petitioner. Surprisingly, the respondent hatched an evil scheme to implicate the petitioner alleging that she conspired with other accused but obviously the sections referred under IPC and also under the Prevention of Corruption Act cannot be made applicable to the case on hand against A7 as even if the same are found to have been done, the same are done in good faith in obedience to the orders of the Council of Mi....
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....s insofar as the petitioner concerned in C.C.No.27 of 2013 on the file of the Principal Special Judge for CBI Cases, Hyderabad and also the cognizance order against the petitioner. The respondent filed counter inter alia stating that on the basis of the orders of the Division Bench of this Court in Writ Petition Nos.794 and 6604 of 2011 dated 10.8.2011, the CBI, Hyderabad registered a case vide RC 19 (A)/2011-CBI/Hyderabad under Section 120-B r/w 420, 409, 420 & 477 IPC and 13(2) r/w 13(1) (c) & (d) of the PC Act, 1988 against Y.S. Jaganmohan Reddy and 73 others. One of the main allegations in the FIR was that Government of Andhra Pradesh awarded VANPIC Project and allotted more than 15,000 acres of land in Prakasam and Guntur Districts to the companies promoted by Sri Nimmagadda Prasad violating all norms and granted several concessions. As a quid pro quo, Nimmagadda Prasad invested in the companies belonging to Y.S. Jaganmohan Reddy through his group companies. That during the period between 2006 and 2009 the Government of Andhra Pradesh led by the then Chief Minister Dr. Y.S. Rajasekhara Reddy under the influence of his son Y.S.Jaganmohan Reddy (A.1) has extended several ....
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....part of official duties of the public servants and therefore the protection contemplated u/s.197 Cr.P.C. is not applicable to the delinquent public servants. Sanction Orders u/s.19 of the PC Act, 1988 for prosecution of the public servants including the petitioner herein are awaited for taking cognizance u/s.13(2) r/w 13(1)(c) & (d) of the PC Act, 1988. It is further stated in the counter that the charge sheet has clearly elaborated on several omissions and commissions of the petitioner herein as the then Secretary of IT & C Department, Government of Andhra Pradesh facilitated arbitrary allotment of 250 acres of land at Shamshabad by entering into an MOU dated 12.7.2006 with the accused private company M/s. Indu Techzone Pvt. Ltd., in gross violation of the Cabinet decision. The promoters of the said accused private company have paid an amount of Rs. 15.00 Crore as bribe to Y.S. Jaganmohan Reddy under the guise of investments in M/s. Carmel Asia Holdings Pvt Ltd (A.12) for exercising personal influence on his father and late Chief Minister Dr.Y.S. Rajasekhara Reddy and persuading him to abuse his official position and to extend undue favours to Sri I. Syam Prasad Reddy (A.3)....
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....T Policy 2005-2010. In May, 2005, Government of India passed with Special Economic Zone Act (SEZ Act, 2005) on 10.02.2006 published SEZ Rules, 2006. Having recognized the importance of exports in development of nation's economy, Government of India announced several incentives to encourage and enable the exports to price the goods at competitive prices in international markets. The incentives include exemption/relief from Central Excise/Customs on inputs/exports; Income Tax Exemption for 10 years; IT exemption u/s 10(23G) to infrastructure capital companies; exemption on long term capital gains; tax holiday u/s 80-IAB; availability of bank finance at confessional rate and on priority basis etc., The Government of India encouraged establishment of SEZs by the State Government themselves or in the private or joint sector with a view to ensure number of SEZs start functioning sooner than later. SEZ is a geographically demarcated piece of land where all the units which are set up get specific privileges and are specifically delineated duty free enclave and shall be deemed to be foreign territory for the purposes of trade operations and duties and tariffs. These are provid....
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....uisition of lands earmarked for development of IT/Hardware SEZ in two phases and directed that the established procedure of IT& C Department should be followed for allotment of land to IT hardware and software companies. It was further directed that APIIC or any other agency should make land allotments with approvals of CCITI only, which is the legitimate committee approved by the Cabinet for allotments to IT companies in this regard. The petitioner the then Secretary IT & C Department and the Chairperson of the CCITI communicated these decisions to APIIC through a DO letter No.1498/IT&C/2005, dated 4.10.2005 and requested Sri B.P. Acharya, the then VC & MD, APIIC to prepare a project report so that the same can be processed within the Government and sent to the Government of India, Ministry of Commerce for approval of the SEZ Committee. In order to streamline the allotment process, the CCITI in their meeting held on 17.10.2005 decided that IT companies (i) should have a five year track record Iii) should be in production for at least three years on the date of application and (iii) should have at least 50 employees and above on their rolls. The Committee further deci....
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.... Rs. 20.00 lakh per acre was decided in the context that APIIC, a wholly company of Government of Andhra Pradesh shall develop the SEZ for which application has already been submitted by them and forwarded to Government of India. Subsequent to the CM's review meeting, the application of APIIC was forwarded to Central Government for approval. The proposal was accepted 'in principle' by Government of India vide letter dated 29.12.2005. However, on 13.12.2005 the petitioner being Secretary, IT & C Department has directed P.S. Murthy, JD (Promotion) to write letter to M/s. Indu Projects Ltd., Hyderabad to submit an application in the prescribed proforma along with the requisite information in the checklist/criteria before 17.12.2005. In reply, on 17.12.2005, I. Syam Prasad Reddy (A.3) M.D. of M/s. Indu Projects Ltd., submitted the application for allotment of 250 acres of land in Sy.No.99/1 at Mamidipally in Ranga Reddy District along with incorporation certificate and other relevant documents. The petitioner endorsed on the application "Process and Put Up" on the same day. This signifies a sudden and inexplicable shift in the stand adopted by the petitioner. Earlier APIIC was a....
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....e building projects of not less than a minimum of 4 million (40 lakh) SFT. Project under development or at the proposal shall not form part of the constructed space. The Committee also decided that the developer company should have minimum net worth of Rs. 250.00 Crore as per the last audited annual accounts and the developer was required to submit the basic documents like annual reports; net worth statements; IT returns for preceding 3 years. The Committee further decided that the experienced companies that built space should continue in the consortium of developers till completion of the project and till at least 50% of the built space is occupied. The issue of allotment of lands to M/s.Indu Projects Ltd., M/s. Brahmani Infratech Pvt Ltd and M/s. K. Raheja Corporation Pvt Ltd came up for discussion in the meeting. In the meting it was further decided that APIIC may set aside 250 acres of land for each developer. Since it was decided that a minimum of 5 million SFT should be developed per each 100 acres of land, the Committee decided that the handing over of land should be made only after achieving financial closure; building minimum of 5 million SFT for 100 acres of land a....
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....tary of IT & C Department vide D.O.Lr.dated 3.1.2006 forwarded the applications of M/s.Indu Projects Ltd., M/s. Brahmani Infratech Pvt Ltd, M/s.K.Raheja Corp Pvt Ltd and M/s.Maven Park to APIIC with a direction to examine the applications keeping in view the parameters evolved in the CCITI's meeting on 21.12.2005 for selection of IT park developers. It is also stated that contradictory stands adopted by the petitioner and Sri B.P. Acharya, APIIC in selection of the developers. On one hand, in CCITI meetings, they have decided to adopt transparent method for selection of IT developers. On the other hand applications were sought only from the selected companies, violating their own decisions without any justification. That in clear deviation from the established procedure APIIC has not published any tender notification in the instant case. That on 30.1.2006 Sri B.P. Acharya circulated a single note file stating that Government after careful consideration has short listed some companies for Hyderabad and Visakhapatnam. Advance copies were submitted to the Secretary, IT & C Department and Addl. Secretary to the Chief Minister as directed. In the Note file Sri B.P. Acharya A.8 h....
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....n recommended to Government of India for approval, had procured the application of M/s.Indu Projects Ltd., without any justification. (ii) Smt. Ratna Prabha, IAS has acted in furtheranceof criminal conspiracy with others and has not followed a transparent method of inviting IT developer companies in an open and competitive manner which was categorically laid/emphasized by the CCITI in a project with an estimated cost of Rs. 1,302 Crore against the established procedures/rules of Government of Andhra Pradesh. (iii) Smt. K. Ratna PRabha, IAS in furtherance criminal conspiracy has wilfully omitted to exercise due diligence to assess the eligibility criteria criteria of M /s. Indu Proejcts Ltd (A.4) and by abusing her official position as Secretary, IT & C Department has wilfully accommodated the false claims of Sri I. Syam Prasad A.3) in forming consortium with M/s.Kotak Mahindra Investments Ltd and M/s.Golflinks Software Parks Pvt Ltd. (iv) Smt. K.Ratna Prabha, IAS in furtherance of criminal conspiracy has decide to allot 250 acres of land in the CCITI meeting held on 2.2.2006 without any clarification/justification, contrary to the earlier stand taken in the 21.12.2005 meeting....
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....Chief Secretary, and the Chief Secretary has endorsed on 15.4.2006 to the effect that "the IT Department should take care of observations Finance Department vide Para 23 and Revenue Department minute vide Para 25." It is further submitted that the Cabinet Note was circulated through the Minister of Information Technology to the Chief Minister for 'for consideration' of placing the proposal to Cabinet, after following the procedure contemplated under Business Rules of the State of Andhra Pradesh and also after perusal of file by the Chief Secretary. It is the case of the petitioner that after APIIC forwarding the file the proposals of the three entrepreneurs were sent on a single note in a single sheet in a single file and taking necessary precautionary endorsements made by the various departments more so no head of the department have made any contrary endorsements on the file and infact made suggestive measures and that the same were approved together by the Chief Secretary in consultation with the then Chief Minister and got included in the Meeting of the Council of Ministers as an Agenda Item. The Chief Secretary who was present at the time of discussion in the Cabinet Me....
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....ld the Chief Secretary and the entire Council of Ministers responsible for any illegal decisions and they alone could be alleged for the illegal decisions. It is further submitted that State Cabinet in its wisdom decided and approved the proposals before it, as finalized by the Chief Secretary of the State and the same cannot be construed as a conspiracy, cheating or breach of trust involving the petitioner as A.7. In support of his contentions, the learned counsel for the petitioner has relied on the decisions reported in ALL CARGO MOVERS (INDIA) (P) LTD. V DHANESH BADARMAL JAIN (2007) 14 Supreme Court Cases 776 , wherein the Supreme Court has held as follows : " The allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. No allegation whatsoever was made against the appellants in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefore. Where a civil suit is pen....
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....nies." Learned counsel for the petitioner further referred to the office note C.No.1954/IT &C/Prom2/2005 (vide page no.75 of the material papers filed by the prosecution) wherein it was stated that - " 2. In the Review Meeting of the Hon'ble Chief Minister on 20.10.2005 on the growth of IT in the State and in order to promote alternative location for providing world class IT/ITES infrastructure, it was agreed to charge a rate of Rs. 20 lakhs per acre and also consider the proposals/applications received from private IT Park Developers to allot lands near Hardware Park, Mamidipalli/Raviryal village, Ranga Reddy District. 3. Subsequently, the following applications for development of IT/ITES Product Specific Special Economic Zones (SEZs) have been received: HYDERABAD: (i) M/s.Brahmani Infratech Pvt Ltd - a special purpose vehicle floated by M/s.Nava Bharat Group and M/s.Zelan Constructions Sdn. Bhd, Malaysia. (ii) Indu Infra Park - consortium with M/s.Infra Development Finance Company Ltd and M/s.Gulf Links Software Park Pvt Ltd (iii) Stargaze properties Pvt Ltd - this unit is subsidiary of M/s.K.Raheja IT Park (Hyderabad) Pvt Ltd VIZAG : A) M/s.Maven Corp. 4. Howe....
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.... on behalf of reputed clients, the buildings related to IT Parks/Special Economic zones, and/or large commercial, residential, office building projects of not less than a minimum of 4 million (40 lakh sq. ft). (Projects under development or at the proposal shall not form part of the constructed space). - Shall demonstrate adequate marketing capability commensurate with size and nature of IT project being contemplated - Shall indicate the optimum/maximum built up space to be constructed - Shall indicate the projected/expected employment to be generated in the area identified/applied. - The anticipated/expected list of ICT companies proposed to be mobilized/brought into the Park in the area identified/applied. - Expected time of completion of the project. .... .... APIIC is requested to keep the above criteria as benchmarks for evaluation and selection of private IT Parks/SEZ developers. Item N o.5. Applications received since 33rd CCITI for allotment of land in Hyderabad: Software: Presently CCITI is considering allotment of land to Mega projects/home grown IT companies/Multi-National Companies, having more than 1000 employees. It is suggested by the members of t....
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.... the court cannot sit in judgment over commercial or business decision taken by the State or its instrumentalities, which ahs been duly taken after evaluating and assessing the monetary and financial implications, unless the decision is in clear violation of statutory provisions or is perverse or is taken for extraneous considerations or improper motives. The Supreme Court further held that State and its instrumentalities can enter into various contracts which may involve complex economic factors. There is always an element of risk in such decisions. If the decision is taken bona fide and in public interest, the mere fact that a decision ultimately proves to be wrong, would not by itself be a ground to hold that the decision was mala fide or taken with ulterior motives. Matters relating to economic issues always have an element of trial and error; and so long as the trial and error is bona fide and with best intentions, such decisions cannot be questioned as arbitrary, capricious or illegal. Relying on the above decision, learned counsel for the petitioner also contended that the Government has taken decision for allotment of land to A.5 company in order to create employment oppor....
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....nes framed by Central Vigilance Commission. In VINEET NARAIN's case (5 supra) the Supreme Court gave directions in relation to CBI, CVC and the Enforcement Directorate. In para 58, the Supreme Court gave the following direction : " 58. (I)(15) Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office." Learned counsel for the petitioner also relied on the decision reported in PATHAN MOHAMMED SULEMAN REHMATHKAN v. STATE OF GUJARAT AND OTHERS 2013 LawSuit (SC) 1076 wherein the Supreme Court held as follows: "We are of the view that these are purely policy decision taken by the State Government and, while so, it has examined the benefits the project would bring into the State and to the people of the State. It is well settled that non- floating of tenders or absence of public auction or invitation alone is not a sufficient reason to characterize the action of a public authority as either arbitrary or unreasonable or amounted to mala fide or improper exercise of power. The Courts have alw....
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.... that APIIC may set aside 250 acres of land for each developer. Since it was decided that a minimum of 5 million SFT should be developed per each 100 acres of land, the Committee decided that the handing over of land should be made only after achieving financial closure; building minimum of 5 Million SFT for 100 acres of land and as such, handing over of 250 acres of land need not be done in one go. It was further decided that in the MOU a condition may be stipulated that further release and allotment of land will depend on fulfilling the terms and conditions of the contract in terms of the land handed over in the earlier period. It was further contended that the application of M/s. Indu Projects Ltd should not have been considered at all for the reasons that the company did not meet fulfil the eligibility criteria of having a net- worth of Rs. 250 Crore and did not construct 40 Mn.SFT. Further, the claim of forming consortium with M/s.Kotak Mahindra Investments Ltd is not supported by any consortium agreement or GPA signed by all the three purported constituent members. Therefore in the absence of valid consortium agreement/GPA, it should not have been allowed to place before the ....
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.....10.2013 insofar as petitioner (A.7) concerned u/s.120B, 420, 409 IPC. It is mentioned in the Charge Sheet that sanction orders u/s 19 of the PC Act, 1988 for prosecution of the petitioner is awaited for the offences u/s.13(2) r/w 13(1)(c) & (d) of the PC Act, 1988. It is settled principle of law that the order of sanction is only an administrative act and not a quasi judicial one. The competent authority can apply its mind on those facts and may pass appropriate orders for sanction of prosecution considering the facts and the prima facie evidence of commission of offence. The competent authority may grant or refuse to grant sanction. Section 197 Cr.P.C. reads as follows: " 197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of co....
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....d under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held." The emphasis of Section 197 Cr.P.C. " that no court shall take cognizance of such offence except with the previous sanction" suggests that before taking cognizance of offence alleged prior sanction from the competent authority is required. Before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is at liberty to produce the order of sanction even during the trial of the case. It is therefore clear from the reading of provisions contained in Section 197 Cr.P.C. and in view of the decisions of the Supreme Court referred supra, that filing of charge sheet and taking cognizance against the ....
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.... held that when the investigating officer spends considerable time to collect the evidence and when the charge sheet is placed before the Court, further action should not be short-circuited by resorting to exercise of inherent powers to quash the charge sheet. In K.M. SHARAN's case ( 14 supra) the Supreme Court held that the High Court in its jurisdiction under Section 482 Cr.P.C. is not called upon to embark upon the inquiry whether the allegations in the charge sheet are reliable or not. These are matters which can be examined only by the Court concerned after the evidence is led. Learned Additional Solicitor General further submitted that as per the directions of the Division Bench of this Court in W.P.Nos.794 and 6604 of 2011 dated 10.8.2011, the respondent agency investigated into the matter and after completion of the investigation has filed charge sheet against the petitioner and others therefore the respondent investigating agency has got jurisdiction to investigate into the offence. Learned counsel for the respondent in support of the said contention has relied on the decision reported in NIRMAL SINGH KAHLON AND J.P. SINGLA v. STATE OF PUNJAB AND OTEHRS (2009) 1 SCC....
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....not justified in quashing the charge sheet in exercise of its powers under Section 482 of the Code. In M/s. JAGATHI PUBLICATIONS LTD v. CBI, HYDERABAD MANU/AP.0392/2012 it was held that economic offences destroy the economic fabric of this Court and all such offences have to be dealt with iron hand. The Central Government should consider it seriously. In Y.S. JAGAN MOHAN REDDY v. CBI MANU/SC/0487/2013, the Supreme Court held that economic offences constitute a class apart and need to be visited with a different approach. The economic offences having deep rooted conspiracies and involving huge loss of public funds, needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing threat to the financial health of the country. Relying on the above decisions, the learned counsel for the respondent submitted that the prosecution has collected various documents official notes from the Department of IT and C which prima facie disclose that the petitioner being Secretary of the Department has accepted the proposal of A.5 company without calling for tenders and without notifying other companies and had played major role ....
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....t is also further contended that it is not the petitioner who has solicited the applications from the IT entrepreneurs as is being alleged. In fact it is three entrepreneurs who made applications to the APIIC marking a copy to the IT & C Department, Government of Andhra Pradesh which have been rejected by the petitioner to be submitted in the prescribed format. The time taken from the date of making the initial application in a wrong format till the date of signing of the MOUs after modifications would go a long way in establishing the lack of malafides or any extraneous considerations on the part of the petitioner which have been failed to be taken note of by the respondent in its investigation. In any view of the matter as either the Chief Secretary who has seen the file on several occasions, the other Departmental heads who are involved in the allocations, and the Cabinet on the whole have not taken any action in the event of they coming to a conclusion that there is any deviation made by the petitioner in furtherance of her alleged conspired policy as is being alleged goes a long way to establish that no deviation has done and it is also clear that there is no reason to suspect....
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....arded VANPIC Project and allotted more than 15,000 acres of land in Prakasam and Guntur Districts to the companies promoted by Sri Nimmagadda Prasad violating all norms and granted several concessions. As a quid pro quo, Sri Nimmagadda Prasad invested in the companies belonging to Sri. Y. S. Jaganmoha Reddy viz., M/s.Carmel Asia Holdings Pvt. Ltd., M/s. Bharati Cements, M/s. Jagathi Publications Pvt. Ltd., M/s.Silicon builders; M/s.Sandur Power Company etc., through his group companies. It is alleged that Nimmagadda Prasad received several undue favours in the form of allotment of lands under the cover of developing infrastructure projects and in turn paid amounts to the companies owned and controlled by Y.S. Jaganmohan Reddy routing them through the private companies of Nimmagadda Prasad as quid pro quo to the undue benefits received by them. Investigation into allotment of 250 acres of land at Shamshabad to M/s.Indu Techzone Pvt. Ltd was made and charge sheet has been filed before the Principal Special Jduge for CBI Cases, Hyderabad against 15 persons including the petitioner herein (A.7) for her involvement in commission of offence punishable under Sections 120-B, 420, 409, 420,....
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....ards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] Section 409 IPC reads as under : " 409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Section 420 IPC reads as under : " 420. Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to....
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....ngly and with abundant caution. The legal principles in regard to quashing of a first information report in view of a large number of decisions are well settled. The Supreme Court in R. KALYANI v. JANAK C. MEHTA (2009) 1 SCC (Cri) 567 while considering the entire case law has held as follows : " 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should no....
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....ment and have right type of highly reputed strategic allies and know-how providers to partner them in establishing IT parks. Sri Syam Prasad Reddy A(.3) further stated that they have tied up with 2/3 highly reputed international partners to develop an integrated world class SEZ that could provide facilities to world players in software/hardware/ITES/residential & Retain and allied sectors. He requested to allot 1,000 acres of land near international airport for the purpose. In another letter of even dated addressed to the VC & MD with similar contents, Mr. Ram Pujari, Director, M/s. Indu Projects Ltd (A.4) requested to allot 500 acres of land nearthe international airport. Copies of both the letters were endorsed to the Secretary, IT&C Department and were received by Smt. K.Ratna Prabha A.7, the then Secretary as evidenced by her initials thereon." .... CM's meeting on 20.10.2005: In furtherance of said criminal conspiracy, on the next day i.e. on 20.10.2005, the then Chief Minister, Dr. Y.S. Rajasekhar Reddy conducted another meeting in which Sri B.P. Acharya (A.9), VC & MD, APIIC also participated, apart from the officials of IT Department. During the meting Sri B.P.Achar....
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....n of IT Park developers. 62. Investigation revealed that Smt. K. Ratna Prabha, Secretary, IT&C Department (A.7) and Sri. B.P. Achaarya, VC&MD, APIIC (A.9) dishonestly and fraudulently adopted the contradictory stands in selection of the developers. On one hand, in CCITI meetings, they have decided to adopt transparent method for selection of IT developers and on the other hand, applications were sought only from the selected companies, in total deviation without any justification." The charge sheet further states as :- "65. However, in a clear deviation from the established procedure, APIIC has not published any tenders/notifications in the instant case, even though the CCITI under the Chairmanship of Smt.K.Ratna Prabha, Principal Secretary (A.7) in their meeting held on 21.12.2005, has decided to adopt transparent and short duration method. " .. 67. Therefore, Smt. K. Ratna Prabha A.7 did not act transparently in calling for the applications from a few selected private companies. Recommendations of Sri B.P. Acharya, CMD, APIIC (A.9): 74. Investigation revealed that Sri B.P. Acharya (A.9) VC & MD, APIIC on 30.1.2006 circulated a single Note file stating that Gover....
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....ting. 82. In fact the rate of Rs. 20.00 lakh per acre approved in the CM's meeting dated 20.10.2005 was applicable to APIIC, wholly owned by Government of Andhra Pradesh. Government Proposals : 87. Investigation revealed that on 23.3.2006 IT&C Department had circulated a Note highlighting the key decisions of the CCITI in their meetings held on 21.12.2005, 2.2.2006; sub-committee meeting held on 14.3.2006 for finalization of built up space and employment generation and the salient features of terms and conditions of the draft MOU. 88. Investigation revealed that Smt. K. Ratna PRabha (A.7) Secretary, IT& C Department endorsed the noting and circulated the file to Law Department for their comments. 89. On 25.3.2006 Sri B.P. Acharya (A.9) VC&MD, APIIC has forwarded the remarks on the draft MOU with the suggestion to handover the land as per APIIC allotment Regulations, which means that sale agreement will be executed initially and sale deeds shall be executed after implementation of the project. (Rule 19.1). Opinion of Law Department: 90. Investigation revealed that Addl. SecretaryLaw vide his Note dated 27.3.2006 remarked that the Department shall ensure that the relie....
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....ealed that after elaborate discussions with Sri M. Gopi Krishna, Special Secretary and Smt. K. Ratna Prabha (A.7) Secretary, Sri P.S. Murthy JD (Promotions) has processed the file and submitted a Note on 26.5.2006 (sheet No.10 to 12) incorporating the proposed amendments to the modified draft MOU for approval of the Cabinet.... 143. IT may be pertinent also to note that it is a fact on record that M/s.Indu Techzone Pvt Ltd (A.5) which has been projected as the SPV is a 100% owned private company of M/s.Indu Projects Ltd (A.4)., and M/s.IDFC and M/s.Golflinks Software Parks Pvt Ltd., the declared financial and technical members of the consortium have not been the shareholders in the company. 144. Yet M/s. Indu Techzone Pvt Ltd (A.5) has been given the credence as an SPV consisting of all the three companies discussed above. This forms part of the deception played by Sri I. Syam Prasad Reddy (A.3) on IT&C Department headed by the Minsiter Smt. P. Sabita (A.8) and the Secretary, Smt. K. Ratna Prabha (A.7) who in turn played the deception on the highest executive authority i.e. the Council of Ministers. .. 146. Investigation revealed that the State Council of Ministers in their....
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....g the proposals to the Council of Ministers, the Minister and Secretary of the Department concerned are responsible as laid down in AP Government Business Rules and Secretariat Instructions as quoted above. 199. However, in this case the Secretary, IT&C, Smt. K.Ratna Prabha and the Minister Smt. P.Sabita Reddy have not followed the laid down Rules and Instructions and have completely deviated from the laid down procedure while obtaining the Cabinet approval. Implementation of the Cabinet Decision - Provisional Allotment Letter and physical handing over of possession : 200. As per Rule 21(1) of AP Government Business Rules which states that "whenever a deviation has to be made from a decision taken at a meeting of the Council of Ministers, such deviation should be got approved by the Council of Ministers or in case of urgency by the Chief Minister. Where a deviation has been got approved by the CM due to urgency, it should be got ratified later by placing it before the Council. Remarks of the Chief Secretary: 324. The former Chief Secretary has stated that by inclusion of enabling provisions for development of 100 acres of land by the company or its subsidiaries/joint ventu....
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....erred to the letter dated 17.10.2005 sent by the VC &MD of APIIC to the petitioner wherein it is stated that land can be allotted to the IT Software companies at the rate of Rs. 2600/- psm without development which is prevailing for undeveloped land in Hardware park. It is also relied on the copy of the CS approved the note file for placing the item in Agenda to the Cabinet and the approval of the CS got further approval by the Chief Minister for placing the same before the Cabinet, therefore contention that the petitioner enrooted the file cannot stand prima facie. Learned counsel for the petitioner by placing reliance on the proceedings of the 1058 Meeting of the council of Ministers held at 11.00 am on 29 April, 2006 would submit that the agenda item was got approved by the Chief Secretary himself for placing before the Cabinet meeting and the same was got approved as : (i) "Resolved to approve the allotment of 250 acres of land each to the identified IT Park/Township developers i.e. M/s.Stargaze (Raheja), M/s. Indu Projects and M/s. Brahmani Infotech in mamidipalli, Kancha Imarat villages, Maheswaram Mandal, Ranga Reddy District by APIIC @ 20.00 lakhs per acre without applyin....
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....Government took a policy decision to allot the land for boosting the IT industry expeditiously and in one of such circumstances the petitioner was addressed by the APIIC as follows by letter dated 29.11.2005 the APIIC which is the nodal agency in allotment of land and fixation of rate. " .... A copy of the letter dated 10.10.2005 received from K. Raheja Corp. Private Limited, Mumbai is furnished herewith for ready reference. This issue was discussed during the review meeting conducted in the chambers of Hon'ble Chief Minister on 6.11.2005 (camp office) and it was agreed, in principle, to allot around 250 acres of land to M/s.K. Raheja Corp. ( in the area adjacent to the Gems Park) at a rate of Rs. 20.00 Lakhs per acre. I therefore, request you to communicate necessary orders of the Government to facilitate allotment of land in this regard." The petitioner further submits that the role of IT&C Department is only to the extent of referring the applications of the prospective entrepreneur to the APIIC for verification of their credentials to see that the policy implemented in accordance with law, the rest of the role is with the nodal agency like APIIC, the Revenue, Finan....
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....r that proposals of the three entrepreneurs were sent on a single note in a single sheet and the same was approved together by the Chief Secretary in consultation with the Chief Minister and got included in the Meeting of the Council of Ministers as an Agenda Item. The decision as to allotment being policy decision was taken by the Cabinet and therefore accusations levelled by the CBI cannot be attributed to the petitioner, more so in view of the fact that upon being reposted as Principal Secretary IT & C on 23.3.2010, the petitioner having noticed the lack of progress in the project of A.5 has recommended for resumption of the lands after filed inspection as a remedial measure for the deviation of the terms of the agreement by A.5. the said proposal sent to the Minister IT & C and is still pending consideration even this date is a factor which was lost sight of by the CBI to test the bonafides of the petitioner. It is apt to refer to the counter affidavit which states at para 30, as follows: " 30. Next, the Chief Minister, Dr. Y.S. Rajasekhar Reddy conducted another meeting on 20.10.2005 under the aegis of IT& C Department to review the progress on new IT Parks, in which Sri B.P....
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....IIC will be at liberty to resume the land." It was further stated at para II that : " Revenue Department has no comments on this item containing the selection of the Company. It is presumed that selection process has been done in a transparent and impartial manner. The cost of the land at Rs. 20 lakhs per acre is extremely low. The current price may be over a crore per acre. However, in order to provide incentive to IT companies and achieve the objective of the IT Hub Development, Government may take its own view to provide land at concessional rate." III. No comments. IV. Approval of the Cabinet may be obtained before taking any further action." From the above endorsement, it is clear that Revenue Secretary opined that though the current price fixed at Rs. 20.00 lakhs per acre is extremely low, however, in order to provide incentive to IT companies government may take its own view to provide land at confessional rate. Thereafter, the file was referred to the Chief Secretary, who endorsed thus : " IT Department should take care of Finance Department observations vide para 23 and Revenue Dept. minutes vide para 25(II)." At this stage, the circulation of the file was inter....
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....250 acres of land each, as mentioned in (i) above." Countering the stand of the respondents that the petitioner ought to have followed the tender process it is submitted that the Government have already taken policy decision to allot the land for boosting the IT industry expeditiously and in one of such circumstances the petitioner was addressed by the APIIC as follows by letter dated 29.11.2005 the APIIC which is the nodal agency in allotment of land and fixation of rate. " .... A copy of the letter dated 10.10.2005 received from K. Raheja Cor.Pvt Limited, Mumbai is furnished herewith for ready reference. This issue was discussed during the review meeting conducted in the chambers of Hon'ble Chief Minister on 6.11.2005 (camp office) and it was agreed, in principle, to allot around 250 acres of land to M/s.K. Raheja Corp. ( in the area adjacent to the Gems Park) at a rate of Rs. 20.00 Lakhs per acre. I therefore, request you to communicate necessary orders of the Government to facilitate allotment of land in this regard." The petitioner further submits that the role of IT&C Department is only to the extent of referring the applications of the prospective entrepre....
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....nd after approval of the Council of Ministers in the Cabinet Meeting, the Chief Secretary and the Chief Minister signed the minutes and that the Chief Secretary communicated the proceedings dated 27.04.2006 to the petitioner as the Secretary of the Government IT and C Department with endorsement 'please report the action taken on the above resolution to the G.A. Cabinet Department by endorsement dated 10.07.2006. As per the business rules concerned, Secretary, who placed the proposal of the department before the council of Ministers, the Chief Secretary has to compulsory to attend the meeting for explaining the back ground and the features of the cabinet agenda. In the proposal submitted to the Cabinet the opinion of the Finance Department and Revenue Department have been incorporated by the petitioner and that as per the business rules in force, the Agenda items along with materials will be communicated in advance to the Council of Ministers and the Secretaries concerned and the Chief Secretary. Further, as regards amendments to the MoU., Vide C.No.1954/IT&C/PROM/2005, IT & C Department note was prepared by mentioning the subject "Signing of MoU with IT Park developers - Certain....
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....IIC and against it was re-circulated to the petitioner department, who in turn processed and finally placed it before various departments, the concerned IT Minister and the Chief Minister, who approved the same for placing the same before the Cabinet. As the petitioner has not taken any independent decision as to alleged fixation of price of land and also allotment of land to the A5 company in violation of settled procedure. Learned counsel for the petitioner further relied on the decision reported in M.C. MEHTA v. UNION OF INDIA (2007) 1 SCC 110 wherein the Supreme Court as to formation of opinion of the officer in charge has held as follows : " 31. As stated above, the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. Under the CBI Manual, the officer in charge of the police station is the SP. In this connection, we quote herein below the CBI Manual, which though not binding on this Court in Supreme court monitored cases, nonetheless, the said Manual throws light on the controversy in hand. We quote clauses 6.1. and 19.15 of the CBI (Crime) Manual, 2005 hereinbel....
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....astucture is concerned it was mentioned in the G.O. while announcing the ICT Policy 2005-2010 as follows : " 36. Infrastructure: "All allotments of land to the IT Industry shall be made through APIIC. For all such lands the APIIC is the nodal agency with powers to provide all State Government clearances including the Building Plan Approvals (except Fire Services Clearance). APIIC will also facilitate and co-ordinate for the provisions of utilities to the IT industry and it will provide demand assessment for the requirements of support infrastructure from time to time. This provision aims at facilitating the IT industry getting all clearance at a single point." Vide Annexure-I in the said while announcing the ICT policy, it was held that : " For administering the incentives to the ICT Industry in a smooth manner a high level co- ordination between the various Departments of the Government and the Industry is required. For effectively resolving the problems, overcoming the impediments and ensuring growth of the ICT Industry in the State, a Consultative Committee on IT industry (CCITI) is constituted. 2. The CCITI shall act as a single window for granting incentiv....
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....d by APIIC is Rs. 26.00 lakhs per acre considering the fact that Internal infrastructure need not be developed by APIIC for allotment to be made to developers and major Companies where more than 100 acres is allotted, it was decided to charge a rate Rs. 20.00 lakhs per acre for the present. f) During the review meeting on allotment of lands at Hardware Park, the Hon'ble Chief Minister has agreed to the proposal to allot around 250 acres in the area adjacent to land allotted to Catelytic Software in Hardware Park to M/s. K.Raheja Corp., for setting up of IT/ITES and Hardware facilities @ Rs. 20,00,000/- per acre duly providing approach road to the site from Srisailam State Highway. This area may also be included in the proposed IT SEZ, if necessary. It was also directed by the Hon'ble Chief Minister that 1286 acres in Mamidipally and Kanch Imarth villages be arranged for notification by Government of India for APIIC IT SEZ for making lands available for reputed IT Software Companies." The above proceedings makes it clear that the Chief Minister has already allotted lands to K. Raheja Company @ Rs. 20.00 lakhs per acre duly providing approach road to the site from Srisailam State ....
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....nt for undertaking development of IT Parks around Hyderabad and other parts of the State to accommodate the Software Companies and to develop supporting infrastructure viz., commercial/residential buildings etc., Government after careful consideration has short listed some companies for Hyderabad & Visakhapatnam at the first instance. In the Minutes of CCITI meeting dt. 21.12.2005, at Item No.4 it was resolved to examine the parameters as prescribed therein, for consideration of applications of M/s.Maven Park (Visakhapatnam) M/s. Indu Projects Limited (Hyderabad), M/s.Brahmani Infratech Prviate Limited (Hyderabad), K. Raheja Corp. Private Limited (Hyderabad & Visakhapatnam) for allotment of land to develop IT Parks. In the minutes the criteria for selection of developers with (a) Minimum Technical Expertise, (b) Minimum Financial Qualification was fixed. Based on the above minutes a check slip for the criteria was prepared and sent to the above 4 developers for furnishing of details along with relevant documents. The above four developers have furnished the information as called for therein, in the format along with relevant records." .. The information as furnished by ....
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....he approval of the file or recorded any comments. Even the Special Chief Secretary while passing remarks on the file ultimately states that " cost of the land at Rs. 20 lakhs per acre is extremely low, however, in order to provide incentive to IT companies and achieve the objective of the IT Hub Development, Government may take its own view to provide land at concessional rate; that approval of the Cabinet may be obtained before taking any further action." Be it noted that in the charge sheet and also vide para 47 of the counter the respondent categorically stated that -" the petitioner herein, Smt. K. Ratna Prabha, as head of the IT& C Department cannot absolve herself of the responsibility to ensure that the applications placed before CCITI are complete in all aspects and supported with the necessary documents and in the absence of valid consortium agreement/GPA, it should not have been allowed to place before the Committee." However, according to the respondent agency it is the APIIC which received the applications and forwarded the same stating that they satisfy the norms and that the petitioner as head of the department of IT&C has only processed the file and no independent de....