TaxTMI 
TaxTMI 
2014 (6) TMI 1059
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.... her to untold misery, agony and mental trauma. 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....
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....s in furtherance of the policy. The role of the 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, 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....
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.... IT&C Department thereafter three officers held the said post. 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....
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.... the said MOU were found favour by the investigation in the charge 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 Tab....
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....o the Department without placing or discussing in the Cabinet. As Secretary 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 ther....
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....hed. The petitioner through her Department submitted the applications 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, th....
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....mind and caution. The petitioner therefore seeks to quash the proceedings 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 Re....
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....piracy and committing the offence of cheating and criminal breach of trust do not form 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 ....
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....r etc., A proforma of application for allotment of land to IT industry was enclosed to the ICT 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 b....
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....ting held on 30.9.2005, the then Chief Minister late Dr.Y.S. Rajasekhar Reddy issued directions for acquisition 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 applicatio....
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....making lands available for reputed IT software companies. It was also stated in the counter that the rate of 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 t....
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.... own or on behalf of the reputed clients, the buildings related to IT parks/SEZ and/or large commercial, residential, office 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 ....
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....he Government of India vide letter No.F.2/88/2005/EPZ dated 29.12.2005. subsequent to the CCITI meeting, petitioner being Secretary 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....
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....owing fully well that the application of APIIC Dated 19.10.2005 to develop the SEZ on Ac.1,582.24 in Mamidipally and Raviryal villages had been 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 a....
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....n a single file proposing the clearance of the said three files. After obtaining the comments of Law, Finance, Revenue the Cabinet Note has been prepared and circulated to the 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 ....
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....hout making any objection. Therefore the petitioner for her role as Secretary of IT & C cannot be held responsible, if at all, the CBI has found any fault, they should have to hold 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 co....
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....the Hon'ble Chief Minister that 1286 acres in Mamidipally and Kancha Imarth villages be arranged for notification by Government of India for APIIC IT SEZ for making lands available for reputed IT Software Companies." 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 ....
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....ct employment in other sectors of the society. ... Criteria for selection : Minimum Technical Expertise : - Should be in existence with credible track record in construction activity for a minimum period of 3 years. - Should have developed and/or constructed either on its own or 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....
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....ny role in allotment of land to A.5 company deviating the procedure. Learned counsel relied on the decision reported in ARUN KUMAR AGRAWAL v. UNION OF INDIA AND OTHERS (2013) 7 Supreme Court Cases 1 submitted that court cannot sit in judgment over the policy decisions taken by the State or its instrumentalities. In ARUN KUMAR AGARWAL's case ( 2 supra), the Hon'ble Supreme Court reiterated that 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 ....
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....is required with the Attorney General (AG) or any other law officer in the AG's office. In future every competent authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in the decision of the Supreme Court in VINNEET NARAIN v. UNION OF INDIA (1998) (1) SCC 226 and the guidelines 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 b....
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....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 Syam Prasad Reddy and other accused private companies. He also submits that the petitioner solicited applications from A.5 company for allotment of land without therebeing any justification in that regard. In the committee meeting it was 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 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 c....
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....P. C? Issue No.1 In the instant case the respondent investigating agency has not obtained sanction orders from the competent authority to file charge sheet. According to the respondent charge sheet was filed in R.C.No.19(A)/2011 against A.1 to A.15 under Sections 120-B, 409, 420, 468, 471, 477-A and under Section 9,11, 12, 13(2) r/w 13(1)(c) & (d) of P.C. Act, 1988, and the Special Judge for CBI Cases, Hyderabad has taken cognizance on 10.10.2013 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. ....
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....g to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued 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 t....
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....es. It is further submitted that the petitioner has even ignored the directions of the Chief Secretary from time to time and played active role in allotment of land, therefore there are no grounds to quash the proceedings at this stage. In support of his contention the learned counsel relied on the decisions of the Supreme Court reported in STATE OF H.P. v. PIRTHI CAHND AND ANOTHER (1996) 2 SCC 37 , CENTRAL BUREAU OF INVESTIATION v. K.M. SHARAN (2008) 4 SCC 471 In STATE OF H.P.'s case ( 13 supra) the Supreme Court 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 directio....
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....n to the rule of con tenuous prosecution. Where the offence is broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at the initial stage. In STATE OF MADHYA PRADESH v SURENDRA KORI (2012) 10 SCC 155 , the Supreme Court held that in view of the magnitude of the crime, the reports referred to in the charge sheet and the involvement of the accused could be decided only if an opportunity is given to the prosecution. The High Court in such circumstances is 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 gra....
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....official duties to look into the aspect of pricing of the land, allocation of the same to the entrepreneurs, vetting of recitals in the MoUs to be entered into with the allottees of the land etc., as they are within the domain of the APIIC which is the nodal agency of the project and the land owner even according to the counter of the respondent itself and that the chargesheet also explicitly makes it clear in that regard, therefore it is a fit case for quashing the charge sheet insofar as the petitioner is concerned. It 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 ....
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....above and other aspects relevant thereto and take the investigation to its logical end in accordance with law." It is seen from the record that it is on the basis of the orders of the Division Bench of this Court in W.P.Nos.794 and 6604 of 2011 dated 10.8.2011, CBI, Hyderabad registered a case vide RC No.19(A)/2011- CBI/Hyderabad u/s120-B r/w 420, 409, 420 & 477-A IPC and 13(2) r/w 13(1)(c) & (d) of the PC Act against Sri 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, 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 ....
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....20-B, 420 IPC rep by Y.S. Jagan Mohan Reddy. A.15 - C.V. Koteswara Rao - 120B, 420, 468, 471 IPC. Register CC and issue summons to accused for their appearance before this Court on 13.11.2013." From a reading of the above order, it is clear that the petitioner has been charged with the offence punishable under Sections 120-B (criminal conspiracy), 420 ( cheating), and criminal breach of trust 409 IPC. Section 120-B IPC reads as under : " 1[120B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracyto commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, 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 br....
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....h such power could be exercised. Apart from reiterating the earlier norms laid down by the Supreme Court, it was further explained that such power could be exercised where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. It is also settled law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuiness of the allegations made therein. The power to quash shall not, however be used to stifle or scuttle a legitimate prosecution and such power should be used sparingly 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 ....
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....ormation Technology & Communications Department. As Chairperson, CCITI and Secretary, IT&C Department, she played pivotal role in the process of selection of private companies and allotment of lands to them for development of IT/ITES product specific SEZ." According to the prosecution, the petitioner (A.7) played pivotal role in the process of selection of private companies and allotment of lands to them for development of IT/ITES product specific SEZ. According to the charge sheet at page 30 it was mentioned that - " Investigation revealed that in furtherance of said criminal conspiracy Sri I. Syam Prasad Reddy (A.3) of M/s. Indu Project Ltd (A.4) submitted an application dated 19.10.2005 addressed to VC&MD, APIIC stating that they are specialized urban infrastructure development 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 reque....
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....was attended by Sri D. Pardhasaradhi Rao (A.10), Chief Engineer, APIIC among others, discussed the issue of allotment of lands to M/s.Indu Projects LTd., M/s. Brahmani Infratech Pvt Ltd., and M/s.K. Raheja Corp. Pvt. Ltd., and resolved to adopt a transparent and short duration method to identify the developers who can bring in quality IT space along with associated social infrastructure on a large scale." Application forwarded to APIIC: 60. Subsequent to the CCITI meeting Smt. K. Ratna Prabha Secretary IT & C Department vide DO Lr.No.1954/IT&C/Prom2/2005 dated 3.1.2006 has forwarded the applications of M/s. Indu Projects Ltd., (A.4) 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. 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 ado....
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....Rs. 20.00 per acre was acceptable to APIIC which is the custodian of lands. CCITI Meeting on 2.2.2006. 81. Investigation revealed that in furtherance of the criminal conspiracy Smt. K. Ratna Prabha, Secretary, IT&C Department (A.7) has conducted CCITI meeting immediately, on 2.2.2006. The Committee under the chairmanship of Smt.K.Ratna Prabha resolved to recommend to Government for allotment of 250 acres of land located at Mamidipally, Ranga Reddy District to M/s.Indu Projects Ltd. (A.4) and to two others for development of IT/ITES SEZ, basing on the report given by APIIC. Even though the decision was taken that 250 acres of land need not be allotted in one go in the previous meeting held on 21.12.2005, these Minutes dated 2.2.2006 did not record any clarifications/justifications to allot 250 acres of land in one go. The rate of Rs. 20.00 lakh per acre as per the deliberations of the CM's Meeting on 20.10.2005 was also approved in this meeting. 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. Inve....
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....e Cabinet approval be obtained before taking any further action. He has further observed that the suggestions of Finance Department on resumption of lands in case of violation of the terms and conditions of MOU should be taken care of. .... Draft Cabinet Memorandum : 98. Investigation revealed that later, the file was marked to the Chief Secretary, who vide his Notes dated 15.4.2006 remarked that the IT Department should take care of the observations of the Finance and Revenue Departments. 99. Investigation revealed that subsequent to the remarks of the Chief Secretary, in furtherance of the said criminal conspiracy, Smt. K.Ratna Prabha (A.7) has dishonestly interrupted circulation of the file and a draft Memorandum for Council of Ministers has been prepared and submitted to the Minister for IT, Smt. P. Sabita (A.8) and the Chief Minister who in furtherance of the said criminal conspiracy, dishonestly accorded their approval on the same day i.e.15.4.2006. ... Revised Cabinet Proposals : 132. Investigation revealed that after elaborate discussions with Sri M. Gopi Krishna, Special Secretary and Smt. K. Ratna Prabha (A.7)....
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....rporating inbuilt safety mechanism to ensure that the government land should not go into the hands of parties which do not fulfil the criteria as laid down by the CCITI. 192. The draft Memorandum was approved by the then Minister, IT& C Smt. P. Sabita Reddy (A.8) on 28.6.2006 and the Chief Minister Late Dr. Y.S Rajasekhara Reddy on 1.7.2006. The same has been placed before the Council of Ministers in their meeting held on 7.7.2006, which approved the proposed amendments to the MOU. 193. All relevant facts have not been incorporated in the Cabinet Memorandum as required under Business Rule and Secretariat Instruction 18(1) while obtaining the approval fo the Council of Ministers. 194. The constitution and ownership of M/s.Indu Techzone Pvt Ltd., which are in variance to the proposals/approvals of the CCITI hae not been specifically mentioned in the Memorandum for the Council of Ministers as prepared by the Secretary, IT&C Department Smt.K .Ratna Prabha and approved by the Minister, IT&C, Smt. P. Sabitha. ... 198. Therefore, it is seen that for preparation of the Cabinet Memorandum with accurate details and explaining the proposals to the ....
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....mpanies where more than 100 acres is allotted, it was decided to charge a rate Rs. 20.00lakhs per acre for the present. During the review meeting on allotment of lands at Harware 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 in M/s.K. Raheja Crp., 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 Minsiter that 1286 acres in Mamidipally and Kancha Imarath Villages be arranged for notification by Government of India for APIIC IT SEZ for making lands available for reputed IT software companies. Hon'ble Chief Minister also opined to incorporate necessary conditions while allotting lands to Developers & IT companies, to responding commitment such as employment, period of completion, minimum investment without employee related incentives. Necessary penal clauses may also be incorporated for not fulfilling the required commitments. " ....
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....fication 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 21.2.2005 has decided to adopt transparent and short duration method". It is also stated by the respondents in para 64 of counter itself that on 30.01.2006 Sri B.P. Acharya, VC & MD, APIIC circulated a single Note file stating that "the Government after careful consideration has shortlisted some companies for Hyderabad and Visakhapatnam" and in the note file, pursuant to the directions of the CCITI, the VC & MD of APIIC who is authorised on that behalf has also stated that "information furnished by the company satisfied the requirement as fixed by the Government" and that during a review meeting on 20.10.2005 the CM has directed to allot land at a rate of Rs. 20.00 lakh per acre. If that be the factual position, even according to the record placed by the prosecution and in view of the categorical averments made in the counter also, the irresistible conclusion one can reach is that no prima facie case is made out against the petitioner is concerned in the present scenario. Countering the stand of the respondent that the petitioner ....
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....he three IT parks mentioned above after the recommendations and observations of the various officers in the IT & C Department including the Joint Director, and the Special Secretary, IT, (IPS Officer). After obtaining the comments of Law, Finance, Revenue, the Cabinet Note has been prepared and circulated to the Chief Secretary. The Chief Secretary has endorsed on 15.4.2006 to the effect that "the IT Department should take care of observations of Finance Department vide para 23 and Revenue Department vide Para 25." Since the same have been already incorporated in the Note file also draft MOUs., therefore according to the petitioner the further circulation was interrupted and sent to the concerned IT Minister, since no deferring or contrary remarks as to movement of file was endorsed by any of the departmental heads including the Chief Secretary; and that the Cabinet Note was circulated through the Minister of Information Technology to the Chief Minister for 'for consideration' of placing the proposal to the Cabinet. It was approved in the Cabinet on 29.4.2006 and the Chief Secretary on 2.5.2006 directed the Secretary to Government IT& C Department to " Please report the action take....
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....pers are as per the ICT policy of the State. 21. Subject to above, the alternations indicated in pencil on the draft MOU may be made." After circulation to the Law Department again the file was circulated to the petitioner herein who endorsed on the file at para 22 that "noted observations will be incorporated in the MOU." It is therefore clear that the petitioner as Secretary IT & C Department has incorporated the observations of the Law Department. After that the file was referred to the Finance Department i.e. Principal Secretary Finance, Government of Andhra Pradesh who endorsed as follows : "IT & C department can frame appropriate enabling policy on commercial lines without any financial burden to the Government or Government Agencies and ensure that the prevailing market value is recovered in an effective open transparent process." Thereafter, the file was referred to the Special Secretary (Revenue) Dr.V.P. Jawary, who made the following remarks. "25. Please refer to the proposal at para 19 on page 10 nf. Following are the comments of the Revenue Department on each of the items as per the Sl. No. at para 19. I. Draft MOU h....
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....ompanies 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 notefile 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 th Meeting of the council of Ministers held at 11.00 am on 29 th 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 applying employment linked rebate on land cost) for development of IT/ITES SEZs/IT Parks/Integrated IT Townships. (ii) resolved to appro....
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.... of Council of Ministers submitted by the IT and C Department in C No.1954/IT&C/Prom2/2005, M284 for development of integrated town ship/parks/IT SEZs - allotment of land of 250 acres each to M/s Brahmani Infotec, M/s Stargaze, and M/s Indu Projects in Mamidipalli and Kancha Imarat Villages, near new International Airport. The petitioner has incorporated the opinion of the Finance Department and the opinion of the Revenue Department also and justification of IT and C Department, to approve the terms and conditions of the draft MOU, to approve the IT department to enter into MOU with the three entrepreneurs for allotment of 250 acres of land. It is further seen from the record that on the same day, the Minister of Councils have approved the allotment of 250 acres of land each to the developers at the rate ofRs. 20 lakhs per acre without applying employment linked rebate on land cost, for development of IT/ITES, SEZs/IT parks/integrated IT Town ships. The council of Ministers of also approved the terms and conditions of MOU with the above mentioned developers. The said proceedings of meeting of Council of Ministers held on 29.04.2006 are approved by the Chief Secretary and the Chief ....
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....t. Ante. .... (65) In view of what has been stated earlier at paras 42 -64 n.f. ante, the file is circulated for placing the proposed/modifications/amendments to certain terms and conditions of MoU with the three IT Park Developers before the next cabinet meeting on 7.7.2006 along with DRAFT MEMORANDUM FOR THE COUNCIL OF MINISTERS for consideration & approval." The above note file was fully approved by the Chief Secretary and the concerned IT Minister and finally approved by the Chief Minister. In the Cabinet meeting on 7.7.2006 it was item 16 and 19 and the same was approved. The Chief Secretary on 10.7.2006 has endorsed to the petitioner stating that "Please report the action taken on the above Resolution to G.A. (Cabinet) Department." In the instant case, APIIC is the nodal agency with regard to allotment and fixation of price of land and the fact that the petitioner being the Secretary of the IT and C Department even according to the material placed by the prosecution is head of the Department only to process the application received by the department pursuant to the decision taken by the Government and also in view of the meetings conducted by the....
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....e forwarding the charge sheet to the court and the same is lacking in this case. It is seen from the record that vide G.O.Ms.No.8 IT & C Department dated 15.3.2005, it was stated that Government of Andhra Pradesh are keen to significantly increase the levels of employment being generated in the IT sector, by attracting leading and large multinational IT companies to establish their operations in the State by proving investments friendly climate, physical infrastructure of international standards in an around major towns and cities of the State. APIIC was made as nodal agency for development of IT parks which shall take steps required for calling and finalizing expression of interest/tenders, selection of leading and reputed developers, enter into agreements/MoUs, allocate and allot land for IT parks in the State and to monitor construction of IT parks. From this G.O. it is clear that it is the APIIC which was made nodal agency for development of IT parks and shall take steps required for "calling and finalizing expression of interest/tenders". Thereafter, the Government issued G.O.Ms.No.11, Information Technology & Communication Department dated 21.3.2005 whereby the policy o....
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....sion to boost the IT industry and to invite applications from the IT companies and that APIIC was directed to act as nodal agency for development of IT parks: that CCITI committee was constituted to act as single window for granting incentives under ICT policy and for approving for allotment of land. It is to be noted that allotment of land is kept with the APIIC vide para no.36 referred above. As per the material placed by the prosecution, the Chief Minister on review of IT & C Department meeting held on 30.9.2005 it was stated that : " Hon'ble Chief Minister gave his decisions as mentioned below : a) 1000 acres of land in possession with APIIC should be immediately allocated for IT as SEZ phase I b) Of the 5000 acres of land under acquisition by APIIC at the hardware park 2500 acres should be allocated for IT as SEZ phase II c) Land should be fixed at Rs. 26 lakhs per acre without developmental charges. d) For allotment of land to IT hardware and software companies established procedure of IT&C department should be followed. APIIC or any concerned should not deviate by making independent allotments to IT companies. " ....
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....note was prepared for allotment of land to three IT Park developers, wherein Additional Secretary (Law), Principal Finance Secretary, Spl. Chief Secretary Revenue, and the Chief Secretary have made endorsements as referred supra. After getting the noting of the Chief Secretary the circulation was interrupted by the petitioner stating that as per the observation of the Chief Secretary the observations of the departments will be taken note of in the MOU and then sent the same for approval to the concerned IT Minister and thereafter to the Chief Minister and the same were also approved. The endorsement made reads that - " As approved by hon'ble C.M. Memorandum to Council of Ministers reg; development of integrated township/IT parks - along with Check list is sent herewith for placing before the next Cabinet meeting on 29.4.2006. " Thereafter the matter was placed before the council of Ministers vide agenda item no.8 along with necessary material and it was got approved by the Council of Ministers. The note file dated 30-1-2006 sent by the APIIC read as follows : ".... To fulfil this need on quick time frame given the fact that Hyderabad is one of th....
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....er that in respect of the property so entrusted, there was dishonest misappropriate or dishonest use or disposal in violation of a direction of law or legal contract by the accused himself or by someone else which he willingly suffered to do." Normally, power to quash the Criminal Proceedings should be exercised sparingly and cautiously by looking into the allegations made in the charge sheet as to whether any offence is prima facie made out or not. So far as the petitioner is concerned, as discussed supra, the respondent has not made out any offences levelled against the petitioner including the offences under the provisions of the provisions of Prevention of Corruption Act. The petitioner has carried out the directions issued pursuant to the decision of the Government and that the applications were sent by the APIIC for allotment of land and the same were processed through the department heads and to the Chief Secretary and that the note was sent for concerned Minister and the Chief Minister while noting that observations of the concerned authorities will be kept while drafting MoU; that the Cabinet also approved the proposal and also the amendment in that regard, theref....
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....e and correct factual matrix. In instant as discussed above, from the counter averments and also the contents of the charge sheet itself the respondent investigation authority categorically stated that it is the APIIC which is the nodal agency for allotment of land and fixation of land value; and that after receiving the applications from three companies note was sent by the APIIC pursuant to the decision of the Government vide G.O.Ms.No.11 inviting applications from the companies for establishment of IT companies, that the APIIC which was authorised in that behalf, pursuant to the recommendations of the CCITI has forwarded the file after stating that "the Government after careful consideration has short listed some companies for Hyderabad and Visakhapatnam" and also stated in the note file that "information furnished by the company satisfied the requirement as fixed by the Government", whereupon the note was processed and sent to the Law Secretary, Finance, Revenue and Chief Secretary and that taking into consideration the opinion of the Chief Secretary and thus the file passed through various phases. Ultimately it was referred to the Cabinet and the MoUs are being entered into....