TaxTMI 
TaxTMI 
2018 (1) TMI 1665
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....parties and the State Government was put to loss and suspecting money laundering and in ordering CBI enquiry against M/s. Emaar properties, Public Joint Stock Company (PJSC), Dubai, has involved in this public private partnership project, by relied upon some enquiry by the Vigilance Department of the State Government. (Undisputedly there is nothing in the vigilance report specifically against the petitioner-Sri LV Subrahmanyam). 2. The police final report is running about 320 pages against several accused and of which so far as petitioner concerned it speaks that: 1. He (Sri LV Subrahmanyam-for short LVS) was Vice Chairman and Managing Director (VC & MD), APIIC from September, 2003 to May, 2005. During said period the modalities and implementation structure of the integrated project were finalized by the Government of AP (GoAP) on the recommendations of APIIC, 2. LVS received the memorandum and articles of association in respect of the SPVs i.e., 1. M/s. EHTPL, 2. M/s. BHLPL and 3. M/S. CCCPL. However, LVS in furtherance of the criminal conspiracy did not ensure that the memorandum and articles of association of the JVCos were suitably amended in consonance with the recitals o....
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....11.01.2005 for exemption from payment of conversion fee for change of land by APIIC/Emaar Properties, which was factually incorrect. The fact remains that while issuing G.O.Ms. No. 14 the GoAP had only agreed to look into the matter of exemption of conversion charges separately and not agreed for exemption per se as mentioned by LVS. 8. M/s. Emaar Properties. PJSC. Dubai (A.2) vide reference dated 02.05.2005 had mooted a proposal to the VC & MD, APIIC and marked a copy to the Principal Secretary, Industries and Commerce Dept. to bring in its subsidiary M/s. Fairbridge Holdings as a co-developer for the integrated project. LVS while dealing with the said proposal in furtherance of the conspiracy has called for further details of M/s. Fairbridge Holdings from M/s. Emaar Properties. PJSC. Dubai (A.2) though the Principal Secretary. Industries and Commerce Department had categorically instructed not to entertain any change in equity structure till the project was fully implemented. 9. The aforesaid overt acts of Sri LVS reveal the offences punishable under Sections 120-B IPC and Section 13(2) r/w 13(1)(d) and Section 15 of PC Act. 3. From the final report filed against A.1 to A.6 ....
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.... application for not a case of sanction rejected by State Government like therein. However even the earlier Special Judge observed on 16.03.2012 of want of sanction to take cognizance against A.1 and A.11 for the offences under the IPC and PC Act, the later Special Judge observed as if there was no observation for the IPC offences to have such a bar to take cognizance. The later Special Judge therefrom allowed the memo of CBI and took cognizance on 02.06.2012 only for the offence under Section 120-B IPC against petitioner-A.11 and only for the offences under Sections 120-B and 409 IPC against A.1. 6. Said action of later Special Judge on 02.06.2012 is nothing but a review of its own order which is impermissible even from change of presiding officer because of bar under Section 362 CrPC for not having the powers of High Court either inherent powers under Section 482 CrPC or supervisory powers under Section 483 CrPC. much less with any plenary powers under Articles 226 and 227 of the Constitution of India, even to overcome the bar under Section 362 CrPC for reopen by review of the matter - as held in State of Kerala v. M.M. Manikantan Nair 2001 (2) ALT (Crl.) 147 (SC) : 2001 (1) ALD....
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....0-B IPC without sanction because of the State Government later refused sanction. Suspension is only a temporary and stop gap relief and as rightly contended by counsel for CBI of cognizance already taken and by a subsequent refusal of sanction by State Government; he cannot suspend the earlier sanction order by its review. The Special Judge dismissed the petition of A.11-petitioner saving he cannot review the previous order. Here also the learned Special Judge went wrong in thinking it is a review, instead saving for want of sanction, no cognizance can be taken and even taken same later cannot continue and there is inherent defect to continue the proceedings and thereby liable to be closed for disability to proceed and is not a review but lack of power and authority to proceed. Thus said order is also per se unsustainable and liable to be set aside without going into other merits at the threshold to sub serve the ends of justice. 9. Leave it as it is even coming to the merits on sanction refusal and bar to proceed, a perusal of the sanction refusal order of the State Government supra reads with reference to the facts referred above of the PIL and order of High Court and CBI taken ....
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....rovision for increasing the lease rental from 2% to 3% was made in the Supplementary Agreement. 4. As per the instructions of the Government of India, the version of Sri LVS was called for vide reference 3rd cited. In the reference 4th cited, the member of service has submitted his version. 5. In the reference 5th cited the version submitted by Sri LVS was referred to the investigating agency to rebut the contentions of the accused officers. In the reference 6th cited the CBI has furnished their rebuttal. 6. The version of the member of service and the rebuttal of the investigating agency were referred to the law department of the State Government for their opinion as per the instructions of the Government of India. 7. A. In respect of revision of land price the member of service has informed that: (i) The overall project cost has been revised from Rs. 430 crores to Rs. 630 crores and the equity share of APIIC has been reduced to 26% from 49% thereby reducing the investment by Government. (ii) the asset value of the project has been gone up the land value after adjustment for required equity was converted into debentures at nominal rate of interest. (iii) the lease re....
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....re say of only Section 197 CrPC and mistake in non mention of Section 19 PC Act will not even to the advantage of the prosecution agency much less to apply for another according of sanction from the Central Government for not even a review by the same State Government by pointing out this aspect for any clarity and that too against a decision of the State Government when there is no provision for the Central Government to sit against or to give a fresh sanction by ignoring the sanction refused by the competent authority, the State Government way back in dt. 05.06.2012. 12. However subsequently sanction order was obtained by CBI from the Government of India, vide F. No. 107/2/2012-AVD.I dt. 19.05.2016 for the offences punishable under Sections 13(2) read with 13(1)(d) & 15 of the Act, that was also taken cognizance: which are now sought for quashing by impugning the same. 13(a) The sanction order of the Central Government speaks in nutshell that the CBI under Section 19 of the PC Act, by forwarded copy of investigation report, sought sanction to prosecute Sri LVS, IAS, (AP:83), for the offences punishable under Sections 13(2) read with 13(1)(d) & 15 of the Act, by referring to the....
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....reed to the request of the developer and recommended lease rentals as 2% of Gross Annual Revenue; 10. And whereas, that Shri K. Viswesvara Rao, the then Principal Secretary, Industries and Commerce Department, GoAP agreed with the recommendations of Sri LVS, except in respect of lease rentals, which he recommended negotiations with the Developer for 2% of Gross Annual Revenue for 33 years and 3% for further 33 years. Then the GoAP agreed for revision of the lease rentals to 2% on gross Annual Revenue for the first 33 years and 3% for further 33 years. However, in these discussions, Shri LV Subrahmanyam did not raise the issue of increasing the land cost from Rs. 29,00,000/- to Rs. 40,00,00/- per acre as proposed by the Project wing; 11. And whereas, there was a request from M/s. Emaar Properties PJSC, Dubai to revise the G.O.Ms. No. 14 in respect of lease rentals. As per G.O.Ms. No. 14 issued on 11.01.2005 the lease rentals from the Golf Course was fixed at 2% on Gross Annual Revenue for the first 33 years and 3% for further 33 years. Shri LV Subrahmanyam in furtherance of the conspiracy with M/s. Emaar properties PJSC, Dubai, while moving a proposal dated 19.01.2005 to the Ind....
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....of the Villa Plots marked by it. The rate of 5,000/- was applicable for sale of first 100 Plots and subsequently the plots were to be sold on the basis of prevailing market rate. This agency agreement dated 29.01.2005 was executed by M/s. Emaar Properties PJSC, Dubai, even though the land for the township project was conveyed by APIIC in favour of M/s. EHTPL vide conveyance deed dated 28.12.2005. Further, APIIC was not consulted before executing this agreement, though it was proposed to hold 26% equity in the project land value; 14. And whereas, that during the month of March, 2005, Shri Vankina Chamundeswaranath approached Shri LV Subrahmanyam and requested him to arrange for the allotment of a villa plot in his name. Shri LV Subrahmanyam requested Shri Koneru Rajendra Prasad to allot a villa plot in the name of Shri Vankina Chamundeswaranath. Shri LV Subrahmanyam then directed Shri Vankina Chamundeswaranath to meet Shri T Ranga Rao in this connection. Accordingly, a villa plot was allotted to him. This clearly shows that Sri LVS was in the knowledge that the villa plots were sold by Shri Koneru Rajendra Prasad and Shri T Ranga Rao, Director of M/s. Stylish Holmes Real Estates P....
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....re Corporation Limited for the above said offences and for any other offences punishable under other provisions of the law in respect of acts aforesaid and for taking cognizance of the said offences by the Court of competent jurisdiction. 14. The contentions in the quash petition impugning the said cognizance orders of the learned Special Judge are that: 14(a) The police final report is filed without any basis and the cognizance taken is outcome of non-application of mind to the facts, apart from going beyond the scope of writ petition direction the investigation even went on and the proceedings are thereby liable to be quashed against the petitioner-A11 and despite the fact that neither in the writ petition nor in the vigilance report there is any allegation against the petitioner-A11. It is also contended that the allegation of project wing of APIIC recommended to revise from Rs. 29,00,000/- to Rs. 40,00,000/- per acre for price of land conveyed to SPV on free hold basis is not correct for the fact that developers advised to have re-look at the cost in view of the developments taken place and the same is not even a proposal. Further the price already fixed by the Government by ....
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....o then Chief Minister and finally then Chief Minister approved proposal for waiving conversion charges in respect of 15 acres of land on 10.05.2005 after no objections received from any party to that waiver and after detailed examination in MA & UD, after issue of draft notification with no objections G.O.Ms. No. 894 MA Department dated 02.11.2005 was issued confirming conversion in the land use pattern of 520 acres and APIIC exempted from payment of conversion charges where the MA & UD issued orders after due process under business rules and taking orders from appropriate authority after due publication and as such, the charge against the petitioner is baseless. The petitioner was VC & MD from September 2003 to May 2005 in which period there was no transaction of sale taken place bringing loss of revenue to the State and the allegation that due to action of misconduct on his part loss caused to the State is absolutely baseless. The sanction order of the Central Government dated 23.05.2016 was given without application of mind and mechanically reiterating the charges, which is contrary to law and outcome of non-application of mind and the learned Special Judge also should have cons....
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....per the sale consideration, 26% equity of Rs. 1,70,03,070/- in SPV-I was allotted to APIIC and out of the balance consideration, similar 26% equity was credited in SPVs - II & III. 15. The learned counsel for the quash petitioner is impugning the very final report against Shri LV Subrahmanyam as A. 11 for the offences punishable under Section 120-B IPC and Sections 13(2) r/w. 13(1)(d) & 15 of the Act, and despite earlier order of the predecessor Special Judge of March 2012 of requirement of sanction to take cognizance for all the offences, taking of cognizance for the offence under Section 120-B IPC by the successor Special Judge in June 2012 by sitting in review against earlier order and by wrongly mentioning as if earlier order not covered Section 120-B IPC but for PC Act offences; and even from State Government's refusal of sanction for all offences on the application of CBI to accord sanction, in saying to set aside the cognizance for want of sanction sought by him is review of the earlier cognizance order not permissible and also by impugning once the State Government being the competent authority rightly having considered refused sanction to prosecute him, the CBI applyi....
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....the quash of the proceedings sought, the factual background of the case is that, Expression of Interest (EOI) was issued way back by the APIIC in the year 2000 March for a Convention Centre/Golf Course and the two proposals were short listed from M/s. ITC Ltd. and M/s. EIH Ltd. It was only M/s. ITC Ltd., that responded to the Request for Proposal (RFP) and the same was accepted by the State Government on 26.12.2000. The site was initially chosen at Hussain Sagar Lake, however a PIL was filed and pending by then and thereby Government changed the site to Manikonda, there after M/s. ITC Ltd. did not respond having gone back. It is clear therefrom that the land value at Manikonda by then was not of much and thereby even the ITC went back from change of site from Hussian Sagar Lake area to Manikonda as not viable. 18(b) It is therefrom a new development was constrained to be issued by the State Government in mentioning with change of site from Hussian Sagar Lake to Manikonda on 26.07.2001 by calling for EOI for the new site at Manikonda. The land extent underwent changes and agenda was published ultimately. In response to it, though M/s. Emaar Properties-Dubai, M/s. IOI Corporation, B....
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....ance for the purpose of equity calculation and the actual benefit from the development will accrue only later with the creation of the project component when increase of the land value can be realized. Apart from it the asset which is fully developed will revert to the Government after 66 years and not an absolute and outright sale as can be seen from the terms of G.O.Ms. No. 359 so far as the lease of the land for Golf Course of 235 acres concerned. Once such is the case how the Petitioner-A11 can be found fault, that too when the Govt. approved having appreciated by taken the policy decision. The State Govt. was thereby right in its decision of the Petitioner is at no fault and the Central Govt. went wrong in ignoring the same and it shows lack of its understanding of the facts and developments from the beginning. 18(e) In this regard, a perusal of the G.O.Ms. No. 359, dated 04.09.2002, supra shows only a single file No. 81/APIIC/Projects/2000 was maintained. The G.O.Ms. No. 359 speaks that: (1). Government of Andhra Pradesh had proposed to establish an integrated project which includes an International standard Convection Centre, a Star Hotel. Golf Course and Villas. Governme....
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....reful examination further authorizes the Vice-Chairman and Managing Director. Andhra Pradesh Industrial Infrastructure Corporation Limited (VC & MP. APIIC) to enter into such an MOU: (a), after ensuring that the MOU is in conformity with the salient features of the proposal listed in Annexure; and (b). after getting the draft MOU legally vetted. (9). Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC) is also authorized to take further necessary action to implement this project. It shall be the responsibility of Andhra Pradesh Industrial Infrastructure Corporation Limited (APIIC) to closely monitor the implementation of this project with reference to the time frames for the various components of the project. 10. This order issues with the concurrence of Finance (Exp. I & C) Dept., vide their U.O. No. 4573/P.F.S./02, dt.02.09.2002. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) Sd/- JAINDER SINGH PRINICIPAL SECRETARY TO GOVERNMENT AND COMMISSIONER FOR INDUSTRIAL PROMOTION The annexure referred in para 5 of the G.O. supra speaks-the project comprises of Convection Center, Hotel, Golf Course, Multiuse Development and extent of land and locat....
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.... every quarter starting with signing of MOA. Para 10 speaks Performance Security. Emaar properties, PJSC, Dubai, shall furnish a corporate guarantee of Rs. 2 crores. 18(f) The APIIC Board authorized the VC & MD. APIIC. on 22.07.2002 to enter into MOU with Emaar properties. PJSC. Dubai Collaboration Agreement (CA). as approved by the Cabinet Subcommittee on 28.06.2003. was executed between APIIC and Emaar. Mr. B.P. Acharya, IAS, was on full additional charge as VC & MD of APIIC, when he was Secretary Industries and he worked in that capacity till May 2005. 18(g) The collaboration agreement executed on 19.08.2003. for the Integrated Project of Convention Centre Complex and Golf Course between APIIC and Emaar properties, PJSC, Dubai, speaks that - APIIC is the State Government owned undertaking with its objective as development of Industrial, Commercial and Social infrastructure projects in the State and the developer Emaar is a Government incorporated in Dubai engaged in development of large projects comprising of construction of residential and commercial properties, golf course, hotels and management of convention centers and exhibition halls and both agreed to enter into colla....
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....he convention centre-cum-exhibition complex with business hotel shall be constructed on land of maximum 10-15 acres at HITEX with active assistance and support from APIIC. The agreement with HITEX stating the land lease terms is attached as Appendix-1 and Board investment plan and phasing of convention centre-cumexhibition complex is attached as annexure A and the business hotel with a capacity of 300 rooms with provision to expand later, subject to availability of land at the site along with proposed convention centre-cum-exhibition complex site to the water bodies there in. It speaks of hotel operator of repute to manage the proposed hotel on terms to be decided by SPV2. The developer shall furnish a performance guarantee of 2 crores an unconditional and irrevocable in favour of APIIC and developer also pay Rs. 2.25 lakhs to APIIC by bankers demand draft towards project development fee in four equal quarterly installments, first installment payable within 30 days from the agreement. Clause 2.4(V) speaks the developer shall at its description assign its rights towards development, management and operations of the integrated project to other parties through appropriate and suitab....
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.... May 2005. Thus, he was not there either by the time the expression of interest under single file moved from 2000 March of the original proposal accepted with M/s. ITC Ltd., on 26.12.2000 for allotment of site near Hussain Sagar lake that was covered by PIL, that was later changed to Manikonda and M/s. ITC Ltd., withdrawn from the expression of interest and a new site by fresh advertisement proposed at Manikonda on 26.07.2001, where under out of five participants referred supra showing expression of interest, it is finalized with Emaar, which quoted the higher prize of Rs. 29 lakhs per acre for out right sale from the Government for the proposal of Convention Centre, Hotel, Gold Course and Villas that were approved by the then Chief Minister on 26.09.2001. 18(m) The APIIC only as "Nodal Agency" was circulating the files to the Government for favour of orders and after elaborate discussions with the developer (Emaar) the Cabinet Sub-committee decided the way forward of the project and some recommendations were conveyed to the Government by the VC & MP of APIIC in July 2002 to enter into MOU with Etnaar-PJSC-Dubai by the then Sri K.V.S. Prasad. VC & MP of APIIC. 18(n) The file noti....
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....ated Township with Golf Course and Convention Centre Project-Meeting held on 6th September 2004 by Hon'ble Chief Minister (Sri Y.S. Rajasekhara Reddy) with the Chairman. Emaar Properties - revised proposal received from Emaar Properties. Ref:-1. letter received from Emaar Properties, dated 23.09.2004, 2. letter received from Emaar Properties, dated 24.09.2004. Hon'ble Chief Minister along with Hon'ble Minister for Major Industries held a meeting on 06.09.2004 with the Chairman of Emaar----: during the discussions it was suggested that APIIC should limit its Equity in all the projects to 26% with the result, the Equity contribution by Emaar Properties in all the Projects increased proportionately. In SPV 1 (Golf Course and Multi-use project in 535 acres at Manikonda) 74% to the developer and 26% equity to APIIC and in SPV 2 (Convention Centre and Hotel in HITEX) was......acres, equity of 49% on APIIC by reducing in Convention Centre and Hotel also of APIIC from 49% to 26% and increased with Emaar from 51 % equity to 74%) Accordingly, Emaar furnished the revised proposals in the letters, dated 23.09.2004 and 24.09.2004 ....
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.... date of redemption is to be specified. Point No. 4 speaks Land Conversion Charges concerned APIIC shall ensure that the Government of Andhra Pradesh approves exemption from payment of Land Use Conversion charges. So, the Government of Andhra Pradesh may consider issuing necessary G.O. Point No. 5 speaks Development of IT Park concerned, Emaar commits to convert about 20 to 30 acres of land from out of residential project for development of IT park, but subject to avail all the benefits and subsidies offered for IT sector by Government and exemption from payment of conversion charges. Emaar Properties (developer) is eligible for all the benefits or subsidies announced for IT parks, if so a specific G.O. is required, may be considered to be issued by the Government of Andhra Pradesh in favour of Emaar Properties. Point No. 6 speaks SPV Structure concerned Emaar Properties for three (3) SPVs instead of two (2) SPVs as indicated in the Collaboration Agreement dated 19.08.2003 supra viz., SPV-1: Emaar Hills Township Pvt. Ltd. (EHTPL) for development Township project at Manikonda; SPV-2: Boulder Hills Leisure Pvt. Ltd. (BHLPL) and newly added SPV for development of Golf Course and....
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....tries endorsed 'to discuss along with MP/APIIC' and Minister for Major Industries endorsement to that effect was signed on 07.10.2004. The note file further speaks MP/APIIC to discuss on 11.10.2004 Underneath it (pursuant to the discussion and from their directions) there is a note put up by the VC & MD of APIIC on 18.10.2004 which shows: (1). these three issues were singled for mention by Minister, Major Industries where there is need for clarity on 14.10.2004. (a) Lease rentals of golf land to be enhanced and the possibilities for achieving. (b) When IT infrastructure is now being considered to freeze either investment proposed or area proposed be specified in the agreement. (c) If the developer is not handed 535 acres of land, then suitable land has been sought in Madhapur by developer by------mention by Emaar. The note of the VC underneath dated 18.10.2004 speaks: (2). these issues and some more issues were discussed with Mr. A.J. Jagannathan on 16.10.2004. Mr. Jagannathan was again reminded today on telephone to send his staff to discuss the above mentioned issues in para 1 supra. (3). ED II, SM (D) will discuss on 25th and 26th on these issues with Ema....
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....ny revision of land cost would enhance the overall outlay of the project, thereby making it less viable as it affects cash flow. The Government may consider to give directions to APIIC for execution of supplementary Agreement accordingly. Sd/- SPM ED-II V & MD Underneath the above note put up, the noting of the VC & MD-APIIC reads that: 1. It is submitted that all the pending issues have been addressed by Emaar and discussions on the final offer, to date, have been held. 2. As suggested by APIIC, housing financing has been taken out of the project funding and met ....
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.... crores [excluding the proposed I.T. Projects]. (b). The Equity Share of APIIC in the convection project was reduced from 49% to 26% thereby reducing the investment by the Government in the project. (c). The asset value of the project has gone up. (d). The land value after adjusting into the equity shall be paid by the EMAAR Properties to APIIC by way of secured Debentures with 2% interest. (e). The lease rentals for land given for the Golf Course of 235 Ac. is being revised to @ 2% on Gross Annual Revenue for the first 33 years and 3% for further 33 years. The asset which is fully developed will revert to Government after 66 years. (f). An I.T. Project with proposed built up area of 10,00,000 sq.ft. has been included in the over all project. Submitted for favour of approved and necessary orders. Sd/- VC & MD-APIIC; Dt. 09.11.2004 PRL.SECY & CIP-Sd/- MIN (MAJ.INDS)- Sd/- Botsa Satyanaravana. Dt. 09.11.2004 MIN (FIN)- Prl. Sec. R & E may please see-____________Sd/- K. Rosaiah CM.-__________Sd/- Dr. Y.S. Reddy Finance______Department-query - Dt. 16.11.2004- The usual lease rent collected on government lands leased out is 10% of the market value. Howeve....
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....11.2004 The clarification given by VC & MD APIIC, Dt. 26.11.2004 is that: Total (11) Nos. of W.Ps. were filed challenging DN and DD got published for acquisition of lands in Nanakramguda Village, near Hyderabad for development of this project. Out of these (11) W.Ps., one W.P. was disposed of on 25.4.2003, another W.P. was disposed of on 25.10.2004, rest of (9) W.Ps. were disposed of on 4.11.2004 by the Hon'ble High Court. In all the W.Ps., the Hon'ble High Court set aside the DD u/s. 6 of the LA Act and directed for conducting 5-A enquiry following the procedure under the LA Act and to make DD afresh. However, the DN u/s. 4(a) of the LA Act was not interfered with by the Hon'ble High Court. The District Collector, RR District and Special Deputy Collector, Land Acquisition (Industries) Hyderabad were already requested by APIC to take suitable steps for conducting 5-A enquiry in all the W.Ps. Submitted for information. Sd/- VC & MD APIIC, Dt. 26.11.04 Prl. Sec. to Govt. & CIP: X on prepage may be seen. There is no legal impediment to proceed further. Sd/- Dt. 27.11.2004 MIN(FIN)- Sd/-  ....
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....ot the approval of PFS (R & E). Sd/- dt.05.01.2005 P1. see the order in circulation on prepage. The draft notification and supplementary agreement as agreed in circulation and wetted by law dept. and Fin. Dept. may now be approved and the draft G.O. placed below may now be issued. Sd/- B. Chandrasekhar. Dt. 11.01.2005 Sd/- Prl.Sec. to Govt. & CIP. Dt. 11.01.2005 18(t) The notings initiated by the petitioner-A.11-Sri LV Subrahmanyam as VC & MD of APIIC on 05.10.2004. contains the recording discussions of the Cabinet Sub-Committee in the Single File. Consequently. Sri LV Subrahmanyam as VC & MD of APIIC marked the file to the then Principal Secretary Sri K.V. Rao. IAS, who in turn marked to then Minister. Major Industries. Sri Botsa Satyanarayana on the even date of the notings initiated by him on 05.10.2004. It is there the changed Government headed by Sri Y.S. Rajasekhara Reddy of Congress Party as Chief Minister and the Cabinet Committee constituted that revised the original structure equities SPV1 and SPV2 and the development. 18(u) In this regard, it is relevant to refer G.O.Ms. No. 14. dt. 11.01.2005. from the recommendations of the new Government constituted Cabinet Subc....
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....y) per acre for the saleable land for the Township project, i.e. 285 acres of land. The land cost remaining as excess over the Equity of APIIC in the three (3) SPVs as above at each and every point of time will be treated as Secured Debentures with 2% interest per annum and redeemed for a period of eight (8) years from the date of issuance. (d) The lease rentals for land given for the Golf Course of 235 acres at Manikonda is fixed at 2% of the Gross Annual Revenue on all Golf Course components for period of 33 years and at 3% for further period of 33 years. The gross annual revenue generated not including Life Membership and other long term and academy memberships. The revenues of SPV are not going to be repatriated to the Developer. These revenues shall be utilized solely for improvement of the facilities and maintenance. (e) On expiry of 66 years lease period for the Golf land of 235 acres, land and all other immovable assets like improvements, structures, buildings at the site whether permanent or semi permanent, constructed by or belonging to the project or their subcontractors. sub-lessees and assignees shall be reverted to Government of Andhra Pradesh free from all encumb....
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....01.2005, which speaks: The VC & MD informed that orders were issued in G.O.Ms. No. 14, Industries & Commerce (IP) Department, dated 11.01.2005, duly modifying the G.O.Ms. No. 359, dt.04.09.2002 to bring the latest improvements/changes taken place in implementing the integrated township------------. The approved draft supplementary agreement was also sent along with the GO for execution. On furnishing the draft supplementary agreement to Emaar properties-Dubai for execution of the same at their end they have proposed some modifications to the agreement on the grounds that these modifications do not confirm with the earlier discussions held in the Ministers Chambers during November. 2004. 18(w) The VC & MD has informed that subsequently M/s. Emaar properties has desired to set up the Boutique Hotel, which is a component of Golf course project in the free hold land of 285 acres allotted for township project, instead of setting up at lease hold land of 235 acres. It is stated that the net profits generated by SPV-2/BHLPL, excluding any and all profit generated by the Boutique hotel, will be retained in its entirety within the said company in the form of reserves. These reserves shall....
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....charges in regard to land transfer between APIIC and SPV-1&2 and APIIC/any other party and SPV-3 shall be pursued by APIIC with GoAP for obtaining necessary orders as per clause 12 of it development of IT park within the integrated township concerned Emaar commits to convert approximately 20 to 30 acres of freehold land currently designed for the development of residential projects to IT Parks subject to receiving requisite regulatory approvals and IT park would avail benefits and subsidies offered by GoAP to other similar IT parks and would not entail any land conversion charges. As per Clause 13 the land shall be transferred by APIIC to EHPTL in lieu of equity and debenture considerations. 18(y) Upon infusion of additional equity by Emaar from time to time, the debentures would be converted into equity in the respective SPVs to the proportionate extent required such that APIIC's equity stake always remain at 26% in all the three SPVs 18(z) In fact, Mohd. Alabbar Chairman proposed of Emaar bringing Fairbridge holdings as shareholder at Emaar Holding Mauritius level such as Emaar Projects, PJSU, Dubai would dilute its ownership in Hyderabad project through each of the three S....
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....ssign operator rights to reputed firms at the behest of Emaar properties is one of the conditions in G.O.Ms. No. 359 of 2002 and as such there is nothing to find fault with petitioner-A11 who was not there by then. The petitioner-A11 was VC & MD from September 2003 to May 2005 in which period there was no transaction of sale taken place bringing loss of revenue to the State and the allegation that due to action of misconduct on his part loss caused to the State is with no basis. The Committee of Ministers decided about lease rentals and the APIIC reported the same to GoAP to the pattern of 2% for the initial period of 33 years and 3% for the further period of 33 years. However what draft was being prepared, a mistake was occurred in the subsequent period was not mentioned and same was rectified while finalizing the draft. Likewise in respect of convention centre and business hotel established on leased land of 15 acres of APIIC at Izzatnagar, (which is by taking back by APIIC from Ac. 167.30 cents of land) as per G.O.Ms. No. 133, dt.22.06.2005, no lease rate suggested by the Committee of Ministers and the petitioner has no role in setting of the agenda of the Ministers according ....
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....ies for allotment and he was informed by the petitioner LVS that M/s. Stylish Homes rep. by one Sri T. Ranga Rao is the agent of EHTPL and he may approach them. He also informed that plots were being sold at Rs. 5,000/- per sq. yd. He accordingly met Sri T. Ranga Rao and referred name of Sri LVS and requested for allotment of villa plot---------------. Even from the above, there is nothing against the petitioner-A.11 to say he is in any way privy with said Ranga Rao or others. Further, any sharing of information in public domain does not attract to attribute any criminal conspiracy from that as contended by the learned counsel for the petitioner-A.11. 25. The Joint Venture Company by name M/s. Emaar Hills Township Private Limited (EHTPL-A3) was formed in 2003 between Emaar Properties PJSC, Dubai(Emaar-A2) and M/s. APIIC to develop 353 acres of land in Gachibowli in the ratio of 74:26 in profits in 2006. M/s. Emaar, the partner of M/s. EHTPL entered into partnership with another sister company known as M/s. EMAAR MGF(A4) to develop the same piece of land in Gachibowli in the ratio of 75:25 in revenue i.e. M/s. EMAAR MGF-A4 will hold 75% interest and M/s. EHTPL-A3 will hold 25%. M/s....
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....rred in the writ petition from which direction the crime registered no way reflected any role of the petitioner for any criminal conspiracy or criminal misconduct and it was not even referred in the investigation and in filing the final report. 27. To understand the above with reference to the facts investigated as to whether it makes out any offence or not from acts alleged for any IPC and PC Act offences, for which cognizance was taken, the Code of Criminal Procedure is an enactment designed inter alia not only to ensure a fair investigation of the allegations against a person accused of criminal misconduct, but also from that and on filing final report for taking cognizance or not for any offence with application of mind judiciously from facts with reference to law only on any accusation shown with sustainability and then from the material, hearing of prosecution and accused for framing of charges if there is material to face trial and for fair trial, besides the Code of Criminal Procedure, the Evidence Act also provides safeguards on admissibility, relevancy and proof of facts during trial from real, oral and documentary-which include electronic evidence for judicial appreciat....
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....he investigating officer or the appropriate Magistrate or Court of Session as the case may be to consider every offence defined and sanctioned by the provisions of the IPC in the light and context of the General Exceptions set out in Chapter IV IPC. Anatomy of defences in Criminal Law-The substantive provisions of Criminal Law indicate a general, internal structure of offences. These are: (a) An offence is committed where an actor satisfies all the elements contained in the definition of that offence. There are 2 defining facets to an offence: (i) Actus reus elements or the objective criteria of an offence which may consist of the conduct of the actor, the circumstances in which the conduct takes place and the results consequent on the conduct; and (ii) The mens rea or the culpability element such as purpose or intention, knowledge, recklessness, negligence, or lack of culpability with regard to the engaging in the conduct, causing the result, or being aware of the circumstances specified in the objective element(s). Every offence must contain at least one objective element (actus reus element) consisting of the conduct of the actor. Every actus reus element must have a c....
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....an offence non-offence. The general exceptions enacted in IPC are of universal application and for the sake of brevity of explanation, in spite of repeating in every section that the definition is taken subject to the exceptions, the legislature by Section 6 IPC enacted that all the defence must be recorded as subject to general exceptions. Further on the scope of evaluation of the material in taking cognizance and in framing charges by Court, in Chandra Deo Singh v. Prokash Chandra Bose@ Chabi Bose (1964) 1 SCR 639 (4JB) expression of the Apex Court at para No. 12, relying upon Vadilal Panchal v. Dattatraya Dulaji Gha Digaonkar AIR 1960 SC 1113 (3JB) of the Apex Court, it was held that if the Magistrate has not misdirected himself as to the scope of enquiry under Section 202 and has applied his mind judicially to the material before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment, what bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses, all these are questions which must be answered with refer....
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....er there has been any intention to break the law or otherwise to do wrong or not." 31. In Baliya alias Bal Kishan v. State of Madhya Pradesh (2012) 9 SCC 696 the Apex Court held that proof or otherwise of conspiracy is usually though a matter of inference, the courts in drawing such any inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been made out beyond all reasonable doubt, and thereafter, whether from such established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused. 32. It is the settled law that at the stage of consideration of charge, the Court has to form a presumptive opinion about the involvement of an accused on the basis of such material which could lead to an inference of "grave suspicion" and not a "mere suspicion" in relation to the acts alleged. Such prima facie material should be capable of being converted into legally admissible evidence of such sterling quality which, withou....
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....son is guilty of conspiring to commit an offence be established. 33(d) In the Additional Superintendent of Police v. G.B. Anbalagan 2014 (4) MLJ (Crl) 279, the Madras High Court at Para 58 held that a complaint should make out a prima facie case against the accused persons. One cannot have the construction of a fine superstructure without a foundation. Merely leveling a charge of conspiracy without mentioning how, where, when and which of the conspirators hatched the conspiracy is not sufficient to mulct criminal liability. The purpose or circumstances warranting an inference of existence of a conspiracy should be stated so as to bring the Respondents to face the trial in criminal Court. 33(e) The Apex Court in State of H.P. v. Kishan Lal Pardhan AIR 1987 SC 773 : 1987 CrLJ 709 held at para 8 on the scope of Section 120-B IPC and Section 10 of the Evidence Act that the offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or cause to be done an illegal act by illegal means, and the performance of an act in terms thereof. If pursuant to the conspiracy the conspirators commit several offences, then all of them will be liable for the....
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....t held that a general conspiracy must be distinguished from a number of separate conspiracies having a similar general purpose. Where different groups of persons co-operate towards their separate ends without any privy with each other each combination constitutes a separate conspiracy. The common intention of the conspirators then is to work for the furtherance of the common design of his group only. The cases illustrate the distinction between a single general conspiracy and a number of unrelated conspiracies. 33(j) The Apex Court in V.C. Shukla v. State (Delhi Admn.) [1980] 3 S.C.R. 500, held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. The circumstances in a case, when taken together on ....
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....rved from para 86, referring to aims and objects in introducing in IPC by 1913 amendment, with observation of similar to the definition in Halsbury's laws of England and American concept of criminal conspiracy. Russell on crimes. Harisingh Gour on Penal Law, some of the foreign expressions, besides that of the Apex Court earlier including from Sardar Singh Caveeshar (Sardid Singh Caveeshar v. State of Bombay AIR 1957 SC 747). Major E.G. Barsav (Major E.G. Barsav v. State of Bombay : AIR 1961 SC 1762). Yash Pal Mittal (Yash Pal Mittal v. State of Punjab (1911) 4 SCC 540). V.C. Shukla (supra). Mohd. Usman (Mohammad Usman Mohammad Hussain v. State of Maharashtra (1981) 2 SCC 443. Kishan Lal Pardhan (supra). Keliar Singh (Kehar Singh and others v. State (Delhi Administration) (1988) 3 SCC 609). Aiav Agarwal (Ajay Agarwal v. Union of India (1993) 3 SCC 609). Nalini (supra). Ferozuddin (Firozuddin Basheeruddin and others v. State of Kerala 2001 (2) ALT (Crl.) 342 (SC) : (2001) 7 SCC 596. Mohd. Khalid (Mohd. Khalid v. State of West Bengal 2003 (1) ALT (Crl.) 37 (SC) : (2002) 7 SCC 334) that few bits here and there cannot be suffice, agreement can be inferred from any sold facts and ci....
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....Khalid, Devander Pal Singh and Kehar Singh supra it was held that the elements of conspiracy to be (a). an object to be accomplished, (b). a plan or scheme embodying means to accomplish that object, (c). an agreement or understanding between two or more of the accused whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement or by any effectual means, and (d). in the jurisdiction where the statute required an overt act. The Court must enquire whether the two or persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. 33(p) In Mir Nagvi Askari v. CBI 2010 (1) ALT (Crl.) 300 (SC) : (2009) 15 SCC 643 it was held on requirements and proof of Criminal conspiracy that it is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for so long as a crime is generated in the mind of the accused, the same does not become punishable. Thoughts even criminal in character, often involuntary are not crimes but when they take a concrete shape of an agreement to d....
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....a v. Sam Nath Thapa (1996) 4 SCC 659 supra opined that it is necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use, stating: "24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."-[See also K.R. Purushothaman v. State of Kerala 2006 (2) ALT (Crl.) 1 (SC) : (2005) 12 SCC 631. Since w....
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....r a combination of persons for the doing of a thing does not amount to an abetment. Something more is necessary; namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made. 35. The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where, however, the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means some act besides the agreement is necessary. 36. In State of M.P. v. Sheetla Sahai and others (2009) 8 SCC 617, it was held from paras 44 to 59 while dismissing the appeal of the prosecution agency holding nothing to incriminate the official respondents 1-7 as held by the High Court under Section 120B IPC and Section 13 PC Act as follows: "44. The intra-departmental and interdepartmental correspondences and note sheets to which we have adverted to hereto before clearly go to show that the authorities incharge of construction of the dam were awar....
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....th imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. 49. Criminal conspiracy has been defined in Section 120A of the Indian Penal Code, 1860 to mean: "When two or more persons agree to do, or cause to be done,--(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." Section 120B of the Indian Penal Code provides for punishment for criminal conspiracy. 50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are....
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....he acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution." We may also notice that in Ram Narayan Popli v. CBI (2003) 3 SCC 641, it was held: "...Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment..." In Yogesh (a), Sachin Jagdish Joshi v. State of Maharashtra 2008 (3) ALT (Crl.) 453 (SC) : (2008) 6 SCALE 469, this Court opined: "23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of ev....
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....o notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counter-affidavit which had not been denied or disputed to show that not only those accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the government, viz., M.N. Nadkami who worked as Chief Engineer till 24.03.1987 and S.W. Mohogaonkar, Superintending Engineer who worked till 19.06.1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision, viz., Shri J.R. Malhotra and Mr. R.D. Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made. 57. In Soma Chakravarty (supra), whereupon strong reliance has been placed by Mr. Tulsi, this Court opined: "23. In a case of this nature, the learned Special Judge also should have considered the question having regard to the "doctrine of parity" in mind. An accused similarly situated has not been proceeded against only because, the departmental proceedings ....
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....ated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not nut the accused to harassment by asking him to face a trial. (See State of Maharashtra and others v. Som Nath Tliapa and others 1996 4 SCC 6591." Therefore, the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. - Willes, J. observed in Mulcahy v. The Queen (1). 36(a) In Kehar Singh and others v. State (Delhi Administration), (1988) 3 SCC 609 at P.731, it was held that: 51. A criminal ....
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....tion Centre. Hotel. Golf Course and Villas were approved therefrom by the then Chief Minister of the State on 26.09.2001 itself. Thereafter Government even issued orders vide G.O.Ms. No. 359 Industries and Commerce (INF) Department, dated 04.09.2002, for establishing International Convention Centre and Golf Course along with multi-use land development and hotel at Manikonda with APIIC as Nodal Agency. It is crystal clear from the above that the land by then no way costs even on outright sale in open market more than Rs. 29 lakhs per acre, that too for such a large extent, leave about the lease land after 66 years to be given back to the Govt. and the petitioner was VC & MD, APIIC only from September, 2003 to May, 2005 and not concerned with earlier period to it. Whatever the proposals were even approved by the APIIC Board and not his unilateral decisions ignoring the Board and further what ever the changes the Govt. or the Emaar sought were, the petitioner being the VC & MD of the APIIC-the Nodal agency brought on record in the notes placed for approval and once approved by the Minister concerned and he took no decision ignoring the authorities and what ever he bona fide believed p....
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....accused could be drawn. 37. The respondent-CBI loosely alleged in the charge sheet that there is criminal conspiracy and dishonest intention, but on plain reading of the entire subject matter, there is nothing. It is very unfortunate that very grave sections under both IPC and PC Act, were cited against the petitioner-A11 by the respondent-CBI in a slipshod manner without bestowing proper care and application of mind, for what is discussed supra and the learned special judge also did not go through and evaluate the prosecution material covered by the final report in taking cognizance for respective offences. 38. In this regard even from the decisions placed reliance by the learned special Public Prosecutor for CBI, in Umesh Kumar supra, what was held is that the High Court in exercise of the inherent powers under Section 482 CrPC can only evaluate the material on record to the prima facie satisfaction of existence of ground for framing charges and proceeding with trial or not. Same is also held at para 10 of Kishan Lal Pardhan supra and at para 55 of Mariya Anton Vijay supra, that Court in a quash proceeding under Section 482 CrPC, is required to evaluate the material and documen....
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....crime without a guilty mind from reading of the above. 40. For more clarity it is needful to reproduce Section 13 of the PC Act, with title "Criminal misconduct by a public servant" reads that: (1) A public servant is said to commit the offence of criminal misconduct.-- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any Valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned: or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use....
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.... r/w. 13(1)(c) & (d) and 15 of the PC Act r/w. 120-B IPC to make out prima facie, it was observed referring to Bharat Petroleum Corp. Ltd. v. T.K. Raju (2006) 3 SCC 143 that: In Inspector Prem Chanel v. Govt. of N.C.T. of Delhi and others 2007 AIR SCW 2532, this Court observed: "In State of Punjab and others v. Ram Singh Ex. Constable (1992) 4 SCC 54, it was stated: "Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus: 'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as: "Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." In P. Ramanatha Aivar's Law Lexicon. 3rd edition, at page 3027. the term 'misconduct' has b....
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....departmentally proceeded against or had not been completely exonerated also required to be considered. If exoneration in a departmental proceeding is the basis for not framing a charge against an accused person who is said to be similarly situated, the question which requires a further consideration was as to whether the applicant before it was similarly situated or not and/or whether the exonerated officer in the departmental proceeding also faced same charges including the charge of being a party to the larger conspiracy." 43. From the above, no offence of criminal conspiracy or criminal misconduct made out against the Petitioner-A11 under sections 13(2) r/w 13(1)(c) & (d) and 15 of the PC Act r/w. 120-B IPC. 44. Leave it as it is even coming to the requirement of Sanction and validity of sanction and scope of interference by High Court to decide otherwise sustainable or not of the proceedings against the Petitioner-A11: 44(a) In State of Bihar v. Rajmangal Ram (2014) 11 SCC 388 : 2014 (5) ALT 28.1 (DN SC) the Apex Court held that the object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the....
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.... were or are public servants. 61. Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and another v. Union of India and another (2005) 8 SCC 202. In that case, it was held: "9. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the ....
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....a facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed." 62. Were they required to act in the matter as a part of official duty? Indisputably, they were required to do so. Be he an Executive Engineer. Superintending Engineer. Chief Engineer. Engineer-in-Chief. Secretary or Deputy Secretary, matters were placed before them by their subordinate officers. They were required to take action thereupon. They were required to apply their own mind. A decision on their part was required to be taken so as to enable them to oversee supervision and completion of a government project. The Minister having regard to the provisions of the Rules of Executive Business was required to take a decision for and on behalf of the State. Some of the respondents, as noticed hereinbefore were required to render their individual opinion required by their superiors. They were members of the Committee constituted by the authorities, viz. the Minister or the Secretary. At that stage it was not possible for them to refuse to be a Member ....
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....ituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction." The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at p. 187: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it." In affirming this view, the Judicial Committee of the Privy Council observe in Gill case: "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office." Hori Ram case is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. King-Emperor, but the test laid down that it must be established that the act complained of was an official-act appears to us unduly to narrow down the scope of the protection afforded by Section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads v. King does not ca....
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....er must have been official in nature. The section has, thus, to be construed strictly while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in t....
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....charge of his official functions. To substantiate the same, the petitioner relies on the decision of the Apex Court in Anil Kumar and others v. M.K. Ayyappa and another 2014 CrLJ 1, where it was held that the public servant should be protected and his/her acts done in good faith in implementation of the decisions of the Cabinet and thus cannot be taken cognizance of any offence by any Court without sanction obtained from the concerned Department. It is also held by the Apex Court that if law requires sanction and if the Court proceeds against a public servant without sanction, the said public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio but there is no sanction accorded by the concerned Government and in the absence of sanction, therefrom the cognizance order is illegal. 44(e) The similar view is found in various decisions including Dilwar Singh v. Parvinder Singh @ Iqbal Singh 2006 (1) ALT (Crl.) 275 (SC) : (2005) 12 SCC 709, CBI v. Raj Kumar Jain (1998) 6 SCC 551 so also in the State of Madhya Pradesh v. M.V. Narasimhan (1998) 6 SCC 551, Prakash Singh Badal and another v. The State of Punjab and others (2007) 1 SCC 1.....
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....t" occurring therein, the expression" State Government" were substituted. (3A) 1 Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything 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....
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....this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation--For the purposes of this section,-- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature." 44(i) From the above, the difference between the two provisions is that sanction under Section 197 CrPC is mandatory even to take cognizance after retirement of the public servant for the acts done in discharge of official duties for the IPC offences. Whereas under Section 19 of the PC Act, the emphasis is on the words "who is employed" in connection wi....
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....on 197 of the Code concerns a public servant who "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", whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code." 44(o) The above passage in Kalicharan (supra) has been quoted with approval in Lalu Prasad v. State of Bihar (2007) 1 SCC 49 at paragraph 9, page 54. In paragraph 10, (page 54) it was held in Lalu Prasad (supra) that "Section 197 of the Code and Section 19 of the Act operate in conceptually different fields". 44(p) In Rakesh Kumar Mishra supra it was held in this regard and on the scope of Section 197 CrPC that the policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of t....
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....ingh (K. Satwant Singh v. The State of Punjab: AIR 1960 266), also of the Apex Court in R.R. Chari-II AIR 1962 1573, also of the Apex Court in Bajnath (Baijnath v. State of Madhya Pradesh : AIR 1966 220), also of the Apex Court in B. Saha (B. Saha v. M.S. Kochar: (1979) 4 SCC 177), also of the Apex Court in R.S. Nayak (R.S. Nayak v. A.R. Antulay : (1984) 2 SCC 183), also of the Apex Court in R. Balakrishna Pillai (R. Balakrishna Pillai v. State of Kerala (1996) 1 SCC 478), also of the Apex Court in Abdul Wahab Ansari (Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC 500), also of the Apex Court in Rakesh Kumar Mishra (Rakesh Kumar Mishra v. The State of Bihar and others: 2006 (2) ALT (Crl.) 48 (SC) : (2006) 1 SCC 557), also of the Apex Court in Sankaran Moitra (Sankaran Moitra v. Sadhna Das and another: 2006 (2) ALT (Crl.) 224 (SC) : (2006) 4 SCC 584), also of the Apex Court in Prakash Singh Badal (Parkash Singh Badal v. State of Punjab(2007) 1 SCC 1) and also of the Apex Court in Sheetla Sahai (State of Madhya Pradesh v. Sheetla Sahai (2009) 8 SCC 617) and by quoted with approval Hori Ram Singh supra among other including the three judge bench of this Court in the case of Amrik S....
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.... removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself. 44(u) It is a prohibition imposed by the Statute from taking cognizance. It is well settled that the question of sanction u/sec. 197 of CrPC can be raised at any time after the cognizance, may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well, any appeal. 44(v) In Rajib Ranjan v. R. Vijakumar (supra) at paras 14 to 18, it is observed that sanction is necessary if the offence alleged against the public servant is committed by him after acting or purporting to act in the discharge of his official duties as held in Buddi Kota Subbar Rao v. K. Prakasham (supra) para-6 of the act or omission on facts found a reasonable connection to the discharge of his duty by the accused, sanction is required. 44(w) As held in Anil Kumar v. M.K. Aiyappa supra, referring to Subramanium Swamy supra that referred the expression of the three-Judge Bench in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, that: "6......................So far as public servants are concerned, the cognizance of any offen....
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.... 13(2) & 15 PC Act was required to be taken by the respondent-CBI, before taking cognizance and passing an order by the learned Special Judge in issuing summons to him for his appearance. Rightly the Special Judge in March, 2012 held sanction is required to take cognizance for the IPC and PC Act offences. Once such is the case, the CBI has no right to ask to take cognizance for even IPC offence. Said order of June, 2012 by the Special Judge by review of earlier decision of his predecessor is barred by law and the cognizance taken for IPC offence is unsustainable. Further once applied to sanction and refused by State Govt., under Section 197 of CrPC for the offence under Section 120-B IPC and under Section 19 of PC Act for the offence under Section 13(1)(d) r/w. 13(2) & 15 PC Act, that too when the officer has been admittedly working in the State Govt., and same also after consultation and instructions of Central Govt., the CBI has no right to apply to Central Govt., and sanction by Central Govt., ignoring earlier sanction refusal order of State Govt., is bad in law, which goes to the root of the matter and not a mere defect in the process of according sanction. In this regard comin....
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....Governor was again sought which too was rejected for the same reason and thereafter the appellant superannuated from service and the cognizance had been taken by the Special Judge four years thereafter. It was observed that the initiation of proceedings against the appellant even after superannuation was not justified where the sanction had been rejected by the State Government on earlier occasion/s. 45(g) In the case of Chittaranjan Das v. State of Orissa (2011) 7 SCC 176 it was found that while the appellant was in service sanction sought for his prosecution was declined by the State Government. Vigilance Department did not challenge the same and allowed the appellant to retire from service. After the retirement, Vigilance Department requested the State Government to reconsider its decision, which was refused. It was observed by the Hon'ble Apex Court that in a case in which sanction sought is refused by the competent authority, while the public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of public servant. 45(h) On si....
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...., the State Government and if he is employed in the affairs of the Federation, it must be the Governor General, in spite of the fact that such employment may be temporary and may be the result of the fact that the services of the public servant have been loaned by the State Government to the Government of India. Therefore, having regard to the fact that at the relevant time the appellant was employed in connection with the affairs of the federation, it was the Governor General alone, who was competent to accord sanction. 45(l) Thus, so far as the petitioner/A.11 concerned at the time of the act and even date he is employed in the affairs of the State of Andhra Pradesh, even hailed from the All India Administrative Service thereby it is the State Government of Andhra Pradesh and not the Central Government of India that can accord sanction to prosecute him. 45(m) It is the well settled proposition of law that Court cannot ignore while taking cognizance any non-compliance with any of the mandatory requirements. 45(n) In fact, in dealing with the offence under Section 7 of the P.C. Act, the Apex Court in State of Karnataka through CBI v. C. Nagarajaswamy 2006 (1) ALT (Crl.) 119 (S.C....
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....f the State Govt., which goes to the root of the matter to raise objection to the prosecution to continue for no valid sanction and not mere irregularity, even the State Govt., and not the Central Govt., that is competent to sanction, at best in consultation of the Central Govt., by the State Govt., as was done in this case in refusal by State Govt., for that coming to the legal position: The petitioner is undisputedly a member of Indian Administrative Service which is governed by the provisions of All India Service Act, 1951 and the Rules framed there under-known as All India Services (Discipline and Appeal) Rules, 1969. Section 2 expressed that "an All India Service" means the service known as the Indian Administrative Service. Rule 2(b) speaks that "Government" means- (i) in the case of a member of the service serving in connection with the affairs of a State, or who is deputed for service in any company, association or body of individual whether incorporated or not which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of a State, the Government of that State: (ii) in any other cas....
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....ing them from vexatious, mala fide or false prosecution for acts done in the performance of their duties. 45(u) In Ramesh Lal Jain v. Nagunder Singh Rana 2005 AIR SCW 5875, it was held that-sanction required under Section 197 Cr.P.C. and sanction required under section 19 of the 1988 PC Act stand on different footings. Whereas sanction under the Indian Penal Code in terms of the Code of Criminal Procedure is required to be granted by the State and under the 1988 Act it can be granted also by the authorities specified in Section 19 thereof. 45(v) In Dilawar Singh v. Parvinder Singh 2006 (I) ALT (Crl.) 275 (S.C.) : 2005 AIR SCW 6021 it was held as follows: .The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. Therefore, the provisions of Section 19 PC Act will have an overriding effect over the general pr....
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....e grant of sanction is a serious exercise of power by competent authority which has to take a conscious decision on basis of relevant materials. Elaborate discussion in sanction order however is not necessary, but either decision making on relevant materials should be reflected in the order or it should be capable of proof before the Court. 45(z) In Chittaranjan Das v. State of Orissa (2011) 7 SCC 167 the Apex Court held that when sanction sought was rejected by competent authority while public servant was in service, he cannot be prosecuted later after his retirement despite the fact that no sanction for prosecution is required under relevant law after retirement. Any other view will render the protection under Section 6 illusory. It is a weapon in hands of sanctioning authority to protect innocent public servants from uncalled for prosecution but not intended to shield the guilty. It is further held that when competent authority denied sanction while public servant was in service, subsequently, public servant cannot be prosecuted after retirement despite fact that no sanction is necessary under PC Act. Moreover, rejection was not challenged by Vigilance Department. Further, Stat....
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....from the decision placed reliance by both sides of the Apex Court in Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 at para No. 27 it was observed that in exercising the powers under Section 482 CrPC the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not is to decide and for that the Court should apply the test and if shows the basic ingredients of the offence not satisfied the Court may interfere. It is also observed that the process of the Court cannot be permitted to be used as an oblique or ultimate/ulterior purpose. The Court where finds it would amount to abuse of process or interest of Justice favors otherwise it may quash the proceedings. The power is to be exercised ex debito justitiae that is to do real and substantial justice (as held in Munniswamy supra) for administration of which alone the Courts exercise. 49(b) The Apex Court in Amit Kapoor (supra) referring to State of Bihar v. Ramesh Singh (1977) 4 SCC 39, held that the presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in Fra....
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....however, not be pressed in aid except for remedying a flagrant abuse by a subordinate court of its powers. 49(f) The ends of justice are to be understood by ascertainment of the truth as to the facts on balance of evidence on each side. With reference to the facts of the case the Court held that in the absence of any other method, it has no choice left in the application of the Section except, such tests subject to the caution to be exercised in the use of inherent jurisdiction and the avoidance of interference in details and directed providing of a legal practitioner. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, ....
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....nt of Minister disclosing misappropriation of Government funds and the Complainant is mentioned as one of the persons involved therein, it was held by the Apex Court that: If the accused bona fide believing the version of the Minister to be true in published the report in good faith it cannot be said that they intended to harm the, reputation of the complainant. 49(l) In Padal Venkata Rama Reddy @ Ramu v. Kovvuri Satyanarayana Reddy 2011 (3) ALT (Crl.) 109 (SC) : (2011) 12 SCC 437 referring to several expressions including Indian Oil Corporation, Zandu Pharma, Ganesh Narayan, Bhajanlal, Madhavarao Jivajirao, L. Muniswamy, R.P. Kapoor etc., it was observed that exercise of inherent powers to quash the proceedings is called for in a case of which complaint does not disclose any offence or is frivolous, vexatious or oppressive and the like for exhaustive list of grounds cannot be laid down but for to decide each case on own facts. 49(m) In Inder Mohan Goswami v. State of Uttaranchal 2008 (2) ALT (Crl.) 220 (SC) : (2007) 12 SCC 1 (3JB) it was observed that the inherent powers of the High Court under Section 482 CrPC are though wide that has to be exercised sparingly with great cautio....
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....of process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. 49(p) In Madhu Limaye (supra)- it was pointed out that Section 482 CrPC had a different parameter to exercise the inherent power to pass necessary orders and is a provision independent of Section 397(2) CrPC to exercise revision powers; a plain reading of Section 482 CrPC follow that, nothing in the Code (which include Section 397(2) CrPC also shall be deemed to limit or affect the inherent powers of the High Court but for to say the order brings about a situation which is an abuse of process of the Court or for the purpose of securing the ends of justice or interference by the High Court is absolutely necessary for exercise of the inherent power sparingly to say in such a situation. 49(q) It also observed in Madhu Limaye (supra) that the High Court alone can pass such orders ex debito justitiae-to do real and substantial justice in the lis. It was also observed referring to Section 151 C.P.C. and the earlier expressions of the Apex Court in Padamsen v. State of Uttar Pradesh ....
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..... Commissioner of Income Tax, New Delhi AIR 1977 SC 1348 it was held that every Court is constituted for the purpose of rendering justice according to law and must be deemed to possess necessary and inherent power that of elasticity in its very constitution in exercise of or, as may be necessary, to do a right or undo a wrong in the course of administration of justice. 49(x) In Popular Muthaiah (supra) it was also held that the inherent power is not confined to procedural or adjectival law but even extending to determine substantial rights of the parties and it can be exercised in respect of even incidental or supplemental power irrespective of nature of proceedings; as it acts ex debito justitiae-to mean to do real and substantial justice in the lis for which alone the power exists inherently. 49(y) It is needless to say ends of Justice are higher than the ends of mere law, though justice has got to be administered according to laws made by the legislature. Without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the widt....
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....) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable." 33. Lord Justice Neill in R. v. Beckford, [1996] 1 Cr.App.R. 94: [1995] R.T.R. 251 observed that: "The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities: (a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried." What is unfair and wrong will be for the court to determine on individual facts of each case. 34. The Apex Court three Judge Bench in State of Karnataka v. L. Muniswamy and others (supra) observed that the wholesome power under Section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the....
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....on wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. The Apex Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad, kinds of cases wherein such power should be exercised. 36. This Court in Zandu Pharmaceutical Works Ltd. and others v. Mohd. Sharaful Haque and another, (2005) 1 SCC 122 observed thus: (SCC p. 128, para 8) "8. ... It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even ....
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....st as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued." In G. Sagar Suri and another v. State of U.P. and others, 2000 (1) ALT (Crl.) 168 (SC) : 2000 (2) An.W.R. 54 (DCC) : (2000) 2 SCC 636, this Court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. In the case of S.N. Sharma v. Bipen Kumar Tiwari and others, AIR 1970 SC 786 (at p.789), this Court has stated thus: "7...... It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the Hi....
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....intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. 7. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused." 50(a) In CBI v. Ravi Shankar Srivastava (2006) 7 SCC 188 the Apex Court held that the High Court under Section 482 of the Code exercise its jurisdiction to quash the proceedings if it would be an abuse of the process of the court to allow any such action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse ....
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....stage. 50(d) It was also held in Madhavrao Jiwajirao Scindia (supra) that, breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. Where there was no mens rea for the offences alleged of criminal conspiracy, breach of trust and forgery, at the most it amounted to a civil wrong. 50(e) The Apex Court in Union of India v. Prafulla Kumar Samal and another AIR 1979 SC 366 (1) it is observed that the test to determine prima facie case could naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, the Judge will be fully within his right to discharge the accused. Even where the material placed discloses a grave suspicion, which has not been properly explained the Court will be justified in framing a charge. Thus, even where there is grave suspicion if explained the same by accused the court cannot frame c....