TaxTMI 
TaxTMI 
2018 (1) TMI 1665
X X X X Extracts X X X X
X X X X Extracts X X X X
....Corporation (APIIC) transferred to private 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 JV....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he criminal conspiracy mentioned that the Govt. IC Dept. had agreed vide G.O.Ms. No. 14 dated 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) ALT (Crl.) 459 : 2010 (1) ALD (Crl.) 419 (AP) saying sanction mandatory; however observed of the decisions have no 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....11 only sought for suspension of the earlier order passed against him dated 02.06.2012 in taking cognizance for Section 120-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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Minister for Major Industries, subsequent to the issue of G.O.Ms. No. 22 and finally as per the approval of the then Chief Minister a provision 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)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ving considered the entire material and found very clearly that the officer is not at all at fault and thereby not at all liable for prosecution in its decision of refusing to accord sanction to prosecute him. 11. Mere 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 Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....IC in respect of the land at Manikonda Jagir (where the integrated project is located) for the year 2004, which was valid till the 31.03.2005. In the same note in respect of the lease rentals of the Golf Course also Shri LV Subrahmanyam agreed 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....01.2005, on behalf of M/s. EHTPL for selling the plots/residential units in the township project @ Rs. 5,000/- per sq. yd. for a period of 5 years. As per the agreement, M/s. Stylish Holmes Real Estates Pvt. Ltd. was entitled to a commission of 4% on the sale value 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 18. Now therefore, in exercise of the power conferred u/s. 19(1) of the Prevention of Corruption Act, 1988, the Central Government hereby accords sanction for the prosecution of the said Shri LV Subrahmanyam, IAS (AP:83), the then Chairman & Managing Director of Andhra Pradesh Industrial Infrastructure 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 R....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... I & CD agreed vide G.O.Ms. No. 14 dated 11.01.2005 of I & CD for exemption from payment of conversion fee for change of land stating orders will be issued separately and Secretary of MA & UD did not make any comment on the file and simply forwarded to the Minister for MA & UD, who in turn marked the file to 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 par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....into picture. It is also contended that the conveyance deed under which APIIC transferred 258.36 acres of land to EHTPL was dated 28.12.2005, registered on 12.10.2006 for an aggregate value of Rs. 74,92,44,000/-, which was even subsequent to the transfer of Shri LV Subrahmanyam in May, 2005 from APIIC and as 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and direct evidence cannot be expected but for to infer and any defect or lack of valid sanction even the matters that can be gone into during trial and sought for dismissal of the quash petition. 17. Heard both sides and perused the material on record and the provisions and the propositions. 18(a) In deciding 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the Government by its order way back in 2002 that continued without alteration and there was already an excess of equity with Rs. 25,00,00/- per acre rate. The comparison of values in 2004 for small extents with value at 2001-02 of large undeveloped extent is thus uncalled for. Further, the land value is of utmost relevance 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd would also be met from the Industrial Infrastructure Development Fund. (8). In the reference read above, the Vice-Chairman and Managing Director, Andhra Pradesh Industrial Infrastructure Corporation Limited (VC & MD, APIIC) has also sent a draft MOU to be entered into with M/s. Emaar properties PSJC Dubai for implementation of the said project. The Government after careful 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 F....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erties shall form the SPVs and also establish a management team under its direct management for the overall project and would remain liable for operations and management of the integrated project for the term of concession. SPVs could assign operator rights to reputed firms at the behest of Emaar properties. Para 9 speaks project development fees. Emaar properties, PJSC, Dubai, shall pay APIIC the project development fee of Rs. 2.25 crores in four equal installments 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rated Project comprise of the following in order of preference. 1. Golf Courses and mixed use-total acre is 535 acres (as referred supral. The parties agreed that the un- Centre-cum-Exhibition Complex with business Hotel-on the grounds of HITEX. Where up to three exhibition halls under construction of eight halls of 4000 sq.mts each, seating capacity of 3000 adults, with provision to expand to 5000 adults and the 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 sha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the mile stones as above is achieved to the satisfaction of APIIC. Initial 50 acres of land sold by APIIC and the land of approximate 90 acres acquired by developer directly or not subject to the above mile stones and time lines in the attached chart are based on the developer obtaining all statutory/regulatory projects, which are subject to change. 18(l) Undisputedly the petitioner-A.11-Sri LV Subrahmanvam was posted for the first time as VC & MP of APIIC only in September 2003 and in that capacity he worked only till 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 Cent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o. 81, dt. 10.07.2002, it is subsequent to the G.O.Ms. No. 359, dt. 04.09.2002, supra, that was issued by Principal Secretary of Commerce and Industries supra, and marked back to Sri M.V. Prasad, IAS supra. 18(s) Before coming to G.O.Ms. No. 14, dt. 11.01.2005 referred supra, on the Single File Notings running from 2000-2001 as Note No. 81 (referred supra), coming to the note initiated by office of APIIC (during tenure of Shri LV Subrahmanyam the petitioner-accused No. 11, as VC & MD of APIIC in 2004-05) concerned: Subject:- Integrated 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 Equit....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The land value consideration, remaining as excess over the quantum of APIIC's Equity requirements in the 3 SPVs (as referred supra of two made into three) at each and every point in time will be treated as Debentures by APIIC. in any one of the 3 SPVs and the Debentures could earn a nominal interest for APIIC. It is indicated by Emaar Properties that the nominal rate of interest on Debentures is 2% per annum. This rate is very low. The Debentures could be for prescribed period of years to be decided between the parties and it is indicated that redemption of debentures is after 8 years and the 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 conve....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 4. An early confirmation from government would enable M/s. Emaar to place details of the project particularly convention centre before the President ADB visiting the proposed site on 15.10.2004. Hence, confirmation orders are solicited from government on the revised conditions and terms of MOU to enable APIIC to take necessary action. Submitted for orders-by VC & MD on 05.10.2004. Underneath the above, the Principal Secretary on even date endorsed as 'we may confirm as proposed by APIIC. The proposal is in accordance with our discussions'. It is later the file went to the Minister for Major Industries and Minister for Finance. The Minister for Major Industries 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... stabilization period which is almost 5 years. (5). Emaar has also agreed to convert about 20 to 25 acres of land towards IT Infrastructure. (6). During the discussions it was deliberated on the issue of Secured Debentures for the surplus amount payable by Emaar to APIIC and also paving nominal interest on Debentures at 2% p.a. and payment being subordinate to lender's interest. (7). It was also discussed that APIIC may consider to enter into tripartite Agreement with Developer and Lender for creation "pari passu" charges on land. (8). The developer was advised to may have a re-look on the cost of land in view of the developments taken place which resulted in appreciation of land cost. A rate of Rs. 40.00 lakhs per acre was indicated. However, the developer has stated that any 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  ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a revised MOU can be closed/(obtained) between APIIC on behalf of GOAP and Emaar properties. 7. Confirmation orders solicited to this proposal on above paras. 8. Land acquisition is also being perused by APIIC to take over those lands expeditiously. Land acquisition cost will be our equity again upto Rs. 29 lakhs. This issue will be discussed again. Sd/- (VC & MD APIIC) 5.11.2004 Principal Secretary (Industries & Commerce): As proposed------------------sd.------ The further note of (VC & MD APIIC)-09.11.2004, reads that: This issue was discussed today i.e. on 09.11.2004 by Hon'ble M(MI) with Prl. Secy. & CIP and VC & MD-APIIC. As desired by Hon'ble M(MI) a summary note of improvements brought into the projects as a result of discussion is mentioned below: (a). The overall projects cost has been revised from Rs. 430.00 crores to Rs. 630.00 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed solely for improvement of the facilities and this maintenance. Hence should not be seen as a source of revenue to Government. Regarding 'B' The total extent of land earmarked for the project is proposed to be developed at one go and on fast track. If the land is handed over in trenches there is added responsibility and cost to APIIC by way of protecting the land. C above: Confirmed. Equity of Government is secured and return on equity is value addition. As the work has to commence expeditiously Fin. May kindly considered. Sd/- Prl. Sec. (I & C), Dt. 18.11.2004 Prl. Finance Secretary(R & E), Sd/- Dt. 18.11.2004 MIN (FIN) query-Dt. 20.11.2004 During discussions in one of the meetings consider, it was mentioned that there is a court case with regard to acquisition of private land. What has happened to it? we to wait for the outcome or we can proceed further. However to M may see and decide Sd/- K. Rosaiah-dt. 20-11-04 MD APIIC may clarify the above point before file is circulated to CM. Sd/- Prl. Sec.(I & C), Dt. 24.11.2004 The clarification given by VC & MD APIIC, Dt. 26.11.2004 is that: Total (11) Nos. of W.Ps. were fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nbsp; Sd/- Sd/- Dt. 07.12.2004, SPM i/c, 07.12, M (Law), dt.08.12, F.D. Submitted for approval. All the important aspects of this P & P Partnership have since been incorporated. Sd/- (VC & MD APIIC), Dt. 13.12.2004 Sd/- Prl.Secy. (I & C) PFS (R & E):- Law Dept. may be consulted in first place. Sd/- DT.14.12 M(MI) Sd/- Prl.Secy. (I & C) As stated in Clause 8(iii)(c) site map may be annexed to the draft supplementary agreement. Subject to above, the draft supplementary agreement as agreed by the VC & MD APIIC is formally in order subject to slight altercations indicated in pencil thereon. The draft supplementary agreement may also be shown to Finance Department 23.12.2004 Secretary Legal Affairs Prl. Secretary (Ind. & Com.) Law U.O. No. 8948/LSP/2004 Dt. 23.12.2004 PFS (R & E) Finance(Ex. PV. I & C) Dept-The Draft supplementary Agreement placed b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idelines were issued in the Annexure of the first read above. The APIIC was instructed to take necessary action to implement the project. 2. In the reference 2nd read above the VC & MD, APIIC Ltd., while submitting a proposal under SFS, in regard to setting up an Integrated Project including an International Convention Centre and business Hotel in NAC grounds and Township projects with Golf Course & Multi use development in Manikonda, Ranga Reddy District and requested to issue suitable orders on the following issues. (a) Implementation structure of the Integrated Project: I. Development of Township Project at Manikonda Emaar Hills Township Private Limited (EHTPL) as SPV-1. II. Development of Golf Course. Golf Club, resort hotel etc. at Manikonda Boulder Hills Leisure Private Ltd. (BHPL) as SPV-2. III. Development of Convention Centre (6.000 Seating) and Business Hotel at NAC Grounds. Izzatnagar Cyberabad Convention Centre Private Ltd. (CCCPL) as SPV-3. (b) Equity Structure: SPV-1: Emaar Properties 74% APIIC 26% SPV-2: Emaar Properties 74% APIIC 26% SPV-3: Emaar Properties 74% &n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er careful examination, decides to consider the above improvements brought into the Integrated Project including an International Convention Centre and Business Hotel in NAC grounds and Township project with Golf Course & Multi use development in Manikonda. Ranga Reddy District, duly modifying the orders issued in the 1st read above to the extent of the above improvements and approve a Draft Supplementary Agreement to be executed between the APIIC and Emaar Properties. PJSC. UAE. 4. The Vice-Chairman and Managing Director, Andhra Pradesh Industrial Infrastructure Corporation Ltd., Hyderabad is authorized to enter into a Supplementary Agreement to the Collaboration Agreement executed on 19th August 2003. Copy of the agreement may be sent to Government for record. 5. Andhra Pradesh Industrial Infrastructure Corporation Ltd., should closely monitor the development of above three (3) projects and see that the developer should adhere with the schedule for completion of Convention Centre Project by the end of December 2005 as agreed by Emaar. 6. All other features of the Project notified in the G.O.Ms. No. 359 Industries & Commerce (INF) Department dated 04.09.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent to issue necessary modifications orders duly effecting the modifications to the clause No. 2(d) & (e) of the G.O.Ms. No. 14 Ind. & Com. (IP) Department, dated 11.01.2005. In this connection, it is submitted that Government have issued orders in G.O.Ms. No. 14 dated 11.01.2005, duly modifying the orders issued in the G.O.Ms. No. 359 Industries & Commerce (INF) Department dated 04.09.2002 to bring in the latest improvements/changes taken place in implementing the Integrated Township with Golf Course project at Manikonda and Convention Centre with Business hotel project at N AC grounds. In view of the above and in the light of the request of the VC & MD, APIIC Ltd., it is submitted for orders whether the amendment to the G.O.Ms. No. 14 dated 11.01.2005 may be issued. Subject to orders a draft amendment to the clause of 2(d) & (e) of G.O.Ms. No. 14 dated 11.01.2005 is put up below for approval. 18(x) The Minister of Major Industries on 21.03.2005 endorsed on the issues and references that the issues are discussed in the meeting taken by Hon'ble CM. Minutes circulated for approval of CM the approved minutes may be added to the file and the action be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r accused much less to achieve any illegal gain and there is no even any allegation of petitioner joined hands with any persons and if so on what basis, to make a baseless allegation of conspiracy against the petitioner or any criminal misconduct on the part of the petitioner-A11. 20. The CBI and the learned Special Judge should have considered that in the letter dated 31.03.2005 written by the petitioner-A11 to the Secretary, MA & UD, mentioning Government in I & CD agreed, vide-G.O.Ms. No. 14 dated 11.01.2005 of I & CD, for exemption from payment of conversion fee for change of land stating orders will be issued separately. Further the Secretary of MA & UD did not make any comment on the file and simply forwarded to the Minister for MA & UD, who in turn marked the file to 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent. 23. Even coming to M/s. Emaar Properties' agreement with M/s. Stylish Homes dated 20.01.2005, on behalf of SPV-I selling 100 villa plots at an aggregate price of Rs. 5,000/- per sq. yard for a period of five years prior to formation of SPV-I was as per the revised structure under the State policy and even before EHTPL was brought into picture, leave apart the clauses in G.O.Ms. No. 359 supra. Apart from it, the conveyance deed under which APIIC transferred 258.36 acres of land to EHTPL was dated 28.12.2005 and registered on 12.10.2006 for an aggregate value of Rs. 74,92,44,000/-, which was even subsequent to the transfer of the petitioner-A11-Shri LV Subrahmanyam in May, 2005 from APIIC and as 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 & HI. 24. Even coming to the statement supposedly made by Chamundeswaranath about the advice received from petitioner-A11 about purchase of villa, as partners in the projects, the petitioner was aware of the development that was envisioned at the project place. What Chamundeswaranath stated is it is in March ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanor or misconduct of the type alleged in the case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person. specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to. in general. If the, Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any pre-conceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ula to avoid reproduction of lengthy exceptions in the description of the each of the several offences. Consequently all offences enumerated in the Indian Penal Code must be read subject to the provisions in Chapter IV relating to General Exceptions (Sections 76 to 106 IPC). Therefore, when an act falls within any of these exceptions, by virtue of the provisions of Sec.6, the accused must be accorded the benefit of the appropriate General Exception even though such exception is not specifically indicated in the description of the offence elsewhere in the IPC. In Seriyal Udayar v. State of Tamil Nadu (1987) 2 SCC 359 (per Oza, J) the Supreme Court observed that even if on the basis of the material on record the right of private defence of the accused-appellant is not established, still the material produced in cross-examination and the circumstances discussed (by the court) do indicate that the incident might have happened in the manner in which it was suggested by the accused appellant and therefore it could not be said that the prosecution has been able to establish the offence against the appellant beyond reasonable doubt, the accused is entitled to acquittal. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eat in response to which the defensive force is justified. They are often distinguished by one another by the nature of the interest threatened. Statutes too often make special alterations or exceptions to the basic principle of defensive force justification depending on the interests threatened. The general exceptions enumerated in Sections 96 to 106 in Chapter IV of the IPC fall within this category of defences. It requires to be noticed that Article 261 of the Constitution enjoins that Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. The appointment of a judge is a public act and the particulars and designation of appointment as a judge are matters of public record. Even if a mischievous complaint is made that a named individual masquerading as a judge had passed an order; whether the named individual is a judge is an easily discoverable public act and a matter of public record. Even the provisions of Section 81 of the Evidence Act enjoin that a Court shall presume the genuineness of any official gazette or government gazette. At para No. 146 in A.P. Civil Li....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is in no sense to displace the Doctrine of necessity for a mens rea as a general proposition in criminal law, atleast in cases where the act is done under a belief of the existence of a state of facts which, if it really existed, would render the act not criminal nor immoral.......It is however undoubtedly a principle of English Criminal Law that ordinarily speaking a crime is not committed if the mind of the person doing the act in question be innocent. It is a principle of natural justice and of our law says Lord Kenvon CJ that actus non facit rem. nisi mens sit rea. The intent and act must both conquer to constitute the crime. The guilt intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong. That intention may belong to one or other of the two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may coexist with respect to the same deed.------ knowingly or intentionally to break a statute, must. 1 think, from the judicial point of view,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s no material on the record on which any Tribunal could reasonably convict the respondents for any offence connected with the assault on the complainant. 33(b) In PKM Selvam and others v. State MANU/TN/2746/2015, the Madras High Court by relying upon the expression of the Apex Court in Central Bureau of Investigation, Hyderabad v. K. Narayana Rao: (2012) 9 SCC 512 held that an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence. 33(c) In Ch. Laxminarayana v. The State of Telangana MANU/AP/0303/2017, this Court held at Para 10 that, there has to be cogent and convincing evidence against each of the accused. It is one who commits an over act with knowledge of conspiracy is guilty and one who tacitly consents to the object of the conspiracy can also be made liable. The Court in appreciation must take care to see that the acts and conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. The offender ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ignorance and even by deviation of conditions of Central Government for rooting through it and the discharge by trial court held unsustainable, that too when all concerned officials were charged. 33(g) The scope of Section 10 Evidence Act considered is by relying upon the observations of the three Judge Bench of the Apex Court in State v. Nalini 1999 (2) ALT (Crl.) 1 (SC) : (1999) 5 SCC 253 that the first condition which is almost the opening lock of that provision is the existence of 'reasonable ground to believe' that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement in reference to their common intention'. 33(h) In Ram Narain Poply v. CBI 2003 CrLJ 4801, the three Judge Bench of the Apex Court held on Section 120B IPC that the elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Para 12 as follows: 12.........Therefore, there should first be a prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against his coconspirators....... The correct import of Section 10 was explained by the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor MR 1940 PC 176 as under: "The words of S.10 are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The words "common intention" signifies a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l verdict. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability cannot be fastened by way of analogy or by extension of a common law principle. When men enter into an agreement for an unlawful end, they become ad-hoc agents for one another, and have made a partnership in crime. Beyond the mere fact of agreement, the necessary mens rea for proving that a person is guilty of conspiring to commit an offence be established. 33(m) The Apex Court in Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd. (2010) 10 SCC 479 categorically held that merely on the basis of the appellant's status in the company, it could not be presumed that it is the appellant who became a party to the alleged conspiracy. 33(n) The Constitution Bench expression of the Apex Court in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra AIR 1965 SC 682 way back observed that the offence of conspiracy has to b. established like any other offence but for Section 10 of the Indian Evidence Act introduces the doctrine of agency subject to conditions laid therein are satisfied for act done by one is admissible against coconspirator....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/or by necessary implication-[See Mohammad Usman supra]. 33(q) The following passage from Russell on Crimes (12th Edn. Vol 1) cited by Jagannatha Shetty, J in Kehar Singh supra brings out the legal position succinctly: "The gist of the offence of conspiracy then lies, not in doing the act, or affecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge or even discussion, of the plan is not, per se enough" Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy 'it is not required that a single agreement should be entered into by all the conspirators at one time. Eac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy." 33(t) In Ajay Agarwal v. Union of India AIR 1993 SC 1637, it was held that (2.03) Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.(2.05) An agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. 33(u) In Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar AIR 1962 SC 876, the Apex Court Constitution Bench held that: Under Section 107(2), a person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the construction of the contract in the light of the stand taken by the World Bank as also the earlier decision taken by the State was possible. That, however, would not mean that a fresh decision could not have been taken keeping in view the exigencies of the situation. A decision to that effect was not taken only by one officer or one authority. Each one of the authorities was ad idem in their view in the decision making process. Even the Financial Adviser who was an independent person and who had nothing to do with the implementation of the project made recommendations in favour of the contractors stating that if not in law but in equity they were entitled to the additional amount. 47. From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or for causing wrongful loss to the State 48. Section 13 of the Act provides for criminal misconduct by a public servant. Such an offen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Its ingredients are (i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. 52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. In Kehar Singh and others v. State (Delhi Administration), (1988) 3 SCC 609 at 731, this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol 1): "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge or even di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the then Secretary Mr. M.S. Billore retires so as to enable him to obtain opinion of another officer would prima facie establish that he intended to cause pecuniary gain to the respondent Nos. 8, 9 and 10. We have noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make any recommendation. He merely lamented the manner in which the former Secretary Mr. M.S. Billore acted as prior thereto, the said authority himself for all intent and purport had accepted the recommendations of the authorities incharge of construction of the dam including the Chief Engineer. He constituted a committee. He obtained the opinion of the Financial Adviser. If upon consideration of the entire materials on record, independent opinion had been rendered and recommendations were made, it is difficult to comprehend as to how that by itself would constitute a criminal misconduct or leads to the conclusion of hatching any criminal conspiracy. Recommendations made by the Committee or the opinion rendered by an independent officer like Financial Adviser need not be acted upon. It was for the State to take a decision. Such a decision was required to be taken on the basis of the ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her the exonerated officer in the departmental proceeding also faced same charges including the charge of being a party to the larger conspiracy." 58. There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence. 59. In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet the court at the time of framing of the charge could only l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urther is done the agreement would give rise to a criminal conspiracy. 36(b) In R. v. Griffith 1965 (2) AER 448, it has been observed of the Court of Appeal in England has laid down thus: "9. The practice of adding what may be called a rolled up conspiracy charge to a number of counts of substantive offences has become common. We express the very strong hope that this practice will now cease and that the courts will never again have to struggle with this type of case, where it becomes almost impossible to explain to a jury that evidence inadmissible against the accused on the substantive count may be admissible against him on the conspiracy count once he is shown to be a conspirator. 36(c) It is worthy of note that a mere conspiracy or 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. 36(d) As held in Pramathanath supra, once 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 illeg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....persons to commit an offence: leave apart a few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy as held by the Apex Court in the decisions supra, for nothing that can be shown even of all means adopted and illegal acts done in furtherance of the object of conspiracy hatched from any circumstances relating to the period prior in time than the notes put up by him that is stated as actual commission of the alleged offence much less to say same in furtherance of the alleged conspiracy to draw any inference of the alleged conspiracy. Undisputedly from the settled legal position, 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. For that the acts and conduct of the parties must be conscious and clear enough to infer their concurrence as to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the same principle laid down in Vadilal and Chandra Deo Singh supra. Therefrom suffice to say that when the material itself before the Court shows the accused is entitled to the protection from prosecution for the alleged offences from the case falls under any of the general or special exceptions provided in law in saying no offence made out, same can be considered within its scope as laid down by the expressions supra. Apart from it in Rukmini Narvekar v. Vijay Sataredkar (2008) 4 SCC 1 by explaining the earlier 3JB expression in State of Orissa v. Devenranath Pathi 2005 (1) ALT (Crl.) 198 (SC) : (2005) 1 SCC 568 it was held that where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. 39. From the above, apart from Section 120B IPC has not been made out even coming to any attracting of the offence punishable under section 13(2) r/w 13(1)(c) & (d) and/or section 15 of the PC Act against the petitioner-A11 and whether there is any valid sanction of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dvantage: or (iii) while holding office as a public servant-obtains for any person any valuable thing or pecuniary advantage without any public interest: or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with 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." In the case of State v. A. Parthiban 2007 (2) ALT (Crl.) 93 (SC) : (2006) 11 SCC 473, the Supreme Court held as under: Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."-[See also Bharat Petroleum Corp. Ltd. v. T.K. Raju, 2006 (3) ALT 29.2 (DN SC) : 2006 (3) SCC 143." 54. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that the respondent Nos. 1 to 7 either had abused their position or had obtained pecuniary advantage for the respondent Nos. 8. 9 and 10 which was wit/tout any public interest. 55. Whether, on the one hand, the dam should be constructed within a time frame fixed by the World Bank is a public interest or whether sticking to the terms of the contract which may lead to abandonment of work by the contractors would be a public interest is a matter over which a decis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is-- whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated ill-founded and frivolous prosecution against the public servant. 44(b) In State of H.P. v. M.P. Gupta 2004 (1) ALT (Crl.) 236 (SC) : (2004) 2 SCC 349 the Apex Court held that bar under law regarding Court's power to take cognizance as absolute and complete. Hence, court cannot take cognizance of complaint against a public servant unless sanction is obtained from the appropriate authority, if the offence alleged to have been committed was in discharge of official duty. The mandatory character of the protection afforded to a public servant is brought out by the expression. "no court shall take cognizance of such offence except with the previous san....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orming his official duties. 63. For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity the same would attract the provisions of Section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das and another 2006 (2) ALT (Crl.) 224 (SC) : (2006) 4 SCC 584. The question came up for consideration before this Court in Matajog Dobey v. H.C. Bliari AIR 1956 SC 44 : 1955 (2) SCR 9251 wherein it was held: "17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the following terms: "17. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami. J., in Baijnath v. State of M.P.. "it is the quality of the act that is important, and if it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....de is not attracted..." 64. Reliance has been placed by Mr. Tulsi on Parkash Singh Badal v. State of Punjab and others 2007 (1) ALT (Crl.) 122 (SC) : (2007) 1 SCC 1 wherein this Court held: "38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.", In that case, the appellant therein was charged for commission of an offence of cheating under Sections 420, 467, 468, 471 and 120B IPC. In the factual matrix involved therein, it was held: "29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on "failure of justice" and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error omission or irregularity in the sanction. Therefore, mere error, omission or irre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndition even at pre-cognizance state for the Magistrate to take cognizance of the alleged offences against a public servant and said permission sought for under Section 197 CrPC & 19 PC Act was not given by the State, the charge sheet is liable to be quashed on said requirement of law. 44(f) In this regard for more clarity to substantiate the conclusion it is needful to reproduce Section 197 CrPC and Section 19 PC Act with relevant case law. 44(g) Section 197 CrPC with title 'Prosecution of Judges and public servants' reads as follows:- "(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is emplo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntral Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 44(h) Section 19 of the PC Act with title "Previous sanction necessary for prosecution" reads as follows: "(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the PC Act, the emphasis is on the words "who is employed" in connection with the affairs of the Union or the State Government. If he is not employed, then Section 19 nowhere provides for obtaining such sanction. Further, under sub-section (2) the question of obtaining sanction and the competent authority to accord sanction is relatable to the time of holding the office when the offence was alleged to have been committed. 44(j) The Apex Court in C.K. Jaffer Sharief v. State (2013) 1 SCC 205 : 2013 (5) ALT 22.1 (DN SC), held that, sanction under section 197 CrPC is actually not required when the offences committed are under the PC Act......However, if the act complained of covered by the IPC offences is directly connected with his official duty, so that it could be claimed to have been done by virtue of his office, then the sanction would necessarily be required. 44(k) As also held in Subramanium Swamy v. Manmohan Singh and another (2012) 3 SCC 64 : 2012 (4) ALT 43.1 (DN SC) in case where the person is not holding said office as he might have retired superannuated be discharged or dismissed then the question of removing would not arise. 44(l) The same view was expressed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lic servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties, without sanction. Further, the words "when any person who is or was a public servant" employed in 197 CrPC were based on the observation at paragraph 15.123 of the 41st Report of the Law Commission of "it appears to us that protection under the Section is needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". 44(q) Above position was also highlighted in R. Balakrishna Pillai supra of 1996 and reiterated in the later expressions in State of M.P. v. M.P. Gupta (supra), State of Orissa through Kumar Raghvendra Si....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Hori Ram Singh supra among other including the three judge bench of this Court in the case of Amrik Singh supra and of the Constitution Bench in B. Saha supra that the issue of requirement of prior sanction under Section 197 of CrPC can be raised at any stage of the proceedings. 44(s) It was also held referring to the above among other including H.H.B. Gill supra, three judge bench in Baijnath supra and another Constitution bench in Matajog Dobey supra, that Prior sanction for taking cognizance is required in the three situations of, (a) the act complained of attached to the official character of the person doing it; (b) cases in which the official character of the person gave him an opportunity for the commission of the crime; and (c) the offence was committed while the accused was actually engaged in the performance of official duties. It can 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. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. No doubt, there must be a reasonable co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) 6 SCC 372, that: "6......................So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In co....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in law, which goes to the root of the matter and not a mere defect in the process of according sanction. In this regard coming to the legal position: 45(a) In State of Punjab v. Labh Singh it was held that, though by the time cognizance of the offence under PC Act was taken, the public servant was retired and thereby no sanction under Section 19 of the PC Act is required; however, cognizance taken for the IPC offences is bad without sanction. Unlike section 19 of the PC Act, the protection under Section 197 of CrPC is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected, the Court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned, even no bar from retirement for the PC Act offences. 45 (b) As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen the recourse in such cases for the prosecuting agency is either to challenge the rejection order of the Sanctioning Authority or to approach it again if there is any fresh material for reconsideration and not otherwise. 45(c) In a ver....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of public servant. 45(h) On similar point, the Apex Court judgment in the case of Mahesh Kumar Thapar v. State of Jharkhand (Crl.L.A. 1599/2009 decided by Supreme Court on 23.05.2014) has been relied upon. 45(i) In T. Gupala Rao v. State of A.P. (supra) it was held by this Court that since A-2 and A-3 the then Collector and Joint Collector, serving All India Service Officers in Indian Administrative Service have been employed in connection with the affairs of the State of Andhra Pradesh sanction of the State Government is thus required for their prosecution not only under section 197(1)(b) Cr.P.C. but also under section 19(1)(b) of the P.C. Act. Having applied to obtain sanction for prosecution from the Government, it is not open to the prosecution to contend that no such sanction is necessary for prosecuting A-2 and A-3. Secondly, having applied for sanction for prosecution of A-2 and A-3 and failed in their attempt to obtain such sanction, it is not open to the CBI to contend that no sanction either under section 197 CrPC or under section 19 PC Act is required for pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ealing 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.) : (2005) 8 SCC 37, held that "Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence alleged against a public servant in discharge of or in connection with his duties. Once it is mandatory for taking cognizance sanction as required under law by a statutory provision, ordinarily, the question has to be dealt with at the stage of taking cognizance-Even cognizance was taken in ignorance of it or erroneously, once the same comes to the Court's notice at any later stage, a finding to that effect has to be given by the Court and the accused is also entitled to take such plea at any point of time including, even in hearing the appeal before the appellate Court once sanction from competent authority is required under law. When all the mandatory requirements of the statutory formalities not complied with, the cognizance cannot be taken by the Court practically and as such for the non-compliance the entire proceedings vitiate to revert the clock back to pre cognizance stage, if at all....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y 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 case, the Central Government. Rule 2(b) speaks that "Disciplinary authority" means the authority competent under these rules to impose on a member of the service any of the penalties specified in Rule 6. Rule 2(e) defines "State Government concerned". Rule 6 deals with the "penalties". All India service members can be put under suspension as per Rule 3 by the government of State where such member is serving. The State Government is empowered to suspend and initiate an enquiry as per the provisions of law and file complaint and lodge FIR also against such person. The accused 1 to 3 who were public servants committed criminal misconduct punishable under Sections 13(2) read with 13(1)(f) of the P.C. Act, 1988 and Section 120B of Indian Penal Code. In the final report it is admitted that the Government of India refused to grant sanction to prosecute the petitioner for the offence punishable under the provisions of Prevention of Corruption Act. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bus 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 provisions contained in Sections 190 or 319 CrPC. It was also held that the Special Judge cannot proceed against a person for an offence under the PC Act if no sanction has been granted by the appropriate authority for prosecution of such person as the existence of sanction is sine qua non for taking cognizance of the offence qua that person. 45(w) So, the sanction required under Section 197 CrPC and the sanction required under Section 19 PC Act. 1988 are different and distinct. In some cases the Competent Authority may be one and the same. As to who is the Competent Authority to grant sanction under Section 19 of the PC Act, so far as an I.A.S. Officer is concerned as to it the State Government or the Central Government; Section 19 of the 1988 Act itself provides the answer to the above stated questions. 45(x) The Supreme Court in Mohandas v. State of Kerala 2002 (2) KLT 251 (SC) held that: "Under Section 19 of the Act....
X X X X Extracts X X X X
X X X X Extracts X X X X
....petent 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, State Government while rejected sanction for prosecution observed that no prima facie case was made out. Hence, prosecution of appellant quashed as it was abuse of process of law. 46. From the above, the sanction accorded by the Central Govt. is otherwise unsustainable and the cognizance for the offences against the petitioner-A11 are liable to be quashed not only for want of valid sanction, but also for no merits in the accusations against the petitioner to implicate him as All in the criminal case from the final report of CBI and cognizance order of the Special Judge to ask him to face pre-charge enquiry and trial. 47. In this regard, coming to the contention of the learned Special Public Prosecutor for CBI of any validity or otherwise of the sanction is a matter to consider during trial and premature to go into at this stage, so also for the offences cognizance already taken by the Special Judge and but for lea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se. 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 France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable.--." 49(c) In Varala Bharath Kumar v. State of Telangana 2017 (3) ALT (Crl.) 351 (SC) : 2017 SAR (Cri) 975 : 2017 (9) SCC 413, it is held at Para 7 that the extraordinary power under Article 226 or inherent power under Section 482 of the Code of Criminal Proced....
X X X X Extracts X X X X
X X X X Extracts X X X X
....asic 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, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Coupled with any or all of the above where the Court finds that it would amount to abuse of process of the Code or that interest of justice favors, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 49(g) The principle thus laid down is before issuing a process and taking cognizance the Court has to consider from the existing material whether case falls within the exception and only if not, to say prima facie accusation on a complaint or final report to take cognizance for any criminal if makes out. It is something different of prima facie consideration at pre-cognizance stage to the post-cognizance defence available to the accused under any of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....own 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 caution and to exercise ex-debito justitiae that is to do real and substantial justice for the administration of which the Courts exist, and for not to allow to use the prosecution is an instrument of harassment or private vendetta or with a motive to pressurize the accused to terms and the powers too could not be exercised to stifle a legitimate prosecution and Court should refrain from giving prima facie decision in a case where entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issue involved are of such a magnitude that they cannot be seen in the true perspective without sufficient material, though no hard and fast rule can be laid down for exercise of the extraordinary jurisdiction. It is observed that Court should balance with personal liberty, the societical interest and a warrant for arrest of accused shoul....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 AIR 1961 SC 218 & Manoharlal Chopra v. Rai Bahadur AIR 1962 SC 527 that it is well recognized that the High Court is vested with inherent power, however, said inherent power is not to be exercised contrary to any express provision that being the intention of legislature in enacting the civil & criminal procedure codes vis-à-vis. the law laid down by the Apex Court. 49(r) It was also held by the Apex Court in Popular Muthaiah v. State rep. by Inspector of Police (2006) 3 SCC 245 at paras-30 & 31 page-260 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 exis....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 width and contours of that salient jurisdiction. 49(z) In Chandran Ratnaswami v. K.C. Palanisamy (2013) 6 SCC 740 it was held on abuse of process and duty of the Court to quash the proceedings in such case that: "29. The doctrine of abuse of process of court and the remedy of refusal to allow the trial to proceed is well-established and recognized doctrine both by the English courts and courts in India. There are some established principles of law which bar the trial when there appears to be abuse of process of court. Lord Morris in the case of Connelly v. Director of Public Prosecutions, (1964) 2 All ER 401 (HL) observed: "There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. A court must enjoy such powers in order to enforce its rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l 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 Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case (at p.703, para 7 of SCC): "7......In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s 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 if the allegations are accepted in toto." 37. In Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC 736 this Court again cautioned about a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that: (SCC p. 749, para 13) "13. ... Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged." 38. In the case of Inder Mohan Goswami and another v. State of Uttaranchal and others. 2008 (2) ALT (Crl.) 220 (SC) : (20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code." In the case of State of West Bengal and others v. Swapan Kumar Guha and others, AIR 1982 SC 949 while examining the power of a police officer in the field of investigation of a cognizable offence, Chandrachud, C.J. has affirmed the view expressed by Mathew, J. and observed a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 of the process of court or quashing of these proceedings would otherwise serve the ends of justice. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, have inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle "quando lex illiquid aliciti concedit, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 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 charge, but for discharge leave about a mere suspicion cannot be a ground to frame charge, but for discharge. 50(f) In L. Krishna Reddy v. State (2014) 14 SCC 401, the Apex Court held that where evidence justifying prosecution is not available, the accused has to be discharged otherwise the prosecution would be an exercise of futility. 50(g) The Apex Court in Common Cause v. Union of India (1999) 6 SCC 667 : 1999 (6) ALT 15.4 (DN OHC) while interpreting the doctrine of Public Trust, explained the aspects of 'entrustment' 'domain' of property 'Trust' 'Trustee' etc., which are the essential ingredients in the alleged offences punishable u/sections....