Telangana High Court
B. Kripanandam, I.A.S., Retd. vs Union Of India, on 25 November, 2022
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
CRIMINAL PETITION No.11073 OF 2014
ORDER:
Heard Mr. M.R.K.Chowdary, learned Senior Counsel appearing for Mr. P.V.Mahesh, learned counsel for the petitioner and Mr. K.Surender, learned Special Public Prosecutor for Central Bureau of Investigation (CBI) (as his Lordship then was) for the respondents.
2. By filing this petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C), petitioner seeks quashing of the proceedings in C.C.No.25 of 2013 pending on the file of Principal Special Judge for CBI Cases, Nampally, Hyderabad (briefly, 'the CBI Court' hereinafter) qua the petitioner who has been named as accused No.7 by CBI in the charge sheet.
3. The above prayer has been made on the ground that no sanction for prosecution of the petitioner has been obtained by the CBI both under Section 197 Cr.P.C as well as under
Section 19 of the Prevention of Corruption Act, 1988 (briefly, 'the PC Act' hereinafter). Additional ground of challenge is that from the charge sheet so filed, no criminal culpability of the 2 petitioner can be culled out. He had discharged his duties while in office as part of his official duty and in accordance with the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules made thereunder i.e., Mineral Concession Rules, 1960.
4. Petitioner in this case is Sri B.Kripanandam, a retired public servant belonging to the Indian Administrative Service (IAS). At the relevant point of time, he was serving as Secretary to the Government of Andhra Pradesh, Industries and Commerce Department.
5. One P.Shankar Rao, former M.L.A., and late Yerran Naidu, former M.P., had filed W.P.Nos.794 and 6604 of 2011 respectively before the then High Court for the composite State of Andhra Pradesh alleging corruption against late Y.S.Rajasekhara Reddy, former Chief Minister of Andhra Pradesh, his son Sri Y.S.Jagan Mohan Reddy and others and sought for investigation into such allegations of corruption by the CBI. By the order dated 10.08.2011, the erstwhile High Court of Andhra Pradesh directed CBI to investigate the 3 allegations. Following the High Court order, CBI, Anti Corruption Bureau (ACB), Hyderabad registered a case on 17.08.2011 being R.C.19(A)/2011-CBI-HYD against seventy four accused persons under various provisions of the Indian Penal Code, 1860 (IPC), such as, Section 120B read with Sections 420, 409 and 477A and also under the provisions of Sections 6, 12, 13(2) read with Section 13(1)(c) and (d) of the PC Act.
6. After completing investigation, CBI filed charge sheet before the CBI Court being charge sheet No.15 of 2013 dated 10.09.2013 in final report form under Section 173 Cr.P.C. In the said charge sheet, as many as eight persons were named as accused including Sri Y.S.Jagan Mohan Reddy as accused No.1 and Sri Vijay Sai Reddy as accused No.2. Petitioner was named as accused No.7. All the accused persons were charged for committing offences under Section 120B read with Sections 420, 409, 410 and 477A of IPC along with Section 13(2) read with Section 13(1)(d) of the PC Act.
47. The charge sheet is prefaced by a brief narration of facts starting from institution of the two writ petitions and the order passed by the High Court. It was stated that late Y.S.Rajasekhara Reddy, father of accused No.1 was sworn in as Chief Minister of Andhra Pradesh on 14.05.2004. Both late Y.S.Rajasekhara Reddy and his son had adopted several ingenious ways to amass illegal wealth resulting in public injury. Modus operandi of the duo was to dole out public properties, licences, allotting/granting various projects, Special Economic Zones (SEZs), mining leases, ports, real estate permissions etc., by violating established norms and procedures of the Government for quid pro quo. As part of quid pro quo, the beneficiaries paid bribes to accused No.1 under the guise of purchasing shares of companies floated by accused No.1 at huge and unsubstantiated premia.
7.1. In so far allegation against the petitioner as could be culled out from the voluminous charge sheet is that petitioner was serving as Secretary to the Government of Andhra Pradesh in the Industries and Commerce Department, Department of Mines. Of course, he retired from service on attaining the age 5 of superannuation on 30.04.2006. In pursuance of criminal conspiracy entered into between A.1 to A.6, at the instance of late Y.S.Rajasekhara Reddy, Government of Andhra Pradesh without proper consideration rejected the renewal application of M/s.Gujarat Ambuja Cements Limited (briefly, 'GACL' hereinafter) for lime stone quarry at T.Sunkesula village etc. Instead they ensured grant of mining lease in favour of accused No.3. Thus, in pursuance of criminal conspiracy, they had caused wrongful gain in favour of accused No.3. Such action was in violation of the Mines and Minerals (Development and Regulation) Act, 1957 as well as Mineral Concession Rules, 1960. Thus, the aforesaid accused persons had committed the offence under Section 120B and 420 IPC as well as under Section 13(2) read with Section 13(1)(d) of the PC Act.
8. It may be mentioned that CBI Court considered the charge sheet filed and perused the relevant record. Thereafter, cognizance was taken vide the order dated 28.09.2013 registering C.C.No.25 of 2013 and issuing summons to the accused persons for their appearance before the CBI Court. As 6 noticed above, petitioner is accused No.7 and charged for committing offence under Sections 120B and 420 IPC as well as under Section 13(2) read with Section 13(1)(d) of the PC Act.
9. It was thereafter that the present petition came to be filed seeking the reliefs as indicated above on the above grounds.
10. CBI has filed counter affidavit. In the counter affidavit, CBI has narrated the facts leading to registration of R.C.19(A)/2011-CBI-Hyderabad and filing of charge sheet leading to registration of C.C.No.25 of 2013. At the outset, it is stated that petitioner (accused No.7) had retired from service on attaining the age of superannuation on 30.04.2006. CBI had filed charge sheet on 10.09.2013. CBI Court had taken cognizance on 28.09.2013. Thus, on and from 30.04.2006, petitioner had ceased to be a public servant. Therefore, sanction for prosecution of the petitioner is not necessary.
Thereafter, role of the petitioner as accused No.7 has been highlighted. It is contended that petitioner's involvement in the criminal conspiracy with other accused persons leading to 7 cancellation of renewal of prospecting licence of GACL is apparent. It was cancelled even during pendency of revision application filed by GACL before the revisional authority. It was done to enable grant of prospecting licence to accused No.3 which is close to accused No.1. It may be mentioned that accused No.4 was the Director of accused No.3. Details of correspondence centering around the petitioner have been mentioned. The affidavit has narrated in detail role of the petitioner. He had kept the revisional authority in the dark as to award of prospecting licence to accused No.3. It is alleged that by such acts of wilful omission and commission and by abusing his official position, petitioner had committed the offences of criminal conspiracy and cheating under Section 120B read with Section 420 IPC as well as criminal misconduct under Section 13(2) read with Section 13(1)(d) of the PC Act.
10.1. The case involves criminal conspiracy amongst eight accused persons; specific role has been assigned to the petitioner; allegation involving the petitioner cannot be segregated and looked in isolation; the prosecution case has to 8 be looked at in its entirety. Respondent has therefore sought dismissal of the criminal petition.
11. Mr. Chowdary, learned Senior Counsel for the petitioner submits that all actions were done by the petitioner strictly under the statute i.e., the Mines and Minerals (Development and Regulation) Act, 1957 as well as under the Mineral Concession Rules, 1960. He has referred to various provisions of the aforesaid Act and the Rules. As the five years maximum period of prospecting licence of GACL had expired, it became ineligible to seek prospecting licence. It is in such circumstances, the order granting mining licence in favour of accused No.3 was allowed to become final statutorily.
Petitioner (accused No.7) being the statutory authority had passed the aforesaid order on thorough consideration of all relevant aspects and after obtaining approval from the departmental Minister. Therefore, the very basis of CBI charging the petitioner of abusing his official position to favour accused No.3 by granting mining licence cannot stand.
Learned Senior Counsel submits that petitioner was holding office as Secretary of Industries and Commerce Department for 9 a period of two years from May, 2004 to 30.04.2006 when he retired on attaining the age of superannuation. No allegation can be made against him for any illegality having taken place after his superannuation.
11.1. According to learned Senior Counsel, allegation of petitioner indulging in any criminal conspiracy and cheating is totally unfounded. No element or ingredient of criminal conspiracy and cheating is discernible against the petitioner from the charge sheet. Petitioner had discharged his duties strictly in accordance with the rules and procedures.
11.2. It is contended that even if the allegation made by CBI against the petitioner is taken at its face value, the allegation against the petitioner pertains to his period in service discharging official duties. However, no sanction has been obtained by the CBI from the appropriate government either under Section 197 Cr.P.C or under Section 19 of the PC Act. In the absence of sanction, CBI Court had grossly erred in taking cognizance of the alleged offence against the petitioner. In 10 support of his submissions, learned Senior Counsel for the petitioner has relied upon the following decisions:
1. N.K.Ganguly v. CBI, New Delhi1,
2. G.Sagar Suri v. State of Uttar Pradesh2,
3. Surinderjit Singh Mand v. State of Punjab3,
4. Amit Kapoor v. Ramesh Chander4,
5. Inder Mohan Goswami v. State of Uttaranchal5,
6. Yogesh v. State of Maharashtra6, and
7. General Officer Commanding, Rashtriya Rifles v. CBI7.
12. On the other hand, learned Special Public Prosecutor for CBI has elaborately referred to those portions of the charge sheet which deal with the role of the petitioner as accused No.7 and submits that a clear case of commission of offence has been made out against the petitioner for committing offence under Section 13(2) read with Section 13(1)(d) of the PC Act. He submits that the charge against each individual accused cannot be looked into in isolation. The charge sheet has to be read as a whole. If it is read as a whole, role played 1 (2016) 2 SCC 143 2 (2000) 2 SCC 636 3 (2016) 8 SCC 722 4 (2012) 9 SCC 460 5 (2007) 12 SCC 1 6 (2008) 10 SCC 394 7 (2012) 6 SCC 228 11 by the petitioner would become clearly discernible. In that process, it would be evident that petitioner had committed offence under Sections 120B and 420 IPC, cognizance of which has been taken by the CBI Court. These offences cannot be said to be part of the official duty of the petitioner. Therefore, no sanction under Section 197 Cr.P.C is required. In so far sanction under PC Act is concerned, since the petitioner has retired from service on attaining the age of superannuation, no sanction is required. Contending that there is no merit in the criminal petition, he seeks dismissal of the same.
13. In his reply submissions, Mr. Chowdary, learned Senior Counsel for the petitioner asserted that no case has been made out against the petitioner as accused No.7. No wrong doing can be attributed to the petitioner. As a statutory authority, he had discharged his duties within the four corners of the statute.
Petitioner being a public servant at the relevant point of time when the alleged offence was committed, he is entitled to protection under Section 197 Cr.P.C as well as under Section 19 of the PC Act. Since no prosecution sanction has been obtained, petitioner cannot be prosecuted. He reiterates the 12 decision rendered by the Supreme Court in N.K.Ganguly (supra). He has also placed reliance on the following decisions:
1. Devinder Singh v. State of Punjab8,
2. State of Odisha v. Pratima Mohanty9, and
3. Station House Officer v. D.A.Srinivasan10.
14. Submissions made have been duly considered.
15. At the outset, it would be apposite to extract that portion of the charge sheet relating to the role of the petitioner as accused No.7. Relevant portion of the charge sheet dated 10.09.2013 pertaining to C.C.No.25 of 2013 reads as under:
ROLE OF SRI B. KRIPANANDAM (A-7), THE THEN SECRETARY TO GOVERNMENT INDUSTRIES & COMMERCE DEPT. IN RCL/BCCPL MATTER.
1) Sri B. Kripanandam, IAS (A-7) was the then Secretary, Industries & Commerce Department, Dept. of Mines. He was retired on 30-04-2006.
2) In pursuance of the criminal conspiracy entered among Sri Y.S Jagan Mohan Reddy (A-1), M/s RCL (A-3), Sri JJ Reddy (A-4), Sri V.D Rajgopal (A-5) and Sri B. Krupanandam (A-6) at the instance of Late YS Rajasekhar Reddy, the Government of AP, without 8 (2016) CrlLJ 2658 9 2021 SCC OnLine SC 1222 10 (2020) 2 SCC 153 13 considering their correspondence etc. has issued show-
cause notice during Sept. 2005 regarding their proposal to cancel the PL for the said Lime Stone Reserve Area of T. Sunkesula village etc. Inspite of the request of GACL, the Govt. has cancelled their PL vide Memo dated 31-10-05.
3) As part of pre hatched criminal conspiracy, the Government of AP has rejected the renewal application of M/s GACL by showing the lame excuses i.e. non- submission of prospecting report etc. and by circumventing the rules with the sole purpose of causing wrongful gain to Sri Y.S. Jagan Mohan Reddy (A-1) by way of illegal grant of Mining Lease of Lime Stone Reserve Area of T.Sunkesula village etc, since he happened to be the son of Late Y.S. Rajasekhara Reddy, the then Chief Minister of AP.
4) S/Shri Y. S. Jagan Mohan Reddy (A-1), J. J. Reddy (A-4), V.D.Rajagopal (A-5) and Shri B. Kripanandam, IAS, (A-7), in pursuance of criminal conspiracy and in abuse of their official position as Public Servant, dishonestly committed offences U/s 120-B, 420 IPC and Sec.13(2) r/w 13(1) (d) of P.C.Act-1988.
5) M/s RCML / RCL was holding PL of the said Malepadu area and applied for ML on 28-04-2005, after the entry of Sri J.J. Reddy (A-4), at the instance of Sri Y.S. Jagan Mohan Reddy (A-1) only, it has applied for ML for T. Sunkesula area without prospecting and submitting the Prospective Report of the said T. Sunkesula etc area.
146) In pursuance of the criminal conspiracy, S/Sri S. Shankar Narayana (A-8), V.D Rajgopal (A-5) and B. Krupanandam (A-7) hatched with Late Y.S. Rajasekhara Reddy at his instance, they connived with S/Sri Y.S Jagan Mohan Reddy (A-1) and Sri JJ Reddy (A-4) have granted Mining Lease in favour of M/s RCL (A-3) vide GO No.95 dated 27-03-2006.
7) In pursuance of said criminal conspiracy, Sri B. Krupanandam (A-7) vide Memo dated 31 10-2005 with criminal intention rejected the renewal application of M/s GACL, only in order to cause wrongful gain to M/s RCL (represented through Sri J.J. Reddy, A-4) of Sri Y.S. Jagan Mohan Reddy (A-1), who is non-other than the son of Late Y.S. Rajasekhara Reddy.
8) In respect of P.L matter of M/s GACL (File No.227) the PL application was not at all renewed, rather rejected by S/Sri V.D Rajgopal (A-5) and Sri B. Krupanandam (A-7).
9) Shri S. Shankara Narayana (A-8) dishonestly and fraudulently in pursuance of criminal conspiracy made false representation in the said report. Thereby S/Shri S. Shankara Narayana (A 8), ADMG, V.D.Rajagopal, the then D.M.G, (A-5) and B. Kripanandam, the then Secretary (A-7) representing ADMG, DMG & I&C (M.III) departments respectively, in pursuance of criminal conspiracy with Sri Y.S Jagan Mohan Reddy (A-1) and Sri JJ Reddy (A-4) have caused wrongful gain, in the said manner, in favour of M/s. RCL(A-3) represented by S/Shri Y.S.Jagan Mohan Reddy (A-1) and J.J.Reddy (A-4). They have violated the 15 M.C.Rules-1960. They have followed double standards in respect of M/s. GACL and M/s. RCL.
10) Thereby Shri S. Shankara Narayana (A-8), V.D. Rajagopal (A-5), B. Kripanandam (A-7) and Shri J.J. Reddy (A-4) Y. S. Jagan Mohan Reddy (A-1), M/s. RCL (A-3) committed the offences U/s 120-B, 420 IPC and Sec.13 (2) r/w 13(1) (d) of P.C.Act-1988.
11) S/Sri V.D Rajgopal (A-5) and B. Krupanandam (A-7) has rejected PL renewal application of M/s. GACL on the ground that the company has not completed the prospecting work. Whereas, on the other hand the Govt.
has accepted GACL report enclosed for RCL (A-3) matter. It speaks of the double standards/fraudulent act of the Govt.
12) Sri S. Shankar Narayana (A-8) ADMG, Yerraguntla, has not asked RCL (A-3) their prospecting of the said area.
13) The RCL (A-3) has to obtain Prospecting Report either from the GSI or from any other regarding private consulting agency. In the instant case no such exercise was done by M/s RCL(A-3).
14) However Shri S, Shankara Narayana (A-8) in pursuance of the criminal conspiracy dishonestly and fraudulently and as per the request of Shri J. J. Reddy (A-4) has enclosed Exploration Report of M/s. GACL to the M.L. Application of M/s. RCL(A-3).
15) The report of GACL was used for M/s RCL to cause wrongful gain to M/s RCL(A-3) in the matter of recommending mining lease.
1616) Thereby S/Shri S.Shankara Narayana (A-8), V.D Rajgopal (A-5), B. Krupanandam (A-7), J.J.Reddy (A-4), YS Jagan Mohan Reddy (A-1) and M/s RCL (A-3) have committed the offence U/s 120B, 420 IPC and Sec.13(2) r/w 13(1) (d) of P.C.Act-1988.
17) Based on the recommendation of Sri V.D Rajgopal (A-5) for grant of ML for Limestone over an extent of 2037.52 acres in Sy.No.215 to 231" etc. The note was put up through the Assistant Secretary Deputy Secretary & Secretary (Sri B. Kripanandam, IAS (A-7) to the Minister. After approval Memo No.676 dated 15-02-2006 was issued by Sri B. Kripanandam (A-7), Secretary in favour of M/s Raghuram Cements Ltd (A-3), informing grant of Mining Lease for Limestone over an extent of 2037.52 acres. M/s RCL. (A-3) was requested to submit the Mining Plan approved by the IBM through the DMG within period of 6 months from the date of receipt of this memo. Based on the recommendation of Sri V.D Rajgopal (A-5) for grant of ML for Limestone over an extent of 2037.52 acres in Sy.No.215 to 231" etc. The note was put up through the Assistant Secretary Deputy Secretary & Secretary (Sri B. Kripanandam, IAS(A-7) to the Minister. After approval Memo No.676 dated 15-02-2006 was issued by Sri B. Kripanandam (A-7), Secretary in favour of M/s Raghuram Cements Ltd (A-3), informing grant of Mining Lease for Limestone over an extent of 2037.52 acres. M/s RCL (A-3) was requested to submit the Mining Plan approved by the IBM through the DMG within period of 6 months from the date of receipt of this memo.
1718) Investigation revealed that the Revisional Authority vide Letter dt. 20-02-2006 has forwarded to the Secretary, Govt. of A.P and copy to M/s. GACL asking to send para wise comments. Lr.No.2(2)2005-RC-II dt. 27-02-2006 was forwarded to the Secretary, Govt. of A.P. Hyderabad and copies to the parties concerned informing fixing of stay matter hearing to 13-03-2006 to hear to Stay Matter of G.A.C. Ltd.
19) Investigation disclosed that on 30-03-2006, the Revisional Authority i.e. Director (Mines) has conducted the stay matter hearing. The contention of the State Govt. was that "a notification was issued on 21-11-2005 for regrant of mining lease/prospecting license. The State Government has received two applications for mining lease". In view of the contention of the State Government, the Director (Mines) has passed the Interim Order vide signature dated 12-04-2006 (for the stay hearing dated 30-03-2006) to the effect that "State Government may process the applications received against the notification for grant of mining lease but execution of the mining lease may be kept pending till the pendency of Revision Application before the Tribunal".
20) Sri B. Krupanandam (A-7) was in receipt of letter dated 27-02-2006 of the Ministry of Mines regarding fixing of stay matter hearing date in the matters including M/s.GACL on 13th March 2006 in New Delhi.
21) On receipt of said letter, Sri V.D.Rajagopal (A-5) has addressed letters to the Secretary, GAD and I&C regarding accommodation and the attendance of Sri BRV Susheel Kumar, Joint Director to attend the hearing in New Delhi.
18There were also notings and also correspondence for the hearing dated 30-03-2006. S/Sri B. Krupanandam (A-7) and V.D Rajgopal (A-5) were aware of both the stay matter hearing dates 13-03-2006 and 30-03-2006.
22) However, neither Shri B. Kripanandam (A-7) nor V.D.Rajagopal (A-5) has forwarded any comments with reference to the Revision Application (with reference to letter dated 20-02-2006)/Stay hearing matter to the Ministry of Mines prior to the stay hearing dated 30-03-2006.
23) The fact of Stay Matter Hearing Date is not mentioned in the GO file either by Sri B.Krupanandam (A-7) or by Sri V.D Rajgopal (A-5).
24) On the other hand, there is misrepresentation and issuance of G.O No.95 by the Secretary Sri B. Kripanandam (A-7) without the approval of the Minister (Mines). The Para-wise comments/ Revisional Remarks of Sri V.D Rajgopal (A-5) claimed to have been forwarded to the Ministry on 06-04-2006 were also not prior to the hearing date 30-03-2006.
25) The malafide intentions of S/Shri V.D. Rajagopal (A-5) and B.Kripanandam (A-7) in cheating the Ministry with material contradictions were proved through oral and documentary evidence.
26) Sri V.D. Rajagopal (A-5), vide his letter dt. 27-05-2006 has mentioned that M/s Raghuram Cements Ltd (A-3) has executed the mining lease on 29-03-2006 which was prior to the Interim Orders issued 19 by the Revisional Authority. Sri V.D Rajgopal (A-5) enclosed photocopies of GO-95 Issued by Sri B. Kripanandam (A-7). Shri V. D. Rajagopal (A-5) vide letter dated 27.05.2006 has mentioned that "Ref: 1. Revision remarks submitted against M/s.Gujarat Ambuja Cements Limited on 10.04.2006." As such the said Revisional Remarks were submitted on 10.04.2006.
27) In the Revision remarks also, there was no mention about the execution of the Mining Lease deed in favour of RCL on 29.03.2006. The difference between the revision remarks at P-121 to 124 and P-132 to 135 is that in the revision remarks (P-121 to 124) the signature of JDMG is not available. Whereas in the revision remarks (P-132 to
135) the signature of JDMG as attester is available.
28) Sri V.D. Rajagopal, (A-5) vide letter dated 27.05.2006 has admitted that M/s. Raghuram Cements Limited had executed the Mining Lease deed before the Assistant Director of Mines and Geology, Yerraguntla on 29.03.2006. Sri V.D Rajgopal (A-5) has not mentioned in the revision remarks about the execution of the Mining Lease Deed on 29.03.2006, when the same were purported to have been sent on 10.04.2006 as mentioned by him in his letter dated 27.05.2006. Had Sri V.D Rajgopal (A-5) mentioned about the execution of the Mining Lease on 29.03.2006 itself, the Ministry of Mines would have noted the same in the interim order dated 12.04.2006.
29) The contention of the State Government regarding receipt of two applications for mining lease is misleading / misrepresenting since the Govt, had already granted mining lease in favour of M/s RCL (A-3), vide GO Ms. No. 20 95 dt. 27-03-2006 and M/s RCL (A-3) executed the mining lease deed on 29-03-2006 which are prior to the stay matter hearing dated 30-03-2006.
30) Sri B. Kripanandam (A-7), Secretary of the State Govt. also has not informed the issuance of GO on 27-03-2006 nor execution of the lease deed on 29-03-2006, by the stay hearing date 30-03-2006.
31) Thereby S/Sri V.D. Rajagopal (A-5) and B. Kripanandam-Secretary (A-7) of the State Govt. kept the Central Govt. groping in the dark by not revealing exact/correct position in the matter for deciding stay matter in this case.
32) Sri V.D Rajgopal (A-5) and Sri B. Kripanandam (A-7) in pursuance of the criminal conspiracy with Sri YS Jagan Mohan Reddy (A-1) and Sri J.J Reddy (A-4) and M/s RCL (A-3) had cheated the Revisioinal Authority of Ministry of Mines in the matter of execution of Mining Lease Deed by suppressing the material facts.
33) S/Sri B. Krupanandam (A-7), V.D Rajgopal (A-5) in pursuance of the criminal conspiracy with S/Sri Y.S Jagan Mohan Reddy (A-1), M/s RCL (A-3), Sri JJ Reddy (A-4) caused wrongful gain to M/s RCL (A-3) represented Sri Y.S Jagan Mohan Reddy (A-1) and Sri J.J Reddy (A-4).
34) Thereby S/Sri V.D Rajgopal (A-5) and Sri B. Kripanandam (A-7) Y.S Jagan Mohan Reddy (A-1) and Sri J.J Reddy (A-4) and M/s RCL (A-3) committed the offence U/s 120-6, 420 IPC and section 13(2) r/w 13 (1)
(d) of PC Act, 1988.
2135) Sri J.J. Reddy (A-4) vide his letter dated 24-03-2006 has submitted the Approved Mining Plan along with letter dated 23-03-2006 of Sri V.M. Prabhushettar (A-6), RCOM & OIC(S2) in the DMG office. Sri V.D Rajgopal (A-5) has approved the recommendation for grant of ML in favour of Ms RCL (A-3) which was forwarded to the Secretariat (M.III Dept.) and was received on 25-03-06.
36) The recommendation of Sri V.D Rajgopal (A-5) in F.No.00227 dt. 25-03-2006 was dealt in the GO No.95 file and was put up for orders for grant of M.L. The RA matter is not available in this file. (GO No. 95). No information is available in this file about the stay or otherwise matter of the above RA. Had the hearing dates of 13-03-2006 and 30-03-2006 mentioned in the note sheet instead of the matter that The GOI did not give any stay in the RA, the GO No.95 would not have been issued pending hearing of stay or otherwise matter by the Ministry of Mines, in c/w RA matter filed by M/s GACL"
37) The noting is not true. It does not reflect the correct information since there is no mention about either stay or non-stay of the hearing matter. The said noting is very important one. Sri V.D Rajgopal (A-5) was aware of the stay matter hearing scheduled to be held on 13-03-2006.
38) S/Shri V.D. Rajagopal (A-5) & B.Kripanandam (A-7) were aware of the Revision Application dated 27-01-2006 filed by M/s GACL in the Ministry since the Ministry of Mines vide letter dated 20-02-2006 has asked the Secretary for para-wise comments of the State Govt.
S/Shri V.D. Rajagopal (A-5) & B.Kripanandam (A-7) could 22 have delayed in issuing GO in favour of M/s Raghuram Cements Ltd (A-3) in granting the ML for Limestone area of T. Sunkesula village etc, had they forwarded the para-wise comments or attended the hearing on 13-03-2006. S/Shri V.D. Rajagopal (A-5) & B.Kripanandam (A-7) would have issued instructions to the ASO and SO to mention about the stay hearing date matter in the note sheet. But they have not done so.
39) In view of the criminal conspiracy hatched among Late Y.S. Rajasekhara Reddy, Sri V.D. Rajagopal (A-5) and Sri B. Kripanandam (A-7) Secretary, Y.S.Jagan Mohan Reddy (A-1) and J.J.Reddy (A-4) the aforesaid noting was made to be mentioned with criminal intention in order to escape from the enquiries regarding the issuance of GO, if any, in future.
40) The aforesaid noting dated 27-03-2006, was put up by the section vide date 27-03-2006. Sri B. Kripanandam, Secretary (A-7) has seen the said noting under his signatures dated 27-03-2006. Sri B. Kripanandam (A-7), issued GO No.95 dt. 27-03-06 granting Mining Lease for Limestone over an extent of 2037.52 acres in Sy.No.251 to 231 etc. of T. Sunkesula village etc. in favour of M/s Raghuram Cements Ltd (A-3) for a period of 30 years.
41) As per the Business Rules, the Minister of the concerned Department is responsible for disposal of the matter. In the subject case it is the Minister (Mines & Geology) (Smt. Sabita Indra Reddy), who is responsible for disposal of the matter i.e. giving approval for issuance of GO.
2342) Whereas, in the subject case Sri B. Kripanandam (A-7), the then Secretary to Govt has Issued the GO No.95 dated 27-03-2006 without sending the same to the Minister for approval prior to its issuance.
43) The then Secretary Sri B. Krupanandam (A-7) should have obtained approval of the Minister on GO No.95 dt. 27-03-2006 for granting Mining Lease for limestone over 2037.52 acres in favour of M/s. Raghuram Cements Ltd.
44) However, GO No. 95 was issued by Sri B. Krupanandam (A-7), the then Secretary under his signature in favour of M/s. RCL (A-3) without the approval of the then Minister.
45) Shri B. Kripanandam (A-7) should have waited and issued the G.O after the outcome of the Revision Application which was disposed of vide final order No:28/2006 dt. 8-9-2006.
46) Instead, Sri B. Krupanandam (A-7) issued the G.O prior to the disposal of RA. SE Kripanandam (A-7) (IAS), in pursuance of the criminal conspiracy with other accused persons issued the conditional GO in favour of M/s RCL (A-3) by concealing the factual information and thereby caused wrongful gain by granting mining lease for limestone even though the stay hearing matter and disposal of Revision Application are pending before the Revisional Authority.
47) The cancellation of PL of GACL, issuance of Gazette Notification, acceptance of ML application of M/s RCL, issuance of Memo for grant of ML, obtaining of Approved 24 Mining Plan and issuance of conditional GO during the pendency of Revision Application are against the rules.
48) Thereby Sri V.D. Rajagopal (A-5) and Sri B. Kripanandam (A-7), YS Jagan Mohan Reddy (A-1), M/s RCL (A-3) and JJ.Reddy (A-4) committed Offences U/s. 120-B, 420 IPC & Sec 13(2) r/w 13(1)(d) of P.C.Act- 1988.
49) The entire episode of obtaining of Mining Lease starting from issuance of memo dated 21-09-2005 proposing to reject the renewal application of PL of M/s GACL to execution of the Mining Lease Deed in favour of M/s RCL on 29-03-2006 and cheating the Ministry on 30-03-2006 in matter of hearing on stay application, within a span of in 6 months was done so hastily, against the rules. In the aforesaid chain of events, the only beneficiary is none other than Sri Y.S.Jagan Mohan Reddy (A-1), who has run the show through his Late Father Y.S. Rajasekhara Reddy and Sri J.J. Reddy (A-4). Late Y.S Rajasekhar Reddy has ensured implementation of the scheme allotment of mining lease in favour of his son, through S/Shri V.D.Rajagopal (A-5) & B.Kripanandam (A-7).
50) Thereby S/Sri Y.S. Jagan Mohan Reddy (A-1), M/s. RCL (A-3) represented by YS Mohan Reddy and J.J. Reddy (A-4), J.J. Reddy (A-4), V.D. Raja Gopal (A-5), V.M. Prabhushettar (A-6), B. Kripanandam (A-7) and S. Shankar Narayanan (A-8) have committed misconduct in connection with the aforesaid matter. Thereby they committed offences punishable u/s 120-B & 420 IPC and u/s 13(2) r/w 13(1)(d) of P.C. Act, 1988.
2516. From the above, it is seen that allegation against the petitioner is that he was part of the criminal conspiracy in rejecting the renewal application of GACL by abusing his official position as a public servant. He was instrumental in granting mining lease in favour of accused No.3 on 27.03.2006. Renewal application of GACL was rejected only to ensure that mining lease is granted to accused No.3. Mining lease was granted to accused No.3 before disposal of revision application by GACL and without approval of the concerned Minister.
17. Having noted the above, the two provisions which deal with prosecution of a public servant may be analysed. Heading of Section 197 Cr.P.C is "prosecution of judges and public servants". Sub-section (1), which is relevant, says that 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 26 cognizance of such offence except with the previous sanction of the appropriate government. If he is or was an employee of the Central Government, then the appropriate government would be the Central Government. On the other hand, if he is or was employed at the time of commission of the alleged offences with the State Government, then the appropriate government would be the State Government.
18. In so far the PC Act is concerned, post the Prevention of Corruption (Amendment) Act, 2018, Section 19 has undergone certain changes. Section 19 deals with previous sanction necessary for prosecution. As per sub-section (1), no Court shall take cognizance of an offence punishable under Sections 7, 11, 13 and 15 of the PC Act alleged to have been committed by a public servant except with the previous sanction of the appropriate government. Like in the case of Section 197 Cr.P.C, if the public servant was employed with the Central Government, the appropriate government would be the Central Government. On the other hand, if the public servant was employed with the State Government, the appropriate government would be the State Government. In case of any 27 other person, previous sanction would have to be obtained from the authority competent to remove such public servant from his office. As per the Explanation to sub-section (1), the expression 'public servant' would include such person who has ceased to hold the office during which the offence is alleged to have been committed; or who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed. Sub-section (2) clarifies that where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or by the State Government or by any other authority, it would be that authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
19. In N.K.Ganguly (supra), Supreme Court in the facts of that case framed the following questions for consideration:
1) Whether an offence under Section 120B Indian Penal Code is made out against the Appellants, and 28 if so, whether previous sanction of the Central Government is required to prosecute them for the same?
2) Whether the order dated 08.11.2012 passed by the learned Special Judge taking cognizance of the offence against the Appellants is legal and valid?
19.1. In the course of the deliberation, it was contended that illegal acts done by the appellants in transferring the plot of land at a lower price could not be said to have been carried out in exercise of official duty. Therefore, no previous sanction from the competent authority was required under Section 197 Cr.P.C. Supreme Court held that the object of Section 197(1) Cr.P.C is to save a public servant from frivolous prosecution. It is the quality of the act that is important. If it falls within the scope and range of his official duties, protection contemplated by Section 197 Cr.P.C would be attracted.
20. Supreme Court in Devinder Singh (supra), after analyzing various case laws summed up the principles governing grant of sanction under Section 197 Cr.P.C. It has been held as follows:
39. The principles emerging from the aforesaid decisions are summarised hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty.29
However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule. 39.4. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. 39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is 30 permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed.
39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to the accused to place material during the course of trial for showing what his duty was. The accused has the right to lead evidence in support of his case on merits.
39.9. In some cases it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.
21. In Kalicharan Mahapatra v. State of Orissa11, Supreme Court held that a public servant who has committed an offence under the PC Act while he was a public servant, can be 11 (1998) 6 SCC 411 31 prosecuted with the sanction contemplated in Section 19 of the PC Act if he continues to be a public servant when the Court takes cognizance of the offence. If he ceases to be a public servant by that time, the Court can take cognizance of the offence without any sanction.
22. Again, in the subsequent decision in Chittaranjan Das v.
State of Orissa12, Supreme Court accepted the proposition that once a public servant ceases to be so on the date when the Court takes cognizance of the offence, there is no requirement for obtaining sanction under the PC Act. Elaborating on this aspect, Supreme Court held as follows:
12. Sanction is a device provided by law to safeguard public servants from vexatious and frivolous prosecution.
It is to give them freedom and liberty to perform their duty without fear or favour and not succumb to the pressure of unscrupulous elements. It is a weapon at the hands of the sanctioning authority to protect the innocent public servants from uncalled-for prosecution but not intended to shield the guilty.
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14. We are of the opinion that in a case in which sanction sought for is refused by the competent authority, while the 12 (2011) 7 SCC 167 32 public servant is in service, he cannot be prosecuted later after retirement, notwithstanding the fact that no sanction for prosecution under the Prevention of Corruption Act is necessary after the retirement of the public servant. Any other view will render the protection illusory. Situation may be different when sanction is refused by the competent authority after the retirement of the public servant as in that case sanction is not at all necessary and any exercise in this regard would be action in futility.
23. Supreme Court in Station House Officer (supra) reiterated the position that protection under Section 197 Cr.P.C is available to the public servant when an offence is said to have been committed 'while acting or purporting to act in discharge of official duty', but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected.
24. The above aspect can be gone into and determined only during the trial on adducing of evidence; in fact it can be an issue in trial.
25. Thus, on a thorough consideration of all aspects of the matter, Court is of the view that present is not a case for quashing the charge sheet as well as the cognizance order at 33 the threshold by invoking Section 482 Cr.P.C. At least from the materials which are on record a view can be taken that the same may be adequate to sustain a trial. Of course, in a proceeding under Section 482 Cr.P.C, Court would refrain from examining the probative value of the materials on record and second guess the probable outcome of the trial. Defence of the accused cannot be a ground to quash a complaint or charge sheet. All that the Court can say at this stage is that it is not a case for nipping the prosecution in the bud.
26. In the light of the above, the present criminal petition is devoid of merit and is accordingly dismissed. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending in this criminal petition shall stand closed.
__________________ UJJAL BHUYAN, CJ 25.11.2022 Pln