Andhra Pradesh High Court - Amravati
T.Shanmukha Reddy vs The State Of Andhra Pradesh on 27 September, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION No.6564 of 2022
Between:-
T.Shanmukha Reddy .... Petitioner/Accused
And
The State of Andhra Pradesh,
represented by its Public Prosecutor (ACB),
High Court of Andhra Pradesh, Amaravati. ....
Respondent/Complainant
Counsel for the Petitioner : Mr.Balaji Medamalli
Counsel for the Respondent : Mr.S.M.Subhani,
Learned Standing Counsel for A.C.B.,
ORDER:
Heard Mr.Balaji Medamalli, learned counsel for the petitioner and the learned Standing Counsel for A.C.B.,
2. The present Criminal Petition is filed seeking to quash the Order dated 14.12.2021 passed in Crl.M.P.No.29/2020 in C.C.No.40/2015 on the file of the Court of the Learned Special Judge for SPE & ACB Cases, Nellore-cum- II Additional District & Sessions Judge, Nellore, SPSR Nellore District.
3. The petitioner herein was found guilty of the offences punishable under Section 13(2) R/w Section 13(1)(e) of the Prevention of Corruption Act, 1988 in the said Calendar Case. The Learned Special Judge while awarding sentence to the petitioner at Para 112 of the Judgment, recorded a finding that except the immovable properties as noted in the Judgment as items 1 to 13, the 2 remaining properties seized from the house of the accused/petitioner and from the house of his wife cannot be considered as disproportionate assets of the accused/petitioner. In so far as the order of conviction and sentence is concerned, the petitioner/accused preferred an appeal and the same is pending. In the light of the above mentioned finding as also the direction of the Learned Special Judge to the effect that the gold and silver items seized (if any) shall be returned to the concerned persons after expiry of appeal time, the petitioner/accused filed Crl.M.P.No.29 of 2020 under Sections 451 and 457 of the Code of Criminal Procedure R/w Section 5 of Criminal Law Amendment Ordinance, 1944, seeking return of gold and silver items, which were detailed in the inventory proceedings i.e., Exs.P.2, P.39 and P.60 in favour of the petitioner and also a direction to the respondent to issue necessary instructions to the concerned Bank to permit the petitioner/accused to operate gold mortgage loan account and after clearing the loan amount, the gold may be returned to the petitioner/accused. The said petition was opposed by the State. The Learned Special Judge after considering the submissions on both sides, dismissed the above mentioned petition. Aggrieved by the same, the present Criminal Petition came to be filed.
4. The learned counsel for the petitioner, inter alia, submits that the Learned Special Judge having noted that the gold and silver items referred to in the Criminal Miscellaneous Petition were not illegal properties of the petitioner, erred in not allowing the petition and went wrong in dismissing the same, on the premise that the appeal preferred by the petitioner herein is pending before 3 the Hon'ble High Court. He submits that even as per the case of the prosecution and as observed by the Learned Special Judge, no appeal was filed by the respondent-State against the finding as recorded in the Judgment dated 04.02.2019 in respect of the properties other than items 1 to 13 and the direction regarding return of gold and silver articles after expiry of appeal time. He also submits that as no appeal is preferred by the State, the said findings have become final and in such circumstances, the view taken by the Learned Special Judge that the petition cannot be entertained is not tenable. In effect, his submission is that in the absence of any appeal by the State against the findings with regard to return of property, mere pendency of the appeal filed by the petitioner/accused with regard to conviction cannot be a ground to reject the return of property as prayed for.
5. The learned counsel also submits that in the peculiar facts and circumstances of the case, the petitioner was right in invoking the jurisdiction of this Court under Section 482 Cr.P.C. He also places reliance on the decision of the Hon'ble Supreme Court in Asian Resurfacing of Road Agency Private Limited and another vs. Centrla Bureau of Investigation1 and urges that the order impugned may be set aside and the Criminal Miscellaneous Petition referred to above be allowed.
1 (2018) 16 Supreme Court Cases 299 4
6. The Learned Standing Counsel for A.C.B., on the other hand submits that the order passed by the Learned Special Judge under Sections 451 and 457 of Cr.P.C cannot be treated as an interlocutory order and invocation of the inherent power under Section 482 Cr.P.C is not tenable. He submits that the petitioner has a remedy of Revision as the order impugned substantially effects the rights of the parties. In support of his contentions, the learned Standing Counsel places reliance on the decision of a learned Single Judge dated 09.07.2021 in Crl.P.No.2710 of 2021.
7. This Court has considered the submissions made by both the counsel and perused the material on record. The circumstances under which the petitioner filed the above the Criminal Miscellaneous Petition has been narrated above and the same need not be reiterated. In the counter filed by the respondent-State in Crl.M.P.No.29 of 2020, no averments with regard to filing of appeal against the findings in C.C.No.40 of 2015 in so far as the return of property appears to have been made. The Learned Special Judge categorically observed in the impugned order that the Prosecution did not prefer any Cross- Appeal against the said findings and kept quiet. Though the contention that in such circumstances, pendency of appeal before the Hon'ble High Court preferred by the petitioner/accused would not come in the way of the Court to consider the petition in question merits consideration, this Court, in the light of the decision relied on by the Learned Standing Counsel with regard to maintainability of the Criminal Petition, is required to examine the matter. No doubt, this Court initially over-ruled the objection of the office with regard to 5 the maintainability of Criminal Petition, but the same would not preclude this Court to consider the said aspect, in the light of the submissions made as also the legal position in this regard.
8. In Asian Resurfacing of Road Agency Private Limited's case, the Hon'ble Supreme Court, inter alia, was examining the issue with regard to powers of Hon'ble High Court under Section 397(2) Cr.P.C/Section 482 Cr.P.C/ Article 227 R/w 226 of the Constitution of India, the effect of the interlocutory orders and also the powers of the Hon'ble High Court as a 'Court of Record' under Article 215 of the Constitution of India etc., in the background of a case arising out of the provisions of the Prevention of Corruption Act. Though the learned counsel for the petitioner sought to place reliance on the said Judgment to the effect that Section 482 Cr.P.C, conferred unbridled powers and the same may be invoked for rendering justice to the parties, this Court is not inclined to accept the same, more particularly, in view of the settled legal position.
9. In Madhu Limaye vs. The State of Maharasthra 2 , the Hon'ble Supreme Court, inter alia held that power under Section 482 Cr.P.C is not to be resorted to, if there is a specific provision in the Code for the redress of the grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice.
2 (1977) 4 SCC 551 6
10. In Crl.P.No.2710 of 2021 on which reliance is placed by the Counsel for the A.C.B., a learned Judge of this Court was examining the order passed by the Magistrate dismissing a petition filed under Section 451 Cr.P.C seeking interim custody of the property. While referring to the decisions of the Hon'ble Supreme Court in Bharat Heavy Electricals Ltd., vs. State3, Amar Nath vs. State of Haryana4 as also a decision of a Learned Judge of High Court of Madras in S.V. Chandran vs. The State5, the Learned Judge re-affirmed the legal position to the effect that an order under Section 451 Cr.P.C is not an interlocutory order and it does not attract the bar under Section 397(2) Cr.P.C and as such a Revision under Section 397(1) Cr.P.C is maintainable. Accordingly, the Learned Judge held that the Criminal Petition under Section 482 Cr.P.C is not maintainable.
11. In the light of the settled legal position, this Court is of the considered view that it would not be appropriate to examine the merits or otherwise of the impugned order in the present proceedings. It is also settled Law that exercise of powers under Section 482 Cr.P.C must be exercised very sparingly where proceedings have been initiated illegally, vexatiously or without jurisdiction and that the power should not be exercised against the express provision of Law. Under the aforementioned circumstances, this Court has no option, except to reject the contentions advanced by the learned counsel for the petitioner. 3 1981 Cri.LJ 529 4 AIR 1977 SC 2185 = (1977) 4 SCC 137 5 Order dt.17.12.2018 in Crl.R.c.No.1217 of 2018 7
12. In the aforesaid view of the matter, it is deemed expedient to dispose of the Criminal Petition, leaving open to the petitioner to avail the remedy of Revision against the impugned order.
13. Registry to return the original order under challenge and other documents to the petitioner.
As a sequel, miscellaneous applications if any, pending shall stand closed.
___________________________
JUSTICE NINALA JAYASURYA
Date: .09.2022
IS
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THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION No.6564 of 2022
Date: .09.2022
IS