Andhra Pradesh High Court - Amravati
D Subbaramaiah vs The State Of Ap on 22 August, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
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THE HON'BLE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. (PIL) No.108 of 2019
ORDER :(Per Hon'ble Acting Chief Justice C.Praveen Kumar) One D.Subbaramaiah, an Advocate, filed the present Public Interest Litigation seeking issuance of Writ of Mandamusdeclaring the nature of investigation done by respondents 1 to 3 in C.C. No.576 of 2015 on the file of the IV Additional Junior Civil Judge-cum-Judicial First Class Magistrate, Chittoor, as perfunctory and consequently,to direct re-investigation of the case under court monitoring, within a stipulated period.
2. The petitioner herein, who is an Advocate,earlier worked as Joint Director of Works Accounts, Kadapa, during the period of the scam which exposed pilferage of public money to an extent of Rs.4,66,14,398/-. A criminal case came to be registered at the instance of the petitioner and the matter was entrusted to CBCID for investigation. In para 2.2 of the writ affidavit it is stated that he is not a party in the entire transaction, nor is he responsible for filing this petition after retirement from service on 31.3.2013 and that he has no personal interest in the matter. The petitioner claims to have chosen this petition as public law remedy to get back the public money lost in the scam. An affidavit running into 48 pages came to be filed along with the petition.
3. The facts in issue are as under :
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The petitioner herein claims to have joined the service as Divisional Accounts Officer on 18.9.1984; later promoted as Assistant Pay & Accounts Officer, Pay & Accounts Officer, Joint Director of Works Accounts and finally as Director of Works Accounts (Head of the Department).During his tenure as Joint Director, he happened to notice certain suspectable events in his office. According to him, one, Smt.Ch.Adi Lakshmi, who was one of the officers working in the jurisdiction, indulged into writing cheques to draw public money for personal purpose, in the name of certain private individuals. His investigation revealed that an amount of Rs.4,66,14,398/- was withdrawn from the public exchequer, in the name of S.Jaya Krishna Reddy, V.Ramesh Naidu, N.SaiSuman and B.Bharath Kumar under the signature of Ch.Adi Lakshmi, the then Pay & Accounts Officer. Subsequently, adepartmental enquiry came to be conducted in which the private individuals were not summoned and enquired. Basing on the criminal case, a charge-sheet vide C.C.No.576 of 2015 came to be filed against accused Nos.1 to 10, who are A1 - R.Lavanakumar Reddy, A2 - VanipentaSivasankara Reddy, A3 - T.Rajasekhar, A4 - Nakka Sai Suman, A5 - Vipparla Ramesh Naidu, A6 - B.Bharath Kumar, A7 - Sanyasi Jayakrishna Reddy, A8 - DurgamLokeswara Reddy, A9 - KorigamGurraiah and A10 - DoragalaGopal.Out of them, Accused Nos.1, 2, 9 and 10 arepublic servants, dismissed from the service. It is pleaded that though the departmental enquiry was initiated and later all the four persons were dismissed, but the main person Smt.Ch.Adi Lakshmi,who was kept under suspensionand later retired on superannuation during suspension period, was deleted from the array of accused. According to him, the investigation done by CID is suffering with severe lacunas and loopholes and that they did not arrive at the correct conclusion fixing the real culprits. The averments in the affidavit narrate the manner in which the petitioner received complaints while working as Joint Director, 3 more particularly with regard to 11 cheques drawn in Pay & Accounts Office without vouchers. However, the affidavit also refers to a call which the petitioner got from Smt.Ch.Adi Lakshmi that a cheque was found with her forged signature and that SBI, Tirupati stopped payment on her instructions. The affidavit also states that the Senior Assistant Lakshmi Narayana, gave the phone number of the PAO -Ch.Adi Lakshmi to the SBI officials for further clarification, who called her over mobilefor validation of the suspected cheque. The PAO - Ch.Adilakshmi came over to the bank and at that time, she had two options; one, to validate the cheque as genuine for encashment without subjecting the cheque for further hassle, in such a case the cheque would be paid and she has to produce voucher and bill connected with the cheque and then it would become known to others and another optionis to declare the cheque as invalid and the signature as forged. The said Lakshmi Narayana stated that the PAO exercised her mind for a little while and opted to declare that it was a forged cheque. In the affidavit, the petitioner narrated as to how the CID failed to address issues which shows culpability of Adi Lakshmi and others in this large scam and hence pleads re-investigation into the matter.
4. Reiterating the averments in the affidavit filed in support of the petition, the petitioner, appearing in person, pleads that it is a fit case where this court should order re-investigation and then monitor the same. It is his plea that in cases of this nature, the Court has to protect the public exchequer and also take steps for recovery of money from the persons who misappropriated the amounts. According to him, this Public Interest Litigation came to be filed not only to punish the real culprit along with others, but also to recover the money lost illegally.
5. One of the grounds raised by the learned counsel for the petitioner relates to Court Monitoring investigation. As held by the Division Bench 4 of this Court in Rama ShankarnarayanMelkote and others vs. State of Andhra Pradesh and others1 the expression "Court-monitored" has sometimes been interchangeably used with "Court-supervised investigation". At times, once the Court supervises an investigation, normally nothing would be left in the trial, more so when a case where charge-sheet is filed and case is taken up for trial. The Criminal Procedure Code does not envisage such a procedure. In a rare and compelling circumstances, the Superior Court may monitor the investigation to ensure that the investigating agency conducting the investigation in a free, fair and time bound manner without any external interference. Constitutional Courts monitor investigation only in public interest. The whole idea is to retain public confidence in the impartial enquiry/investigation into the alleged crime. Under those circumstances, the High Court in Rama ShankarnarayanMelkote'scase ordered investigation by a special investigation team. However, in the instant case that stage is over. In the year 2015 itself charge-sheet was filed, which was taken on file as C.C.No.576 of 2015. Though the petitioner was an informant in the said case, he never raised his little finger with regard to the manner in which the investigation was done.
6. The question is, "Whether the given set of fact situation warrants re-investigation?"
7. It is to be noted here that on coming to know about the fraud, a case in crime No.227 of 2009 came to be registered at CCS Police Station, Tirupati for the offences punishable under Sections 420, 409, 403, 471, 468, 109, 120-B & 201 I.P.C. The petitioner herein,who is the informant, set the criminal law into motion. After recording his statement and the material furnished by him to the Police during the course of investigation, a charge-sheet came to be filed against 10 1 2018(1) ALT 709 5 accused, after examining 75 witnesses,which was taken on file as C.C.No.576 of 2015 by the IV Additional Judicial Magistrate of First Class, Chittoor. It was specifically statedin the last paragraph of the charge-sheet that the investigation made and documents collected does not disclose any incriminating material against Smt.Ch.Adi Lakshmi, the then PAO, Tirupati; Kum.V.SuryaKumari, daughter of lateV.Ramamurthy, the then Senior Assistant, PAO Office, Tirupati; V.VishnuVardhan Reddy, son of V.Sivasankara Reddy, Tirupati; E.Sreenivasulu, son of Veeraswamy, the then Assistant Manager, State Bank of India, Srikalahasthi and hence, their names were deleted from the charge-sheet.
8. A reading of the contents of the charge-sheet show that accused Nos.1 to 3, who were Government Servants, generated 11 cheques totaling to Rs.4,66,14,398/- in favour of their friends, who are A4 to A8,encashed the same in SBI, Srikalahasthi and misappropriated the Government funds. A9 and A10,who were working as Senior Assistants in PAO, Tirupati, alsoplayed crucial role along with other accused in the commission of the offence. During the course of the investigation, the Police collected 154 documents and examined 75 witnesses before filing the charge-sheet.
9. Though the petitioner in his affidavit claims that he has no interest in the matter, but the contents of the First Information Report and the charge-sheet would indicate that it was at his instance that the criminal law was set into motion. He was examined by the police as L.W.1 and thereafter further progress in the case was made at his instance. Therefore, the arguments of the learned counsel for the petitioner appearing in person that he has nothing to do with the case and as such it came to be filed as a PIL, cannot be accepted. Everything happened at his instance and he cannot now turn around and say that 6 he has nothing to do with the matter. It may be true that he is not working in the said Department at present, but it was he, who set the law into motion by giving a report, which lead to registration of the case against the officials and non-officials of the department. Strictly speaking it cannot be a Public Interest Litigation rather he intends to find fault with the investigation done by the police in not fixing one,Adilakshmi, as one of the accused. It is also to be noted here that various options are left to the petitioner, if he intends to pursue the matter, subject to law of limitation. Though the charge-sheet is filed in the year 2015 and taken on file as C.C.No.576 of 2015, for the reasons best known to him, he did not challenge the findings arrived at by the investigating agency while filing the charge-sheet, more particularly the deletion of Adilakshmi from the array of the accused. No reasons are given for the same. A faint attempt is now sought to be made that he came to know about the contents of the charge-sheet only recently. Since the case came to be initiated at his instance and as he is shown as L.W.1, he can invoke the provision of Section 319 Cr.P.C. during the course of trial, if not already completed and if permissible under law. Apart from that, the petitioner appearing in person pleaded for re- investigation of the matter by the CBCID. Once the Court takes cognizance of the matter re-investigation into the case is not permissible in view of the law laid down by the Apex Court in Anju Chaudhary v. State of U.P. and Ors.2; ChandraBabu v. State and Ors.3;andPooja Pal v. Union of India (UOI) and Ors.4.
10. In Vinay Tyagi v.Irshad Ali @ Deepak &Ors5 the Apex Court held that Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the 2 (2013 )6SCC 384 3 (2015 )8SCC 774 4 (2016 )3SCC 135 5 (2013)5 SCC 762 7 Court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its powers under Section 156(3) of the Code. The court held that Investigation can be of the following kinds :
(i) Initial Investigation.
(ii) Further Investigation.
(iii) Fresh or de novo or re-investigation.
The initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such an investigation itself can lead to filing of a final report under Section 173(2) of the Code.
"Further investigation" is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8) Cr.P.C.
11.This is a kind of continuation of the previous investigation. The basis for further investigation is discovery of fresh evidence and in continuation of the same, offence and chain of events relating to the same occurrence incidental thereto. In other words, as held by the Apex court it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation. The purpose of re- investigation is to bring certain facts before the Court even if they are discovered at a subsequent stage to the primary investigation. The basic requirement that being required seeking prior rule of the court to conduct further investigation or to file supplementary report.
12. There is no specific embargo to the Magistrate to order 'further investigation'. The satisfaction of the Magistrate is a condition precedent to commencement of further proceedings before the court of competent 8 jurisdiction. Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts and circumstances of each case. But, however the said power has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. However, in case of a 'fresh investigation', 'reinvestigation' or 'de novo investigation' there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct 'fresh investigation'. This is primarily for the reason that it would be opposed to the scheme. It is essential that even an order of 'fresh'/'de novo' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The Court held that cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation. The Apex Court in Vinay Tyagi's case, categorically held that in the principle of rarest of rare cases would squarely apply to such cases. The Court further held that unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to order for fresh investigation.
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13.In GudalureM.J.Cherian and others v. Union of India and others 6 the Apex Court observed that in cases where charge-sheets have been filed after completion of investigation and request is made belatedly to reopen the investigation, such investigation being entrusted to a specialized agency would normally be declined by the court of competent jurisdiction but nevertheless in a given situation to do justice between the parties and to instil confidence in public mind, it may become necessary to pass such orders.
14. Keeping in view the ratio laid down in the judgments referred to above, more particularly in Vinay Tyagi's case, it is to be seen whether the request of the petitioner can be accepted. As observed from the narration of the evidence referred to earlier, pursuant to a report given by the petitioner himself a charge-sheet came to be filed and same was taken on file as C.C.No. 576 of 2015 in the year 2015. The petitioner herein was examined as L.W.1 and he was examined by the police during the course of investigation. In fact, it was at his instance the law was set into motion. But, for the reasons best known, he kept quiet for nearly four years without finding fault with the investigation. Now, the present PIL came to be filed by him stating that he has no interest in the matter, but, however, raising an objection with regard to the manner in which the investigation is done by the police, more particularly excluding one Adilakshkmi from the array of the accused. The petitioner, who subsequently got himself enrolled as an Advocate after quitting the job, seeks re-investigation with monitoring the same by the Court. As held in Vinay Tyagi's case re-investigation can only be in rarest of the rare case and should be used sparingly. In our view it is not a case where re-investigation can be ordered as a matter of course. The petitioner was not able to establish 6 [(1992) 1 SCC 397] 10 that the investigation done was unfair and mala fide and smacks of foul play. Further, it is not a case where the police have totally closed the case as false. Basing on the material available record, they filed charge- sheet against number of accused.
15. If really the petitioner is aggrieved by the investigation done, remedies are many for him. If he has material to show that the said Adilakshmi also involved in Crime, he can as well invoke Section 200 Cr.P.C., if permitted under law or he can invoke Section 319 Cr.P.C. at the relevant point of time, since he was examined as a witness by the Agency during the course of investigation and cite as a witness. In view of the above and having regard to the material available on record, the material collected during the course of investigation and the contents of the charge-sheet, we are not inclined to grant the relief sought for by the petitioner.
16. With the above observations, the Writ Petition (PIL) is disposed of. No order as to costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR __________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 22.08.2019 SKMR/GM