Andhra Pradesh High Court - Amravati
Sri Adimulam Mohan vs The State Of Andhra Pradesh on 16 February, 2024
APHC010068272024
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
[3311]
FRIDAY ,THE SIXTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CRIMINAL PETITION NO: 818 OF 2024
Between:
1. SRI ADIMULAM MOHAN, S/o. Subrahmanyam, Age 57 years,
Deputy Transport Commissioner, O/o. Deputy Transport
Commissioner, Road Transport Authority, Kakinada, East
Godavari District.
...PETITIONER/ACCUSED(S)
AND
1. THE STATE OF ANDHRA PRADESH, Represented by its Special
Public Prosecutor for ACB cases, A.P. High Court, Amaravathi.
2. The Addl Superintendent of Police, Anti
Anti-Corruption
Corruption Bureau,
Rajamahendravaram Range, Rajamahendravaram.
PIN-533107
3. The Deputy Superintendent
erintendent of Police, CIU, ACB, Vijayawada
...RESPONDENT/COMPLAINANTS
Petition under Section 482 of Cr.P.C praying that in the
circumstances stated in the Memorandum of Grounds of Criminal
Petition, the High Court pleased to set aside the order dated
01.02.2024 in Crl.M.P
.M.P No. 23/2024 passed by the Special Judge
for trail of SPE & ACB cases. Rajamahendravaram and allow
Crl.M.P.No.23/2024 filed under Sections 451 and 457 Cr.P.C for
Interim custody of gold ornaments for the use of them on the
occasion of marriage of his daughter to be held on 18.02.2024,in
the interest of justice and pass such other order or orders as the
Hon'ble Court deems fit and proper in the circumstances of the
case.
2
BSB, J
C.R.P.No.818 of 2024
I.A. No.: 1 of 2024
Petition under Section 482 of Cr.P.C praying that in the
circumstances stated in the Memorandum of Grounds of Criminal
Petition, the High Court may be pleased to direct the
Respondents to give interim custody of the listed gold articles/
ornaments to the petitioner/accused for the purpose of his
daughter's marriage to be held on 18.02.2024 until disposal of
main Criminal Petition, on such terms and conditions as the
Hon'ble Court deems fit and proper in the circumstances of the
case, as otherwise the Petitioner will suffer irreparable loss.
This Petition coming on for hearing, upon perusing the
Memorandum of Grounds of Criminal Petition and upon hearing
the arguments of Sri VENKAT CHALASANI, Advocate for the
Petitioner and Smt. A. Gayatri Reddy, learned Standing Counsel-
cum-Special Public Prosecutor for ACB Cases on behalf of the
Respondents/State.
The Court made the following:
3
BSB, J
C.R.P.No.818 of 2024
ORDER:
This criminal petition under Section 482 CrPC is filed challenging the order, dated 01.02.2024, dismissing the petition in Crl.M.P.No.23 of 2024 in Crime No.6/RCA-CIU/2016 on the file of the Court of the Special Judge for trial of SPE & ACB cases, Rajamahendravaram, filed by the petitioner/accused officer under Sections 451 and 457 CrPC for interim custody of the gold articles.
2. Heard Sri Venkat Chalasani, learned counsel for the petitioner and Smt. A. Gayatri Reddy, learned Standing Counsel-cum-Special Public Prosecutor for ACB Cases appearing for the respondents/ State.
3. The facts leading to filing of this petition, briefly are as follows:
The petitioner is accused of the offence punishable under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') for having acquired assets disproportionate to the known source of income. During the course of investigation, on 28.04.2016, search of the residential premises of the petitioner was conducted and several documents, cash, gold and silver articles/ornaments were seized; and, on 17.05.2016 search of locker No.18 of the petitioner at Mapakshi Finance 4 BSB, J C.R.P.No.818 of 2024 Limited, Hyderabad, was conducted and 46 jewelry items and 17 made up files of the petitioner were seized. Now, as the petitioner is performing the marriage of his daughter scheduled on 18.02.2024, this petition is filed for interim custody of a total of 40 items out of the property seized both at the house and in the locker of the petitioner.
4. The petition was opposed by filing counter of the respondent/ State/complainant on the ground that in the search 1782.500 grams of gold ornaments numbering 76 items were seized during the search of the residential house of the petitioner on 29.04.2016 and they worth Rs.39,52,728/- and 46 items of gold ornaments weighing 2372 grams worth Rs.40,63,299/- were seized from the locker No.18 on 07.05.2016 and thus, a total of 4154.500 grams of gold ornaments were seized worth Rs.80,16,027/- and later, G.O.Ms.No.65 of the Transport, Roads & Buildings [VIG-Tr(1)] Department, Andhra Pradesh, dated 24.11.2017, was issued authorizing the respondent/State to attach the properties of the accused and his dependent family members and consequently, the respondent filed Crl.M.P.No.2227 of 2017, dated 08.12.2017, before the Court of Special Judge for trial of ACB Cases, Vijayawada, and order of attachment was passed under Section 4 of the Criminal Law (Amendment) Ordinance Act, 1944 ('Ordinance Act, 1944', for 5 BSB, J C.R.P.No.818 of 2024 short) and the attachment is in force. It is further stated that the petition under Section 451 and 457 CrPC cannot be invoked when the properties were attached under the provisions of the ('Ordinance Act, 1944') and moreover, as per the decision of the High Court of Karnataka in State of Karnataka Vs. K. Krishna Gouda and another1, return of property cannot be ordered.
5. After hearing both parties, the trial Court dismissed the petition vide impugned order observing that the interim custody of the gold property under Section 451 & 457 CrPC is not tenable in view of the decision of the Karnataka High Court in K. Krishna Gouda (1 supra).
6. Aggrieved by the same, this criminal petition is filed contending that as per Section 10 of the Ordinance Act, 1944, the order or attachment remains in force for a period of one year only and thereafter, the order of attachment is to be extended from time to time, but not so extended in the present case. It is further contended that the prosecution did not file charge sheet so far since the year 2016, i.e., even after lapse of 8 years from the date of seizure of the property, and therefore, the attachment made against the properties is illegal. It is further stated that the trial Court did 1 2005 Cri.L.J 259 6 BSB, J C.R.P.No.818 of 2024 not follow the decision of this High Court passed in similar circumstances in State of A.P (ACB) Vs. Shaik Hussain and another 2 . The petitioner denied the allegation of acquiring properties disproportionate to his known source of income and that the interim custody of the ornaments is required only for the purpose of performing the marriage of his daughter and at present, the petitioner is not in a position to acquire any new ornaments or articles as his entire movable and immovable properties were seized.
7. A counter affidavit is filed opposing the petition and narrating the facts alleged against the petitioner in support of the accusation against him and further reiterating the grounds taken in the counter before the trial Court. In addition thereto, it is further stated that recently, the Division Bench of this High Court in B. Prasada Rao Vs. The Government of Andhra Pradesh 3 instructed all the Special Courts/designated courts dealing with ACB cases from closing any FIR on the basis of delay in granting sanction or deeming delay in granting sanction as implied rejection and further restraining them from releasing any property to the accused where sanctions are yet to be received or charge sheets are yet to be filed. 2 Crl. A. No.2814 of 2018, dated 13.12.2019 3 W.P.Nos.934 & 935 of 2022, dated 12.01.2024 7 BSB, J C.R.P.No.818 of 2024
8. The learned counsel for the petitioner submitted that the delay is inordinate in filing the charge sheet and that itself is sufficient to release the properties, however the petitioner is seeking mere interim custody of some of the ornaments for a valid reason and that too, for a limited period. With regard to the delay, the learned standing counsel for the respondents/State submitted that all the delay was caused due to the order of stay obtained by the petitioner from this Court while seeking the relief of quashing the proceedings and thus, the delay cannot be accountable or attributable to the respondents, and therefore, the same cannot be a ground to be considered at all.
9. Since the fact that the delay in proceeding is because of the order of stay is not in dispute, the same factor has no bearing in the present petition.
10. The learned counsel for the petitioner submitted that the decisions relied on by the respondents/state would apply only in relation to release of properties whereas the petitioner is not seeking release of the properties but, asking for mere interim custody which is governed by the provisions of Section 451 & 457 CrPC and thus, the petition cannot be rejected on that ground. 8
BSB, J C.R.P.No.818 of 2024
11. The learned standing counsel for the respondents submitted that so long as the order of attachment passed by the trial Court is in force by virtue of Sections 4 & 13 of the Ordinance Act, 1944, the petitioner cannot seek the relief.
12. In reply, learned counsel for the petitioner submitted that since the petitioner is not seeking the relief of raising the attachment or release of property, the provisions of the Ordinance Act, 1944 have no bar to entertain the petition under the provisions of CrPC for interim custody under Section 451 & 457 CrPC.
13. The learned counsel for the petitioner placed reliance on the decision of this High Court in The State Vs. Syed Belquis Sultana 4 . In that case, the standing counsel for ACB contended that the Court has no jurisdiction to return the property under Section 457 CrPC and that there exists no provision enabling return of the property. After dealing with the provisions under Sections 451, 452 and 457 CrPC and the decision of the Supreme Court, this High Court held at paras 6, 7 & 8 as follows:
"6. The decisions in Ram Prakash v. State of Haryana (AIR 1978 SC 1282) and Bharat Heavy Electricals Ltd. v. State (1981 Crl. L.J 1529) do not bear affinity to the situation in the instant case. Both the decisions did not deal with the situation 4 1985 (3) APLJ (HC) 108 9 BSB, J C.R.P.No.818 of 2024 of applicability of section 451 or section 457 during the investigation stage. Further in the decision of the Supreme Court, the property seized is not produced before the court and in the instant case the seized property is produced before the court and in this view Sec. 457 is not applicable and the decision of the Supreme Court is also not applicable. The facts in Bharat Heavy Electricals Ltd. v. State (supra) are not intimate with the situation in the instant case and further ratiocination cannot be deduced from this decision as Gangadhara Rao, J, entertained a doubt and ultimately had recourse to Sec. 482 Cr.P.C.
7. The court below passed the impugned order on the basis that Section 457 is applicable. In view of the production of the seized property in court the applicability of Sec. 457 is excluded apart from the conclusion herein above that Sec. 451 or See. 457 cannot be invoked at the investigation stage. The learned Standing Counsel contended that the court has no jurisdiction to enquire into the title and it will be tantamount to prejudging the issue and it is premature at this stage. This is sought to be refuted by the learned counsel for the respondents by contending that the court below considered whether the claimants have prima facie title to the property. At this stage the court has to enquire as to who is entitled to the possession of the property. The enquiry at this stage regarding the title or even prima facie title is not appropriate.
8. In the view taken above, the order is liable to be set aside. But however this will not solve the present impasse. The properties were seized from the house of the accused officer. The burden is upon the accused officer to prove that the assets are not disproportionate or the properties do not belong to him at all. This is a matter concerning the enquiry at the final stage. But however in view of the fact that the court below has 10 BSB, J C.R.P.No.818 of 2024 directed the release of the property and the property has already been released pursuant to the said order it is not just or equitable to direct to return the property. ...".
14. A perusal of the decision indicates that while disagreeing with the order passed by the trial Court granting interim custody under Section 457 CrPC and further finding that Section 451 or 457 CrPC cannot be invoked at the stage of investigation in view of production of the seized property in Court, only considering the fact situation in that case to resolve the impasse, this Court suspended the order impugned before the High Court.
15. The learned counsel further placed reliance on the decision of the High Court of Judicature at Hyderabad in K. Somasekhar Reddy and others Vs. The State 5.
16. In reply, the learned standing counsel for the respondent/ State referred to the decision in B. Prasada Rao's case (3rd supra), wherein after considering the undue delay in granting sanction which resulted in deemed rejection of sanction leading to release of properties and other circumstances, the Division Bench passed direction to all the Special Courts/designated courts as follows:
"28. We deem it necessary to restrain all Special Courts/ Designated Courts dealing with the A.C.B cases from closing any 5 2015 (2) ALD (Crl.) 692 (AP) 11 BSB, J C.R.P.No.818 of 2024 F.I.Rs on the basis of delay in granting sanction or deeming the delay in granting sanction as implied rejection.
29. The designated courts are further restrained from releasing any property to the accused where sanctions are yet to be received or charge-sheets are yet to be filed."
Further direction for restoration of the properties returned was also given at para No.30 as follows:
"30. The Chief Secretary shall also initiate steps to ensure that the properties that have been released, as done by the trial Court in Crime No18-RCT-ACB-GNT/2009, if handed over to the accused, are restored to the possession of the Court."
17. The vehement argument of the learned counsel for the petitioner is that interim custody is not equal to release of the property, and therefore, the above said directions are not to be applied to the present case.
18. While granting interim custody, to ensure return of the property as and when directed, certain conditions will be imposed. Release of property is incidental to interim custody of the property. In case, if the property is released permanently, it is absolutely released, whereas, when it is released for a temporary period, it is released from the custody of the authorities for a limited time. From the decisions cited, it is not known whether release of property was ordered with condition to furnish security or without 12 BSB, J C.R.P.No.818 of 2024 security. If the property is released on condition of furnishing security, such order is similar to the order granting interim custody with condition to furnish security etc. The only difference is the duration. It is also not known whether the order of release in the above referred cases is conditional to return custody of the property as and when required in future.
19. As such, by mere use of the words 'interim custody' or 'release', both cannot be distinguished in their application to practical situation. In view of the above referred direction of the Division Bench of this High Court not to release the property where sanctions are yet to be received or charge sheets are yet to be filed, without there being any other relaxation, such as interim custody, this Court is of the opinion that the result of the order impugned in the instant petition is in consonance with the above said direction. Of course, this decision has not been placed before the trial Court as it was rendered a few days before passing the impugned order and thus it was not referred in the impugned order.
20. Insofar as the order of attachment is concerned, the learned standing counsel for the respondent submitted that when an application was submitted to the Special Court for extension of the interim order of attachment, since the earlier order of attachment 13 BSB, J C.R.P.No.818 of 2024 was made absolute, the petition was returned with such an observation, and therefore, in view of the order of attachment made absolute, the petitioner cannot contend about the order of attachment. In the decision of the High Court in K. Somasekhar Reddy (5 supra), it was held that fresh authorization from the State Government under Section 3(1) is required to file an application for attachment and without such sanction, no order of attachment can be passed by the Special Court. Therefore, this decision has no application to the present case. Since the scope of the petition is limited, this Court is not inclined to make any observation regarding the order making the attachment absolute which is not in challenge.
21. Accordingly, this Court is not inclined to interfere with the order impugned in this criminal petition.
22. In the result, the Criminal Petition is dismissed.
Pending miscellaneous petitions, if any, shall stand closed.
___________________ B.S.BHANUMATHI, J RAR