ORDER : 1. This Criminal Revision Case is filed against the refusal to remand the 1st respondent herein who is the Accused No.35 in Crime No.29 of 2021 of C.I.D. Police Station, Mangalagiri by the learned Judge of Special Court SPE and ACB cases cum III Additional District and Sessions Judge, Vijayawada vide the order dated 09.03.2023. 2. The Crime No.29 of 2021 is registered on 09.12.2021 for the offences punishable under Section 156, 167, 418, 420, 465, 468, 471, 409, 201, 109 r/w 120B IPC and Section 13(2) r/w Section 13(1)(c) and (d) of Prevention of Corruption Act, 1988. 3.a. The case of the prosecution is briefly that the Government of Andhra Pradesh issued G.O.M/s.No.47 (HE)(EC.A2) Department, dated 13.12.2014 incorporating Andhra Pradesh State Skill Development Corporation (hereinafter referred as ‘APSSDC’). The object of SIEMENS Project/Scheme is to impart high end technology to the trainers. APSSDC deputed a team to visit SIEMENS Centres of Excellence already established in Gujarat and to submit a report. SIEMENS offers training programme in collaboration with various State Governments. In the negotiations, the State Government agreed to establish SIEMENS centers of excellence, technical skill development institutions and skill development centers in different clusters. Six such clusters have been formed at the inceptions by incurring Rs.546,84,18,908/- (90%) and Government’s share of Rs.55,00,00,000/- (10%). To that effect, a Memorandum of Agreement (MOA) has been entered into between APSSDC and SIEMENS. 3.b. SIEMENS is a combination of M/s.SIEMENS Industry Software (India) Private Limited and M/s.Design Tech Systems Private Limited. The MOA is in furtherance of the G.O.M/s.No.4, dated 30.06.2017 of Skill Development Entrepreneurship and Innovation (Skills) Department. A tax investigation by the Additional Director General, GST, Intelligence, Pune, in respect of clients availing of CENVAT credit by M/s. Design Tech Systems Private Limited and M/s. Skillar Enterprises India Private Limited led to unearthening a huge financial scam involving crores of rupees by M/s. SIEMENS Industries Software India Private Limited and M/s. Design Tech Systems Private Limited. The funds relate to APSSDC. As per the MOA, M/s. Design Tech has to provide training in Software Development including various sub-modules designed for high end software for advance manufacturing CAD/CAM. The MOA does not contemplate sub-contract. However, SIEMENS and M/s. Design Tech sub-contracted a large part of its work to M/s. Skillar Enterprises Private Limited, New Delhi with self-centric Solomon’s Wisdom. As per the MOA, M/s. Design Tech has to provide training in Software Development including various sub-modules designed for high end software for advance manufacturing CAD/CAM. The MOA does not contemplate sub-contract. However, SIEMENS and M/s. Design Tech sub-contracted a large part of its work to M/s. Skillar Enterprises Private Limited, New Delhi with self-centric Solomon’s Wisdom. As a matter of fact, M/s. Skillar was established after M/s. Design Tech had entered into a contract with APSSDC. It is the claim of M/s. Design Tech that M/s. Skillar provided training in software development, including various sub-modules designed for high end software for advance manufacturing CAD/CAM. M/s. Skillar directly supplied the same to the Skill Development Centers in Andhra Pradesh. 3.c. M/s. Design Tech further claims that royalty and subscription were paid to M/s. Skillar since they have developed the software. When the tax authorities confronted M/s. Skillar, M/s. Skillar claimed that no technical work has been subcontracted and the training software development, including various other sub-modules provided in the invoices. Thus, the Additional DGGI, Pune concluded that both the service provider and service receiver had taken contradictory stands regarding the nature of services. An in depth scrutiny into the records by ADGGI, Pune revealed that training software development including various sub-modules shown as supplied by M/s. Skillar to M/s. Design Tech were purchased by M/s. Skillar from- (i) M/s. Allied Computers International (Asia) Limited, Mumbai, (ii) M/s. Patrick Info Services Private Limited, M/s. I.T. Smith Solutions Private Limited, (iii) M/s. Inweb Info Services Private Limted, all based at New Delhi, (iv) M/s. Arihanth Traders, New Delhi, (v) M/s. G.A.Sales Private Limited, New Delhi. 3.d. All the companies are shell/defunct companies and they were issuing invoices without providing any services. Both the companies formed into a cartel to siphon the public funds tuning to crores of rupees. The Additional Director General, DGGSTI, Journal Unit, Pune observed that no services were delivered by M/s. Skillar to M/s. Design Tech in their invoices depicting training in software development, including various sub-modules and royalty and subscription thereof. The Managing Director of M/s. Design Tech admitted before the Assistant Director General that he did not have any evidence to show that services have been received from these companies. The Managing Director of M/s. Design Tech admitted before the Assistant Director General that he did not have any evidence to show that services have been received from these companies. 3.e. After the financial irregularities have come to surface, directions have been given to APSSDC to conduct a forensic audit and to furnish a copy of the report for taking further action. Accordingly, a work order was assigned to M/s. Sharath and Associates, Chartered Accountants, Forensic Audit Firm. The audit firm conducted an enquiry and submitted a report. The forensic audit is concerned with pointing out the flaws in policies, systems, utilization of funds and analysis of various spending practices and to find different irregularities, mis-statement, governance procedures, internal policies evaluation for the financial years 2014-15 to 2018-19. Various irregularities have been noticed by the team of auditors and the report thereof is self-explanatory. 3.f. M/s. SIEMENS and M/s. Design Tech have to oversee the functions of the clusters and their maintenance. Instead of doing so, both of them swindled crores of rupees in a dubious manner. Their acts affected the marrows of economic health of the State. 3.g. Finally it is alleged that the funds of APSSDC to the tune of Rs.241 crores were illegally diverted to associated shell companies without executing any work or providing competent service. As per instructions of the Managing Director, APSSDC vide memo No.143741/Skill/2021, dated 11.07.2021 and 04.09.2021, Sri K. Ajay Reddy, Chairman of APSSDC, Tadepalli, Guntur, A.P. lodged the complaint with the CID Police Station, A.P. to take legal action against M/s. SIEMENS and M/s. Design Tech and their bogus shell allies according to law. 4. During the course of the investigation, as many as 128 witnessed were examined by the time when the remand of A35 was sought on 09.03.2023. 5. According to the prosecution, on verification of the documents, both hard and soft copies collected through the investigation, and examining the witnesses, the investigation disclosed that A35 participated in the deep rooted conspiracy by playing a key role in the preparation of cost estimation of SIEMENS Center of Excellence Skill Development Project and the Memorandum of Agreement, in collusion with other accused with a pre-conceived plan aimed at siphoning of funds released from the Public Exchequer towards the project; and the role of A35 has been vividly narrated point by point synopsis in the remand report along with supporting documents. However, the learned Special Judge for SPE and ACB Cases, Vijayawada declined to remand A35 to judicial custody by passing an order referring to the decision of the Supreme Court in Arnesh Kumar Vs. State of Bihar and another, 2014 LawSuit SC 518 = (2014) 8 SCC 273 , and observed as follows:- “6. Perused the remand report and connected record which was already in the court. Admittedly, A35 is not a public servant/Government employee and he is not party to the MOU/Agreement entered between the State Government and SISW and Design tech Pvt. Ltd., and he was examined as witness on 16.02.2022 in which he clearly stated about inflating the estimate. But, the prosecution did not choose to array him as accused and on the other hand, wanted to get his 164 Cr.P.C. statement recorded on 18.06.2022 and thereafter one day prior to his arrest, on 07.03.2023 filed memo into court adding him as A35 and thereafter arrested him and produced before this court seeking judicial custody. 7. Perusal of the remand report and record produced by the prosecution to seek judicial custody of A35 did not reveal the accusation against A35 is well founded for the offence under Secs.409 of IPC. All the other offences alleged against A35 are punishable with imprisonment of less than seven years. Hence, as the complainant failed to comply the directions issued in Arnesh Kumar's case, I feel it just to reject the prayer of prosecution for remand of A35 to judicial custody. Hence, I reject the prayer of complainant. A35 is ordered to be set at liberty immediately. This order does not preclude the investigating Officer from proceeding Under Sec.41- A Cr.P.C as far as A35 is necessary.” 6. Hence, I reject the prayer of complainant. A35 is ordered to be set at liberty immediately. This order does not preclude the investigating Officer from proceeding Under Sec.41- A Cr.P.C as far as A35 is necessary.” 6. Having been aggrieved by the said order, the complainant preferred the revision under Sections 397 and 401 Cr.P.C mainly contending that in the very same case, former public servants and six non-government officials have been arrested and produced before the Trial Court and the same Court remanded them to judicial custody, but in so far as this accused is concerned, remand to judicial custody has been improperly declined without appreciating the facts narrated with evidence in the case diary which clearly denote the commission of offence under Section 409 r/w 109 IPC, 409 r/w 34, 37 and 120B IPC, though in the remand report, reasons for arrest and the requirement of the custodial examination of the respondent were mentioned. It is further stated that the facts narrated in the remand report exclusively denotes the complicity of the respondent/A35 in the commission of the aforesaid offences. 7. Heard Sri. P. Sudhakar Reddy, learned Additional Advocate General representing the revision petitioners, assisted by Sri. Y.N. Vivekananda, learned Government Pleader, Sri. Soora Venkata Sainath, learned Special Assistant Public Prosecutor and Sri. V.R. Machavaram, learned Senior Counsel for the 1st respondent/A35. 8. First of all, the maintainability of the revision petition has been challenged. In this regard, learned Senior Counsel for 1st respondent submitted that the order refusing to remand is an interlocutory order and revision is prohibited under Section 397(2) Cr.P.C. and placed reliance on the decision of the Supreme Court in Madhu Limaye vs. State of Maharashtra, (1977) 4 SCC 551 , and the decisions which followed thereafter. In this regard, learned Senior Counsel referred to State vs. NMT Joy Emaculate, AIR 2004 SC 2282 = (2004) 5 SCC 729 and Girish Kumar Suneja, CBI 2014 SCC 809 , case. Placing reliance on these decisions, the learned Senior Counsel submitted that the order of remand is neither final order nor an intermediate order as it does not culminate the proceedings and moreover, the learned Judge has kept it open for taking the matter in trial and therefore, the impugned order not remanding the accused cannot be revised. 9. Placing reliance on these decisions, the learned Senior Counsel submitted that the order of remand is neither final order nor an intermediate order as it does not culminate the proceedings and moreover, the learned Judge has kept it open for taking the matter in trial and therefore, the impugned order not remanding the accused cannot be revised. 9. On the other hand, learned Additional Advocate General submitted that this question has already been set at rest and the order refusing to remand an accused is a revisable order and placed reliance on the decision of the High Court of Gujarat in Kandal Sarman Jadeja V. State of Gujarat, 2012 SCC Online Guj 3104, wherein by referring to the decision of the Supreme Court in the cases of State Vs. NMT Joy Emaculate, Madhu Limaye and Amarnath Vs. State of Haryana, concluded that an order refusing to grant remand has a direct bearing on the proceedings of the trial itself and in a given case will definitely have an impact on the ultimate decision of the case and also the progress of the trail and that if investigating agency is deprived of having custodial interrogation of the accused so as to effectively investigate the offence and gather necessary evidence and material to put the accused to trial. It is further concluded that the order refusing to grant police remand would be a final order and a revision under Sections 397 r/w 401 of the Court would be maintainable. This decision was rendered on a reference made to the Division Bench of the High Court of Gujarat. In this case, the decision of the Supreme Court in NMT Joy Emaculate (supra) has been distinguished saying that it relates to order granting police remand and the same is held to be purely interlocutory order, whereas, the present case is relating to refusal of remand to an accused to judicial custody. 10. Taking the same stand, the revision petitioner contended that the decisions relied on by the 1st respondent have no application in the present case. In this regard the decision of this High Court in P. Narayana and the State of Andhra Pradesh, in Crl.P.No.9346 of 2022, dated 06.12.2022 which has not been interfered by the Supreme Court in order dated 27.02.2023 in SLP.No.12253 of 2022, dated 27.02.2023. In this regard the decision of this High Court in P. Narayana and the State of Andhra Pradesh, in Crl.P.No.9346 of 2022, dated 06.12.2022 which has not been interfered by the Supreme Court in order dated 27.02.2023 in SLP.No.12253 of 2022, dated 27.02.2023. In Crl.P.No.9346 of 2022, this Court dealt with a revision whereby the order dated 11.09.2022 of the learned Magistrate in Crime No.111 of 2022 of Chittoor I Town Police Station registered for the offences punishable under Section 5 r/w 8 and 10 of A.P. Public Examinations (POMUM) Act, 1997 along with Sections 408, 409, 209, 120B IPC and Section 65 of I.T. Act came up for consideration. 11. By the said impugned order, when A9 was produced before the Magistrate, it was recorded that the Magistrate was not satisfied with the grounds mentioned for the arrest of the petitioner in the remand report and directed the release of the petitioner on execution of personal bond for Rs.1,00,000/-, etc. Like in the present case, an objection was raised against the maintainability of the revision petition. 12. After hearing both sides, this Court concurred with the view of the Division Bench of the High Court of Gujarat in Khandarlal Sarman Jadeja (supra) and observed that the impugned order is an intermediate order and is amendable through revision. Thus, as on date, such observations of the Single Judge of this High Court being not interfered with by the Supreme Court in the S.L.P. No.12253 of 2022 stands good. Therefore, this Court proceeds further for disposal of the revision petition with observation that revision would lie against the order refusing to remand the accused. 13. Learned Additional Advocate General vehemently contended that the scope of enquiry into the allegations, at the time of remand of an accused to judicial custody is limited and mini trial cannot be held at that stage and placed reliance on the decision of the High Court of Telangana at Hyderabad in Radhika Anil Upadhyaya vs. Principal Secretary and others, 2021 2 ALT 68 DB, at paragraph 32 wherein it was held that there can be no quarrel with the observations made by the Supreme Court in Manubhai Ratilal Patel Vs. State of Gujarat, (2013) 1 SCC 314 , but while carrying out remand duty, the Magistrate is not required to hold a mini trial. State of Gujarat, (2013) 1 SCC 314 , but while carrying out remand duty, the Magistrate is not required to hold a mini trial. It is further observed that the Magistrate is required to consider whether the commission of a cognizable offence is made out from the contents of the FIR or not and whether the police is justified in arresting the accused person or not, etc., as follows:- “31. In the case of Manubhai Ratilal Patel (supra), while dealing with the remand duty conferred on a Magistrate, the Apex Court has observed as under:- 24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. 32. There can be no quarrel with the observation made by the Hon'ble Supreme Court as quoted hereinabove. However, while carrying out the remand duty, the Learned Magistrate is not required to hold a mini-trial. The Learned Magistrate is required to consider whether the commission of a cognizable offence is mentioned in the FIR or not? Whether the Police is justified in arresting the accused person or not? Whether the Police requires the continuation of the police custody for the purpose of further investigation or not? Or whether the accused person should be sent into judicial custody so as to ensure that the accused person would face the trial as and when called for? Whether the Police is justified in arresting the accused person or not? Whether the Police requires the continuation of the police custody for the purpose of further investigation or not? Or whether the accused person should be sent into judicial custody so as to ensure that the accused person would face the trial as and when called for? Or whether the accused was subjected to torture or not while he was in police custody? Or whether the accused should be set at liberty or not?” 14. Further, reliance is placed on the decision of the High Court of Madras in Ramdoss and another Vs. State of Tamil Nadu and another, 1993 CrlLJ 2147 = 1992 SCC Online Mad 293, wherein at paragraph 19, after referring to the decision of the Supreme Court in Swapna Kumar’s, (1982) 1 SCC 561 , case, found fault that the observations recorded by the Magistrate that perusal of the FIR could not make out offences under different provisions of law cited. It is further observed by the High Court of Madras that such observations of Magistrate could be made at the stage of discharge of the accused but not at the stage of remanding an accused to judicial custody. It is relevant to note the observations of the High Court at paragraphs 19 and 20 as follows:- “19. Coming to the role thus the Magistrate is required to play while making the order of remand under S. 167 of the Code we have to see as to what are the grounds. for seeking the remand, and as to what is the requirement of the satisfaction of the Magistrate for making the order of remand, the Magistrate to whom the accused is forwarded seeking authorisation for the detention of the accused is informed by the police of the grounds for believing that accusation or information is wellfounded or only of the grounds why detention beyond 24 hours is asked for. There can be no doubt to the view that a remand order is a judicial order. This power has to be exercised by the Magistrate in accordance with the well settled norms of making a judicial order. He has for the said reason to see that there is a report of a cognizable offence and the case has been registered by the police for investigation and that there are allegations constituting the offence which is cognizable. This power has to be exercised by the Magistrate in accordance with the well settled norms of making a judicial order. He has for the said reason to see that there is a report of a cognizable offence and the case has been registered by the police for investigation and that there are allegations constituting the offence which is cognizable. But beyond that he does not have the jurisdiction to question why in the absence of materials any such allegation has been entertained by the police. It is only for the reason that the investigation has not been completed and the police has yet to decide whether to forward a report under S. 169 of the Code of Criminal Procedure or a report Under S. 170 thereof that it has decided to produce the accused before the Magistrate and seek a remand order. When we see the order passed by the learned Magistrate on receipt of information about the accused we notice that the Magistrate (Mr. T.V. Subramaniyan started examination of the contents of the first information report to say as follows: "F.I.R, does not disclose any agreement between two or more to do an act or cause to be done. Hence S. 120(B) is not made, put in the F.I.R." "On perusal of the F.I.R. S. 153(A), I.P.C. is not made out since promoting enmity between different group on the ground of religion, place of birth, residence and language is not made out." "On perusal of the F.I.R. offence under S. 505(1)(b), I.P.C. is made out." "On perusal of F.I.R. S. 124(A), I.P.C. is made out." "On perusal of the F.I.R. S. 13(1), 13(2) are made out." 20. It appears that the learned Magistrate was prompted to do it by the accused or by the learned counsel who appeared on behalf of the accused as if the stage at which the Magistrate had reached was the stage at which he could make an order of discharge of the accused.” 15. It appears that the learned Magistrate was prompted to do it by the accused or by the learned counsel who appeared on behalf of the accused as if the stage at which the Magistrate had reached was the stage at which he could make an order of discharge of the accused.” 15. He further submitted that deleting provision at the time of remand of an accrued amounts to almost quashing FIR under Section 482 Cr.P.C. which a Magistrate at that stage cannot do and referred to the decision of the Supreme Court in K.Mallikarjuna Rao & Another vs. Sri Chintakayala Ayyannapatrudu and others, dated 27.02.2023 in S.L.P.(Crl) No.11617 – 11618 of 2022 and submitted that the Supreme Court found fault with High Court for passing interim order holding NOC as not valuable security under Section 130 IPC and directing the investigating agency to further investigate into the crime, however, without applying Section 467 IPC, and further observing that the interim order has virtually quashed the FIR for offence under Section 467 IPC which can be done only by final disposal of petition under Section 482 Cr.P.C. 16. In reply, the learned Senior Counsel appearing for 1st respondent submitted that the Magistrate cannot pass mechanical order of remanding the accused to judicial custody and that it is the duty of the Magistrate while remanding an accused to judicial custody to verify the contents of the allegations and also to see whether allegations would make out the offences alleged against the accused. In this regard, reliance has been placed on a decision of the High Court of Telangana in Bandi Sanjay Kumar Vs. the State of Andhra Pradesh in Crl.P.No.185 of 2022, dated 07.02.2022 in which the High Court has placed reliance on the decision of Manubhai Ratilal Lal Patel Vs. State of Gujarat (supra) which is noted earlier while discussing the Division Bench of the High Court of Gujarat in Radhika Anil (supra) and therefore, there is no controversy about the legal principle followed therein. 17. Now, keeping in view the settled legal proposition, it is to be examined in the present case whether the learned Special Judge has properly looked into the material placed before the Court and has taken legally sustainable view to refuse the remand. 18. 17. Now, keeping in view the settled legal proposition, it is to be examined in the present case whether the learned Special Judge has properly looked into the material placed before the Court and has taken legally sustainable view to refuse the remand. 18. It is the contention of the revision petitioner that all the material place before the Special Judge would attract commission of offence punishable under Section 409 r/w 120B IPC, yet, the same has been set apart and merely allowed the investigation to be proceeded under Section 41A Cr.P.C and the guidelines of the Supreme Court in the Arnesh case have been misapplied. In this regard, it is vehemently contended that the learned Special Judge, with an observation that since the petitioner is not a public servant nor is he a party to the agreement concerned and held the Section 409 IPC does not apply at all. 19. It is argued that Section 120B IPC itself is substantive provision dealing with the independent offences, and without looking into the same, the learned Special Judge erroneously declined remand of the accused to judicial custody. It is further contended that when there is aid of Section 34 or 107 or 109 or 120B IPC, the accused need not be a public servant but the same has not been properly appreciated. In this regard, reliance has been placed on the decision in the case of Prasanta Kumar Dutta v. State Of Assam, 2021 5 Guwahati Law Report 195, wherein, after considering the law on the subject, and by referring to the decision of the Supreme Court in State of Andhra Pradesh Vs. K. Subbaiah, AIR 1961 SC 1241 , it was observed that in pursuance of the conspiracy, Sanjith Kumar (Public Servant) committed offence under Section 409 IPC by leaking the question paper which is an offence, inter alia, punishable for imprisonment for life and other accused who was a party to the said conspiracy, though not a public servant, etc., is squarely liable under Section 120B(1) IPC. At this juncture, it is relevant to refer the observations at paragraph 21 as follows:- “21. At this juncture, it is relevant to refer the observations at paragraph 21 as follows:- “21. I am further of the respectful opinion that the present case will not fall within the purview of the guidelines, issued by the hon'ble Apex Court in Suo Motu Writ Petition (C) No.1/2020 (supra) in reference to the case of Arnesh Kumar (supra) for releasing prisoners of jail to contain the spread of COVID-19 virus therein as referred to by the learned counsel appearing for the petitioner. The charge sheet reveals that petitioner and other prime accused-persons prima facie entered into a conspiracy with Sanjit Krishna, the then Superintendent of Police, Karimganj to leak the question paper. Sanjit Krishna had leaked the question paper and thereby committed the offence defined in section 409 of the IPC which prescribes imprisonment for life as a mode of punishment. Now, according to section 120B(1) of the IPC, any person who is a party to a criminal conspiracy to commit an offence punishable, inter alia, with imprisonment for life, shall be punished in the same manner as if he had abetted such offence. Again section 109 of the IPC provides that the abettor of the offence shall, 204 if the act abetted is committed in consequence of the abetment, punished with the punishment provided for the offence. As such, it appears that if the petitioner is convicted under section 120B of the IPC, which is an independent offence, after trial, he may be sentenced to imprisonment for life for having committed criminal conspiracy to commit the offence under section 409 of the IPC. In the circumstances, the aforesaid guidelines will not be applicable to the present case.” 20. The learned Senior Counsel appearing for respondent No.1 submitted that since the petitioner is not a public servant, the learned Special Judge has rightly rejected the remand for the offences under Section 409 IPC which can be invoked only if the offence is committed by a public servant, agent, etc., mentioned therein and none of these conditions would apply to the 1st respondent. 21. He placed reliance on the decision of N. Raghavender Vs. State of Andhra Pradesh, Manu/SC/1242/2021, dated 13.12.2021 wherein at paragraphs 43 to 45, it is held as follows:- “43. It ought to be noted that the crucial word used in Section 405 Indian Penal Code is 'dishonestly' and therefore, it presupposes the existence of mens rea. 21. He placed reliance on the decision of N. Raghavender Vs. State of Andhra Pradesh, Manu/SC/1242/2021, dated 13.12.2021 wherein at paragraphs 43 to 45, it is held as follows:- “43. It ought to be noted that the crucial word used in Section 405 Indian Penal Code is 'dishonestly' and therefore, it presupposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the Accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is 'mis-appropriates' which means improperly setting apart for ones use and to the exclusion of the owner. 44. No sooner are the two fundamental ingredients of 'criminal breach of trust' within the meaning of Section 405 Indian Penal Code proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable Under Section 409 Indian Penal Code, for which it is essential to prove that: (i) The Accused must be a public servant or a banker, merchant or agent; (ii) He/She must have been entrusted, in such capacity, with property; and (iii) He/She must have committed breach of trust in respect of such property. 45. Accordingly, unless it is proved that the Accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 Indian Penal Code may not be attracted. 'Entrustment of property' is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was 'entrusted to the Accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the 'entrustment' is admitted by the Accused or has been established by the prosecution, the burden then shifts on the Accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner. 22. Where the 'entrustment' is admitted by the Accused or has been established by the prosecution, the burden then shifts on the Accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner. 22. In so far as the offence punishable under Section 409 IPC is concerned, the scope of the provision and ingredients required to be established are thoroughly dealt with in the said decision. However, it is not the sole provision which is mentioned in the remand report. The learned Judge has not considered nor did he make any remark or give any reason for not considering the provision under Section 120B IPC. 23. The Learned Special Judge has placed reliance merely on the decision of the High Court of Madras in Ramdoss and others Vs. State of Tamil Nadu and others (supra). In the light of the decision with which this Court agrees in view of the decision of the Supreme Court in K. Subbaiah case, the decision of the High Court of Guwahati, the learned Special Judge ought to have examined whether Section 120B IPC would apply and whether Section 34 IPC can also be invoked. The provision under Section 409 IPC alone has been considered in the impugned order and came to the conclusion that the offence could not be made out against the accused. 24. It is argued by the revision petitioner that at the stage of remand, the provisions of law for which the prima facie case has been made out cannot be deleted since it would amount to as though the FIR is quashed at that juncture and thereby nibbing the opportunity of the investigating officer to proceed further and thereby the entire process of investigation is curtailed and such exercise of the authority cannot be held in a routine and casual manner and that the Magistrate or Special Judge, while considering the request of remand of an accused to judicial custody, can only exercise the authority to examine whether the allegations would amount to the offence which is alleged against the accused and not beyond that. 25. 25. It is relevant to mention that a detailed report with support of statements of witnesses, other reports of investigation has been filed clearly mentioning the role of the accused in commission of the offences by way of participating in the crucial meetings, inflation of valuation, manipulation of MOA and creating the fake entities to which fund was transferred and his wife being in key position in the APSSDC etc. Moreover, Section 409 IPC is not limited to public servant alone, but other categories as well. At this juncture, since the investigation is still in progress, very detailed enquiry like the trial cannot be held nor can an enquiry on par at the stage of discharge be made. What is to be seen is whether the allegations supported by the evidence so far collected could constitute offence(s) alleged against the accused or not. In view of the legal position that Section 120B IPC creates an offence by itself, the same cannot be totally ignored by the learned Special Judge. 26. Now, there is no need to refer the role of the accused spelt out in the remand report point by point. But it is clear that the allegations would attract the offences for which his remand is sought is not covered by Section 41A Cr.P.C. That be the case, it is improper to direct to follow Section 41A Cr.P.C in the present case, as held by the Supreme Court in K.Subbaiah case (supra). Moreover, it is also to be examined in case where Section 41A Cr.P.C. applies, whether in a given case, the investigating officer could establish grounds requiring remand of an accused to judicial custody or not. 27. Therefore, this Court is of the view that the impugned order is liable to be set aside. 28. Accordingly, this Criminal Revision Case is allowed setting aside the impugned order dated 09.03.2023 passed by the Special Judge, SPE & ACB Cases cum III Additional District Judge, Vijayawada and the learned Special Judge shall afresh proceed, as per law, if a request is made by the investigating authority for remand of the accused to judicial custody. No costs. Pending miscellaneous applications, if any, shall stand closed.