N. Shankar Prasad, S/o. N. S. N. Murthy v. State of Andhra Pradesh, Represented by Public Prosecutor
2024-06-21
VENKATA JYOTHIRMAI PRATAPA
body2024
DigiLaw.ai
ORDER : Venkata Jyothirmai Pratapa, J. 1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973, [in short ‘Cr.P.C.’] has been filed, by the Petitioner/Accused No.5, seeking quashment of the proceedings against him in C.C.No.975 of 2019 on the file of the Court of V Additional Judicial Magistrate of First Class, Kakinada, for the offences under Sections 409, 420, 120B, 201, 203, 213, 217, 218 and 221 read with 34 of Indian Penal Code, 1860, [In short ‘I.P.C.’]. 2. The contents of the complaint, in epitome, are as follows: a. On 28.11.2016, Accused No.1 informed Accused No.3 that a known person offered an amount of Rs.1 Crore old currency notes, if they could provide Rs.90,00,000/- new currency notes and asked him to secure such amount of new currency notes. Accordingly, Accused No.3 secured an amount of Rs.26,66,000/- and prepared 29 bundles with white papers which were in the size of Rs.2,000/- new currency notes by keeping Rs.2,000/- notes on both sides of each bundle by utilizing an amount of Rs.1,60,000/-. Later, Accused No.3 kept an amount of Rs.25,00,000/- in a bag and kept the 20 bundles prepared by him in another bag and informed Accused No.1 as if he secured Rs.84,50,000/- of new currency notes. b. That being so, on the evening of 04.12.2016, Accused Nos.1 to 3 left Machavaram in a car bearing No.AP 05 CM 7688, secured Accused No.4 at Narasapurapupegta and at about 6.30 p.m., when they reached to a vacant site near the Railway gate at Kovvada, Accused Nos.5 to 8, who were present there in plain clothes, stopped them, checked the bags and videographed the bags with a mobile. c. Accused No.1 discussed with the Police by disclosing that the cash in both the bags is an amount of Rs.84,50,000/- and entered into an agreement with Accused Nos.5 to 8, handed over Accused No.4 along with the car bearing No. AP 05 CM 7688 and the cash bag containing an amount of Rs.25,00,000/- to Accused Nos.5 to 8 near Indrapalem Police Station. d. On the intervening night of 4/5.12.2016 at 12.30 a.m., Accused No.5, who is the Reserve Inspector, Traffic-I Police Station, Kakinada handed over Accused No.4, car bearing No.AP 05 CM 7688, along with cash of Rs.18,00,000/-, small and big size Samsung mobiles with a written report at Indrapalem Police Station.
d. On the intervening night of 4/5.12.2016 at 12.30 a.m., Accused No.5, who is the Reserve Inspector, Traffic-I Police Station, Kakinada handed over Accused No.4, car bearing No.AP 05 CM 7688, along with cash of Rs.18,00,000/-, small and big size Samsung mobiles with a written report at Indrapalem Police Station. Police registered the said report as a case in Crime No.244 of 2018 against Accused Nos.1 to 4 initially. e. After completion of due investigation, having found the complicity of Accused Nos.5 to 8 in the above crime, Police filed charge sheet against Accused Nos.1 to 8 for the offences under Sections 409, 420, 120B, 201, 203, 213, 217, 218 and 221 read with 34 IPC and the same was numbered as C.C.No.975 of 2019 on the file of the Court of V Additional Judicial Magistrate of First Class, Kakinada. Grounds Sought for Quashment: 3. Aggrieved by the registration of the said case, Petitioner/Accused No.5 filed the present petition seeking quashment of the proceedings against him on the following grounds : a. Petitioner is falsely implicated in the present case, though none of the provisions of the said offences attract against him. b. There was no question of any amount of Rs.84,50,000/- as alleged Respondent No.2/Complainant to account for by the Petitioner. c. No amount has been seized from the Petitioner and if really any allegation of corruption arises against the Petitioner, the proceedings under Prevention of Corruption Act can only be registered against him. d. Petitioner is a Government servant and the alleged transaction was on the instructions of his higher authorities and while discharging his duties. Therefore, without prior permission, any prosecution against the Petitioner is illegal and therefore, the proceedings are liable to be quashed against the Petitioner. Arguments advanced at the Bar 4. Heard Sri K.B.Ramanna Dora, learned counsel for the Petitioner and Sri P.M.Mithileswara Reddy, learned Assistant Public Prosecutor for Respondent Nos.1 and 2. 5. Learned Counsel for the Petitioner would submit that initially the Police registered the FIR against Accused Nos.1 to 4 and subsequently Petitioner/Accused No.5 was implicated in the case. It is further submitted that the alleged offence had taken place on 05.12.2016, but the Petitioner/ Accused No.5 was added in the said crime on 17.12.2016. It is submitted that the Petitioner herein is the Investigating officer in that case.
It is further submitted that the alleged offence had taken place on 05.12.2016, but the Petitioner/ Accused No.5 was added in the said crime on 17.12.2016. It is submitted that the Petitioner herein is the Investigating officer in that case. Learned counsel further submits that there is no law forbidding exchange of money. It is submitted that, except the confession of the co-accused, no evidence is there against the Petitioner. It is submitted that the charge sheet itself shows that Accused No.3 fabricated the notes as Rs.2,000/- notes and nothing has been attributed against the Petitioner. 6. Learned counsel further contended that confession of the co-accused cannot be a sole ground to implicate the Petitioner. It is also submitted that since the Petitioner is a Government employee, therefore sanction has to be obtained from the concerned authorities to initiate prosecution against him. Hence, prayed to quash the proceedings against the Petitioner. In support of his contentions, learned counsel has placed reliance on the judgment of the Hon’ble Apex Court in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 . 7. Contrasting the same, learned Assistant Public Prosecutor would submit that in view of the complicity of the Petitioner in the present case, his name is added along with the other Accused. Since there is prima facie case against the Petitioner, the case against him cannot be quashed and the truth or otherwise of the allegations raised against the Petitioner have to be revealed during trial. In support of his contention, learned Assistant Public Prosecutor has placed reliance on the judgments of the Hon’ble Apex Court in State of Telangana v. Managipet @ Mangipet Sarveshwar Reddy, (2019) 19 SCC 87 , Saranya v. Bharathi and another, (2021) 8 SCC 583 and Central Bureau of Investigation (ACB) v. Dereddy Muralidhara Reddy & another, Criminal Appeal No.1518 of 2024, dt.12.03.2024. Point for Determination 8. Having heard the submissions made by the learned counsel representing both parties and on perusal of the material available on record, the point for determination that arises in this case is as follows : Whether the case against the Petitioner/Accused No.5 in C.C.No.975 of 2019 on the file of the Court of V Additional Judicial Magistrate of First Class, Kakinada, is liable to be quashed by exercising jurisdiction under Section 482 of the Cr.P.C.? Determination by the Court 9.
Determination by the Court 9. A bare perusal of Section 482 makes it clear that the Code envisages that inherent powers of the High Court are not limited or affected so as to make orders as may be necessary; (i) to give effect to any order under the Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of justice. A court while sitting in Section 482 jurisdiction is not functioning as a trial court, court of appeal or a court of revision. It must exercise its powers to do real and substantial justice, depending on the facts and circumstances of the case. These powers must be invoked for compelling reasons of abuse of process of law or glaring injustice, which are against sound principles of criminal jurisprudence. 10. A bare perusal of the charge sheet would disclose that initially the crime was registered against Accused Nos.1 to 4 and subsequently, during investigation, as the Police found prima facie allegations against the Petitioner/ Accused No.5, he was also added in the crime along with Accused Nos.6 to 8 in the present case and charge sheet was filed against Accused Nos.1 to 8 for the alleged offences. In the present case, Accused No.7 confessed to the effect that there was conspiracy between Accused Nos.5 to 8 on one hand and Accused Nos.1 to 3 on the other and because of that conspiracy, Accused Nos.5 to 8, who are the Police Personnel, left Accused Nos.1 to 3 without any arrest. In the present case, quantum of amount is immaterial to attract the alleged offences against the Petitioner. There are prima facie allegations against the Petitioner in the charge sheet to attract the alleged offences against him. The reason being, the amount of Rs.5 lakhs has been seized from Accused No.7, who along with Accused Nos.5, 6 and 8 were present at the scene of offence at the relevant time. It is also confessed by Accused No.4 that Accused Nos.5 to 8 having conspired with Accused Nos.1 to 3, handed over Accused No.4 in the Police Station and left Accused Nos.1 to 3. 11.
It is also confessed by Accused No.4 that Accused Nos.5 to 8 having conspired with Accused Nos.1 to 3, handed over Accused No.4 in the Police Station and left Accused Nos.1 to 3. 11. In Haricharan Kurmi (referred supra), a five-Judge Bench of the Hon’ble Supreme Court reiterated the settled legal principle in criminal law that the confession of a co-accused cannot be treated as substantive evidence and that it can only be used when the Court is inclined to accept other evidence. It is also stated that in cases where the other evidence against a person is unsatisfactory, sole reliance of the prosecution on the confession of the co-accused is not correct. 12. This Court is bound by the dictum referred supra. However, in the facts and circumstances of the present case, while exercising the jurisdiction under Section 482 Cr.P.C., this Court cannot conduct a mini trial by evaluating the evidences placed. The fact remains that the uncontroverted allegations made would prima facie attract the offences alleged. In such a case, the veracity of these allegations are aspects to be decided during the course of trial, but not in the petition filed under Section 482 Cr.P.C. 13. Further, the contention of the learned counsel for the Petitioner that, since the Petitioner is a Government Employee, to launch prosecution against him, necessary sanction has to be obtained from the concerned authorities and as there is no sanction in the present case, the prosecution launched against the Petitioner is not sustainable under law. 14. On this point, learned Assistant Public Prosecutor relied on the decision rendered in State of Telangana v. Managipet @ Mangipet Sarveshwar Reddy (referred supra), wherein the Hon’ble Supreme Court has held that lack of sanction is not by itself a ground to quash the criminal proceedings, by stating that the issue as to whether a sanction is necessary to prosecute the accused, who was a retired public servant was a question to be examined during the course of trial in view of the decision in K. Kalimuthu v. State, (2005) 4 SCC 512 . 15.
15. Section 197 of the Cr PC stipulates that when any person who is or was a public servant, not removable from his office save by or with the sanction of the Central Government or State 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 duties, no Court shall take cognizance of such offence, except with the previous sanction of the appropriate Government. It is necessary to note that the word ‘sanction’ has nowhere been defined in the Cr.P.C., and in common legal parlance it means to assent or approve. 16. On a close perusal of the Section 197 Cr.P.C, it becomes clear that to invite its applicability, it has to be determined whether the alleged act was committed in the discharge of official duty or not. More so, the Hon’ble Supreme Court in K. Kalimuthu observed that the question relating to the need of sanction under Section 197 Cr.P.C need not necessarily be considered as soon as the complaint is lodged based on the allegations therein and that the question may arise at any stage of the proceeding. This Court cannot conduct a mini trial while exercising its jurisdiction under Section 482 Cr.P.C. As there are specific allegations against the Petitioner/Accused No.5, this Court is of the view that it is not desirable to quash the proceedings against the Petitioner, at this stage and accordingly the petition is liable to be dismissed. 17. It is open for the Petitioner to raise the question of applicability of Section 197 Cr.P.C. at appropriate stage during the course of trial. The expressions made in this order by this Court are only limited to the extent of deciding the quash petition. 18. In the result, the Criminal Petition is dismissed. Pending miscellaneous petitions, if any, shall stand closed.