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2018 Supreme(AP) 864
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATES OF TELANGANA AND ANDHRA PRADESH
B. Siva Sankara Rao, J.
Managipet – Appellant
Versus
The State of Telangana – Respondent
Criminal Petition No. 12485 of 2018
Decided On : 24-12-2018
Advocate Appeared:
For the Appellant : P. Ananth Nageswar Rao.
For the Respondent: N. Ananda Rao.
Headnote:
Prevention of Corruption Act,1988 - Sections 7,11,13(1)(e),13(2),17,18 and 20 - Criminal Procedure Code,1973 - Section 482 - Quash Petition - Disproportionate of Assets - Prohibition of Registering crime and investigation - Held, though there is no prohibition for registration of crime for a cognizable offence, there is a prohibition for investigation as Section 17 proviso (1) speaks of bar to investigation and not to registration of crime - Once crime registered under source of information cannot be attacked but for investigation - Accusation is made against public servant of presumption is accepted undue advantage and shall presume unless contrary is proved - However, fact remains what is concluded by three-Judge Bench expression is fair investigation, which is but very foundation of fair trial, necessarily postulates that informant and investigator must not be same person - Person who accorded permission under Section 17 of Act is not competent to accord permission for investigation, which goes to root of matter that requires to scrap investigation by reverting clock back to give proper according of permission to another officer other than who registered crime by competent officer -Criminal Petition allowed(Para 22,28,31 and 32)
Facts of the Case:
Quash petitioner acquired service and acquired disproportionate assets in his period register crime under Section 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988.
Findings of the case:
though there is no prohibition for registration of crime for a cognizable offence, there is a prohibition for investigation as Section 17 proviso (1) speaks of bar to investigation and not to registration of crime - Once crime registered under source of information cannot be attacked but for investigation - Accusation is made against public servant of presumption is accepted undue advantage and shall presume unless contrary is proved - However, fact remains what is concluded by three-Judge Bench expression is fair investigation, which is but very foundation of fair trial, necessarily postulates that informant and investigator must not be same person - Person who accorded permission under Section 17 of Act is not competent to accord permission for investigation, which goes to root of matter that requires to scrap investigation by reverting clock back to give proper according of permission to another officer other than who registered crime by competent officer
Result : Criminal Petition allowed
ORDER :
1. The quash petitioner is the accused in C.C. No. 6 of 2018 on the file of the I Additional Special Judge, SPE & ACB cases, Hyderabad. The crime registered is based on source information as Crime No. 28/ACB-CIU-HYD/2011, dated 09.11.2011. The First Information Report (FIR) mentions at Column No. 4 as suo moto registered the complainant/informant as per Column No. 6 is Ch. Sudhakar, Deputy Superintendent of Police (DSP), CIU, ACB, Hyderabad. Column No. 12 speaks on receipt of credible information that Sri M. Sarveshwar Reddy, DSP/OSD, aged 51 years of Gachibowli, a native of Wanaparthy Taluq, Mahabubnagar, joined as Sub Inspector of Police on 19.09.1985 and promoted as Inspector of Police on 04.04.1995 and as DSP in 2007, worked as Sub-Inspector of Police at Rayadurgam, Hayathnagar, Malkajgiri and Circle Inspector of Police at Huzurnagar, Narsingi, Uppal, Rajendranagar and as ACP Rajendranagar and presently OSD, Ranga Reddy District, Vikarabad acquired in the period of his service disproportionate assets with details in registration of the crime under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 (for short the Act).
2. The FIR shows the accused officer is in possession of the assets worth Rs. 3,18,61,500/- which are disproportionate to the known sources mentioned and not satisfactorily accounted for. The total worth of the property against his savings of Rs. 37 lakhs shown approximately Rs. 3,55,61,500/- in arriving the same. Having registered the crime on 09.11.2011 by citing as many as 114 witnesses including said Ch. Sudhakar, who conducted the house search in the presence of mediators LWs. 1 and 2 at Venkatadri Apartment of the said accused officer facing accusation on 10.11.2011 and conducted investigation mostly and the others LWs. 110 to 114 are the five more Investigating Officers, who conducted left over the investigation and filed draft final report and ultimately the approved final report. The other persons include the officials and non-officials, the person who registered the crime Ch. Sudhakar, DSP, main Investigating Officer, not separately shown as complainant is LW-1, no doubt. The said proceedings of the police final report, taken cognizance and pending before the learned Special Judge as C.C. No. 6 of 2018 is the present impugnment with several contentions.
3. In the course of hearing, there are mainly six contentions raised needless to elaborate word to word of the quash petition running in more than 17 paras with 12 pages:
First one is want of sanction to the prosecution.
Second one is delay in filing of charge sheet by completion of investigation right from the FIR registered on 09.11.2011 till October 9, 2017, for 6 years.
Third one is there is no preliminary enquiry though mandatory before registration of the crime to be conducted.
Fourth one is there is no authorization to register the crime and to conduct investigation properly and further ground advanced in the course of hearing though not specifically taken is the informant and the Investigating Officer, who conducted the investigation by name Sri Ch. Sudhakar, 1st Investigating Officer of the charge sheet, shall not be one and the same and a prejudice shall be presumed in the absence of contrary thereby the cognizance proceedings no way survive to continue.
4. The counsel for the accused reiterated the same referring to the expressions and also the administrative circulars inter departmental and the provisions with reference to the propositions and repelled the same from the submissions by the learned Special Public Prosecutor for ACB.
5. Heard both sides at length and perused the entire material on record.
6. So far as the sanction concerned, undisputedly, the officer who is facing the accusation while in service from the FIR, dated 09.11.2011, was retired on 31.05.2017 on attaining superannuation. The charge sheet was filed as referred supra on 09.10.2017, about four months later. A perusal of the memo of evidence of 11
