WP/18067/2007 of P.V.Purushottam Rao Vs The Government of Andhra Pradesh, rep.by Principal on 30 December 2014

ORDER:

Heard the learned counsel for petitioner and the learned Government Pleader forProhibition and Excise for respondents 1 to 4.

2. The petitioner, who is one of the accused in C.C.No.174 of 2007 on the file of the Special Judicial First Class Magistrate for Prohibition and Excise Cases-cum-XXIIMetropolitan Magistrate, Cyberabad at N.T.R. Nagar, seeks inclusion of respondents 6and 7 in the said crime. The facts leading to registration of the said case are that thepetitioner as well as respondents 6 and 7 are the employees in the India TourismDevelopment Corporation Limited (ITDC), New Delhi and they are discharging duties inITDC Duty Free Shop, Hyderabad Airport, Hyderabad. On 05.04.2006, the fourthrespondent registered a case in Crime No.4/06-07 under Section 8(b) (ii) read with RulesIV and V of the Andhra Pradesh Prohibition Act, 1995 (for short, Act). The petitioner isthe fifth accused in the said case. The said case was registered on the strength of twopanchanamas drafted by the Excise Police at 9.15 pm and 11.15 pm on 05.04.2006. Itwas stated therein that they have intercepted an auto bearing No.AP 10 4518 atBegumpet at 8.15 pm on 05.04.2006 in which some foreign liquor bottles were illegallytransported from ITDC Duty Free Shop, Airport for delivery/supply in the local market. In the said auto, the police found A-1, the office boy and A-3, the driver of auto, andwhen they were asked to produce the transport permit, they did not produce the permit,as a result of which, the liquor bottles and auto were seized and they were arrested. Atabout 11.15 pm on the same day, they also seized some liquor bottles from thepossession of the petitioner and A-4 who is a management trainee in the ITDC. Afterinvestigation, the fourth respondent filed a charge sheet before the said Court only against A-1 to A-5 stating in page 3 of the charge sheet at para 3 as follows.

“ Though the names of A.6 and A.7 were in COR No.4/06-07, dt. 05.04.2006 in thecourse of investigation, no sufficient evidence was surfaced against A.6 and A.7 tocharge them for unauthorised transport and illegal possession of foreign liquor. Hence nocharge was made against A.6 and A.7.”

Challenging the deletion of A-6 and A-7 at the time of filing the charge sheet, the presentWrit Petition was filed.

3. It is submitted by the learned counsel for the petitioner that immediately afterregistration of the criminal case on 05.04.2006, the eighth respondent, who was suomotu impleaded by the Court, addressed a memo to one Nithin Mahajan (Vigilance),Hyderabad on 10.04.2006 stating that he informed the seventh respondent to see that noFIR is registered and also stated the circumstances under which he used his goodoffices not to register the case against the seventh respondent. The learned counselsubmits that due to the pressure on the fourth respondent only, the names ofrespondents 6 and 7 were deleted from the charge sheet, though they were also involvedin the crime. He buttresses his argument by relying on the show cause notice issued bythe Assistant Commissioner of Customs, Rajiv Gandhi International Airport, Begumpet,Hyderabad on 21.09.2006 which clearly specifies the involvement of the seventhrespondent in the said offence. The show cause notice issued by the secondrespondent on 25.04.2006 also supports the said version. A reading of the panchanama conducted on 05.04.2006 also shows the involvement of respondents 6 and 7 and inview of the overall evidence involving respondents 6 and 7 in the said offence, it isincomprehensible how the fourth respondent has come to the conclusion thatrespondents 6 and 7 are not involved and why charge sheet was not filed against them. The petitioner submitted a detailed representation to respondents 1 to 3 on 21.07.2007against the action of the fourth respondent, but no action was taken in pursuancethereof.

4. In pursuance of the directions of this Court directing the third respondent to file areport, the third respondent filed a report giving the details of the investigation conductedand it reads as follows.

“ On 23-06-2006 the I.O. examined A.V.Ramana (A6) and found that A.V.Ramana (A6) leftthe office after discharging his duty on 05-04-2006. The I.O. couldn’t get evidence againstA6, and therefore he had came to the conclusion that A5 had given him a false and anunreliable statement at the time of detection.

On 12-12-2006 the I.O. had examined Kaladacha, the Manager of DFS (A7). He had alsoverified and found correct the certificate given by the Director of Airport, authenticating herpresence at two different meetings from 4.00 pm to 7.30 pm. He had also had confirmationof the above statement when he had examined Sri I.Mazumdar, General Manager, AshokaTours and Travels. Thus the I.O. couldn’t get any evidence against A7.”

5. The fourth respondent (M.Muthulingam) initially filed a counter-affidavit 01.10.2007stating that as there was conclusive evidence against A.1 to A.5 as to the commissionof offence, he filed charge sheet only against them. He also stated that during theinvestigation, he found no evidence to file a charge sheet against respondents 6 and 7. He conducted enquiry without any fear or favour and no influence whatsoever wasbrought on him during the investigation or thereafter.

6. A reply was filed by the petitioner stating that the investigation was done andcharge sheet was laid by one S.Srinivasa Rao, Prohibition and Excise Inspector,Balanagar, who has signed the charge sheet and was shown as fifth witness in the list ofwitnesses and hence the counter-affidavit filed by the fourth respondent by nameMuthulingam was not correct. It was also stated that though the third respondent wasasked to file a report about his supervision of the investigation carried out by the fifthrespondent, the report filed by the third respondent does not disclose the supervision ormonitoring of the investigation done by the fifth respondent. Though the report says thatthe charge sheet was filed in consultation with the Assistant Public Prosecutor, thereliable information of the petitioner was that the Additional Public Prosecutor stronglyobjected for deletion of the names of respondents 6 and 7 in view of the specific roleplayed by them. Respondents 6 and 7, who are the Sales Supervisor and the Managerrespectively of the Duty Free Shop, Hyderabad, had instructed the trainees on05.04.2006 to illegally move the stock out of the Duty Free Shop, Hyderabad. Since thetrainees are under the direct control of the Manager, they took instructions from her.

7. After filing the above reply, the fourth respondent filed an additional affidavit on20.02.2008 stating that it is true that S.Srinivasa Rao was the Prohibition and ExciseInspector, Balanagar at the time of detection of crime and he investigated into the matterand filed charge sheet. He was transferred on 09.08.2007 and posted as Station HouseOfficer, Namaplly Excise Police Station, Hyderabad and he took charge in his place on09.08.2007. The statement made by him in the earlier counter-affidavit was only aninadvertent mistake but not with an intention to mislead the Hon’ble Court. The fourthrespondent conducted the investigation as per the procedure prescribed under Section157, 172 and 173 of Cr.P.C. and the line of investigation was recorded in case diary. The show cause notice issued by the second respondent is only for cancellation oflicence issued in favour of the seventh respondent, as she was the then Manager. Thethird respondent will not go along with the Investigating Officer during the investigation,but would only verify the case diary to monitor the investigation from time to time. Theallegation that the Assistant Public Prosecutor strongly objected for deletion of thenames of respondents 6 and 7 was denied. The charge sheet was filed only afterapproval and in consultation with the Assistant Public Prosecutor.

8. When contradictions were noticed, this Court, by order dated 05.09.2014, orderednotice to the said Muthulingam to explain his case before taking action under theprovisions of the Indian Penal Code and the Contempt of Courts Act for filing the falseaffidavit. In response to the same, the said Muthulingam filed an additional affidavit on10.11.2014 stating that it is true that S.Srinivasa Rao was the Prohibition and ExciseInspector, Balanagar at the time of detection of crime and he investigated in the matterand filed charge sheet. He was transferred on 09.08.2007 and posted as Station HouseOfficer, Namaplly Excise Police Station, Hyderabad and he took charge in his place on09.08.2007. The statement made by him in the earlier counter-affidavit was onlyinadvertent mistake but not with an intention to mislead the Hon’ble Court.

9. The learned counsel for the petitioner relies on a case in E.S.Reddi V. ChiefSecretary, Government of A.P[[1]]and submits that in the said case, the Hon’bleSupreme Court took strong objection for placing the petitioner alone under suspensionby the State Government pending contemplated departmental enquiry when two otherofficers were equally culpable. It amounted to differential treatment and in view of thesaid position, the present action against the petitioner and others, leaving respondents 6and 7 amounts to arbitrary action. He also relied on a case in A.Linga Reddy V.A.P.State Handloom Weavers Society Ltd.[[2]]and submits that when malafides andspecific allegations were made against respondents 6 and 7 and in absence of acounter-affidavit by them, it must be held that the allegations are proved. He also relied o n K.Sukhendar Reddy V. State of A.P[[3]]and submits that selective action of therespondents should not be supported. Finally he relied on Umesh Kumar V.Government of Andhra Pradesh[[4]]and submits that since the fourth respondentinitially filed a false affidavit, it constitutes criminal contempt of court and action shouldbe initiated against the fourth respondent.

10. The only point that has to be decided in the present case is whether respondents 6and 7 should also be directed to be proceeded against in the pending criminal trial on thebasis of the material available on record, even after the investigating officer found nomaterial against them.

11. The Criminal Procedure Code is a complete code dealing with the procedure to befollowed by the courts in dealing with criminal investigation and trial. In a case like this, Section 319 of the Code covers the situation and it reads as follows:

“ 319. Power to proceed against other persons appearing to be guilty of offence:-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from theevidence that any person not being the accused has committed any offence for whichsuch person could be tried together with the accused, the Court may proceed against suchperson for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, asthe circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may bedetained by such Court for the purpose of the inquiry into, or trial of, the offence which heappears to have committed.

(4) Where the Court proceeds against any person under sub-section (1),then- (a)the proceedings in respect of such person shall be commenced a fresh, and thewitnesses re- heard;witnesses re- heard; (b)subject to the provisions of clause (a), the case may proceed as if such person hadbeen an accused person when the Court took cognizance of the offence upon whichthe inquiry or trial was commenced.”been an accused person when the Court took cognizance of the offence upon whichthe inquiry or trial was commenced.”

12. The above section was interpreted by the Hon’ble Supreme Court in Suman V.

State of Rajasthan[[5]]. The Hon’ble Supreme Court elaborately considered the case lawon the point. After considering the entire case law, the Hon’ble Supreme Court notedwith approval the following observations made in Michael Machado V. Central Bureau of Investigation[[6]]as follows:

“ ……… The basic requirements for invoking the above section is that it should appear tothe court from the evidence collected during trial or in the inquiry that some other person,who is not arraigned as an accused in that case, has committed an offence for which thatperson could be tried together with the accused already arraigned. It is not enough thatthe court entertained some doubt, from the evidence, about the involvement of anotherperson in the offence. In other words, the court must have reasonable satisfaction fromthe evidence already collected regarding two aspects. First is that the other person hascommitted an offence. Second is that for such offence that other person could as well betried along with the already arraigned accused.the court from the evidence collected during trial or in the inquiry that some other person,who is not arraigned as an accused in that case, has committed an offence for which thatperson could be tried together with the accused already arraigned. It is not enough thatthe court entertained some doubt, from the evidence, about the involvement of anotherperson in the offence. In other words, the court must have reasonable satisfaction fromthe evidence already collected regarding two aspects. First is that the other person hascommitted an offence. Second is that for such offence that other person could as well betried along with the already arraigned accused.

But even then, what is conferred on the court is only a discretion as could bediscerned from the words ‘the court may proceed against such person’. Thediscretionary power so conferred should be exercised only to achieve criminal justice. Itis not that the court should turn against another person whenever it comes acrossevidence connecting that another person also with the offence. A judicial exercise iscalled for, keeping a conspectus of the case, including the stage at which the trial hasproceeded already and the quantum of evidence collected till then, and also the amountof time which the court had spent for collecting such evidence. It must be rememberedthat there is no compelling duty on the court to proceed against other persons.”

13. In the light of the above observations of the Hon’ble Supreme Court and also inview of the decisions stated above, it is for the concerned criminal Court to exercise itsdiscretion for ordering proceedings against a person who was not arrayed as anaccused if the court is satisfied of such a course of action. Though this Court called forthe case file and invited counter-affidavits, in view of the availability of power in theconcerned criminal Court, this Court is not inclined to exercise its jurisdiction at thisstage by accepting the submissions made by the learned counsel for the petitioner. Similarly, this Court is dis-inclined to comment on the material available before it.

14. In view of the above, the Writ Petition is disposed of giving liberty to the Petitionerto approach the Court of Special Judicial First Class Magistrate for Prohibition andExcise Cases-cum-XXII Metropolitan Magistrate, Cyberabad at N.T.R. Nagar, if he is soadvised, and as and when he files such an application, the court would pass appropriateorders in that regard. Before parting with the case, it is necessary to comment on thecareless manner in which the fourth respondent has filed the affidavit and retracted fromsuch affidavit at a later stage. The fourth respondent is warned to be careful in futurewith regard to filing of affidavits before the Courts. No costs. Miscellaneous Petitionspending, if any in this Writ Petition, shall stand closed.

Date: 30.12.2014Note: L.R. Copy to be marked B/o.TJMR

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A.RAMALINGESWARA RAO, J

[1](1987) 3 SCC 258(1987) 3 SCC 258

[2]2007 (4) ALD 512007 (4) ALD 51

[3](1999) 6 SCC 257(1999) 6 SCC 257

[4]2012 (3) ALD 5332012 (3) ALD 533

[5]AIR 2010 SC 518AIR 2010 SC 518

[6]2000 AIR SCW 7342000 AIR SCW 734