CRLP/15118/2013 of P.Ashiah Vs The State of AP., on 30 December 2013

ORDER:

This criminal petition is filed by the petitioners who are A-2 to A4and A-13 (arrayed as A-11 to A-14 in the remand case diary) under section482 Cr.P.C., seeking quashing of investigation in Cr.No.129/2009 of LingampetPolice Station, Nizamabad District, registered for the offences punishable undersections 120-B, 161, 162, 163, 409 and 420 IPC.

2. The case of the prosecution and the allegations in the remand casediary would disclose that the Government of Andhra Pradesh has proposed toadvance loans to people below property line through Indiramma HousingProgramme Phase-I. During the year 2006, the Government selected ShetpallySangareddy village and its hamlet villages namely, Malapati, Sajjanpally,Ekkapally, Lonkalapally and their thandas a s Adarsh Village. Under thescheme, 907 houses were sanctioned. In order to implement the scheme,Assistant Engineers and Work Inspectors with the recommendations of MandalHousing Officer chalked out the list of poor houseless people and on therecommendations made by the Mandal Housing Officer, a list of beneficiarieswere submitted to the Assistant Engineer, who after verification of the names ofthe beneficiaries, obtained sanction from the District Authority throughoffline/online process. Sanctioned amount was released to the beneficiariesstage wise ie., basement level, lintel level and roof level. The loans would bereleased in the shape of cement and cash though bank accounts of eachbeneficiary. Initially individual accounts were opened at Indian Overseas Bank,Lingampet and Andhra Bank, Gopalpet as those banks were nominated forpayment of amounts to the beneficiaries. While such process was going on,there occurred delay in payment of the amount. Taking advantage of the delayin payment of the amount to the beneficiaries, A-9 and A-12 who are Engineersalong with their subordinates ie., Work Inspectors have submitted proposals forpayment of loan to the beneficiearies through online facility by opening jointaccounts in the name of Village Organisers, namely, Vajram and Rajamani atSBH Yellareddy. The General Manager, Housing Corporation has passedorders for opening of a joint account in the name of Village Organisers along with DWCRA Mahila Samakya at SBH, Yellareddy. Accordingly, in the year2008, A-9 got opened a joint account in the name of President and Secretaryof Village Organization of Mahila Samakya of Shetpalli Sangareddy village, whowere empowered to draw the amount which was sanctioned by AE in the nameof beneficiaries by submitting the fund transfer requisition and release order.The Village Organisers have to draw such amount and then distribute the sameto the beneficiaries under proper receipts by entering the same in theconcerned register and send the original of the same to AE. The allegations inthe complaint would disclose that all the accused conspired together towithdraw the amount from the accounts but did not distribute the same to thebeneficiaries, thereby misappropriated the Government funds to a tune of Rs. 62,06,776/-. On 26-6-2009, a news item appeared in a daily newspaperregarding major irregularities committed in Indiramma Housing ProgrammePhase-I at Shetpally Sangareddy village. A Three men commission consistingof Executive Engineer, Hosuing Project, Nizamabad, Executive Engineer (PR),Kamareddy and DLPOm, Kamareddy were appointed to enquire into thematter. A third party enquiry committee was also appointed to enquire into theirregularities. A report came to be submitted giving details as to the manner inwhich the amounts are alleged to have been misappropriated by the accused.Pursuant to the directions issued by the authorities, the present report came tobe lodged by the Executive Engineer (H), Kamareddy Division, NizamabadDistrict.

3. The learned counsel for the petitioners mainly submits that evenaccepting the allegations in the report to be true, no offence is made out againstthe petitioner. According to him, the petitioners are public representatives andin the absence of their involvement in the commission of the offence,continuation of proceedings against them would be an abuse of process of law.

4. On the other hand, the learned Public Prosecutor opposed thecriminal petition contending that the names of the petitioners find place in theremand case diary and as the case is still at the stage of investigation, thiscourt cannot invoke its inherent jurisdiction under section 482 Cr.P.C., tointerdict the investigation.

5. The material available on record would clearly show that the above crime which is the subject matter of challenge in the present petition came to beregistered on 16-9-2009. The remand case diary which has been filed by thepetitioner along with the present application is dt. 11-11-2009, by then nearly 28witnesses were examined by the prosecution. No explanation is forthcoming asto why the petitioners have approached this court nearly 4 years afterregistration of the crime. The names of the petitioners do figure as accused inthe remand case diary dt. 11-11-2009.

6. The statement of L.W.1 which has been extracted in the remandcase diary would clearly indicate that all the accused, namely, the AssistantEngineers, Work Inspectors colluded with the Village Organizers and publicrepresentatives, namely, the petitioners herein, with mala fide intention,fraudulently forged the list of beneficiaries and misappropriated the governmentfunds to a tune of Rs.62,06,776/-. The said irregularity was noticed through (1) arepresentation dt. 27-6-2009 given by the Deputy Executive Engineer, (2)basing on the representation submitted by a third party enquiry committee, and(3) the news items published in a daily newspaper. The averments in theremand case diary would clearly indicate that in number of cases, the names ofthe beneficiaries were shown twice and in some cases thrice though the saidamount was not received by them. L.Ws.21, 22, 23 categorically stated thatneither did they submit applications for construction of houses nor did theyreceive money, but the record shows as if they have drawn some amount.Similarly, the statements of L.Ws.18,19,24,25,26 and 27 would indicate thatthey have received only a paltry sum. At this stage, it cannot be said that thefirst information report along with the remand case diary is bereft of basic factsconstituting offences alleged against the petitioners. Though the case wasregistered in the year 2009, till date no charge sheet is filed. No material isplaced before this Court to show as to what happened after 2009. Noexplanation is forthcoming as to why the petitioners approached this Court fouryears after the registration of the crime.

7. As held by the Apex Court in DIVINE RETREAT CENTRE V.STATE OF KERALA[[1]]the power under section 482 Cr.P.C.,. has to beexercised sparingly, carefully and with caution only where such exercise isjustified by the tests laid down in the Section itself. Section 482 does not confer any new power on the High Court but only saves the inherent power which thecourt possessed before the enactment of the Code. There are threecircumstances under which the inherent jurisdiction may be exercised, namely(i) to give effect to an order under the Code, (ii) to prevent abuse of the processof Court, and (iii) to otherwise secure the ends of justice.

[2]8. In CBI V. RAVI SHANKAR SRIVASTAVA the Apex Courtcautioned that the inherent power should not be exercised to stifle a legitimateprosecution and the High Court should refrain from giving a prima facie decisionin a case where the entire facts are incomplete and hazy, more so when theevidence has not been collected and produced before the Court.

[3]9. In STATE OF ORISSA V. UJJAL KUMAR BURDHANthe ApexCourt held that unless a case of gross abuse of power is made out againstthose in charge of investigation, the High Court should be loath to interfere atthe early/premature stage of investigation

10. Taking into consideration the judgments of the Apex Court referredto above and since the material placed before court is incomplete and hazy,inherent power under section 482 Cr.P.C., cannot be invoked to interdict theinvestigation. Truth or otherwise of the allegations made have to be investigatedby the police. At this stage, it cannot be said that the report and the remandcase diary are bereft of basic facts constituting the offences alleged against thepetitioners.

11 The Criminal Petition is accordingly dismissed, leaving it open to thepetitioners to avail remedies available under law. Miscellaneous applications, ifany, shall stand closed.

Date: 30-12-2013KMR

-----------------------------------

C. PRAVEEN KUMAR, J.

[1](2008) 3 SCC 542(2008) 3 SCC 542

[2](2006) 7 SCC 188(2006) 7 SCC 188

[3](2012) 4 SCC 547(2012) 4 SCC 547