P.V. Purushottam Rao vs The Government of Andhra Pradesh and Others

A. Ramalingeswara Rao, J.—Heard the learned counsel for petitioner and the learned Government Pleader for Prohibition and Excise for respondents 1 to 4.

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-XXII Metropolitan Magistrate, Cyberabad at N.T.R. Nagar, seeks inclusion of respondents 6 and 7 in the said crime. The facts leading to registration of the said case are that the petitioner as well as respondents 6 and 7 are the employees in the India Tourism Development Corporation Limited (ITDC), New Delhi and they are discharging duties in ITDC Duty Free Shop, Hyderabad Airport, Hyderabad. On 05.04.2006, the fourth respondent registered a case in Crime No. 4/06-07 under Section 8(b)(ii) read with Rules IV and V of the Andhra Pradesh Prohibition Act, 1995 (for short, Act). The petitioner is the fifth accused in the said case. The said case was registered on the strength of two panchanamas drafted by the Excise Police at 9.15 pm and 11.15 pm on 05.04.2006. It was stated therein that they have intercepted an auto bearing No. AP 10 4518 at Begumpet at 8.15 pm on 05.04.2006 in which some foreign liquor bottles were illegally transported 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, and when 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. At about 11.15 pm on the same day, they also seized some liquor bottles from the possession of the petitioner and A-4 who is a management trainee in the ITDC. After investigation, 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 the course of investigation, no sufficient evidence was surfaced against A.6 and A.7 to charge them for unauthorised transport and illegal possession of foreign liquor. Hence no charge 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 present Writ Petition was filed.

It is submitted by the learned counsel for the petitioner that immediately after registration of the criminal case on 05.04.2006, the eighth respondent, who was suo motu 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 no FIR is registered and also stated the circumstances under which he used his good offices not to register the case against the seventh respondent. The learned counsel submits that due to the pressure on the fourth respondent only, the names of respondents 6 and 7 were deleted from the charge sheet, though they were also involved in the crime. He buttresses his argument by relying on the show cause notice issued by the Assistant Commissioner of Customs, Rajiv Gandhi International Airport, Begumpet, Hyderabad on 21.09.2006 which clearly specifies the involvement of the seventh respondent in the said offence. The show cause notice issued by the second respondent 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 in view of the overall evidence involving respondents 6 and 7 in the said offence, it is incomprehensible how the fourth respondent has come to the conclusion that respondents 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 21.07.2007 against the action of the fourth respondent, but no action was taken in pursuance thereof.

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

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

On 12-12-2006 the I.O. had examined Kaladacha, the Manager of DFS (A7). He had also verified and found correct the certificate given by the Director of Airport, authenticating her presence at two different meetings from 4.00 pm to 7.30 pm. He had also had confirmation of the above statement when he had examined Sri I. Mazumdar, General Manager, Ashoka Tours and Travels. Thus the I.O. couldn''t get any evidence against A7."

The fourth respondent (M. Muthulingam) initially filed a counter-affidavit 01.10.2007 stating that as there was conclusive evidence against A.1 to A.5 as to the commission of offence, he filed charge sheet only against them. He also stated that during the investigation, 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 was brought on him during the investigation or thereafter.

A reply was filed by the petitioner stating that the investigation was done and charge 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 of witnesses and hence the counter-affidavit filed by the fourth respondent by name Muthulingam was not correct. It was also stated that though the third respondent was asked to file a report about his supervision of the investigation carried out by the fifth respondent, the report filed by the third respondent does not disclose the supervision or monitoring of the investigation done by the fifth respondent. Though the report says that the charge sheet was filed in consultation with the Assistant Public Prosecutor, the reliable information of the petitioner was that the Additional Public Prosecutor strongly objected for deletion of the names of respondents 6 and 7 in view of the specific role played by them. Respondents 6 and 7, who are the Sales Supervisor and the Manager respectively of the Duty Free Shop, Hyderabad, had instructed the trainees on 05.04.2006 to illegally move the stock out of the Duty Free Shop, Hyderabad. Since the trainees are under the direct control of the Manager, they took instructions from her.

After filing the above reply, the fourth respondent filed an additional affidavit on 20.02.2008 stating that it is true that S. Srinivasa Rao was the Prohibition and Excise Inspector, Balanagar at the time of detection of crime and he investigated into the matter and filed charge sheet. He was transferred on 09.08.2007 and posted as Station House Officer, Namaplly Excise Police Station, Hyderabad and he took charge in his place on 09.08.2007. The statement made by him in the earlier counter-affidavit was only an inadvertent mistake but not with an intention to mislead the Hon''ble Court. The fourth respondent conducted the investigation as per the procedure prescribed under Section 157, 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 of licence issued in favour of the seventh respondent, as she was the then Manager. The third 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. The allegation that the Assistant Public Prosecutor strongly objected for deletion of the names of respondents 6 and 7 was denied. The charge sheet was filed only after approval and in consultation with the Assistant Public Prosecutor.

When contradictions were noticed, this Court, by order dated 05.09.2014, ordered notice to the said Muthulingam to explain his case before taking action under the provisions of the Indian Penal Code and the Contempt of Courts Act for filing the false affidavit. In response to the same, the said Muthulingam filed an additional affidavit on 10.11.2014 stating that it is true that S. Srinivasa Rao was the Prohibition and Excise Inspector, Balanagar at the time of detection of crime and he investigated in the matter and filed charge sheet. He was transferred on 09.08.2007 and posted as Station House Officer, Namaplly Excise Police Station, Hyderabad and he took charge in his place on 09.08.2007. The statement made by him in the earlier counter-affidavit was only inadvertent mistake but not with an intention to mislead the Hon''ble Court.

The learned counsel for the petitioner relies on a case in E.S. Reddi Vs. Chief Secretary, Government of A.P. and Another, and submits that in the said case, the Hon''ble Supreme Court took strong objection for placing the petitioner alone under suspension by the State Government pending contemplated departmental enquiry when two other officers were equally culpable. It amounted to differential treatment and in view of the said position, the present action against the petitioner and others, leaving respondents 6 and 7 amounts to arbitrary action. He also relied on a case in A. Linga Reddy and Others Vs. Andhra Pradesh State Handloom Weavers Society Limited (APCO) and Others, and submits that when malafides and specific allegations were made against respondents 6 and 7 and in absence of a counter-affidavit by them, it must be held that the allegations are proved. He also relied on K. Sukhendar Reddy Vs. State of Andhra Pradesh and Another, and submits that selective action of the respondents should not be supported. Finally he relied on Umesh Kumar V. Government of Andhra Pradesh 2012 (3) ALD 533 and submits that since the fourth respondent initially filed a false affidavit, it constitutes criminal contempt of court and action should be initiated against the fourth respondent.

The only point that has to be decided in the present case is whether respondents 6 and 7 should also be directed to be proceeded against in the pending criminal trial on the basis of the material available on record, even after the investigating officer found no material against them.

The Criminal Procedure Code is a complete code dealing with the procedure to be followed 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 the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the 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 be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears 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 the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

The above section was interpreted by the Hon''ble Supreme Court in Suman Vs. State of Rajasthan and Another, . The Hon''ble Supreme Court elaborately considered the case law on the point. After considering the entire case law, the Hon''ble Supreme Court noted with approval the following observations made in Michael Machado and Another Vs. Central Bureau of Investigation and Another, as follows:

" ......... The basic requirements for invoking the above section is that it should appear to 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 that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

But even then, what is conferred on the court is only a discretion as could be discerned from the words ''the court may proceed against such person''. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons."

In the light of the above observations of the Hon''ble Supreme Court and also in view of the decisions stated above, it is for the concerned criminal Court to exercise its discretion for ordering proceedings against a person who was not arrayed as an accused if the court is satisfied of such a course of action. Though this Court called for the case file and invited counter-affidavits, in view of the availability of power in the concerned criminal Court, this Court is not inclined to exercise its jurisdiction at this stage 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.

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