Attestation of the undated affidavit is in utter disregard to the
provisions of Section 139 of the Code of Civil Procedure, 1908.
(hereinafter referred to as the `CPC’). The Supreme Court Rules 1966
under Order XI, Rule 7 also require adherence to the provisions of
Section 139 CPC. Hence, his reply is not worth taking on record and
being undated, renders the same to be a piece of waste paper.
The definition of ‘affidavit’ in Section 3(3) of the General
Clauses Act 1897 provides that it “shall include affirmation and
declaration in the case of persons by law allowed to affirm or declare
instead of swearing”. Thus, it is an essential characteristic of an
affidavit that it should be made on oath or affirmation before a person
having authority to administer the oath or affirmation, and thus, duty
to state on oath on the part of the deponent is sacrosanct. Same
remains the position in respect of administration of oath as required
under the Oaths Act 1873.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1305 of 2013
Umesh Kumar …Appellant
Versus
State of Andhra Pradesh …Respondent
With
CRIMINAL APPEAL NO.1304 of 2013
Citation;2014 ALL SCR 661
Dr. B.S. CHAUHAN, J.
Dated;September 6, 2013
1. Both these appeals have been preferred against the impugned
judgment and order dated 11.4.2012 passed by the High Court of
Andhra Pradesh at Hyderabad in Criminal Petition No. 12791 of 2011
by way of which the High Court has quashed the charge sheet in C.C.
No. 555 of 2011 in respect of the offence under Section 468 of Indian
Penal Code, 1860 (hereinafter referred to as ‘IPC’). However, it has
not quashed the charge sheet in respect of offences punishable under Page 2
Sections 471, 120-B and 201 IPC. Hence, these cross appeals by both
parties i.e. the accused and the State of Andhra Pradesh.
2. Facts and circumstances giving rise to these appeals are that:
A. A letter dated 22.4.2011 was received by the Secretary,
Ministry of Home Affairs, Union of India, purported to have been
written by one Shri M.A. Khan (Member of Parliament) enclosing a
representation of All India Banjara Seva Samithi (hereinafter referred
to as the ‘Samithi’) asking for an impartial enquiry against Shri V.
Dinesh Reddy, the then DG (Vigilance and Enforcement) Department
– respondent no.2 alleging that he had amassed disproportionate assets
in the name of his wife and her power of attorney holders. A large
number of documents were annexed in support of the allegations in
the complaint. The Joint Secretary, Ministry of Home Affairs
forwarded the said complaint to the Chief Secretary, Govt. of A.P. on
5.5.2011 for enquiry into the matter. The said letter was received by
the Chief Secretary, Govt. of A.P. on 23.5.2011. On the same day, a
letter purporting to have been sent by Shri M.A. Khan, M.P., was
received by Govt. of A.P. through Shri V. Dinesh Reddy – respondent
no.2, wherein it had been alleged that the letter sent by the Central
2Page 3
Government to the Chief Secretary, A.P. had not been authored by
Shri M.A. Khan, M.P.
B. When the Chief Secretary, A.P. was examining the matter, Shri
V. Dinesh Reddy, - respondent No.2, the then DG (V & E) wrote a
letter to the State Government annexing a copy of the letter of Shri
M.A. Khan, M.P., dated 23.5.2011 denying the authorship of that
letter and ask a junior police officer to give his report about the
genuineness of the Samithi. Upon being informed that it was
fictitious, respondent no.2 asked for a detailed enquiry to be
conducted to ascertain who had forged the said letter and signature of
Shri M.A. Khan, M.P., on the complaint. Meanwhile, Shri V. Dinesh
Reddy - respondent no.2, was appointed as Director General of Police,
A.P. on 30.6.2011.
C. The State Government asked the Additional D.G.P., Crime
Investigation Department, namely Shri S.V. Ramana Murthi to
enquire and submit a report to the Government in respect of
fabricating the letter and forging the signature of Shri M.A. Khan,
M.P. The said officer Shri Ramana Murthi did not conduct any
enquiry himself, rather he entrusted the same to one Shri M. Malla
Reddy, Deputy SP, CID. After conducting the enquiry, Shri Malla
3Page 4
Reddy submitted the enquiry report to Addl.D.G.P., CID on
22.8.2011, pointing out that one Shri T. Sunil Reddy obtained
certified copy of the documents from the office of the Sub-Registrar
on the instructions of some senior officer. The said certified copies
were the same as the ones that had been annexed alongwith the
complaint submitted in the name of the Samithi.
D. On the same day, i.e. 22.8.2011, Shri Ramana Murthi,
Addl.D.G.P., CID submitted the said report to Shri V. Dinesh Reddy,
respondent no.2 seeking directions and further requesting him that the
report be forwarded to the State Government.
E. On 24.8.2011, Shri Dinesh Reddy - respondent no.2 himself
directed the registration of the First Information Report (in short
‘FIR’) and that an investigation be conducted by CID. As a
consequence, the FIR was registered on 25.8.2011 and one Shri J.
Ranjan Ratan Kumar, Dy. S.P. was appointed as the Investigating
Officer.
F. During the course of investigation, Shri T. Sunil Reddy was
arrested on 26.8.2011. His statement was recorded on 27.8.2011 under
Section 161 of Code of Criminal Procedure, 1973 (hereinafter referred
to as ‘Cr.P.C.’) wherein Umesh Kumar, appellant was not named.
4Page 5
G. The report submitted by Shri Malla Reddy was forwarded by
Shri V. Dinesh Reddy - respondent no.2 to the State Government on
27.8.2011. Shri T. Sunil Reddy was remanded to judicial custody on
27.8.2011. It was during that judicial custody on 3.9.2011 that his
statement was recorded a second time under Section 161 Cr.P.C.
wherein he named Umesh Kumar, appellant. On being enlarged on
bail on 5.9.2011, Shri T. Sunil Reddy made an application on
7.9.2011 under Section 306 Cr.P.C. to become an approver.
H. Umesh Kumar, appellant, asked the Govt. of A.P. to hold an
investigation on the basis of the certified copy of the sale deeds
against respondent no.2. In the meanwhile, on 26.9.2011, the
Investigating Officer filed a statement in the court that unless the said
Shri T. Sunil Reddy was granted pardon, there would be no evidence
against Umesh Kumar. The trial court vide order dated 10.10.2011
accepted the application of Shri T. Sunil Reddy and granted him
pardon and made him an approver. However, the said order dated
10.10.2011 was quashed by the High Court vide judgment and order
dated 1.4.2012 in Writ Petition No. 31927 of 2011 filed by Umesh
Kumar, appellant.
5Page 6
I. After completing the investigation, a charge sheet dated
14.11.2011 was filed naming Umesh Kumar, appellant showing that
offences punishable under Sections 468, 471, 120-B and 201 IPC had
been committed.
J. Aggrieved, Umesh Kumar approached the High Court under
Section 482 Cr.P.C. for quashing the said charge sheet. However, the
High Court vide impugned judgment and order dated 11.4.2012
quashed the charge sheet only in part as referred to hereinabove.
Hence, these cross appeals.
3. The matter was heard at length and after considering the gravity
of the allegations against respondent no.2 and his alleged
involvement, this court issued notice to him suo motu and after
hearing his counsel he was impleaded as a respondent.
4. Shri Rakesh Dwivedi, learned senior counsel appearing for
Umesh Kumar, appellant has submitted that the purported complaint
sent by Shri M.A. Khan, M.P., to the Central Government was duly
supported by a large number of documents showing that respondent
no.2 had amassed wealth which was disproportionate to his known
sources of income. His wife had purchased various benami properties.
6Page 7
The certified copies of the said sale deeds are admissible in evidence
in court. Even if the allegations against Umesh Kumar, appellant are
correct, there could have been a fair enquiry on the said allegations
against respondent no.2. However, the State of A.P. discriminated
against the appellant and has taken no action whatsoever till today to
examine whether the said respondent has acquired disproportionate
assets.
When the matter was referred by the State Government to the
Addl. D.G.P. directly without informing respondent no.2 to hold an
enquiry to find out whether the signature of Shri M.A. Khan, M.P.
was genuine and about the existence of the Samithi, in such a
situation, respondent no.2 had no business to interfere with the matter
and pass any order. The enquiry had been entrusted to the Addl.
D.G.P. However, the said Addl. D.G.P. further entrusted the same to
the Deputy S.P. who arrested one Shri T. Sunil Reddy, made him an
approver and got his statement recorded naming Umesh Kumar.
Before the report submitted by Shri Malla Reddy could reach the State
Government, respondent no.2 directed that an FIR be lodged without
waiting for the direction of the State Government. Since by that time,
respondent no.2 had been appointed as D.G.P., A.P., unofficially, he
7Page 8
had been in contact with Shri M.A. Khan, M.P., and created a
situation where the enquiry could be directed only against Umesh
Kumar, appellant.
In spite of the fact that this court passed an order on 24.7.2013
directing the Chief Secretary, A.P. to disclose whether any enquiry
had ever been made against the said respondent no.2 with respect to
disproportionate assets, the Chief Secretary, A.P. had not submitted
any clear cut reply to this court. The Chief Secretary gave an evasive
reply without disclosing any fact in this regard. The evidence
collected illegally is admissible in law. Thus, the Govt. of A.P.
should have conducted inquiry against respondent No. 2 on the basis
of the sale deeds annexed alongwith the complaint. There is collusion
between the State Government and respondent no.2 discriminating
against the appellant. The High Court ought to have quashed the
whole charge sheet being a product of malafides and illegal activities
of the State and respondent no.2. Thus, the appeal filed by Umesh
Kumar deserves to be allowed and appeal filed by the State is liable to
be dismissed.
5. Shri R. Venkataramani, learned senior counsel appearing for
the State has submitted that Umesh Kumar hatched a conspiracy and
8Page 9
obtained the certified copies of the sale deeds which were in the name
of different persons and filed a complaint in the fictitious name
forging the signature of Shri M.A. Khan, M.P. Such a fact had been
disclosed by his accomplice Shri T. Sunil Reddy and other persons
like Shri Lokesh Kumar etc. Respondent no.2 being the head of the
police department has rightly issued the direction to lodge an FIR and
investigate the matter. The High Court committed an error
entertaining his petition under Section 482 Cr.P.C. without any
ground. As it was at the pre-emptive stage the matter could have been
examined by the competent court; issues raised by Umesh Kumar
could have been examined at the time of framing of the charges; and
he could have filed an application for discharge. As charges can be
altered at any stage during the trial, the High Court could not have
quashed the charge sheet in respect of only Section 468 IPC. Thus,
the appeal filed by Umesh Kumar is liable to the dismissed and the
appeal filed by the State deserves to be allowed.
6. Shri U.U. Lalit, learned senior counsel appearing for respondent
no.2 has submitted that by filing a complaint in the fictitious name
and forging the signature of Shri M.A. Khan, M.P., the reputation of
respondent no.2 was put at stake. Admittedly, the complaint was in a
9Page 10
fictitious name and with a forged signature. A case had been
registered in respect of the same with Delhi Police, however, it could
not proceed further. The office of the CID was chosen by the Chief
Secretary and an enquiry was entrusted to the said department.
Therefore, there could be no malice or malafides so far as respondent
no.2 is concerned. More so, the name of Umesh Kumar, appellant,
was not disclosed till the respondent no.2 was appointed as D.G.P. His
name could be unearthed at a subsequent stage. Shri M.A. Khan,
M.P. contacted the said respondent and asked for a preliminary
enquiry. The said respondent forwarded the said report. Therefore,
there could be no malice against him whatsoever. In view of the
above, the appeal of Umesh Kumar, appellant is liable to be
dismissed.
7. We have heard the rival submissions made by learned counsel
for the parties and perused the record.
8. The facts are not in dispute. The letter dated 22.4.2011
purported to have been written by Shri M.A. Khan, M.P., suggests
that various properties had been purchased by respondent no.2 as
benami and the copies of the sale deeds etc. filed alongwith the said
10Page 11
letter fortify the same. The Government of India wrote a letter to the
Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in
respect of alleged disproportionate assets made by the respondent no.2
by purchase of huge lands either by himself or in the name of his wife
or through benamis. Shri M.A. Khan, M.P. vide letter dated
23.5.2011 pointed out to the Central Government that he had not
signed the complaint and his signature had been forged. Umesh
Kumar, appellant had asked the State Government to conduct an
enquiry in respect of the disproportionate assets of the respondent
no.2.
The memo dated 2.8.2011 issued by the Govt. of A.P. revealed
that respondent no.2 had conducted an enquiry in the matter of the
letter purported to have been sent by Sh. M.A. Khan, M.P. He reached
the conclusion that the complaint had been filed with the forged
signature of Shri M.A. Khan, M.P., and made a request to the State
Government to order a CID probe into the matter of forgery, criminal
conspiracy, and cheating as no such Samithi was in existence and the
letter was bogus. It was in view thereof, the Government directed the
enquiry on the following issues:
(i) Who forged the letter of Member of Parliament?
11Page 12
(ii) Who obtained all the documents running into hundreds of pages
from the concerned Sub-Registrar’s office?
The Memo further revealed that Addl. D.G.P., Crime
Investigation Department would conduct the enquiry into the above
issues and submit a report to the Government at an early date. The
copy of the same was sent to respondent no.2 and to the Central
Government in addition to the Addl. D.G.P.
9. Admittedly, no attempt has ever been made by any person to
hold the enquiry relating to the genuineness of the allegations in the
complaint purported to have been signed by Shri M.A. Khan, M.P.
The letter dated 24.8.2011 makes it clear that before the report could
reach the Government, respondent no.2 directed that an FIR be
lodged, enquiry conducted and the report of the same be submitted to
his office. The documents revealed that the statement made by Shri T.
Sunil Reddy after his arrest did not reveal the name of Umesh Kumar.
However, when he was in police custody and his statement was
recorded a second time he named the appellant. It is also evident that
he was made an approver with the help of the public prosecutor and
later on the said order of the trial court was set aside by the High
Court at the behest of Umesh Kumar.
12Page 13
10. The aforesaid facts clearly reveal the following things:
(I) Even if the said complaint was in a fictitious name with a
forged signature, the material annexed with the said complaint
revealed that various properties had been purchased by the respondent
No.2, in his name or in the name of his wife or her General Power of
Attorney holders.
(II) The Central Government had asked the State Government to
conduct an inquiry of the allegations in the said complaint which the
State Government did not ensure compliance of.
(III) In spite of our order dated 24.7.2013 directing the Chief
Secretary to file his personal affidavit as to whether any attempt had
ever been made to find out the truth in the said allegations, the Chief
Secretary filed a defective affidavit which does not reflect any light on
the issue whatsoever.
(IV) When the enquiry was entrusted by the State Government
directly to a particular police officer and the officer submitted the
report, but before reaching the Government, respondent no.2 directed
that an FIR be lodged against Umesh Kumar, appellant and an
investigation be conducted. The report was sent to the State
Government subsequent thereto, and even on that report the State
13Page 14
Government had never taken any decision whatsoever, and in the
meanwhile the charge sheet was filed.
(V) The charge sheet was filed under various provisions of the IPC
and some of them are exclusively triable by the Court of Sessions and
not by the magistrate. There are no committal proceedings till now in
the case. Therefore, the stage of framing the charges or considering an
application for discharge has not yet arrived.
(VI) Shri T. Sunil Reddy had not disclosed the name of Umesh
Kumar, appellant in his first statement. However, subsequently when
he was in police custody and his statement was recorded a second
time he revealed his name. He was also granted pardon and made an
approver by the order of the trial court and the said order has been set
aside by the High Court at the behest of Umesh Kumar as referred to
hereinabove.
(VII) Various other cases regarding the enquiry against respondent
no.2 by the CBI or an independent agency, are reported to be pending
before the High Court, and it is pointed out that the learned Single
Judge has allowed the said writ petition, but the Division Bench had
stayed the operation of the said order at the behest of respondent No.2.
The learned Additional Advocate General at the direction of the High
14Page 15
Court had placed a large number of sale deeds in respect of land
purported to have been purchased by respondent No.2’s wife and her
sister Smt. S. Nalini between 1998 and 2005, either in her name or her
relatives or General Power of Attorney holders.
(VIII) The High Court partly quashed the charge sheet observing that
the offence under Section 468 IPC is not made out.
Case against Umesh Kumar – appellant :
11. Allegations against any person if found to be false or made
forging some one else signature may affect his reputation. Reputation
is a sort of right to enjoy the good opinion of others and it is a
personal right and an enquiry to reputation is a personal injury. Thus,
scandal and defamation are injurious to reputation. Reputation has
been defined in dictionary as “to have a good name; the credit, honor,
or character which is derived from a favourable public opinion or
esteem and character by report”. Personal rights of a human being
include the right of reputation. A good reputation is an element of
personal security and is protected by the Constitution equally with the
right to the enjoyment of life, liberty and property. Therefore, it has
been held to be a necessary element in regard to right to life of a
citizen under Article 21 of the Constitution. International Covenant on
15Page 16
Civil and Political Rights 1966 recognises the right to have opinions
and the right of freedom of expression under Article 19 is subject to
the right of reputation of others. Reputation is “not only a salt of
life but the purest treasure and the most precious perfume of life.”
(Vide: Smt. Kiran Bedi & Jinder Singh v. The Committee of
Inquiry & Anr., AIR 1989 SC 714; Board of Trustees of the Port
of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors.,
AIR 1983 SC 109; Nilgiris Bar Association v. TK Mahalingam &
Anr., AIR 1998 SC 398; Dr. Mehmood Nayyar Azam v. State of
Chattisgarh & Ors., AIR 2012 SC 2573; Vishwanath Sitaram
Agrawal v. Sau Sarla Vishwanath Agrawal, AIR 2012 SC 586; and
Kishore Samrite v. State of U.P. & Ors., (2013) 2 SCC 398).
12. In view thereof, if any person has forged in a letter under the
name of the Samithi and forged the signature of Shri M.A. Khan,
M.P., the matter being of grave nature requires investigation and, in
view of above, we cannot find fault with the action initiated against
Umesh Kumar, appellant. Once criminal law is put in motion and after
investigation the charge sheet is filed, it requires scrutiny in the court
of law. However, before the charges could be framed, Umesh Kumar,
appellant, approached the High Court under Section 482 Cr.P.C. for
16Page 17
quashing of the charge sheet. The scope of Section 482 Cr.P.C. is
well defined and inherent powers could be exercised by the High
Court to give effect to an order under the Cr.P.C.; to prevent abuse of
the process of court; and to otherwise secure the ends of justice. This
extraordinary power is to be exercised ex debito justitiae. However, in
exercise of such powers, it is not permissible for the High Court to
appreciate the evidence as it can only evaluate material documents on
record to the extent of its prima facie satisfaction about the existence
of sufficient ground for proceedings against the accused and the court
cannot look into materials, the acceptability of which is essentially a
matter for trial. Any document filed alongwith the petition labelled as
evidence without being tested and proved, cannot be examined. Law
does not prohibit entertaining the petition under Section 482 Cr.P.C.
for quashing the charge sheet even before the charges are framed or
before the application of discharge is filed or even during its pendency
of such application before the court concerned. The High Court
cannot reject the application merely on the ground that the accused
can argue legal and factual issues at the time of the framing of the
charge. However, the inherent power of the court should not be
17Page 18
exercised to stifle the legitimate prosecution but can be exercised to
save the accused to undergo the agony of a criminal trial.
(Vide: Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate &
Ors., AIR 1998 SC 128; Ashok Chaturvedi & Ors. v. Shitulh
Chanchani & Anr. AIR 1998 SC 2796; G. Sagar Suri & Anr. v.
State of U.P. & Ors., AIR 2000 SC 754; and Padal Venkata Rama
Reddy @ Ramu v. Kovvuri Satyanarayana Reddy & Ors., (2011)
12 SCC 437)
13. In Rajiv Thapar v Madan Lal Kapoor, 2013 (3) SCC 330,
this Court while dealing with the issue held as follows:
“ Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing, raised
by an accused by invoking the power vested in the High
Court under Section 482 of the Code of Criminal
Procedure:
(i) Step one, whether the material relied upon by the
accused is sound, reasonable, and indubitable, i.e., the
material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the
accused, would rule out the assertions contained in the
charges levelled against the accused, i.e., the material is
sufficient to reject and overrule the factual assertions
contained in the complaint, i.e., the material is such, as
would persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as false.
18Page 19
(iii) Step three, whether the material relied upon by the
accused, has not been refuted by the
prosecution/complainant; and/or the material is such,
that it cannot be justifiably refuted by the
prosecution/complainant?
(iv) Step four, whether proceeding with the trial would
result in an abuse of process of the court, and would not
serve the ends of justice?”
14. In State of Bihar v. P.P. Sharma & Anr., AIR 1991 SC 1260,
this Court dealt with an issue of whether an application under Section
482 Cr.P.C. for quashing the charge sheet should be entertained
before cognizance is taken by a criminal court and held as under:-
“Quashing the charge-sheet even before cognizance is
taken by a criminal Court amounts to killing a still born
child. Till the criminal Court takes cognizance of the
offence there is no criminal proceedings pending. I am
not allowing the appeals on the ground alternative
remedies provided by the Code as a bar. It may be
relevant in an appropriate case. My view is that
entertaining the writ petitions against charge-sheet and
considering the matter on merit on the guise of prima
facie evidence to stand on accused for trial amounts to
pre-trial of a criminal trial…. It is not to suggest that
under no circumstances a writ petition should be
entertained….. The charge-sheet and the evidence placed
in support thereof form the base to take or refuse to take
cognizance by the competent Court. It is not the case that
no offence has been made out in the chargesheets and
the First Information Report.”
(Emphasis added)
19Page 20
15. The issue of malafides looses its significance if there is a
substance in the allegation made in complaint moved with malice.
In Sheo Nandan Paswan v. State of Bihar & Ors., AIR 1987
SC 877, this Court held as under:
“It is a well-established proposition of law that a
criminal prosecution, if otherwise justifiable and based
upon adequate evidence does not become vitiated on
account of mala fides or political vendetta of the first
informant or complainant.”
16. In Parkash Singh Badal v. State of Punjab & Ors., AIR 2007
SC 1274, this Court held as under:
“The ultimate test, therefore, is whether the allegations
have any substance. An investigation should not be shut
out at the threshold because a political opponent or a
person with political difference raises an allegation of
commission of offence. Therefore, the plea of mala fides
as raised cannot be maintained.”
17. In State of A.P. v. Goloconda Linga Swamy & Anr., AIR
2004 SC 3967, this Court held as under:
“It is the material collected during the investigation and
evidence led in court which decides the fate of the
accused person. The allegations of malafides against the
informant are of no consequence and cannot by
themselves be the basis for quashing the proceeding.”
(See also: K. Karunakaran v. State of Kerala, (2007) 1 SCC 59).
20Page 21
18. Thus, in view of the above, it becomes evident that in case there
is some substance in the allegations and material exists to substantiate
the complicity of the applicant, the case is to be examined in its full
conspectus and the proceedings should not be quashed only on the
ground that the same had been initiated with mala fides to wreak
vengeance or to achieve an ulterior goal.
19. Scheme for inquiry/trial provided under the Cr.P.C. is quite
clear. After investigation, report under Section 173(2) Cr.P.C. is to be
submitted before the competent court i.e. magistrate having
jurisdiction in the matter and the magistrate may take cognizance
under Section 190 Cr.P.C. However, it is still open to the magistrate to
direct further investigation under the provisions of Section 173(8)
Cr.P.C. If the case is triable by the Court of Sessions, the magistrate
would commit the case to the said court under Section 209 Cr.P.C. It
is for the court to examine whether there is sufficient material
collected during investigation and filed alongwith the charge sheet
that a prima facie view can be taken to proceed against the accused
and in view thereof, frame charges under Section 228 Cr.P.C. At this
stage the remedy available to the accused is to ask for discharge under
21Page 22
Section 227 Cr.P.C. In case charges are framed the accused has to
face the trial, charges can be added/altered at any stage of the trial,
before the pronouncement of the judgment to suit the evidence
adduced before the court, under the provisions of Section 216 Cr.P.C.
The only legal requirement is that a witness has to be recalled as
provided under Section 217 Cr.P.C. when a charge is altered or added
by the court.
20. In the instant case, charge sheet had been filed and the
cognizance had been taken by the magistrate concerned; the
committal proceedings have not yet taken place; and some of the
offences attracted in this case are exclusively triable by the Sessions
Court. Umesh Kumar, appellant approached the High Court under
Section 482 Cr.P.C. and the charge sheet has been partly quashed
observing that the provisions of Section 468 IPC are not attracted.
21. The question does arise as to whether such an order attained
finality and in case the evidence is adduced before the court
concerned, whether the trial court can still hold that the applicant is
required to be tried for the offence under Section 468 I.P.C. and
22Page 23
further whether the trial would be competent on the said charge in
exercise of its power under Section 216 Cr.P.C.?
22. In State of Maharashtra v. Salman Salim Khan, AIR 2004
SC 1189, this Court depreciated the practice of entertaining the
petition under Section 482 Cr.P.C. at a pre-mature stage of the
proceedings observing as under:
“….The arguments regarding the framing of a proper
charge are best left to be decided by the trial court at an
appropriate stage of the trial. Otherwise as observed in
this case, proceedings get protracted by the intervention
of the superior courts….The High Court by the impugned
order had allowed the said application quashing the
charge under Section 304 IPC against the respondent
herein while it maintained the other charges and direct
the Magistrate’s court to frame the de novo charges……
We are of the opinion that though it is open to a High
Court entertaining a petition under Section 482 of the
Code to quash charges framed by the trial Court, same
cannot be done by weighing the correctness or
sufficiency of evidence. In a case praying for quashing of
the charge, the principle to be adopted by the High Court
should be that if the entire evidence produced by the
prosecution is to be believed, would it constitute an
offence or not. The truthfulness, the sufficiency and
acceptability of the material produced at the time of
framing of charge can be done only at the stage of trial.
……we think the High Court was not justified in this
case in giving a finding as to the non-existence of
material to frame a charge for an offence punishable
under Section 304, Part II, IPC, therefore so far as the
finding given by the High Court is concerned, we are
satisfied that it is too premature a finding and ought
23Page 24
not to have been given at this stage .….”. (Emphasis
added)
The Court set aside the order of the High Court and left it open
to the trial court to modify the charges in accordance with the
evidence adduced before it.
(See also: Sohan Lal & Ors. v. State of Rajasthan, AIR 1990 SC
2158)
23. A Constitution Bench of this Court reiterated a similar view in
CBI & Ors. v. Keshub Mahindra etc., AIR 2011 SC 2037
observing that when the charges are framed, the court makes an
endorsement till that stage. So charges are framed on the materials
produced by the prosecution for framing the charges “at that stage”.
Such indication is necessary otherwise the provisions contained in
Sections 216, 323, 386, 397, 399, 401 etc. Cr.P.C., would be rendered
nugatory and denuded a competent court of the powers under those
provisions. The court cannot be restrained from exercising its powers
either under Section 323 or Section 216 Cr.P.C.
24. The High Court was approached by Umesh Kumar, appellant
under section 482 Cr.P.C. at a premature stage. At the said stage the
High Court could examine the chargesheet, case diary and other
24Page 25
material in the chargesheet which by no means can be termed as
substantive evidence. (Vide: Lok Ram v Nihal Singh & Ors. AIR
2006 SC 1892).
25. Thus, in view of above, the order of the High Court impugned
before us cannot be termed as a final decision. The order is subject to
further order which could be passed by the trial court under Section
216 Cr.P.C., on the basis of the evidence to be led during trial. If the
impugned order is dubbed as having attained finality, the provisions
of Section 216 Cr.P.C. would render otiose/nugatory. Thus, the same
is to be read that the said order had been passed taking into
consideration the material which was available “at that stage” and it
is still open to the trial court to add or alter the charges according to
the evidence produced before it.
Complaint against Respondent No.2:
26. The complaint was initially made in respect of acquiring huge
immovable properties by respondent No. 2 in his name and in the
name of his wife, and the Central Government had asked the State
Government to conduct an inquiry into the said allegations. The
complaint may be forged or fabricated, but it is nobody’s case that the
25Page 26
copies of sale deeds annexed alongwith the said complaint were not
genuine. While issuing direction to hold inquiry/investigation as to
who had fabricated the said complaint and forged the signatures of
Shri M.A. Khan, M.P., the allegations of acquiring properties by the
respondent No.2 have been abandoned and unattended altogether.
Even though the complaint was bogus, however, the sale deeds
annexed alongwith the same though illegally collected by someone,
have not been found to be fabricated documents.
27. It is a settled legal proposition that even if a document is
procured by improper or illegal means, there is no bar to its
admissibility if it is relevant and its genuineness is proved. If the
evidence is admissible, it does not matter how it has been obtained.
However, as a matter of caution, the court in exercise of its discretion
may disallow certain evidence in a criminal case if the strict rules of
admissibility would operate unfairly against the accused. More so, the
court must conclude that it is genuine and free from tampering or
mutilation. This court repelled the contention that obtaining evidence
illegally by using tape recordings or photographs offend Articles
20(3) and 21 of the Constitution of India as acquiring the evidence by
such methods was not the procedure established by law. (Vide:
26Page 27
Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968
SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888;
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran
Mal v. Director of Inspection, Income-Tax, New Delhi & Ors.,
AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru, (2005) 11 SCC 600).
28. In such a fact-situation if illegally collected material can be
examined by the court of law, we fail to understand how the State
Government could not examine the contents of the complaint on the
basis of the annexed copies of sale deeds etc.
During the arguments of this case, our conscious was shocked
as to the manner the State of Andhra Pradesh has misdirected itself
and abandoned the most relevant issue i.e. complaint against Shri V.
Dinesh Reddy – respondent no.2 and concentrated exclusively against
Umesh Kumar, appellant. Thus, vide order dated 24.7.2013, we have
asked the Chief Secretary of the State of Andhra Pradesh to disclose
as to whether any preliminary/disciplinary inquiry has ever been
conducted by the State in respect of the alleged sale deeds in favour of
the spouse or her general power of attorney holders or relatives of
respondent No. 2.
27Page 28
29. In reply to our order dated 24.7.2013, the Chief Secretary has
filed an undated affidavit though attested by a Joint Secretary to Govt.
of A.P., and has given numerous explanations in respect of the alleged
pseudonymous petition filed with a fictitious name of the Samithi and
with the forged signature of Shri M.A. Khan, M.P. The Chief
Secretary has taken the plea that the Government of A.P. could not
investigate an enquiry about the disproportionate assets of the
respondent no.2 in view of the fact that the High Court of Andhra
Pradesh vide order dated 2.5.2013 stayed the operation of the learned
Single Judge’s order to conduct an enquiry into the allegations. The
Chief Secretary to the Govt. of Andhra Pradesh has not revealed
whether a preliminary enquiry or a domestic enquiry had ever been
conducted till 2.5.2013 when the High Court passed the restraint
order. The complaint was filed on 22.4.2011 and more than two years
had elapsed when the High Court passed the order. No explanation
has been furnished as to why for two years the enquiry could not be
held in this regard.
30. Attestation of the undated affidavit is in utter disregard to the
provisions of Section 139 of the Code of Civil Procedure, 1908.
28Page 29
(hereinafter referred to as the `CPC’). The Supreme Court Rules 1966
under Order XI, Rule 7 also require adherence to the provisions of
Section 139 CPC. Hence, his reply is not worth taking on record and
being undated, renders the same to be a piece of waste paper.
The definition of ‘affidavit’ in Section 3(3) of the General
Clauses Act 1897 provides that it “shall include affirmation and
declaration in the case of persons by law allowed to affirm or declare
instead of swearing”. Thus, it is an essential characteristic of an
affidavit that it should be made on oath or affirmation before a person
having authority to administer the oath or affirmation, and thus, duty
to state on oath on the part of the deponent is sacrosanct. Same
remains the position in respect of administration of oath as required
under the Oaths Act 1873.
(See: Krishan Chander Nayar v. The Chairman, Central Tractor
Organisation & Ors., AIR 1962 SC 602; Chhotan Prasad Singh &
Ors. v. Hari Dusadh & Ors., AIR 1977 SC 407; and M.
Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28).
31. In view of the above, we have no hesitation to hold that the
Chief Secretary had the audacity not to ensure the compliance of the
order of this court dated 24.7.2013, and we have no words to express
29Page 30
our anguish and condemn the attitude adopted by the Chief Secretary.
More so, holding such a responsible post in the State, he must have
some sense of responsibility and should have been aware of what are
the minimum requirements of law, and even if he did not know he
could have consulted any law officer of the State before filing the
undated affidavit.
32. Be that as it may, facts of the case warranted some enquiry in
respect of the allegations of acquiring huge properties by Shri V.
Dinesh Reddy – respondent no.2. The State took the courage to flout
the order of the Central Government and did not look into the contents
of the complaint and misdirected the enquiry against Umesh Kumar,
appellant. In such a fact-situation, this court would not fail in its duty
to direct the enquiry in those allegations.
33. In view of the above, the appeals are disposed of directing the
CBI to investigate the matter against Shri V. Dinesh Reddy –
respondent no. 2 on the allegations of acquiring the disproportionate
assets. However, this should not be considered as expressing any
opinion upon the merits of the case. The Chief Secretary to the
30Page 31
Government of Andhra Pradesh is directed to make the copies of the
said sale deeds available to the CBI for investigation.
34. Case of Umesh Kumar – appellant would proceed before the
Trial Court as explained hereinabove.
A copy of the judgment and order be sent to the Director, CBI,
forthwith. The CBI shall submit the Status Report to this Court within
four months.
……..…………..…………J.
(Dr. B.S. CHAUHAN)
………..……………..……J.
(S.A. BOBDE)
New Delhi,
September 6, 2013
31
provisions of Section 139 of the Code of Civil Procedure, 1908.
(hereinafter referred to as the `CPC’). The Supreme Court Rules 1966
under Order XI, Rule 7 also require adherence to the provisions of
Section 139 CPC. Hence, his reply is not worth taking on record and
being undated, renders the same to be a piece of waste paper.
The definition of ‘affidavit’ in Section 3(3) of the General
Clauses Act 1897 provides that it “shall include affirmation and
declaration in the case of persons by law allowed to affirm or declare
instead of swearing”. Thus, it is an essential characteristic of an
affidavit that it should be made on oath or affirmation before a person
having authority to administer the oath or affirmation, and thus, duty
to state on oath on the part of the deponent is sacrosanct. Same
remains the position in respect of administration of oath as required
under the Oaths Act 1873.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1305 of 2013
Umesh Kumar …Appellant
Versus
State of Andhra Pradesh …Respondent
With
CRIMINAL APPEAL NO.1304 of 2013
Citation;2014 ALL SCR 661
Dr. B.S. CHAUHAN, J.
Dated;September 6, 2013
1. Both these appeals have been preferred against the impugned
judgment and order dated 11.4.2012 passed by the High Court of
Andhra Pradesh at Hyderabad in Criminal Petition No. 12791 of 2011
by way of which the High Court has quashed the charge sheet in C.C.
No. 555 of 2011 in respect of the offence under Section 468 of Indian
Penal Code, 1860 (hereinafter referred to as ‘IPC’). However, it has
not quashed the charge sheet in respect of offences punishable under Page 2
Sections 471, 120-B and 201 IPC. Hence, these cross appeals by both
parties i.e. the accused and the State of Andhra Pradesh.
2. Facts and circumstances giving rise to these appeals are that:
A. A letter dated 22.4.2011 was received by the Secretary,
Ministry of Home Affairs, Union of India, purported to have been
written by one Shri M.A. Khan (Member of Parliament) enclosing a
representation of All India Banjara Seva Samithi (hereinafter referred
to as the ‘Samithi’) asking for an impartial enquiry against Shri V.
Dinesh Reddy, the then DG (Vigilance and Enforcement) Department
– respondent no.2 alleging that he had amassed disproportionate assets
in the name of his wife and her power of attorney holders. A large
number of documents were annexed in support of the allegations in
the complaint. The Joint Secretary, Ministry of Home Affairs
forwarded the said complaint to the Chief Secretary, Govt. of A.P. on
5.5.2011 for enquiry into the matter. The said letter was received by
the Chief Secretary, Govt. of A.P. on 23.5.2011. On the same day, a
letter purporting to have been sent by Shri M.A. Khan, M.P., was
received by Govt. of A.P. through Shri V. Dinesh Reddy – respondent
no.2, wherein it had been alleged that the letter sent by the Central
2Page 3
Government to the Chief Secretary, A.P. had not been authored by
Shri M.A. Khan, M.P.
B. When the Chief Secretary, A.P. was examining the matter, Shri
V. Dinesh Reddy, - respondent No.2, the then DG (V & E) wrote a
letter to the State Government annexing a copy of the letter of Shri
M.A. Khan, M.P., dated 23.5.2011 denying the authorship of that
letter and ask a junior police officer to give his report about the
genuineness of the Samithi. Upon being informed that it was
fictitious, respondent no.2 asked for a detailed enquiry to be
conducted to ascertain who had forged the said letter and signature of
Shri M.A. Khan, M.P., on the complaint. Meanwhile, Shri V. Dinesh
Reddy - respondent no.2, was appointed as Director General of Police,
A.P. on 30.6.2011.
C. The State Government asked the Additional D.G.P., Crime
Investigation Department, namely Shri S.V. Ramana Murthi to
enquire and submit a report to the Government in respect of
fabricating the letter and forging the signature of Shri M.A. Khan,
M.P. The said officer Shri Ramana Murthi did not conduct any
enquiry himself, rather he entrusted the same to one Shri M. Malla
Reddy, Deputy SP, CID. After conducting the enquiry, Shri Malla
3Page 4
Reddy submitted the enquiry report to Addl.D.G.P., CID on
22.8.2011, pointing out that one Shri T. Sunil Reddy obtained
certified copy of the documents from the office of the Sub-Registrar
on the instructions of some senior officer. The said certified copies
were the same as the ones that had been annexed alongwith the
complaint submitted in the name of the Samithi.
D. On the same day, i.e. 22.8.2011, Shri Ramana Murthi,
Addl.D.G.P., CID submitted the said report to Shri V. Dinesh Reddy,
respondent no.2 seeking directions and further requesting him that the
report be forwarded to the State Government.
E. On 24.8.2011, Shri Dinesh Reddy - respondent no.2 himself
directed the registration of the First Information Report (in short
‘FIR’) and that an investigation be conducted by CID. As a
consequence, the FIR was registered on 25.8.2011 and one Shri J.
Ranjan Ratan Kumar, Dy. S.P. was appointed as the Investigating
Officer.
F. During the course of investigation, Shri T. Sunil Reddy was
arrested on 26.8.2011. His statement was recorded on 27.8.2011 under
Section 161 of Code of Criminal Procedure, 1973 (hereinafter referred
to as ‘Cr.P.C.’) wherein Umesh Kumar, appellant was not named.
4Page 5
G. The report submitted by Shri Malla Reddy was forwarded by
Shri V. Dinesh Reddy - respondent no.2 to the State Government on
27.8.2011. Shri T. Sunil Reddy was remanded to judicial custody on
27.8.2011. It was during that judicial custody on 3.9.2011 that his
statement was recorded a second time under Section 161 Cr.P.C.
wherein he named Umesh Kumar, appellant. On being enlarged on
bail on 5.9.2011, Shri T. Sunil Reddy made an application on
7.9.2011 under Section 306 Cr.P.C. to become an approver.
H. Umesh Kumar, appellant, asked the Govt. of A.P. to hold an
investigation on the basis of the certified copy of the sale deeds
against respondent no.2. In the meanwhile, on 26.9.2011, the
Investigating Officer filed a statement in the court that unless the said
Shri T. Sunil Reddy was granted pardon, there would be no evidence
against Umesh Kumar. The trial court vide order dated 10.10.2011
accepted the application of Shri T. Sunil Reddy and granted him
pardon and made him an approver. However, the said order dated
10.10.2011 was quashed by the High Court vide judgment and order
dated 1.4.2012 in Writ Petition No. 31927 of 2011 filed by Umesh
Kumar, appellant.
5Page 6
I. After completing the investigation, a charge sheet dated
14.11.2011 was filed naming Umesh Kumar, appellant showing that
offences punishable under Sections 468, 471, 120-B and 201 IPC had
been committed.
J. Aggrieved, Umesh Kumar approached the High Court under
Section 482 Cr.P.C. for quashing the said charge sheet. However, the
High Court vide impugned judgment and order dated 11.4.2012
quashed the charge sheet only in part as referred to hereinabove.
Hence, these cross appeals.
3. The matter was heard at length and after considering the gravity
of the allegations against respondent no.2 and his alleged
involvement, this court issued notice to him suo motu and after
hearing his counsel he was impleaded as a respondent.
4. Shri Rakesh Dwivedi, learned senior counsel appearing for
Umesh Kumar, appellant has submitted that the purported complaint
sent by Shri M.A. Khan, M.P., to the Central Government was duly
supported by a large number of documents showing that respondent
no.2 had amassed wealth which was disproportionate to his known
sources of income. His wife had purchased various benami properties.
6Page 7
The certified copies of the said sale deeds are admissible in evidence
in court. Even if the allegations against Umesh Kumar, appellant are
correct, there could have been a fair enquiry on the said allegations
against respondent no.2. However, the State of A.P. discriminated
against the appellant and has taken no action whatsoever till today to
examine whether the said respondent has acquired disproportionate
assets.
When the matter was referred by the State Government to the
Addl. D.G.P. directly without informing respondent no.2 to hold an
enquiry to find out whether the signature of Shri M.A. Khan, M.P.
was genuine and about the existence of the Samithi, in such a
situation, respondent no.2 had no business to interfere with the matter
and pass any order. The enquiry had been entrusted to the Addl.
D.G.P. However, the said Addl. D.G.P. further entrusted the same to
the Deputy S.P. who arrested one Shri T. Sunil Reddy, made him an
approver and got his statement recorded naming Umesh Kumar.
Before the report submitted by Shri Malla Reddy could reach the State
Government, respondent no.2 directed that an FIR be lodged without
waiting for the direction of the State Government. Since by that time,
respondent no.2 had been appointed as D.G.P., A.P., unofficially, he
7Page 8
had been in contact with Shri M.A. Khan, M.P., and created a
situation where the enquiry could be directed only against Umesh
Kumar, appellant.
In spite of the fact that this court passed an order on 24.7.2013
directing the Chief Secretary, A.P. to disclose whether any enquiry
had ever been made against the said respondent no.2 with respect to
disproportionate assets, the Chief Secretary, A.P. had not submitted
any clear cut reply to this court. The Chief Secretary gave an evasive
reply without disclosing any fact in this regard. The evidence
collected illegally is admissible in law. Thus, the Govt. of A.P.
should have conducted inquiry against respondent No. 2 on the basis
of the sale deeds annexed alongwith the complaint. There is collusion
between the State Government and respondent no.2 discriminating
against the appellant. The High Court ought to have quashed the
whole charge sheet being a product of malafides and illegal activities
of the State and respondent no.2. Thus, the appeal filed by Umesh
Kumar deserves to be allowed and appeal filed by the State is liable to
be dismissed.
5. Shri R. Venkataramani, learned senior counsel appearing for
the State has submitted that Umesh Kumar hatched a conspiracy and
8Page 9
obtained the certified copies of the sale deeds which were in the name
of different persons and filed a complaint in the fictitious name
forging the signature of Shri M.A. Khan, M.P. Such a fact had been
disclosed by his accomplice Shri T. Sunil Reddy and other persons
like Shri Lokesh Kumar etc. Respondent no.2 being the head of the
police department has rightly issued the direction to lodge an FIR and
investigate the matter. The High Court committed an error
entertaining his petition under Section 482 Cr.P.C. without any
ground. As it was at the pre-emptive stage the matter could have been
examined by the competent court; issues raised by Umesh Kumar
could have been examined at the time of framing of the charges; and
he could have filed an application for discharge. As charges can be
altered at any stage during the trial, the High Court could not have
quashed the charge sheet in respect of only Section 468 IPC. Thus,
the appeal filed by Umesh Kumar is liable to the dismissed and the
appeal filed by the State deserves to be allowed.
6. Shri U.U. Lalit, learned senior counsel appearing for respondent
no.2 has submitted that by filing a complaint in the fictitious name
and forging the signature of Shri M.A. Khan, M.P., the reputation of
respondent no.2 was put at stake. Admittedly, the complaint was in a
9Page 10
fictitious name and with a forged signature. A case had been
registered in respect of the same with Delhi Police, however, it could
not proceed further. The office of the CID was chosen by the Chief
Secretary and an enquiry was entrusted to the said department.
Therefore, there could be no malice or malafides so far as respondent
no.2 is concerned. More so, the name of Umesh Kumar, appellant,
was not disclosed till the respondent no.2 was appointed as D.G.P. His
name could be unearthed at a subsequent stage. Shri M.A. Khan,
M.P. contacted the said respondent and asked for a preliminary
enquiry. The said respondent forwarded the said report. Therefore,
there could be no malice against him whatsoever. In view of the
above, the appeal of Umesh Kumar, appellant is liable to be
dismissed.
7. We have heard the rival submissions made by learned counsel
for the parties and perused the record.
8. The facts are not in dispute. The letter dated 22.4.2011
purported to have been written by Shri M.A. Khan, M.P., suggests
that various properties had been purchased by respondent no.2 as
benami and the copies of the sale deeds etc. filed alongwith the said
10Page 11
letter fortify the same. The Government of India wrote a letter to the
Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in
respect of alleged disproportionate assets made by the respondent no.2
by purchase of huge lands either by himself or in the name of his wife
or through benamis. Shri M.A. Khan, M.P. vide letter dated
23.5.2011 pointed out to the Central Government that he had not
signed the complaint and his signature had been forged. Umesh
Kumar, appellant had asked the State Government to conduct an
enquiry in respect of the disproportionate assets of the respondent
no.2.
The memo dated 2.8.2011 issued by the Govt. of A.P. revealed
that respondent no.2 had conducted an enquiry in the matter of the
letter purported to have been sent by Sh. M.A. Khan, M.P. He reached
the conclusion that the complaint had been filed with the forged
signature of Shri M.A. Khan, M.P., and made a request to the State
Government to order a CID probe into the matter of forgery, criminal
conspiracy, and cheating as no such Samithi was in existence and the
letter was bogus. It was in view thereof, the Government directed the
enquiry on the following issues:
(i) Who forged the letter of Member of Parliament?
11Page 12
(ii) Who obtained all the documents running into hundreds of pages
from the concerned Sub-Registrar’s office?
The Memo further revealed that Addl. D.G.P., Crime
Investigation Department would conduct the enquiry into the above
issues and submit a report to the Government at an early date. The
copy of the same was sent to respondent no.2 and to the Central
Government in addition to the Addl. D.G.P.
9. Admittedly, no attempt has ever been made by any person to
hold the enquiry relating to the genuineness of the allegations in the
complaint purported to have been signed by Shri M.A. Khan, M.P.
The letter dated 24.8.2011 makes it clear that before the report could
reach the Government, respondent no.2 directed that an FIR be
lodged, enquiry conducted and the report of the same be submitted to
his office. The documents revealed that the statement made by Shri T.
Sunil Reddy after his arrest did not reveal the name of Umesh Kumar.
However, when he was in police custody and his statement was
recorded a second time he named the appellant. It is also evident that
he was made an approver with the help of the public prosecutor and
later on the said order of the trial court was set aside by the High
Court at the behest of Umesh Kumar.
12Page 13
10. The aforesaid facts clearly reveal the following things:
(I) Even if the said complaint was in a fictitious name with a
forged signature, the material annexed with the said complaint
revealed that various properties had been purchased by the respondent
No.2, in his name or in the name of his wife or her General Power of
Attorney holders.
(II) The Central Government had asked the State Government to
conduct an inquiry of the allegations in the said complaint which the
State Government did not ensure compliance of.
(III) In spite of our order dated 24.7.2013 directing the Chief
Secretary to file his personal affidavit as to whether any attempt had
ever been made to find out the truth in the said allegations, the Chief
Secretary filed a defective affidavit which does not reflect any light on
the issue whatsoever.
(IV) When the enquiry was entrusted by the State Government
directly to a particular police officer and the officer submitted the
report, but before reaching the Government, respondent no.2 directed
that an FIR be lodged against Umesh Kumar, appellant and an
investigation be conducted. The report was sent to the State
Government subsequent thereto, and even on that report the State
13Page 14
Government had never taken any decision whatsoever, and in the
meanwhile the charge sheet was filed.
(V) The charge sheet was filed under various provisions of the IPC
and some of them are exclusively triable by the Court of Sessions and
not by the magistrate. There are no committal proceedings till now in
the case. Therefore, the stage of framing the charges or considering an
application for discharge has not yet arrived.
(VI) Shri T. Sunil Reddy had not disclosed the name of Umesh
Kumar, appellant in his first statement. However, subsequently when
he was in police custody and his statement was recorded a second
time he revealed his name. He was also granted pardon and made an
approver by the order of the trial court and the said order has been set
aside by the High Court at the behest of Umesh Kumar as referred to
hereinabove.
(VII) Various other cases regarding the enquiry against respondent
no.2 by the CBI or an independent agency, are reported to be pending
before the High Court, and it is pointed out that the learned Single
Judge has allowed the said writ petition, but the Division Bench had
stayed the operation of the said order at the behest of respondent No.2.
The learned Additional Advocate General at the direction of the High
14Page 15
Court had placed a large number of sale deeds in respect of land
purported to have been purchased by respondent No.2’s wife and her
sister Smt. S. Nalini between 1998 and 2005, either in her name or her
relatives or General Power of Attorney holders.
(VIII) The High Court partly quashed the charge sheet observing that
the offence under Section 468 IPC is not made out.
Case against Umesh Kumar – appellant :
11. Allegations against any person if found to be false or made
forging some one else signature may affect his reputation. Reputation
is a sort of right to enjoy the good opinion of others and it is a
personal right and an enquiry to reputation is a personal injury. Thus,
scandal and defamation are injurious to reputation. Reputation has
been defined in dictionary as “to have a good name; the credit, honor,
or character which is derived from a favourable public opinion or
esteem and character by report”. Personal rights of a human being
include the right of reputation. A good reputation is an element of
personal security and is protected by the Constitution equally with the
right to the enjoyment of life, liberty and property. Therefore, it has
been held to be a necessary element in regard to right to life of a
citizen under Article 21 of the Constitution. International Covenant on
15Page 16
Civil and Political Rights 1966 recognises the right to have opinions
and the right of freedom of expression under Article 19 is subject to
the right of reputation of others. Reputation is “not only a salt of
life but the purest treasure and the most precious perfume of life.”
(Vide: Smt. Kiran Bedi & Jinder Singh v. The Committee of
Inquiry & Anr., AIR 1989 SC 714; Board of Trustees of the Port
of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors.,
AIR 1983 SC 109; Nilgiris Bar Association v. TK Mahalingam &
Anr., AIR 1998 SC 398; Dr. Mehmood Nayyar Azam v. State of
Chattisgarh & Ors., AIR 2012 SC 2573; Vishwanath Sitaram
Agrawal v. Sau Sarla Vishwanath Agrawal, AIR 2012 SC 586; and
Kishore Samrite v. State of U.P. & Ors., (2013) 2 SCC 398).
12. In view thereof, if any person has forged in a letter under the
name of the Samithi and forged the signature of Shri M.A. Khan,
M.P., the matter being of grave nature requires investigation and, in
view of above, we cannot find fault with the action initiated against
Umesh Kumar, appellant. Once criminal law is put in motion and after
investigation the charge sheet is filed, it requires scrutiny in the court
of law. However, before the charges could be framed, Umesh Kumar,
appellant, approached the High Court under Section 482 Cr.P.C. for
16Page 17
quashing of the charge sheet. The scope of Section 482 Cr.P.C. is
well defined and inherent powers could be exercised by the High
Court to give effect to an order under the Cr.P.C.; to prevent abuse of
the process of court; and to otherwise secure the ends of justice. This
extraordinary power is to be exercised ex debito justitiae. However, in
exercise of such powers, it is not permissible for the High Court to
appreciate the evidence as it can only evaluate material documents on
record to the extent of its prima facie satisfaction about the existence
of sufficient ground for proceedings against the accused and the court
cannot look into materials, the acceptability of which is essentially a
matter for trial. Any document filed alongwith the petition labelled as
evidence without being tested and proved, cannot be examined. Law
does not prohibit entertaining the petition under Section 482 Cr.P.C.
for quashing the charge sheet even before the charges are framed or
before the application of discharge is filed or even during its pendency
of such application before the court concerned. The High Court
cannot reject the application merely on the ground that the accused
can argue legal and factual issues at the time of the framing of the
charge. However, the inherent power of the court should not be
17Page 18
exercised to stifle the legitimate prosecution but can be exercised to
save the accused to undergo the agony of a criminal trial.
(Vide: Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate &
Ors., AIR 1998 SC 128; Ashok Chaturvedi & Ors. v. Shitulh
Chanchani & Anr. AIR 1998 SC 2796; G. Sagar Suri & Anr. v.
State of U.P. & Ors., AIR 2000 SC 754; and Padal Venkata Rama
Reddy @ Ramu v. Kovvuri Satyanarayana Reddy & Ors., (2011)
12 SCC 437)
13. In Rajiv Thapar v Madan Lal Kapoor, 2013 (3) SCC 330,
this Court while dealing with the issue held as follows:
“ Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing, raised
by an accused by invoking the power vested in the High
Court under Section 482 of the Code of Criminal
Procedure:
(i) Step one, whether the material relied upon by the
accused is sound, reasonable, and indubitable, i.e., the
material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the
accused, would rule out the assertions contained in the
charges levelled against the accused, i.e., the material is
sufficient to reject and overrule the factual assertions
contained in the complaint, i.e., the material is such, as
would persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as false.
18Page 19
(iii) Step three, whether the material relied upon by the
accused, has not been refuted by the
prosecution/complainant; and/or the material is such,
that it cannot be justifiably refuted by the
prosecution/complainant?
(iv) Step four, whether proceeding with the trial would
result in an abuse of process of the court, and would not
serve the ends of justice?”
14. In State of Bihar v. P.P. Sharma & Anr., AIR 1991 SC 1260,
this Court dealt with an issue of whether an application under Section
482 Cr.P.C. for quashing the charge sheet should be entertained
before cognizance is taken by a criminal court and held as under:-
“Quashing the charge-sheet even before cognizance is
taken by a criminal Court amounts to killing a still born
child. Till the criminal Court takes cognizance of the
offence there is no criminal proceedings pending. I am
not allowing the appeals on the ground alternative
remedies provided by the Code as a bar. It may be
relevant in an appropriate case. My view is that
entertaining the writ petitions against charge-sheet and
considering the matter on merit on the guise of prima
facie evidence to stand on accused for trial amounts to
pre-trial of a criminal trial…. It is not to suggest that
under no circumstances a writ petition should be
entertained….. The charge-sheet and the evidence placed
in support thereof form the base to take or refuse to take
cognizance by the competent Court. It is not the case that
no offence has been made out in the chargesheets and
the First Information Report.”
(Emphasis added)
19Page 20
15. The issue of malafides looses its significance if there is a
substance in the allegation made in complaint moved with malice.
In Sheo Nandan Paswan v. State of Bihar & Ors., AIR 1987
SC 877, this Court held as under:
“It is a well-established proposition of law that a
criminal prosecution, if otherwise justifiable and based
upon adequate evidence does not become vitiated on
account of mala fides or political vendetta of the first
informant or complainant.”
16. In Parkash Singh Badal v. State of Punjab & Ors., AIR 2007
SC 1274, this Court held as under:
“The ultimate test, therefore, is whether the allegations
have any substance. An investigation should not be shut
out at the threshold because a political opponent or a
person with political difference raises an allegation of
commission of offence. Therefore, the plea of mala fides
as raised cannot be maintained.”
17. In State of A.P. v. Goloconda Linga Swamy & Anr., AIR
2004 SC 3967, this Court held as under:
“It is the material collected during the investigation and
evidence led in court which decides the fate of the
accused person. The allegations of malafides against the
informant are of no consequence and cannot by
themselves be the basis for quashing the proceeding.”
(See also: K. Karunakaran v. State of Kerala, (2007) 1 SCC 59).
20Page 21
18. Thus, in view of the above, it becomes evident that in case there
is some substance in the allegations and material exists to substantiate
the complicity of the applicant, the case is to be examined in its full
conspectus and the proceedings should not be quashed only on the
ground that the same had been initiated with mala fides to wreak
vengeance or to achieve an ulterior goal.
19. Scheme for inquiry/trial provided under the Cr.P.C. is quite
clear. After investigation, report under Section 173(2) Cr.P.C. is to be
submitted before the competent court i.e. magistrate having
jurisdiction in the matter and the magistrate may take cognizance
under Section 190 Cr.P.C. However, it is still open to the magistrate to
direct further investigation under the provisions of Section 173(8)
Cr.P.C. If the case is triable by the Court of Sessions, the magistrate
would commit the case to the said court under Section 209 Cr.P.C. It
is for the court to examine whether there is sufficient material
collected during investigation and filed alongwith the charge sheet
that a prima facie view can be taken to proceed against the accused
and in view thereof, frame charges under Section 228 Cr.P.C. At this
stage the remedy available to the accused is to ask for discharge under
21Page 22
Section 227 Cr.P.C. In case charges are framed the accused has to
face the trial, charges can be added/altered at any stage of the trial,
before the pronouncement of the judgment to suit the evidence
adduced before the court, under the provisions of Section 216 Cr.P.C.
The only legal requirement is that a witness has to be recalled as
provided under Section 217 Cr.P.C. when a charge is altered or added
by the court.
20. In the instant case, charge sheet had been filed and the
cognizance had been taken by the magistrate concerned; the
committal proceedings have not yet taken place; and some of the
offences attracted in this case are exclusively triable by the Sessions
Court. Umesh Kumar, appellant approached the High Court under
Section 482 Cr.P.C. and the charge sheet has been partly quashed
observing that the provisions of Section 468 IPC are not attracted.
21. The question does arise as to whether such an order attained
finality and in case the evidence is adduced before the court
concerned, whether the trial court can still hold that the applicant is
required to be tried for the offence under Section 468 I.P.C. and
22Page 23
further whether the trial would be competent on the said charge in
exercise of its power under Section 216 Cr.P.C.?
22. In State of Maharashtra v. Salman Salim Khan, AIR 2004
SC 1189, this Court depreciated the practice of entertaining the
petition under Section 482 Cr.P.C. at a pre-mature stage of the
proceedings observing as under:
“….The arguments regarding the framing of a proper
charge are best left to be decided by the trial court at an
appropriate stage of the trial. Otherwise as observed in
this case, proceedings get protracted by the intervention
of the superior courts….The High Court by the impugned
order had allowed the said application quashing the
charge under Section 304 IPC against the respondent
herein while it maintained the other charges and direct
the Magistrate’s court to frame the de novo charges……
We are of the opinion that though it is open to a High
Court entertaining a petition under Section 482 of the
Code to quash charges framed by the trial Court, same
cannot be done by weighing the correctness or
sufficiency of evidence. In a case praying for quashing of
the charge, the principle to be adopted by the High Court
should be that if the entire evidence produced by the
prosecution is to be believed, would it constitute an
offence or not. The truthfulness, the sufficiency and
acceptability of the material produced at the time of
framing of charge can be done only at the stage of trial.
……we think the High Court was not justified in this
case in giving a finding as to the non-existence of
material to frame a charge for an offence punishable
under Section 304, Part II, IPC, therefore so far as the
finding given by the High Court is concerned, we are
satisfied that it is too premature a finding and ought
23Page 24
not to have been given at this stage .….”. (Emphasis
added)
The Court set aside the order of the High Court and left it open
to the trial court to modify the charges in accordance with the
evidence adduced before it.
(See also: Sohan Lal & Ors. v. State of Rajasthan, AIR 1990 SC
2158)
23. A Constitution Bench of this Court reiterated a similar view in
CBI & Ors. v. Keshub Mahindra etc., AIR 2011 SC 2037
observing that when the charges are framed, the court makes an
endorsement till that stage. So charges are framed on the materials
produced by the prosecution for framing the charges “at that stage”.
Such indication is necessary otherwise the provisions contained in
Sections 216, 323, 386, 397, 399, 401 etc. Cr.P.C., would be rendered
nugatory and denuded a competent court of the powers under those
provisions. The court cannot be restrained from exercising its powers
either under Section 323 or Section 216 Cr.P.C.
24. The High Court was approached by Umesh Kumar, appellant
under section 482 Cr.P.C. at a premature stage. At the said stage the
High Court could examine the chargesheet, case diary and other
24Page 25
material in the chargesheet which by no means can be termed as
substantive evidence. (Vide: Lok Ram v Nihal Singh & Ors. AIR
2006 SC 1892).
25. Thus, in view of above, the order of the High Court impugned
before us cannot be termed as a final decision. The order is subject to
further order which could be passed by the trial court under Section
216 Cr.P.C., on the basis of the evidence to be led during trial. If the
impugned order is dubbed as having attained finality, the provisions
of Section 216 Cr.P.C. would render otiose/nugatory. Thus, the same
is to be read that the said order had been passed taking into
consideration the material which was available “at that stage” and it
is still open to the trial court to add or alter the charges according to
the evidence produced before it.
Complaint against Respondent No.2:
26. The complaint was initially made in respect of acquiring huge
immovable properties by respondent No. 2 in his name and in the
name of his wife, and the Central Government had asked the State
Government to conduct an inquiry into the said allegations. The
complaint may be forged or fabricated, but it is nobody’s case that the
25Page 26
copies of sale deeds annexed alongwith the said complaint were not
genuine. While issuing direction to hold inquiry/investigation as to
who had fabricated the said complaint and forged the signatures of
Shri M.A. Khan, M.P., the allegations of acquiring properties by the
respondent No.2 have been abandoned and unattended altogether.
Even though the complaint was bogus, however, the sale deeds
annexed alongwith the same though illegally collected by someone,
have not been found to be fabricated documents.
27. It is a settled legal proposition that even if a document is
procured by improper or illegal means, there is no bar to its
admissibility if it is relevant and its genuineness is proved. If the
evidence is admissible, it does not matter how it has been obtained.
However, as a matter of caution, the court in exercise of its discretion
may disallow certain evidence in a criminal case if the strict rules of
admissibility would operate unfairly against the accused. More so, the
court must conclude that it is genuine and free from tampering or
mutilation. This court repelled the contention that obtaining evidence
illegally by using tape recordings or photographs offend Articles
20(3) and 21 of the Constitution of India as acquiring the evidence by
such methods was not the procedure established by law. (Vide:
26Page 27
Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968
SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888;
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran
Mal v. Director of Inspection, Income-Tax, New Delhi & Ors.,
AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru, (2005) 11 SCC 600).
28. In such a fact-situation if illegally collected material can be
examined by the court of law, we fail to understand how the State
Government could not examine the contents of the complaint on the
basis of the annexed copies of sale deeds etc.
During the arguments of this case, our conscious was shocked
as to the manner the State of Andhra Pradesh has misdirected itself
and abandoned the most relevant issue i.e. complaint against Shri V.
Dinesh Reddy – respondent no.2 and concentrated exclusively against
Umesh Kumar, appellant. Thus, vide order dated 24.7.2013, we have
asked the Chief Secretary of the State of Andhra Pradesh to disclose
as to whether any preliminary/disciplinary inquiry has ever been
conducted by the State in respect of the alleged sale deeds in favour of
the spouse or her general power of attorney holders or relatives of
respondent No. 2.
27Page 28
29. In reply to our order dated 24.7.2013, the Chief Secretary has
filed an undated affidavit though attested by a Joint Secretary to Govt.
of A.P., and has given numerous explanations in respect of the alleged
pseudonymous petition filed with a fictitious name of the Samithi and
with the forged signature of Shri M.A. Khan, M.P. The Chief
Secretary has taken the plea that the Government of A.P. could not
investigate an enquiry about the disproportionate assets of the
respondent no.2 in view of the fact that the High Court of Andhra
Pradesh vide order dated 2.5.2013 stayed the operation of the learned
Single Judge’s order to conduct an enquiry into the allegations. The
Chief Secretary to the Govt. of Andhra Pradesh has not revealed
whether a preliminary enquiry or a domestic enquiry had ever been
conducted till 2.5.2013 when the High Court passed the restraint
order. The complaint was filed on 22.4.2011 and more than two years
had elapsed when the High Court passed the order. No explanation
has been furnished as to why for two years the enquiry could not be
held in this regard.
30. Attestation of the undated affidavit is in utter disregard to the
provisions of Section 139 of the Code of Civil Procedure, 1908.
28Page 29
(hereinafter referred to as the `CPC’). The Supreme Court Rules 1966
under Order XI, Rule 7 also require adherence to the provisions of
Section 139 CPC. Hence, his reply is not worth taking on record and
being undated, renders the same to be a piece of waste paper.
The definition of ‘affidavit’ in Section 3(3) of the General
Clauses Act 1897 provides that it “shall include affirmation and
declaration in the case of persons by law allowed to affirm or declare
instead of swearing”. Thus, it is an essential characteristic of an
affidavit that it should be made on oath or affirmation before a person
having authority to administer the oath or affirmation, and thus, duty
to state on oath on the part of the deponent is sacrosanct. Same
remains the position in respect of administration of oath as required
under the Oaths Act 1873.
(See: Krishan Chander Nayar v. The Chairman, Central Tractor
Organisation & Ors., AIR 1962 SC 602; Chhotan Prasad Singh &
Ors. v. Hari Dusadh & Ors., AIR 1977 SC 407; and M.
Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28).
31. In view of the above, we have no hesitation to hold that the
Chief Secretary had the audacity not to ensure the compliance of the
order of this court dated 24.7.2013, and we have no words to express
29Page 30
our anguish and condemn the attitude adopted by the Chief Secretary.
More so, holding such a responsible post in the State, he must have
some sense of responsibility and should have been aware of what are
the minimum requirements of law, and even if he did not know he
could have consulted any law officer of the State before filing the
undated affidavit.
32. Be that as it may, facts of the case warranted some enquiry in
respect of the allegations of acquiring huge properties by Shri V.
Dinesh Reddy – respondent no.2. The State took the courage to flout
the order of the Central Government and did not look into the contents
of the complaint and misdirected the enquiry against Umesh Kumar,
appellant. In such a fact-situation, this court would not fail in its duty
to direct the enquiry in those allegations.
33. In view of the above, the appeals are disposed of directing the
CBI to investigate the matter against Shri V. Dinesh Reddy –
respondent no. 2 on the allegations of acquiring the disproportionate
assets. However, this should not be considered as expressing any
opinion upon the merits of the case. The Chief Secretary to the
30Page 31
Government of Andhra Pradesh is directed to make the copies of the
said sale deeds available to the CBI for investigation.
34. Case of Umesh Kumar – appellant would proceed before the
Trial Court as explained hereinabove.
A copy of the judgment and order be sent to the Director, CBI,
forthwith. The CBI shall submit the Status Report to this Court within
four months.
……..…………..…………J.
(Dr. B.S. CHAUHAN)
………..……………..……J.
(S.A. BOBDE)
New Delhi,
September 6, 2013
31
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