In fact, the question of prosecuting a non-public servant for any offence covered by the P.C. Act arises if there is any possibility of ascertaining basing upon the evidence to be recorded as to whether the public servant involved in connivance with the non-public servants being the concerned Commercial Tax Officer in committing the alleged offences along with the non-public servants. It all depends upon whether the prosecution can be allowed to record evidence against him with reference to the charge under the P.C. Act. 'Abatement' means an extinguishment of the very right of action itself or to cease, terminate or come to an end prematurely and consequently the right of the prosecution to prosecute a deceased accused in a criminal case is effectually wiped out. Unless the public servant is held to be guilty of the charge punishable under the P.C. Act on the basis of the evidence which can be recorded, there will not be any possibility to uphold the same charge against the non-public servants. Therefore, when in view of the abatement of the charge against the public servant the question of reopening it against him does not arise at all, the question of considering that charge against the non-public servants also does not arise at all.
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Criminal Petition No. 901 of 2008
Decided On: 23.09.2011
Appellants: Sri Amara Krishna Mohan Rao, Uppugunduru, Prakasam District and Ors.
Vs.
Respondent: The State of Andhra Pradesh,
Vs.
Respondent: The State of Andhra Pradesh,
Hon'ble Judges/Coram:
Hon'ble Sri Justice G. Krishna Mohan Reddy
Hon'ble Sri Justice G. Krishna Mohan Reddy
Citation;2012 CRLJ969
1. This Criminal Petition is filed under Section 482 Cr. P.C. seeking to quash proceedings in C.C. No. 41 of 2004 on the file of Court of Special Judge for SPE & ACB Cases, Nellore insofar as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act') with reference to the petitioners who are A1 to A5 (for short A1 to A5') in the calendar case.
2. The respondent-complainant (for short 'the complainant) filed charge sheet against A1 to A5 for offences punishable under Section 13(2) read with Section 13(1)(d) of the P.C. Act and Sections 420, 468, 471 and 477(a) IPC read with Section 109 IPC.
3. The prosecution version is as follows:
On receiving necessary information, concerned officials of the Anti-Corruption Bureau conducted regular enquiry basing upon which, the case was registered in Cr. No. 11/RCO-NLR/2002 under Sections 13(2) read with 13(1)(d) of the P.C. Act and Sections 120-B and 420 read with 34 IPC on 4.9.2002 and investigated into the matter. In fact, the investigation of the case reveals that Registration Certificates for doing business in sensitive commodities like Pulses, Dhal, Bengalgram, Oils and Oil Seeds should be invariably given and also additional inclusions of sensitive commodities in the existing RCs should be done only on the orders of the concerned Deputy Commissioner (CT), but one M.A.G. Ranjan, the then Commercial Tax Officer, Ongole who is no more, now connived with A4, A5 and A7 and issued permissions to them for doing business in sensitive commodities like Pulses, Dal, Oil Seeds, Chillies, Turmeric giving an endorsement in the existing registration certificates under APGST and CST Acts without the approval of the Deputy Commissioner and he also issued way bills indiscriminately under those Acts without watching utilisation/tax collection particulars and without scrutinizing A2/CST VI returns properly and without cross verification of exemptions claimed in the returns or in the way bills/utilisation statements in connivance with A1 to A5 (A1 is the husband of A4 and A2 and A3 are the sons of A1 and A4) and thereby enabled A1 to A5 to indulge in clandestine trading and evade necessary tax payable by them and consequently caused loss of Rs. 2.33 crores to the State exchequer and accordingly obtained wrongful gain by his criminal misconduct. In fact, A1 to A5 are liable to pay the following amounts with regard to the corresponding losses.
Name APGST CST TOTAL A1 Amara Krishnamohan Rao 1,95,755 19,13,830 21,09,585-00 A2 Amara Bangaru Babu 15,35,182 41,72,224 57,07,406-00 A3 Amara Venkata Subba Rao 12,92,509 42,10,440 55,02,949-00 A4 Amara Satyavathi 11,65,228 36,75,801 48,41,029-00 A5 KalikiJali Reddy 10,92,180 40,77,682 51,69,862-00
Therefore, they have committed the alleged offences.
4. It is the contention of Learned Counsel for A1 to A5 that when it is according to the prosecution that the Commercial Tax Officer namely M.A.G. Ranjan in connivance with A1 to A5 committed the crime punishable under Section 13(2) read with Section 13(1)(b) of P.C. Act along with other offences and thereby A1 to A5 are also liable for punishment under those provisions of law and admittedly the Commercial Tax Officer having been the principal accused died and consequently the entire case was abated insofar as he is concerned by reason of which the question of proving that offence against A1 to A4 has lost its ground, accordingly, the same charge has to be deleted in favour of A1 to A5. In support of his contention, the Learned Counsel has relied upon the decision in N.P. Prabhu v. Union of India MANU/KE/0027/2003 : 2003 Cri. L.J. 2261.
5. On the other hand, it is the contention of learned Public Prosecutor that prima facie there is clear material that the deceased Commercial Tax Officer involved in committing the said offence under the P.C. Act in connivance with A1 to A5 and even though he is no more, there is a question to be decided as to whether A1 to A5 induced and encouraged the deceased to commit the offence in relation to the works of the public office and unless they are tried, the same aspect cannot be brought to light and hence at this stage, they cannot be discharged of the offence.
6. Therefore, it has to be considered as to whether A1 to A5 are to be discharged of the offence punishable under Sections 13(2) read with Section 13(1)(b) of P.C. Act and Section 109 IPC on the ground that the principal accused so far as that charge is concerned died and accordingly the case registered against him was abated.
7. In N.P. PRABHU v. UNION OF INDIA (1 supra), a complaint was filed against one Dilip D. Khona, Partner M/s Devshi Bhanji Khona, Shipping Clearing and Forwarding Agents Wellington Island, Kochi-8, alleging commission of offences punishable under Sections 13 and 14(b) of the P.C. Act on the ground that he involved in bribing a Plant Quarantine Inspector for issuing phytosanitary certificate and before concerned Special Judge it was argued that without the prosecution of the said public servant it was not proper to prosecute a non-public servant and relying upon decision in P. Nallammal v. State MANU/SC/0455/1999 : (1999) 6 SCC 559, the Special Judge held accordingly that there was no question of prosecuting the non-public servant for the alleged offences when the principal accused died, whereas before the High Court where the matter was carried it is observed that the learned Special Judge misunderstood the decision of the Supreme Court in which it was only considered as to whether a non-public servant could be tried along with the public servant for the offence punishable under Section 13(1)(e) of the P.C. Act read with Section 109 IPC and held that if the non-public servant was a member of the criminal conspiracy along with the public servant, following which the public servant committed the offence using his position, the non-public servant would be liable to be prosecuted for the offence though the offence was abated so far as the public servant was concerned in view of his death and there was nothing in the decision to indicate that the non-public servant alone could not be tried for such offence and accordingly set aside the order passed by the Special Judge.
8. It is necessary to examine the ambit of Section 13(2) read with Section 13(1)(d) and other relevant provisions of the P.C. Act when a public servant who is charged of an offence punishable thereunder died and it remains only against a non-public servant.
9. 13: Criminal misconduct by a public servant
(1) A public servant is said to commit the offence of criminal misconduct, -
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in (section 7)
or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
Section 4 of the Act reads as under:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by special Judges only.
Section 3 of the Act is with regards to Power to appoint special Judges-
(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary, for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely :-
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973.
10. Thus, clause (b) of Section 3(1) of the Act clearly and categorically encompasses the offences committed in conspiracy with others or by abetment of 'any of the offences' punishable under the P.C. Act.
11. The Hon'ble Supreme Court under the circumstances enumerated above in the decision cited observed "If such conspiracy or abetment of 'any of the offences' punishable under the P.C. Act can be tried 'only' by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy along with a public servant to commit any offence under the P.C. Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter." Therefore, it was only considered by the Supreme Court as to whether a non-public servant was to be tried for such an offence covered by the act along with a public servant who was also charged with the same offence along with the non-public servant. There was no question as to whether the non-public servant was to be tried when the public servant i.e. the principal accused died and the offence was abated so far as he was concerned under similar circumstances and hence the analogy put-forth by the Supreme Court is not applicable here. Thereby, I do not agree with the proposition laid down by the Kerala High Court.
12. In fact, the question of prosecuting a non-public servant for any offence covered by the P.C. Act arises if there is any possibility of ascertaining basing upon the evidence to be recorded as to whether the public servant involved in connivance with the non-public servants being the concerned Commercial Tax Officer in committing the alleged offences along with the non-public servants. It all depends upon whether the prosecution can be allowed to record evidence against him with reference to the charge under the P.C. Act. 'Abatement' means an extinguishment of the very right of action itself or to cease, terminate or come to an end prematurely and consequently the right of the prosecution to prosecute a deceased accused in a criminal case is effectually wiped out. Unless the public servant is held to be guilty of the charge punishable under the P.C. Act on the basis of the evidence which can be recorded, there will not be any possibility to uphold the same charge against the non-public servants. Therefore, when in view of the abatement of the charge against the public servant the question of reopening it against him does not arise at all, the question of considering that charge against the non-public servants also does not arise at all.
13. Therefore, it is not acceptable the contentions raised by the learned Public Prosecutor.
14. Ultimately, the petition is to be allowed as prayed for quashing the proceedings so far as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 is concerned.
15. In the result, accordingly, the petition is allowed.
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