THE HONOURABLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONOURABLE SRI JUSTICE SANJAY KUMAR Public Interest Litigation No.70 of 2012 26-2-2014 O.M.Debara...Petitioner The Government of Andhra Pradesh General Administration (SPL.C) Department Secretariat Hyderabad Rep. by Chief Secretary and others... Respondents COUNSEL FOR PETITIONER: Sri G. Mohan Rao COUNSEL FOR RESPONDENT NOs.1 & 2: Additional Advocate General, assisted by Government Pleader for General Administration Dept., and Government Pleader for Home Department COUNSEL FOR RESPONDENT NO.3 : Sri V. Ravi Kiran Rao, Special Standing Counsel for Anti Corruption Bureau COUNSEL FOR RESPONDETN NO.4 : Sri J.V. Prasad HEAD NOTE: ?.CITATIONS:
1. 1998 Crl.L.J.
2930 2. (2014) 2 SCC13. AIR1958SC148THE HON'BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON'BLE SRI JUSTICE SANJAY KUMAR PUBLIC INTEREST LITIGATION NO.70 OF2012ORDER
: (per the Hon'ble the Chief Justice Sri Kalyan Jyoti Sengupta) This public interest litigation has been filed in the year 2012 asking the following reliefs: (i) ".To issue necessary directions and guidelines to ensure the functional independence and integrity of the 3rd respondent institution in registration, investigation and prosecution of public servants accused of offences under the Prevention of Corruption Act, 1988 and the matters connected therewith; (ii) to monitor the investigation into bribes received by public servants and others from liquor syndicates in the State by issuing continuing Mandamus to ensure that the 3rd respondent carries out their public duty to investigate into the offences disclosed against all the persons involved irrespective of their status and position in the Government and society and to ensure the logical conclusion to the investigations; (iii) to declare the Para No.2(i) & (ii) of the Memo No.595/SPL.B3/99-2, dated 29.12.1999 issued by the 1st respondent with regard to the registration of cases against Members of Legislatures, as arbitrary, illegal, without jurisdiction, ultra vires the provisions of Prevention of Corruption Act and Criminal Procedure Code and contrary to Article 14 of the Constitution of India and to set aside the same; (iv) to direct review of all the cases during the period from 2003 onwards where the government deviated from the 3rd respondent recommendation of prosecution of public servants under the Prevention of Corruption Act, 1988 by laying down guidelines for the same.".
2. The petition was necessitated to be filed on the following facts as stated by the petitioner in the affidavit filed along with the petition. It is stated that major source of revenue to the State is excise duty on the liquor and the licence fee on the retail sale of liquor and Bars. The contribution to the revenue during the financial year was nearly to the tune of Rs.11,000/ crores. The competition among the liquor traders led to quoting high licence fees in the auctions and consequent indulgence of the shop owner in various illegal activities to increase the sales and to garner more profits. The retail shops owners have formed cartel in towns, mandals and villages known as liquor syndicates and indulging in various illegal activities and turned the State in collusion with excise, police, revenue, legal metrology and politicians in Madya Andhra Pradesh instead of Haritha Andhra Pradesh. The health and productivity of the common man has affected badly due to high consumption of liquor. Some of the illegal activities carried out by the liquor syndicates are stated as follows: (i) Selling of the liquor over and above the MRP (ii) Violation of the opening and closing hours of the shops and bars (iii) Loose sales of the liquor at the shops and its consumption (iv) Sale of non-duty paid liquor. (v) Operation of belt shops (vi) Sale of duplicate liquor The above activities are all in violation of liquor licence conditions, the Excise Act and the M.R.P. Legislation. The above violations and illegal activities ensured high returns to the liquor traders. The above activities are not possible unless money is paid to the officers belonging to the excise, police, revenue, metrology, local public representatives, local Ministers etc. The members of the liquor syndicates are making monthly payments to the enforcement agencies and regular staff of the police, excise and other departments and local politicians to turn a blind eye to the violation of law and fleece of the common man. The illegal trade in the liquor is not possible without making monthly payments to the local Legislators, Member of Parliament, local, Minister and other public representatives. Periodical payments are being made to the concerned Minister also. The liquor business has turned out to be lucrative to the State Government, its Officers and politicians. Thus, a nexus is formed between the liquor businessmen, the law enforcement agencies and the politicians.
3. It is further stated that the local politicians including M.L.As and Ministers entered in the liquor trade directly and indirectly. Most of the liquor syndicates are run by the kin and kith of the Legislators and Ministers. Since the involvement of the Legislators had given immunity for it is the illegal operations impossible for the law enforcement agency to arrest illegal practices, albeit willingness. It is stated that nearly 100 members of Legislators and dozen Ministers are involved in the liquor trade. The nexus between the liquor businessmen, the enforcement agencies and the politicians is thriving in the State at the cost of common man and larger public interest. Above stated activities of the liquor trade are taking place for the last several years and it is a major source of corruption for the excise and the police officials and the politicians. No action was ever initiated by respondent No.3 due to power nexus between the criminals, the enforcement agencies and the politicians.
4. However, on 13.12.2011 a surprise check was conducted by the officials of respondent No.3 in Karimnagar town by intercepting a vehicle belonging to the officials of the Excise Department. The checking up of the vehicle led to the seizure of Rs.3,62,640/- cash from the vehicle. On suspicion that the seized amount was collected as bribe from Wine Shops for favouring them, a case was registered and investigation was taken up. The investigation revealed that the Excise Officials from whom the cash was seized were part of State Level Task Force, Hyderabad, and the same is illegal amount collected from the liquor syndicate in Karimnagar District for protecting them and not taking action under the Excise Act for violation of Excise Laws, the Rules and the Licence Conditions. From the investigation, it is revealed that the State Task Force Personnel of Excise Department has Statewide jurisdiction and such illegal collections are taking place in other places also.
5. It is further stated that in view of the media publicity, coupled with some sincere officers in respondent No.3, led to further searches on various syndicates in the State during the period 14.12.2011 to 17.12.2011. Searches were conducted on 33 liquor syndicates in various places in the State covering 350 shops. During the searches, respondent No.3 officials seized account books, computer hard disks containing the information regarding payment of bribes to the excise, police, other departments and politicians. The information collected during the raids in the above period revealed that an amount of Rs.12,56,69,723/- was paid to Excise, Police and others as bribe. It appears that large amounts are paid to local M.L.As at several places including Ministers. However, respondent No.3 kept the information regarding involvement of M.L.As and Ministers as secret and did not disclose the same in spite of demands from all quarters. The records seized during the period 14.12.2011 to 17.12.2011 were examined and basing on the seized records and interrogation of the arrested persons a report was submitted to the Chief Minister/Government in the last week of December, 2011. However, the contents of the report are not disclosed to the public. It appears that the report contains names of several M.L.As and Ministers who are involved in the illegal liquor trade and received huge amounts as bribes. The report submitted to the Chief Minister in the Month of December 2011 by the respondent appears to have mentioned names of several M.L.As and Ministers, who are involved in the crime. The majority of the Legislators belong to ruling party. It appears, in order to save the ruling party M.L.As and Ministers the respondent No.3 deliberately withheld the report submitted to respondent No.1 in December, 2011 and prepared another report dt.25.1.2012 for giving to the public. The intrinsic evidence can also be found in the report dt.25.1.2012. Even though raids and searches were conducted subsequent to 17.12.2011 also, the alleged report dt.25.1.2012 prepared subsequent thereto does not contain the details of the others. It is the direct intervention of the Hon'ble Chief Minister in the matter which led to the suppression of earlier report which is said to run more than 700 pages with the names of political leaders. Because of the political implications, the said report is suppressed at the behest of the political executive of the State. In view of the aforesaid serious allegations, the present public interest litigation has been filed.
6. This Court at the interim stage passed several orders directing the Anti Corruption Bureau (ACB) to investigate this matter and the investigation has been completed as far as the Officers are concerned and charge sheets have been submitted before the appropriate Court. Therefore, the reliefs claimed in (i) and (ii) of prayer portion are concerned the same are not required to be granted as they have already been granted.
7. Now, prayer (iii) has to be considered. It appears that by the impugned Memo dt.29.12.1999, respondent No.1 has issued the order which reads thus: ".In view of the decision of the Supreme Court of India in the matter of Sri P.V. Narasimha Rao v. State CBI/SPE reported in 1998 Crl. L.J.
2930 (August Part), the Director General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad, has requested to issue guidelines prescribing the procedure to be followed while dealing with cases against Members of Legislature under the Prevention of Corruption Act, 1988 vide his letter cited.
2. After careful consideration of the matter, the following guidelines are issued for dealing with cases against Members of Legislature under the Prevention of Corruption Act, 1988 : - (i) In respect of anonymous and pseudonymous petitions, no cognizance should be taken. (ii) In respect of the signed petitions where the identity of the petitioner can be established, on receipt of information, the Anti Corruption Bureau should make a preliminary verification in the first instance. If, as a result of the preliminary verification, the Anti Corruption Bureau feels that there is a prima facie case then the preliminary verification report will be submitted to an Advisory Board of Experts. This Board of Experts will consist of a retired Judge of High Court, a retired Senior Civil Servant of known integrity and a retired Police Officer of known integrity. If the Board of Experts accept the view of the Anti Corruption Bureau that there is a prima facie case disclosed by the preliminary verification report, then the Anti Corruption Bureau will register a case and conducts a regular enquiry. (iii) After the regular enquiry, if the Anti Corruption Bureau is satisfied that there is enough evidence for successful prosecution, it will refer the case to the Hon'ble Speaker for his/her permission to prosecute the Legislator.".
8. It is contended by the learned counsel for the petitioner because of the aforesaid Memo, ACB cannot proceed further after having enquired into the matter. It is stated that no Advisory Board of Experts has been constituted though it was contemplated. According to the learned counsel for the petitioner, the aforesaid Memo is absolutely unconstitutional as the same cannot be passed transgressing the statutory provisions. It appears that by the aforesaid Memo, the State Government has tried to shield the accused persons and this kind of illegal insulation of the public representatives is not at all justified under the law. Moreover, the aforesaid Memo is also discriminatory in nature and it cannot stand to the test of Article 14 of the Constitution of India.
9. To this, learned counsel for the State respondents submits that in view of the decision of the Supreme Court in the case of P.V. Narasimha Rao v. State (CBI/SPE)1, the aforesaid safeguard measures have been taken so that the peoples representatives are not unduly harassed and this sort of order can be passed by the Government by and under executive power.
10. First, we shall look into the decision in P.V. Narasimha Rao case (supra), whether the said decision at all authorizes the State Government to make provision for taking safeguard measures against the alleged undue harassment to the peoples representatives. Paragraph 95 of the aforesaid report, according to the learned counsel for the State, is appropriate to be taken note of by this Court. Therefore, we set out the said para. ".On the basis of the aforesaid discussion we arrive at the following conclusion :- 1. A Member of Parliament does not enjoy immunity under Article 105(1) or under Article 105(3) of the Constitution from being prosecuted before a criminal Court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof.
2. A member of Parliament is a public servant under Section 2(c) of the Prevention of Corruption Act, 1988.
3. Since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act, 1988, the court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge-sheet in respect of an offence punishable under Sections 7, 10, 11, 13, and 15 of the 1988 Act against a Member of Parliament in a criminal Court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be.".
11. Thus, upon reading of the aforesaid judgment, we do not find anywhere therein the Supreme Court has authorized the State Government to stay hands of investigating agency in taking follow up steps after completion of investigation. It rather clearly shows that there is no embargo to initiate prosecution in accordance with law and for which no clearance of the nature mentioned in the G.O. is required. Moreover, above decision applies in case of Member of Parliament in both the houses of the Parliament. We think judgment is to be applied strictly to the person mentioned therein. It cannot be applied to other person drawing analogy by the executive authority, without specific clarification of the Court as regards applicability of the judgment.
12. Then, the learned counsel for the State refers to a recent decision of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh2, referring to para 120.6 thereof. We are of the view that this paragraph has to be read with paragraph 120.5, then entire thing would be clear. Therefore, we set out paragraph 120.5 hereunder: ".120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.". Paragraph 120.6 of the said judgment reads as under: ".120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.". It appears from reading of entire Judgment, the Apex Court was concerned with reckless abuse of laws relating to criminal justice delivery system right from stage of investigation. While doing so the basic principle has been reiterated by the Hon'ble Apex Court that if information discloses commission of any offence prima facie it is good enough for the Police Officer to start investigation and he has duty to do so. But, in certain cases the Supreme Court has given certain guidelines to make a preliminary investigation, in order to prevent clear abuse of law, but that does not mean that investigation is to be stopped and result thereof should not be placed before the Court and this judgment does not authorize the State Government to impede and hamper any investigation or prevent the Officer in charge of the concerned Police Station from initiating action if offence relating to corruption is disclosed.
13. In the counter affidavit, no justification has been put forward citing provision of law for passing impugned Memo (executive order). Nothing has been conveyed in the affidavit to support the same as the deponent remains absolutely silent. Therefore, we presume that there is no authority nor learned counsel could bring any provision of law to satisfy us under what provision of law the Memo has been issued.
14. Upon careful reading of the aforesaid order, it clearly shows that the intention of the Government was not to allow legal course to be taken consequent upon investigation rather to interfere with the independent functioning of the Police Officers for taking up further step in an offence of this nature. It seems to us that allegations of corruption cases against M.L.As under Prevention of Corruption Act, 1998 have been sought to be shielded by this Memo. We fail to understand as to why the Advisory Board of Experts should at all be constituted for this purpose and even this Advisory Board of Experts has not been constituted pursuant to the aforesaid order. Thus intention of government is clear that legal prosecution shall not take place ever. It is absolutely mala fide decision and taken in sheer abuse of the power. We do not think power under Article 162 of Constitution of India is extendable to occupied field of Legislation, as it can be done only in unoccupied field.
15. Investigation of crimes is obviously an occupied field for a long time even before commencement of the Constitution. The Code of Criminal Procedure (now 1973), read with Prevention of Corruption Act, 1988 clearly mention how investigation has to be started and in which manner and trial to take place. According to us, this executive Memo militates against statutory provisions of law. It is settled position of law what the Legislature has provided executive is bound to implement, but not to impede. If this action is supported, it amounts to interference with the functioning of the Legislature. Even reading the text of the order, we are of the view that aforesaid measure is designed to insulate the M.L.As if not Ministers from being brought to book in commission of crime, in the name of so called legitimate safeguard measure. The above G.O. is not only devoid of any authority, but also unconstitutionally discriminatory as the law does not permit any such special treatment to be meted out, and only exception is that in some cases sanction for prosecution may be required; whether such sanction is required for the M.L.As, we are not dealing with on this point in this given case since fulfledged investigation has not been started because of the impugned Memo. When the ordinary citizens or even public servants including Judges of the Courts, are to be subjected to the same procedural legal actions, why the M.L.As, should be classified separately by the executive authority is not understandable. Therefore, such classification without any discernible justification or reasonableness deserves to be deprecated.
16. In view of above discussion, we declare that the impugned Memo dt.29.12.1999 is wholly unconstitutional and invalid insofar as it relates to formation of Advisory Board of Experts or its permission. The constitution of Advisory of Board of Experts is not contemplated under any provision of law. The same is set aside.
17. Therefore, the ACB shall proceed with the matter in accordance with law, however, keeping in view the Supreme Court guidelines where a little bit of safeguard measure has been given for holding preliminary enquiry, in order to ascertain whether there is prima facie case or not. To that extent, they will do. Accordingly, the ACB shall proceed to investigate into the matter on war- footing since it is an old case and after preliminary investigation is completed and on finding of prima facie involvement in the offence, thereafter, if sanction for prosecution of those persons is required under law then they shall take such sanction, because we have not decided whether sanction is required or not.
18. The next prayer is to direct review of all the cases during the period from 2003 onwards where the government deviated from the 3rd respondent recommendation of prosecution of public servants under the Prevention of Corruption Act, 1988 by laying down guidelines for the same. It is stated that no sanction has been granted as yet. In the counter affidavit dt.15.4.2012, in paragraph 9 thereof, the following stand is taken for delaying the sanction procedure. "....Government takes a decision on the sanction of prosecution following certain procedures. The Accused Officer is given an opportunity to submit his defense and on receipt of the explanation of the Officer, depending on the evidence produced and the circumstances of the case, a decision is taken either to sanction or to reject prosecution. The averments of the petitioner in this regard is not correct.". In paragraph 10 of the said counter, it is stated as under: "....It is submitted that C.B.I. and A.C.B. are different organizations and its mandates are different. It is submitted that no time limit for sanction of prosecution can be decided wherein due diligence is required while processing cases. Many cases are complicated in nature which require thorough examination. The Government of India in respect of All India Services Officers has forwarded a checklist while processing the proposal for sanction of prosecution. Some of the issues to be taken care of are - the version of the Accused Officer has to be obtained and the comments of the Investigating Agency thereon and the opinion of the Legal Department is also to be obtained. Finally, the State Government has to give its opinion, while forwarding the case for sanction of prosecution.".
19. It appears that aforesaid stand is taken in the counter affidavit to see that the accused individual are not prosecuted ever and to remain at large beyond reach of legal machinery. Learned counsel for the State is unable to show any provision of law to enable the State to formulate novel if not evil design to shield prospective arraigned person in criminal trial. Even in the counter affidavit, nothing has been mentioned with regard to the government policy decision for sanction.
20. We are surprised to see that before granting any sanction the accused is to be given a chance of hearing. We are of the view that such procedure is unheard of under law because at the time of granting sanction no adjudication is done affecting any interest. Hence, question of giving opportunity does not and cannot arise. Investigating materials and first information report would be produced before sanction granting authority who will examine the same, if prima facie offence is found to have been disclosed, with the materials produced before him, sanction is granted. It is impossible to accept the idea that an accused should be given a chance of hearing by the executive which is primary function of the Court and Court alone for the simple reason, if any person aggrieved by lodgment of the first information report wants to challenge the same, he can do before concerned Court, for quashing. After hearing both parties the Court will decide whether the first information report is sustained in the eye of law for the purpose of investigation or not. It is only to see whether prima facie offence is disclosed, supported by materials, and this has been clearly laid down by the Supreme Court in Indu Bhusan v. State of West Bengal3. It is appropriate to record the following observations in para 9 of the report: ".It was not for Mr. Bokil to Judge the truth of the allegations made against the appellant, by calling for the records of the connected claim cases or other records in connection with the matter from his office. The papers which were placed before him apparently gave him the necessary material upon which he decided that it was necessary in the ends of justice to accord his sanction.". This judgment was rendered in the context of Prevention of Corruption Act then prevailing.
21. We, therefore, direct the Government to take up the question of sanction of prosecution of those officers against whom sanction sought for and decide within a period of three months from the date of receipt of a copy of this order taking note of above observation.
22. We also direct the ACB to start investigation in terms of this judgment against rest of the persons but for above impugned G.O. it could not be done. The New Officers who would be resuming investigation into the matter should not be transferred without permission of the Court, because it is necessary to retain them for investigation purpose, and they shall without wasting time start the investigation and submit a report about progress of the investigation, within three months from the date of receipt of a copy of this order.
22. The public interest litigation is accordingly disposed of. There will be no order as to costs.
23. Consequently, pending miscellaneous petitions in this matter shall stand dismissed. Matter to appear four months hence for reporting compliance. ________________________ K.J.
SENGUPTA, CJ ______________________ SANJAY KUMAR, J262.2014