Dr. Kondapally Venkateswarulu Vs. Kodela Siva Prasad Rao and ors. - Court Judgment

Motilal B. Naik, ACJ

1. This is a Public Interest Litigation filed by one Dr. Kondapally Venkateswantlu, Medical Practitioner, resident of Narsaraopet, Guntur District. He seeks a Writ of mandamus or any other appropriate order or relief declaring the action of the fourth respondent for not giving consent to the fifth respondent for proceeding with the investigation in the criminal cases pending against the first respondent as illegal, arbitrary and violative of the principles of natural justice and further seeks a direction to the fourth respondent to give consent to the fifth respondent for proceeding with the investigation in thecriminal case registered against the first respondent and to direct the 5th respondent to proceed with the investigation and file charge sheet in Crime No. 121 of 1991 on the file of Narsaraopet Town Police Station, in the interest of justice.

2. The gist of pleadings in the writ petition may be stated thus:

3. Petitioner claims to be Medical Practitioner for the past 17 years, is a resident of Narsaraopet. He seems to have contested assembly elections from Narsaraopet Constituency in the year 1999. The first respondent was also a practising Doctor at Narsaraopet. There seems to be some enmity between the petitioner and the first respondent as they contested against each other in elections and also they are followers of two different political parties. From paragraphs 1 to 12, petitioner narrates several instances showing involvement of the first respondent, such as ransacking the properties, creating law and order problems during electioneering, assaulting public servants during electioneering etc. It is alleged that though several criminal cases were registered against the first respondent but some of them were not investigated and few of them are withdrawn as the first respondent used his political influence. However, from para 13 onwards, petitioner narrates the incident of bomb explosion which took place on 28-8-1999 at Narsaraopet during elections to Lok Sabha. According to him, during elections to Assembly and Lok Sabha in the year 1999, there was heavy explosion of bombs that were preserved in the building owned by the first respondent in Narsaraopet Town. He alleges, as a result of explosion, four followers of the first respondent died on the spot and extensive damage was caused to the building. Though local police conducted investigation, due to pressure from public, the Government entrusted the case to CBCID. Petitioner, however, complains that handingover the case to CBCID is only an eyewash and the case has not properly been investigated by the CBCID. In this background, one Mr. Kasu Krishna Reddy was compelled to file Writ Petition No. 18471 of 1999 in the High Court of Andhra Pradesh seeking a direction to handover the investigation of the said case to CBI. The said Writ Petition was disposed of on 29-9-1999 by a Division Bench directing the Government to handover the investigation of the said case to CBI. Pursuant to the direction issued by this Court, the CBI took up investigation and examined number of witnesses, collected material objects, which showed involvement of the first respondent in the crime. Though investigation was completed in which sufficient material was found against the first respondent, prosecution could not be launched against the first respondent, as, under the provisions of the Explosives Substances Act, 1908, unless the Central Government gives consent, prosecution cannot be initiated against the offender.

4. It is alleged by the petitioner that the CBI after examining number of witnesses and after collecting material against the first respondent sought consent of the Central Government for prosecuting the first respondent. It is further alleged, the Central Government headed by the present Prime Minister and Deputy Prime Minister who is also holding Home Portfolio, were influenced by the first respondent for not granting consent and as a result, the consent was withheld on substantial grounds as if there are no grounds for granting consent. It is also alleged that since the first respondent is very closely associated with the Ruling Party and through the Chief Minister of this State has also influenced the Prime Minister and the Deputy Prime Minister of India and has abused his position to bury the incident which had taken place in which four of the followers of the first respondent had died.

5. It is in this background, the present Writ Petition is filed seeking a relief as indicated above.

6. Subsequently, an additional affidavit has also been filed by the petitioner stating that he has come across certain valuable information with reference to the case and prays this Court to treat that material as part of the pleadings and prays the Court to decide the merits of the case on the basis of the additional material papers placed before the Court. Petitioner also alleges that when CBI had asked opinion of the Central Government, the legal department of the Central Government was prima facie convinced that there is substantial evidence to file a charge sheet for prosecuting the first respondent but because of the close contacts the first respondent has with the Central Government, an opinion from the Attorney General of India was obtained to the effect that no material is available substantiating the involvement of the first respondent for prosecuting the first respondent. It is also alleged that the first respondent though involved in several criminal cases, with his high level contacts, successfully managing the prosecution agencies, which has resulted in withdrawal of several cases filed against him. Petitioner, therefore, prays for interference by this Court by issuing necessary directions declaring the opinion given by the Attorney General of India in the case as invalid and mala fide-oriented and seeks a consequential direction to appropriate authorities for launching prosecution against the first respondent.

7. Initially, the Chief Minister of Andhra Pradesh by name was made as a party-second respondent, later by an order of this Court dated 3-12-2002, the name of the Chief Minister of Andhra Pradesh was skipped and the State of Andhra Pradesh represented by the Chief Minister is made a party-second respondent.

8. Counters have been filed by the first respondent and 4th respondent against whom principal allegations are made.

9. The first respondent, in his counter, denied the allegations made against him and traced his association with late N.T. Rama Rao who is the founder-father of Telugu Desam Party and his contest in the elections to the Assembly Constituency of Narsaraopet. It is alleged, the petitioner in the year 1999 joined the political party led by Lakshmi Parvathi wife of late N.T. Rama Rao and contested the elections and was defeated. It is further alleged by the first respondent that the petitioner having lost election against him, has developed grudge against him and is indulging in damaging the reputation and position of the first respondent. The first respondent also stated that no public interest is involved in the present case and it is only the personal interest of the petitioner is involved. The first respondent also specifically denied various allegations of ransacking the hospital of the petitioner etc.

10. First respondent alleged that the petitioner is responsible for various cases foisted against him which is designedly done to harm the interest of the first respondent who has succeeded in political career. It is alleged by the first respondent that after becoming Minister, he shifted his residence to Hyderabad and the hospital is leased out to Smt. Kavitha, wife of Dr. K. Achyuta Babu on 19.9.1998 for running a hospital, which is run in the name and style of 'Palanadu Poly Clinic'. According to him, after obtaining the lease agreement, the Doctor has obtained loan from the Central Bank of Narsaraopet and established a clinic and at the time of incident, the said building was not in his possession and enjoyment. The first respondent has also denied the allegation about his influencing the Hon'ble Prime Minister and Deputy Prime Minister though they were invited to Hyderabad inconnection with a function arranged in Cancer Hospital Institute which is in the name of the wife of late N.T. Rama Rao. It is also alleged that since there was no material sufficient for prima facie holding the first respondent guilty of explosion, a Report under Section 173 of Cr.PC was filed by the concerned police before the Magistrate on 23-11-2001. The Magistrate accepted the report and closed the case by order dated 14-12-2001, It is also stated in the counter that such closure of the case on the basis of the report was challenged before this Court in WP No. 26565 of 2001 and a Division Bench of this Court dismissed the Writ Petition accepting the closure report. The first respondent, under these circumstances, sought dismissal of this Writ Petition.

11. On behalf of the fourth respondent, a counter-affidavit is filed which is sworn in by one Laph Singh Chane, Deputy Secretary, Ministry of Home Affairs, Government of India. It is stated in the counter that though the CBI sent a proposal for grant of sanction for prosecuting the first respondent, the said report was processed by the Home Ministry and sanction was not accorded for want of material to prove the charges against the first respondent. In para-11 of the counter, it is stated that at no point of time, the Law Minister expressed any opinion in respect of the sanction or otherwise except referring the matter for opinion of the Law Officer. Learned Attorney General twice opined that there is no prima facie case for sanctioning prosecution against the first respondent in respect of an offence falling under Section 5 of the Explosive Substances Act, 1908. The fourth respondent denied the allegations made by the petitioner and clarified that in the opinion of the learned Attorney General, no prima facie case is made out for granting sanction to prosecute the first respondent and as such the sanction was withheld. In the circumstances, the fourth respondent statedthat the writ petition which is founded on baseless allegations is liable to be rejected in limini,

12. The relief sought in the Writ Petition is a Writ of mandamus or appropriate direction declaring the action of the fourth respondent for not granting consent to the fifth respondent, proceeding with the investigation in the criminal case pending against the first respondent as illegal and: arbitrary and a further direction to the fifth respondent to proceed with the investigation and file a charge-sheet in Crime No. 121 of 1991 of Narsaraopet Town Police Station. From the gist of the allegations, it would appear to us that the petitioner has grievances against the fourth respondent in not giving consent to the 5th respondent for prosecuting the first respondent relating to an incident of bomb explosion which took place on 28-8-1999 at 10-00 p.m., in Narsaraopet in Guntur District, the scene of offence being the Nursing Home which is owned by the first respondent. However, the relief sought is with reference to Cr.No. 121 of 1991 of Narasaraopet Town Police Station.

13. If the petitioner desires, a direction to be issued to the fourth respondent to grant consent to the fifth respondent to proceed with the investigation into the pending case in Cr.No. 121 of 1991, we must say without any hesitation that the fourth respondent has not prevented the fifth respondent from investigating into the pending case in Cr.No. 121 of 1991 nor any consent was sought with regard to the said incident. On this ground the writ petition could be dismissed. However, from the narration of facts it would appear to us that the petitioner has shown concern with regard to an incident relating to bomb explosion, which took place on 28.8.1999 at 10 p.m., in Narasaraopet Town of Guntur District.

14. On behalf of the writ petitioner, two important submissions are made bySri S. Ramachandar Rao, learned Senior Counsel contending that the first respondent has used his influence and because of his influence, proximity and close contact with several high dignitaries, has managed to get several criminal cases filed against him withdrawn from various Police Stations without conducting further investigation and thus succeeded in preventing to take action according to law. It is secondly contended that though the Law Ministry and the CBI had opined that there is prima facie material for launching prosecution against the first respondent, as provided under Section 7 of the Explosive Substances Act, 1908, the consent of the Central Government is required in a case under the provisions of the said Act for launching prosecution, and as such the Law Ministry sought opinion of the learned Attorney General, who prima facie opined that the most relevant evidence regarding conscious control or possession of the premises in question would be the testimony of Dr. K.A. Babu, curiously no attempt has been made to elicit the facts from Dr. K.A. Babu and the matter may be reviewed further after the testimony of Dr. Babu is obtained. From this piece of opinion rendered by the learned Attorney General, the learned Senior Counsel would contend that the respondents should have recorded the statement of Dr. K.A. Babu, who was a Lessee of the premises in question and running a nursing home and thereafter the second opinion of the learned Attorney General could have been sought. The learned Senior Counsel stated that in normal circumstances, as opined by the learned Attorney General, the statement of Dr. K.A. Babu should have been recorded and again the material should have been placed before the learned Attorney General for obtaining necessary opinion and in the absence of these steps, the respondents, only on the basis of the first opinion could not have withheld the consent for launching prosecution against the first respondent. It is also stated by the learned Senior Counselthat the manner in which opinion is sought from the learned Attorney General gives scope for suspicion and pleaded that without regard to the opinion of the learned Attorney General, on the basis of the report of the CBI and Law Ministry's first opinion, fourth respondent could be directed to grant consent to the fifth respondent for launching prosecution against the first respondent.

15. We have already recorded, in the counter filed on behalf of the fourth respondent, it is categorically stated that the second opinion of the learned Attorney General was also obtained after recording the statement of Dr. K.A. Babu. The second opinion so obtained from the learned Attorney General, dated 13.11.2001 is also placed before us along with the entire record. In the second opinion the learned Attorney General also refers to the earlier opinion given by him wherein it was indicated that the statement of Dr. K.A. Babu could be recorded and the matter could be reviewed. While referring to the said incident, the learned Attorney General opined thus:

'The only material which was not before me when I gave my opinion are the statements of Dr. K.A. Babu. In his statement dated 15.11.1999, Dr. Babu has categorically stated that except the 32 rooms situated in front portion of the ground floor, there was no other room under the occupation of Palnadu Polyclinic. From this statement it can be inferred that except these 12 rooms situated on the ground floor, other rooms were in possession of Dr. Prasada Rao.

The real issue however is whether Dr. Prasada Rao knowingly had in his possession or under his control any explosive substances. After going through the file I have not come across any material or evidence, direct or indirect, which would indicate that Dr. Prasada Rao had knowledge or was in conscious possession or control of the explosive substances which led to the explosion in Room No. 8.

No doubt conspiracy is always hatched in secrecy and executed in darkness and agreement to conspire can be proved by necessary implications. Yet it is incomprehensible how the charge of conspiracy can be established in view of the fact that the other co-conspirators have died. There are no statements made by them while they were alive implicating Dr. Prasada Rao. At least, none has been brought to my notice. Consent for prosecution cannot be granted on the basis of mere suspicion or surmise.

In view of the aforesaid facts, there is no reason to revise my earlier opinion.'

16. At the outset we may discard the statement made on behalf of the writ petitioner by the learned Senior Counsel that after recording the statement of Dr. K.A. Babu, the matters are not placed before the learned Attorney General for his further opinion. Since the fourth respondent has categorically stated in his counter that the second opinion is also sought from the learned Attorney General after obtaining the statement of Dr. K.A. Babu and the entire record relating to the proceedings for seeking opinion and withholding the consent is placed before us we have also abstracted the second opinion of the learned Attorney General in the foregoing paragraph, which is self-explanatory.

17. The learned Senior Counsel though contended that the opinion is not based on profound principles, the learned Attorney General, being the highest legal adviser to the Central Government, there was no reason for the Central Government to reject the opinion rendered by the learned Attorney General and as such the Government of India was justified in accepting the opinion of the learned Attorney General. We are of the firm view, no comments need be entertained on the opinion given by the learned Attorney General. In all fairness, the petitioner should have accepted the opinion given by the learned Attorney General insteadof choosing to attribute something to the opinion rendered by the learned Attorney General. We record our anguish the manner in which the opinion of the learned Attorney General is sought to be looked with suspicion.

18. Section 5 of the Explosive Substances Act, 1908 provides punishment for making or possessing explosives under suspicious circumstances, which reads as under:

'Section 5. Punishment for making or possessing explosives under suspicious circumstances :--Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added.'

19. Section 6 of the Explosive Substances Act, 1908 provides punishment for abettors, which reads as under:

'Section 6. Punishment of abettors :--Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence.'

20. Section 7 of the Act deals with restriction on trial of offences, which reads as under:

'Section 7. Restriction on trial of offences :--No Court shall proceed to the trial of any person for an offence against this Actexcept with the consent of the Central Government.'

21. A reading of Section 5 of the Act would amply demonstrate that any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicions that he is not making it or does not have it in his possession or under his control for a lawful object is liable for punishment. Section 6 provides punishment for abettors and Section 7 imposes a condition that consent of the Central Government is mandatory for launching prosecution against a person, who commits an offence under this Act.

22. The opinion of the learned Attorney General on two occasions, leaves no doubt in our mind that there is no material to connect the first respondent with the incident of bomb explosion which took place on 28.8.1999 in Narasaraopet Town.

23. In Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra, : 1981CriLJ588 the Supreme Court held thus:

'In order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove-(i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (Hi) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.'

The Supreme Court further held that the burden of proof of these ingredients is on the prosecution.

24. In the light of the provisions under Sections 5, 6 and 7 of the Act and the ratio laid down by the Supreme Court in the decisions cited supra, it has to be seenwhether there is sufficient material against the first respondent pointing out his involvement directly or indirectly to the incident that took place on 28.8.1999 in Narasaraopet Town. The first and second opinions given by the learned Attorney General of India, which we refer to in our order, it would appear that there is no material to establish that the first respondent was in conscious possession or control over the explosive substances inasmuch as, the room in which the explosive substance was found, was found in possession and control of the deceased Satishkumar. It is true that the premises in question belongs to the first respondent, but the said premises was leased out to Smt. Kavitha, wife of Dr. K.A. Babu, in which a poly clinic is also run by the said Dr. K.A. Babu. From these factors, which are available on record, it is difficult for us to agree to the various submissions made by the learned Senior Counsel on behalf of the writ petitioner, who in his effort, tries to convince us that from the report of the CBI a prima facie case is made out for launching prosecution against the first respondent and yet the Central Government withheld the consent for various considerations, which according to the learned Senior Counsel is a massive effort made by the Central Government to cover-up the operation for various reasons. We do not think this submission could be tenable in the light of our discussion.

25. This lis is claiming to be a Public Interest Litigation bringing to the notice of this Court about the maladies seeking appropriate direction. In the affidavit filed in support of the writ petition, the petitioner himself has admitted that there are longstanding grievances between him and the first respondent, who are politically opposed to each other. It is also admitted that the petitioner contested election against the first respondent and lost the said election.

26. In S.P. Gupta v. Union of India, : [1982]2SCR365 , the Supreme Courtobserved that the Court must be careful that the members of the public who approach the Court are acting bona fide and not in personal garb of private profit or political motivation or other oblique consideration. It was further held that the Court must not allow its process to be abused. In Veena Sethi v. State of Bihar, : 1983CriLJ675 , the Supreme Court held that the role of law requires to be played for the poor and ignorant who constitute a large bulk of humanity and the Court must uphold the basic human rights of weaker sections of the society. In Sachinanad Pandey v. State of West Bengal, : [1987]2SCR223 , the Supreme Court held that the Court should not take cognizance in such matters merely because of its attractive name and that the petitioner must inspire the confidence of the Court and must be above suspicion. The main object of Public Interest Litigation is to promote the interests of the weaker groups or a class of people who are socially and economically disadvantaged or handicapped on account of their peculiar circumstances by taking up their matter before the Supreme Court or the High Court for the purpose of redressal.

27. Keeping these general principles into consideration, if we are to analyze the relief sought by the petitioner, the fact that the petitioner is opposed to the first respondent politically and lost the election against the 1st respondent, cannot be ignored. As discussed by us elaborately and as rightly opined by the learned Attorney General that the material collected by the investigation agencies fail to prima facie establish nexus to connect the first respondent with the bomb explosion that took place on 28.8.1999 in Narasaraopet Town. We concur with the view of the learned Attorney General and hold that the nexus to connect the 1st respondent with the incident is not established for granting consent as provided under Section 7 of the Explosive Substances Act to launchprosecution. The action of the respondents in refusing to grant consent to launch prosecution against the first respondent, in the facts and circumstances of the case, is appropriate and no interference is called for by this Court.

28. For all the reasons, the Writ Petition is dismissed. No order as to costs.