Umesh Kumar V State of Andhra Pradesh

8/10/2019 Umesh Kumar V State of Andhra Pradesh

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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.130 of 2013

J U D ! M E N T

D". B.S. CHAUHAN# J.

1. Both these appeals have been preferred against the impugned

judgment and order dated 11..!"1! passed b# the $igh %ourt of

Andhra Pradesh at $#derabad in %riminal Petition &o. 1!'(1 of !"11

b# )a# of )hi*h the $igh %ourt has +uashed the *harge sheet in %.%.

&o. ,,, of !"11 in respe*t of the offen*e under Se*tion - of /ndian

Penal %ode0 1-" hereinafter referred to as 2/P%34. $o)ever0 it has

not +uashed the *harge sheet in respe*t of offen*es punishable under



Se*tions '10 1!"5B and !"1 /P%. $en*e0 these *ross appeals b# both

parties i.e. the a**used and the State of Andhra Pradesh.

!. 6a*ts and *ir*umstan*es giving rise to these appeals are that7

A. A letter dated !!..!"11 )as re*eived b# the Se*retar#0

8inistr# of $ome Affairs0 Union of /ndia0 purported to have been

)ritten b# one Shri 8.A. Khan 8ember of Parliament4 en*losing a

representation of All /ndia Banjara Seva Samithi hereinafter referred

to as the 2Samithi34 as9ing for an impartial en+uir# against Shri V.

:inesh Redd#0 the then :; Vigilan*e and <nfor*ement4 :epartment

= respondent no.! alleging that he had amassed disproportionate assets

in the name of his )ife and her po)er of attorne# holders. A large

number of do*uments )ere anne>ed in support of the allegations in

the *omplaint. ?he @oint Se*retar#0 8inistr# of $ome Affairs

for)arded the said *omplaint to the %hief Se*retar#0 ;ovt. of A.P. on

,.,.!"11 for en+uir# into the matter. ?he said letter )as re*eived b#

the %hief Se*retar#0 ;ovt. of A.P. on !.,.!"11. n the same da#0 a

letter purporting to have been sent b# Shri 8.A. Khan0 8.P.0 )as

re*eived b# ;ovt. of A.P. through Shri V. :inesh Redd# = respondent

no.!0 )herein it had been alleged that the letter sent b# the %entral

!



;overnment to the %hief Se*retar#0 A.P. had not been authored b#

Shri 8.A. Khan0 8.P.

B. Chen the %hief Se*retar#0 A.P. )as e>amining the matter0 Shri

V. :inesh Redd#0 5 respondent &o.!0 the then :; V D <4 )rote a

letter to the State ;overnment anne>ing a *op# of the letter of Shri

8.A. Khan0 8.P.0 dated !.,.!"11 den#ing the authorship of that

letter and as9 a junior poli*e offi*er to give his report about the

genuineness of the Samithi. Upon being informed that it )as

fi*titious0 respondent no.! as9ed for a detailed en+uir# to be

*ondu*ted to as*ertain )ho had forged the said letter and signature of

Shri 8.A. Khan0 8.P.0 on the *omplaint. 8ean)hile0 Shri V. :inesh

Redd# 5 respondent no.!0 )as appointed as :ire*tor ;eneral of Poli*e0

A.P. on ".-.!"11.

%. ?he State ;overnment as9ed the Additional :.;.P.0 %rime

/nvestigation :epartment0 namel# Shri S.V. Ramana 8urthi to

en+uire and submit a report to the ;overnment in respe*t of

fabri*ating the letter and forging the signature of Shri 8.A. Khan0

8.P. ?he said offi*er Shri Ramana 8urthi did not *ondu*t an#

en+uir# himself0 rather he entrusted the same to one Shri 8. 8alla

Redd#0 :eput# SP0 %/:. After *ondu*ting the en+uir#0 Shri 8alla



Redd# submitted the en+uir# report to Addl.:.;.P.0 %/: on

!!..!"110 pointing out that one Shri ?. Sunil Redd# obtained

*ertified *op# of the do*uments from the offi*e of the Sub5Registrar

on the instru*tions of some senior offi*er. ?he said *ertified *opies

)ere the same as the ones that had been anne>ed along)ith the

*omplaint submitted in the name of the Samithi.

:. n the same da#0 i.e. !!..!"110 Shri Ramana 8urthi0

Addl.:.;.P.0 %/: submitted the said report to Shri V. :inesh Redd#0

respondent no.! see9ing dire*tions and further re+uesting him that the

report be for)arded to the State ;overnment.

<. n !..!"110 Shri :inesh Redd# 5 respondent no.! himself

dire*ted the registration of the 6irst /nformation Report in short

26/R34 and that an investigation be *ondu*ted b# %/:. As a

*onse+uen*e0 the 6/R )as registered on !,..!"11 and one Shri @.

Ranjan Ratan Kumar0 :#. S.P. )as appointed as the /nvestigating

ffi*er.

6. :uring the *ourse of investigation0 Shri ?. Sunil Redd# )as

arrested on !-..!"11. $is statement )as re*orded on !'..!"11 under

Se*tion 1-1 of %ode of %riminal Pro*edure0 1(' hereinafter referred

to as 2%r.P.%.34 )herein Umesh Kumar0 appellant )as not named.



;. ?he report submitted b# Shri 8alla Redd# )as for)arded b#

Shri V. :inesh Redd# 5 respondent no.! to the State ;overnment on

!'..!"11. Shri ?. Sunil Redd# )as remanded to judi*ial *ustod# on

!'..!"11. /t )as during that judi*ial *ustod# on .(.!"11 that his

statement )as re*orded a se*ond time under Se*tion 1-1 %r.P.%.

)herein he named Umesh Kumar0 appellant. n being enlarged on

bail on ,.(.!"110 Shri ?. Sunil Redd# made an appli*ation on

'.(.!"11 under Se*tion "- %r.P.%. to be*ome an approver.

$. Umesh Kumar0 appellant0 as9ed the ;ovt. of A.P. to hold an

investigation on the basis of the *ertified *op# of the sale deeds

against respondent no.!. /n the mean)hile0 on !-.(.!"110 the

/nvestigating ffi*er filed a statement in the *ourt that unless the said

Shri ?. Sunil Redd# )as granted pardon0 there )ould be no eviden*e

against Umesh Kumar. ?he trial *ourt vide order dated 1".1".!"11

a**epted the appli*ation of Shri ?. Sunil Redd# and granted him

pardon and made him an approver. $o)ever0 the said order dated

1".1".!"11 )as +uashed b# the $igh %ourt vide judgment and order

dated 1..!"1! in Crit Petition &o. 1(!' of !"11 filed b# Umesh

Kumar0 appellant.

,



/. After *ompleting the investigation0 a *harge sheet dated

1.11.!"11 )as filed naming Umesh Kumar0 appellant sho)ing that

offen*es punishable under Se*tions -0 '10 1!"5B and !"1 /P% had

been *ommitted.

@. Aggrieved0 Umesh Kumar approa*hed the $igh %ourt under

Se*tion ! %r.P.%. for +uashing the said *harge sheet. $o)ever0 the

$igh %ourt vide impugned judgment and order dated 11..!"1!

+uashed the *harge sheet onl# in part as referred to hereinabove.

$en*e0 these *ross appeals.

. ?he matter )as heard at length and after *onsidering the gravit#

of the allegations against respondent no.! and his alleged

involvement0 this *ourt issued noti*e to him suo motu and after

hearing his *ounsel he )as impleaded as a respondent.

. Shri Ra9esh :)ivedi0 learned senior *ounsel appearing for

Umesh Kumar0 appellant has submitted that the purported *omplaint

sent b# Shri 8.A. Khan0 8.P.0 to the %entral ;overnment )as dul#

supported b# a large number of do*uments sho)ing that respondent

no.! had amassed )ealth )hi*h )as disproportionate to his 9no)n

sour*es of in*ome. $is )ife had pur*hased various benami properties.

-



?he *ertified *opies of the said sale deeds are admissible in eviden*e

in *ourt. <ven if the allegations against Umesh Kumar0 appellant are

*orre*t0 there *ould have been a fair en+uir# on the said allegations

against respondent no.!. $o)ever0 the State of A.P. dis*riminated

against the appellant and has ta9en no a*tion )hatsoever till toda# to

e>amine )hether the said respondent has a*+uired disproportionate

assets.

Chen the matter )as referred b# the State ;overnment to the

Addl. :.;.P. dire*tl# )ithout informing respondent no.! to hold an

en+uir# to find out )hether the signature of Shri 8.A. Khan0 8.P.

)as genuine and about the e>isten*e of the Samithi0 in su*h a

situation0 respondent no.! had no business to interfere )ith the matter

and pass an# order. ?he en+uir# had been entrusted to the Addl.

:.;.P. $o)ever0 the said Addl. :.;.P. further entrusted the same to

the :eput# S.P. )ho arrested one Shri ?. Sunil Redd#0 made him an

approver and got his statement re*orded naming Umesh Kumar.

Before the report submitted b# Shri 8alla Redd# *ould rea*h the State

;overnment0 respondent no.! dire*ted that an 6/R be lodged )ithout

)aiting for the dire*tion of the State ;overnment. Sin*e b# that time0

respondent no.! had been appointed as :.;.P.0 A.P.0 unoffi*iall#0 he

'



had been in *onta*t )ith Shri 8.A. Khan0 8.P.0 and *reated a

situation )here the en+uir# *ould be dire*ted onl# against Umesh

Kumar0 appellant.

/n spite of the fa*t that this *ourt passed an order on !.'.!"1

dire*ting the %hief Se*retar#0 A.P. to dis*lose )hether an# en+uir#

had ever been made against the said respondent no.! )ith respe*t to

disproportionate assets0 the %hief Se*retar#0 A.P. had not submitted

an# *lear *ut repl# to this *ourt. ?he %hief Se*retar# gave an evasive

repl# )ithout dis*losing an# fa*t in this regard. ?he eviden*e

*olle*ted illegall# is admissible in la). ?hus0 the ;ovt. of A.P.

should have *ondu*ted in+uir# against respondent &o. ! on the basis

of the sale deeds anne>ed along)ith the *omplaint. ?here is *ollusion

bet)een the State ;overnment and respondent no.! dis*riminating

against the appellant. ?he $igh %ourt ought to have +uashed the

)hole *harge sheet being a produ*t of malafides and illegal a*tivities

of the State and respondent no.!. ?hus0 the appeal filed b# Umesh

Kumar deserves to be allo)ed and appeal filed b# the State is liable to

be dismissed.

,. Shri R. Ven9ataramani0 learned senior *ounsel appearing for

the State has submitted that Umesh Kumar hat*hed a *onspira*# and



obtained the *ertified *opies of the sale deeds )hi*h )ere in the name

of different persons and filed a *omplaint in the fi*titious name

forging the signature of Shri 8.A. Khan0 8.P. Su*h a fa*t had been

dis*losed b# his a**ompli*e Shri ?. Sunil Redd# and other persons

li9e Shri Eo9esh Kumar et*. Respondent no.! being the head of the

poli*e department has rightl# issued the dire*tion to lodge an 6/R and

investigate the matter. ?he $igh %ourt *ommitted an error

entertaining his petition under Se*tion ! %r.P.%. )ithout an#

ground. As it )as at the pre5emptive stage the matter *ould have been

e>amined b# the *ompetent *ourtF issues raised b# Umesh Kumar

*ould have been e>amined at the time of framing of the *hargesF and

he *ould have filed an appli*ation for dis*harge. As *harges *an be

altered at an# stage during the trial0 the $igh %ourt *ould not have

+uashed the *harge sheet in respe*t of onl# Se*tion - /P%. ?hus0

the appeal filed b# Umesh Kumar is liable to the dismissed and the

appeal filed b# the State deserves to be allo)ed.

-. Shri U.U. Ealit0 learned senior *ounsel appearing for respondent

no.! has submitted that b# filing a *omplaint in the fi*titious name

and forging the signature of Shri 8.A. Khan0 8.P.0 the reputation of

respondent no.! )as put at sta9e. Admittedl#0 the *omplaint )as in a

(



fi*titious name and )ith a forged signature. A *ase had been

registered in respe*t of the same )ith :elhi Poli*e0 ho)ever0 it *ould

not pro*eed further. ?he offi*e of the %/: )as *hosen b# the %hief

Se*retar# and an en+uir# )as entrusted to the said department.

?herefore0 there *ould be no mali*e or malafides so far as respondent

no.! is *on*erned. 8ore so0 the name of Umesh Kumar0 appellant0

)as not dis*losed till the respondent no.! )as appointed as :.;.P. $is

name *ould be unearthed at a subse+uent stage. Shri 8.A. Khan0

8.P. *onta*ted the said respondent and as9ed for a preliminar#

en+uir#. ?he said respondent for)arded the said report. ?herefore0

there *ould be no mali*e against him )hatsoever. /n vie) of the

above0 the appeal of Umesh Kumar0 appellant is liable to be

dismissed.

'. Ce have heard the rival submissions made b# learned *ounsel

for the parties and perused the re*ord.

. ?he fa*ts are not in dispute. ?he letter dated !!..!"11

purported to have been )ritten b# Shri 8.A. Khan0 8.P.0 suggests

that various properties had been pur*hased b# respondent no.! as

benami and the *opies of the sale deeds et*. filed along)ith the said

1"



letter fortif# the same. ?he ;overnment of /ndia )rote a letter to the

%hief Se*retar#0 ;ovt. of A.P. on ,.,.!"11 to *ondu*t an en+uir# in

respe*t of alleged disproportionate assets made b# the respondent no.!

b# pur*hase of huge lands either b# himself or in the name of his )ife

or through benamis. Shri 8.A. Khan0 8.P. vide letter dated

!.,.!"11 pointed out to the %entral ;overnment that he had not

signed the *omplaint and his signature had been forged. Umesh

Kumar0 appellant had as9ed the State ;overnment to *ondu*t an

en+uir# in respe*t of the disproportionate assets of the respondent

no.!.

?he memo dated !..!"11 issued b# the ;ovt. of A.P. revealed

that respondent no.! had *ondu*ted an en+uir# in the matter of the

letter purported to have been sent b# Sh. 8.A. Khan0 8.P. $e rea*hed

the *on*lusion that the *omplaint had been filed )ith the forged

signature of Shri 8.A. Khan0 8.P.0 and made a re+uest to the State

;overnment to order a %/: probe into the matter of forger#0 *riminal

*onspira*#0 and *heating as no su*h Samithi )as in e>isten*e and the

letter )as bogus. /t )as in vie) thereof0 the ;overnment dire*ted the

en+uir# on the follo)ing issues7

i4 Cho forged the letter of 8ember of ParliamentG

11



ii4 Cho obtained all the do*uments running into hundreds of pages

from the *on*erned Sub5Registrar3s offi*eG

?he 8emo further revealed that Addl. :.;.P.0 %rime

/nvestigation :epartment )ould *ondu*t the en+uir# into the above

issues and $%&'it ( ")*o"t to th) !o+)",'),t (t (, )("- /(t). ?he

*op# of the same )as sent to respondent no.! and to the %entral

;overnment in addition to the Addl. :.;.P.

(. Admittedl#0 no attempt has ever been made b# an# person to

hold the en+uir# relating to the genuineness of the allegations in the

*omplaint purported to have been signed b# Shri 8.A. Khan0 8.P.

?he letter dated !..!"11 ma9es it *lear that before the report *ould

rea*h the ;overnment0 respondent no.! dire*ted that an 6/R be

lodged0 en+uir# *ondu*ted and the report of the same be submitted to

his offi*e. ?he do*uments revealed that the statement made b# Shri ?.

Sunil Redd# after his arrest did not reveal the name of Umesh Kumar.

$o)ever0 )hen he )as in poli*e *ustod# and his statement )as

re*orded a se*ond time he named the appellant. /t is also evident that

he )as made an approver )ith the help of the publi* prose*utor and

later on the said order of the trial *ourt )as set aside b# the $igh

%ourt at the behest of Umesh Kumar.

1!



1". ?he aforesaid fa*ts *learl# reveal the follo)ing things7

/4 <ven if the said *omplaint )as in a fi*titious name )ith a

forged signature0 the material anne>ed )ith the said *omplaint

revealed that various properties had been pur*hased b# the respondent

&o.!0 in his name or in the name of his )ife or her ;eneral Po)er of

Attorne# holders.

//4 ?he %entral ;overnment had as9ed the State ;overnment to

*ondu*t an in+uir# of the allegations in the said *omplaint )hi*h the

State ;overnment did not ensure *omplian*e of.

///4 /n spite of our order dated !.'.!"1 dire*ting the %hief

Se*retar# to file his personal affidavit as to )hether an# attempt had

ever been made to find out the truth in the said allegations0 the %hief

Se*retar# filed a defe*tive affidavit )hi*h does not refle*t an# light on

the issue )hatsoever.

/V4 Chen the en+uir# )as entrusted b# the State ;overnment

dire*tl# to a parti*ular poli*e offi*er and the offi*er submitted the

report0 but before rea*hing the ;overnment0 respondent no.! dire*ted

that an 6/R be lodged against Umesh Kumar0 appellant and an

investigation be *ondu*ted. ?he report )as sent to the State

;overnment subse+uent thereto0 and even on that report the State

1



;overnment had never ta9en an# de*ision )hatsoever0 and in the

mean)hile the *harge sheet )as filed.

V4 ?he *harge sheet )as filed under various provisions of the /P%

and some of them are e>*lusivel# triable b# the %ourt of Sessions and

not b# the magistrate. ?here are no *ommittal pro*eedings till no) in

the *ase. ?herefore0 the stage of framing the *harges or *onsidering an

appli*ation for dis*harge has not #et arrived.

V/4 Shri ?. Sunil Redd# had not dis*losed the name of Umesh

Kumar0 appellant in his first statement. $o)ever0 subse+uentl# )hen

he )as in poli*e *ustod# and his statement )as re*orded a se*ond

time he revealed his name. $e )as also granted pardon and made an

approver b# the order of the trial *ourt and the said order has been set

aside b# the $igh %ourt at the behest of Umesh Kumar as referred to

hereinabove.

V//4 Various other *ases regarding the en+uir# against respondent

no.! b# the %B/ or an independent agen*#0 are reported to be pending

before the $igh %ourt0 and it is pointed out that the learned Single

@udge has allo)ed the said )rit petition0 but the :ivision Ben*h had

sta#ed the operation of the said order at the behest of respondent &o.!.

?he learned Additional Advo*ate ;eneral at the dire*tion of the $igh

1



%ourt had pla*ed a large number of sale deeds in respe*t of land

purported to have been pur*hased b# respondent &o.!3s )ife and her

sister Smt. S. &alini bet)een 1(( and !"",0 either in her name or her

relatives or ;eneral Po)er of Attorne# holders.

V///4 ?he $igh %ourt partl# +uashed the *harge sheet observing that

the offen*e under Se*tion - /P% is not made out.

C($) ((i,$t U')$h %'(" (**)--(,t

11. Allegations against an# person if found to be false or made

forging some one else signature ma# affe*t his reputation. Reputation

is a sort of right to enjo# the good opinion of others and it is a

personal right and an en+uir# to reputation is a personal injur#. ?hus0

s*andal and defamation are injurious to reputation. Reputation has

been defined in di*tionar# as Hto have a good nameF the *redit0 honor0

or *hara*ter )hi*h is derived from a favourable publi* opinion or

esteem and *hara*ter b# reportI. Personal rights of a human being

in*lude the right of reputation. A good reputation is an element of

personal se*urit# and is prote*ted b# the %onstitution e+uall# )ith the

right to the enjo#ment of life0 libert# and propert#. ?herefore0 it has

been held to be a ne*essar# element in regard to right to life of a

*itiJen under Arti*le !1 of the %onstitution. /nternational %ovenant on

1,



%ivil and Politi*al Rights 1(-- re*ognises the right to have opinions

and the right of freedom of e>pression under Arti*le 1( is $%&4)t to

th) "iht of ")*%t(tio, of oth)"$. Reputation is H,ot o,- ( $(-t of

-if) but the purest treasure and the most pre*ious perfume of life.I

Vide7 S't. i"(, B)/i 6 Ji,/)" Si,h +. Th) Co''itt)) of

I,7%i" 6 A,".0 A/R 1(( S% '1F Bo("/ of T"%$t))$ of th) Po"t

of Bo'&( +. Di-i*8%'(" R(h(+),/"(,(th N(/8(",i 6 O"$.#

A/R 1( S% 1"(F Ni-i"i$ B(" A$$oi(tio, +. T M(h(-i,(' 6

A,".0 A/R 1(( S% (F D". M)h'oo/ N((" A9(' +. St(t) of

Ch(tti$("h 6 O"$.0 A/R !"1! S% !,'F :i$h;(,(th Sit("('

A"(;(- +. S(% S("-( :i$h;(,(th A"(;(-0 A/R !"1! S% ,-F and

i$ho") S('"it) +. St(t) of U.P. 6 O"$.0 !"14 ! S%% (4.

1!. /n vie) thereof0 if an# person has forged in a letter under the

name of the Samithi and forged the signature of Shri 8.A. Khan0

8.P.0 the matter being of grave nature re+uires investigation and0 in

vie) of above0 )e *annot find fault )ith the a*tion initiated against

Umesh Kumar0 appellant. n*e *riminal la) is put in motion and after

investigation the *harge sheet is filed0 it re+uires s*rutin# in the *ourt

of la). $o)ever0 before the *harges *ould be framed0 Umesh Kumar0

appellant0 approa*hed the $igh %ourt under Se*tion ! %r.P.%. for

1-



+uashing of the *harge sheet. ?he s*ope of Se*tion ! %r.P.%. is

)ell defined and inherent po)ers *ould be e>er*ised b# the $igh

%ourt to give effe*t to an order under the %r.P.%.F to prevent abuse of

the pro*ess of *ourtF and to other)ise se*ure the ends of justi*e. ?his

e>traordinar# po)er is to be e>er*ised ex debito justitiae. $o)ever0 in

e>er*ise of su*h po)ers0 it is not permissible for the $igh %ourt to

appre*iate the eviden*e as it *an onl# evaluate material do*uments on

re*ord to the e>tent of its prima facie satisfa*tion about the e>isten*e

of suffi*ient ground for pro*eedings against the a**used and the *ourt

*annot loo9 into materials0 the a**eptabilit# of )hi*h is essentiall# a

matter for trial. An# do*ument filed along)ith the petition labelled as

eviden*e )ithout being tested and proved0 *annot be e>amined. Ea)

does not prohibit entertaining the petition under Se*tion ! %r.P.%.

for +uashing the *harge sheet even before the *harges are framed or

before the appli*ation of dis*harge is filed or even during its penden*#

of su*h appli*ation before the *ourt *on*erned. ?he $igh %ourt

*annot reje*t the appli*ation merel# on the ground that the a**used

*an argue legal and fa*tual issues at the time of the framing of the

*harge. $o)ever0 the inherent po)er of the *ourt should not be

1'



e>er*ised to stifle the legitimate prose*ution but *an be e>er*ised to

save the a**used to undergo the agon# of a *riminal trial.

Vide7 P)*$i Foo/ Lt/. 6 A,". +. S*)i(- J%/ii(- M(i$t"(t) 6

O"$.0 A/R 1(( S% 1!F A$ho8 Ch(t%"+)/i 6 O"$. +. Shit%-h

Ch(,h(,i 6 A,". A/R 1(( S% !'(-F !. S((" S%"i 6 A,". +.

St(t) of U.P. 6 O"$.0 A/R !""" S% ',F and P(/(- :),8(t( R('(

R)// Ramu +. o++%"i S(t(,("((,( R)// 6 O"$.0 !"114

1! S%% '4

1. /n R(4i+ Th(*(" + M(/(, L(- (*oo"0 !"1 4 S%% "0

this %ourt )hile dealing )ith the issue held as follo)s7

“ Based on the factors canvassed in the foregoing

paragraphs, we would delineate the following steps to

determine the veracity of a prayer for quashing, raisedby an accused by invoking the power vested in the High

Court under ection !"# of the Code of Criminal

$rocedure%

&i' tep 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' tep 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(

1



&iii' tep 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' tep four, whether proceeding with the trial would

result in an abuse of process of the court, and would not

serve the ends of justice)

1. /n St(t) of Bih(" +. P.P. Sh("'( 6 A,".0 A/R 1((1 S% 1!-"0

this %ourt dealt )ith an issue of )hether an appli*ation under Se*tion

! %r.P.%. for +uashing the *harge sheet should be entertained

before *ogniJan*e is ta9en b# a *riminal *ourt and held as under75

“-uashing the charge.sheet even before cogni/ance is

taken by a criminal Court amounts to killing a still born

child ( 0ill the criminal Court takes cogni/ance of the

offence there is no criminal proceedings pending( 1 am

not allowing the appeals on the ground alternativeremedies provided by the Code as a bar( 1t may be

relevant in an appropriate case( 2y 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 3( 1t is not to suggest that

under no circumstances a writ petition should be

entertained3(( 0he charge.sheet and the evidence placed

in support thereof form the base to take or refuse to take

cogni/ance by the competent Court( 1t is not the case that

no offence has been made out in the chargesheets and

the 4irst 1nformation 5eport(

<mphasis added4

1(



1,. ?he issue of malafides looses its signifi*an*e if there is a

substan*e in the allegation made in *omplaint moved )ith mali*e.

/n Sh)o N(,/(, P($;(, +. St(t) of Bih(" 6 O"$.0 A/R 1('

S% ''0 this %ourt held as under7

“1t 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(

1-. /n P("8($h Si,h B(/(- +. St(t) of P%,4(& 6 O"$.0 A/R !""'

S% 1!'0 this %ourt held as under7

“0he ultimate test, therefore, is whether the allegations

have any substance( 6n 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( 0herefore, the plea of mala fides

as raised cannot be maintained(

1'. /n State of A.P. +. !o-oo,/( Li,( S;(' 6 A,".# A/R

!"" S% (-'0 this %ourt held as under7

“1t is the material collected during the investigation and

evidence led in court which decides the fate of theaccused person( 0he allegations of malafides against the

informant are of no consequence and cannot by

themselves be the basis for quashing the proceeding(

See also7 . ("%,(8("(, +. St(t) of )"(-(# !""'4 1 S%% ,(4.

!"



1. ?hus0 in vie) of the above0 it be*omes evident that in *ase there

is some substan*e in the allegations and material e>ists to substantiate

the *ompli*it# of the appli*ant0 the *ase is to be e>amined in its full

*onspe*tus and the pro*eedings should not be +uashed onl# on the

ground that the same had been initiated )ith mala fides to )rea9

vengean*e or to a*hieve an ulterior goal.

1(. S*heme for in+uir#Ltrial provided under the %r.P.%. is +uite

*lear. After investigation0 report under Se*tion 1'!4 %r.P.%. is to be

submitted before the *ompetent *ourt i.e. magistrate having

jurisdi*tion in the matter and the magistrate ma# ta9e *ogniJan*e

under Se*tion 1(" %r.P.%. $o)ever0 it is still open to the magistrate to

dire*t further investigation under the provisions of Se*tion 1'4

%r.P.%. /f the *ase is triable b# the %ourt of Sessions0 the magistrate

)ould *ommit the *ase to the said *ourt under Se*tion !"( %r.P.%. /t

is for the *ourt to e>amine )hether there is suffi*ient material

*olle*ted during investigation and filed along)ith the *harge sheet

that a prima facie vie) *an be ta9en to pro*eed against the a**used

and in vie) thereof0 frame *harges under Se*tion !! %r.P.%. At this

stage the remed# available to the a**used is to as9 for dis*harge under

!1



Se*tion !!' %r.P.%. /n *ase *harges are framed the a**used has to

fa*e the trial0 *harges *an be addedLaltered at an# stage of the trial0

before the pronoun*ement of the judgment to suit the eviden*e

addu*ed before the *ourt0 under the provisions of Se*tion !1- %r.P.%.

?he onl# legal re+uirement is that a )itness has to be re*alled as

provided under Se*tion !1' %r.P.%. )hen a *harge is altered or added

b# the *ourt.

!". /n the instant *ase0 *harge sheet had been filed and the

*ogniJan*e had been ta9en b# the magistrate *on*ernedF the

*ommittal pro*eedings have not #et ta9en pla*eF and some of the

offen*es attra*ted in this *ase are e>*lusivel# triable b# the Sessions

%ourt. Umesh Kumar0 appellant approa*hed the $igh %ourt under

Se*tion ! %r.P.%. and the *harge sheet has been partl# +uashed

observing that the provisions of Se*tion - /P% are not attra*ted.

!1. ?he +uestion does arise as to )hether su*h an order attained

finalit# and in *ase the eviden*e is addu*ed before the *ourt

*on*erned0 )hether the trial *ourt *an still hold that the appli*ant is

re+uired to be tried for the offen*e under Se*tion - /.P.%. and

!!


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not to have been given at this stage .3(( &<mphasis

added'

?he %ourt set aside the order of the $igh %ourt and left it open

to the trial *ourt to modif# the *harges in a**ordan*e )ith the

eviden*e addu*ed before it.

See also7 Soh(, L(- 6 O"$. +. St(t) of R(4($th(, 0 A/R 1((" S%

!1,4

!. A %onstitution Ben*h of this %ourt reiterated a similar vie) in

CBI 6 O"$. +. )$h%& M(hi,/"( )t.# A/R !"11 S% !"'

observing that )hen the *harges are framed0 the *ourt ma9es an

endorsement ti-- th(t $t(). So *harges are framed on the materials

produ*ed b# the prose*ution for framing the *harges H(t th(t $t()I.

Su*h indi*ation is ne*essar# other)ise the provisions *ontained in

Se*tions !1-0 !0 -0 ('0 ((0 "1 et*. %r.P.%.0 )ould be rendered

nugator# and denuded a *ompetent *ourt of the po)ers under those

provisions. ?he *ourt *annot be restrained from e>er*ising its po)ers

either under Se*tion ! or Se*tion !1- %r.P.%.

!. ?he $igh %ourt )as approa*hed b# Umesh Kumar0 appellant

under se*tion ! %r.P.%. at a premature stage. At the said stage the

$igh %ourt *ould e>amine the *hargesheet0 *ase diar# and other

!



material in the *hargesheet )hi*h b# no means *an be termed as

substantive eviden*e. Vide Lo8 R(' + Nih(- Si,h 6 O"$. A/R

!""- S% 1(!4.

!,. ?hus0 in vie) of above0 the order of the $igh %ourt impugned

before us *annot be termed as a final de*ision. ?he order is subje*t to

further order )hi*h *ould be passed b# the trial *ourt under Se*tion

!1- %r.P.%.0 on the basis of the eviden*e to be led during trial. /f the

impugned order is dubbed as having attained finalit#0 the provisions

of Se*tion !1- %r.P.%. )ould render otioseLnugator#. ?hus0 the same

is to be read that the said order had been passed ta9ing into

*onsideration the material )hi*h )as available H(t th(t $t()I and it

is still open to the trial *ourt to add or alter the *harges a**ording to

the eviden*e produ*ed before it.

Co'*-(i,t ((i,$t R)$*o,/),t No.2

!-. ?he *omplaint )as initiall# made in respe*t of a*+uiring huge

immovable properties b# respondent &o. ! in his name and in the

name of his )ife0 and the %entral ;overnment had as9ed the State

;overnment to *ondu*t an in+uir# into the said allegations. ?he

*omplaint ma# be forged or fabri*ated0 but it is nobod#3s *ase that the

!,



*opies of sale deeds anne>ed along)ith the said *omplaint )ere not

genuine. Chile issuing dire*tion to hold in+uir#Linvestigation as to

)ho had fabri*ated the said *omplaint and forged the signatures of

Shri 8.A. Khan0 8.P.0 the allegations of a*+uiring properties b# the

respondent &o.! have been abandoned and unattended altogether.

<ven though the *omplaint )as bogus0 ho)ever0 the sale deeds

anne>ed along)ith the same though illegall# *olle*ted b# someone0

have not been found to be fabri*ated do*uments.

!'. /t is a settled legal proposition that even if a do*ument is

pro*ured b# improper or illegal means0 there is no bar to its

admissibilit# if it is relevant and its genuineness is proved. /f the

eviden*e is admissible0 it does not matter ho) it has been obtained.

$o)ever0 as a matter of *aution0 the *ourt in e>er*ise of its dis*retion

ma# disallo) *ertain eviden*e in a *riminal *ase if the stri*t rules of

admissibilit# )ould operate unfairl# against the a**used. 8ore so0 the

*ourt must *on*lude that it is genuine and free from tampering or

mutilation. ?his *ourt repelled the *ontention that obtaining eviden*e

illegall# b# using tape re*ordings or photographs offend Arti*les

!"4 and !1 of the %onstitution of /ndia as a*+uiring the eviden*e b#

su*h methods )as not the pro*edure established b# la). Vide7

!-



<%$%f(--i E$'(i- N(")) +. Th) St(t) of M(h("($ht"(# A/R 1(-

S% 1'F M("(4 P(to/i( +. R.. Bi"-( 6 O"$.0 1('" !4 S%% F

R.M. M(-8(,i +. St(t) of M(h("($ht"(# A/R 1(' S% 1,'F Poo"(,

M(- +. Di")to" of I,$*)tio,# I,o')=T(># N); D)-hi 6 O"$.0

A/R 1(' S% F and St(t) ?NCT of D)-hi@ +. N(+4ot S(,/h% alias

Afsan ;uru0 !"",4 11 S%% -""4.

!. /n su*h a fa*t5situation if illegall# *olle*ted material *an be

e>amined b# the *ourt of la)0 )e fail to understand ho) the State

;overnment *ould not e>amine the *ontents of the *omplaint on the

basis of the anne>ed *opies of sale deeds et*.

:uring the arguments of this *ase0 our *ons*ious )as sho*9ed

as to the manner the State of Andhra Pradesh has misdire*ted itself

and abandoned the most relevant issue i.e. *omplaint against Shri V.

:inesh Redd# = respondent no.! and *on*entrated e>*lusivel# against

Umesh Kumar0 appellant. ?hus0 vide order dated !.'.!"10 )e have

as9ed the %hief Se*retar# of the State of Andhra Pradesh to dis*lose

as to )hether an# preliminar#Ldis*iplinar# in+uir# has ever been

*ondu*ted b# the State in respe*t of the alleged sale deeds in favour of

the spouse or her general po)er of attorne# holders or relatives of

respondent &o. !.

!'



!(. /n repl# to our order dated !.'.!"10 the %hief Se*retar# has

filed an undated affidavit though attested b# a @oint Se*retar# to ;ovt.

of A.P.0 and has given numerous e>planations in respe*t of the alleged

pseudon#mous petition filed )ith a fi*titious name of the Samithi and

)ith the forged signature of Shri 8.A. Khan0 8.P. ?he %hief

Se*retar# has ta9en the plea that the ;overnment of A.P. *ould not

investigate an en+uir# about the disproportionate assets of the

respondent no.! in vie) of the fa*t that the $igh %ourt of Andhra

Pradesh vide order dated !.,.!"1 sta#ed the operation of the learned

Single @udge3s order to *ondu*t an en+uir# into the allegations. ?he

%hief Se*retar# to the ;ovt. of Andhra Pradesh has not revealed

)hether a preliminar# en+uir# or a domesti* en+uir# had ever been

*ondu*ted till !.,.!"1 )hen the $igh %ourt passed the restraint

order. ?he *omplaint )as filed on !!..!"11 and more than t)o #ears

had elapsed )hen the $igh %ourt passed the order. &o e>planation

has been furnished as to )h# for t)o #ears the en+uir# *ould not be

held in this regard.

". Attestation of the undated affidavit is in utter disregard to the

provisions of Se*tion 1( of the %ode of %ivil Pro*edure0 1(".

!



hereinafter referred to as the M%P%34. ?he Supreme %ourt Rules 1(--

under rder N/0 Rule ' also re+uire adheren*e to the provisions of

Se*tion 1( %P%. $en*e0 his repl# is not )orth ta9ing on re*ord and

being undated0 renders the same to be a pie*e of )aste paper.

?he definition of 2affidavit3 in Se*tion 4 of the ;eneral

%lauses A*t 1(' provides that it Hshall in*lude affirmation and

de*laration in the *ase of persons b# la) allo)ed to affirm or de*lare

instead of s)earingI. ?hus0 it is an essential *hara*teristi* of an

affidavit that it should be made on oath or affirmation before a person

having authorit# to administer the oath or affirmation0 and thus0 dut#

to state on oath on the part of the deponent is sa*rosan*t. Same

remains the position in respe*t of administration of oath as re+uired

under the aths A*t 1'.

See7 "i$h(, Ch(,/)" N((" +. Th) Ch(i"'(,# C),t"(- T"(to"

O"(,i$(tio, 6 O"$.0 A/R 1(-! S% -"!F Chhot(, P"($(/ Si,h 6

O"$. +. H("i D%$(/h 6 O"$.0 A/R 1('' S% "'F and M.

:))"(&h(/"( R(o +. T)8 Ch(,/0 A/R 1(, S% !4.

1. /n vie) of the above0 )e have no hesitation to hold that the

%hief Se*retar# had the auda*it# not to ensure the *omplian*e of the

order of this *ourt dated !.'.!"10 and )e have no )ords to e>press

!(



our anguish and *ondemn the attitude adopted b# the %hief Se*retar#.

8ore so0 holding su*h a responsible post in the State0 he must have

some sense of responsibilit# and should have been a)are of )hat are

the minimum re+uirements of la)0 and even if he did not 9no) he

*ould have *onsulted an# la) offi*er of the State before filing the

undated affidavit.

!. Be that as it ma#0 fa*ts of the *ase )arranted some en+uir# in

respe*t of the allegations of a*+uiring huge properties b# Shri V.

:inesh Redd# = respondent no.!. ?he State too9 the *ourage to flout

the order of the %entral ;overnment and did not loo9 into the *ontents

of the *omplaint and misdire*ted the en+uir# against Umesh Kumar0

appellant. /n su*h a fa*t5situation0 this *ourt )ould not fail in its dut#

to dire*t the en+uir# in those allegations.

. /n vie) of the above0 the appeals are disposed of dire*ting the

%B/ to investigate the matter against Shri V. :inesh Redd# =

respondent no. ! on the allegations of a*+uiring the disproportionate

assets. $o)ever0 this should not be *onsidered as e>pressing an#

opinion upon the merits of the *ase. ?he %hief Se*retar# to the

"


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Umesh Kumar V State of Andhra Pradesh