IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTIETH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION NO.15330 of 2009 Between: Smt. T. Balasundari, W/o. U. Gopalkrishna Murthy, Civil Supplies Department, Government of Andhra Pradesh, R/o.H.No.1-1-336/100, Viveknagar, Chikkadpally Hyderabad-500020 ..... PETITIONER AND 1 The Hon`ble Court of Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, AP 2 The State of Andhra Pradesh, rep. by the Secretary Consumer Affairs Food and Civil Supplies (VS) Department, Govt of AP., Secretariat Buildings, Hyderabad, AP 3 The Inspector of Police Anti Corruption Bureaue, Nizamabad Range, Nizamabad AP 4 The Director General, Anti Corruption Bureau Mozamjahi Market, Hyderabad ..... RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly in the nature of writ of PROHIBITION (i) To declare the proceedings in CC.No.13/08 on the file of First Respondent is without jurisdiction ab initio contrary to section 19 of Prevention of Corruption Act, 1988, the G.O.Rt.No.73 dated 22.5.2008 of 2nd respondent as laid down legal principle by Hon`ble Supreme court of India in Indian National Congress(I) Vs. Institute of Social Welfare (2005) 5 SCC 685 and violative of Articles, 14 and 300A of Constitution of India a (ii) to prohibit all further proceedings in CC.No.13/2008 on the file of 1st respondent (iii) to direct the respondents 1 to 4 to return all properties belonging to the petitioner in pursuance of the proceedings in CC.No.13/08 on the file of the 1st respondent including the properties mentioned in inventory and not mentioned in Charge sheet. to pass Counsel for the Petitioner : SRI POTTIVENKATA RAMANA RAO Counsel for the Respondent : GP FOR CIVIL SUPPLIES The Court made the following : THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE P.SWAROOP REDDY WRIT PETITION No.15330 of 2009 ORDER: (Per Hon’ble Sri Justice V. Eswaraiah) The petitioner joined as Lower Divisional Clerk in the office of Assistant Supply Officer, Circle-VI, Hyderabad on 12.11.1973 and thereafter, she was promoted as Upper Divisional Clerk on 20.06.1979, and again promoted as Deputy Tahsildar, Civil Supplies on 25.06.1982 and further promoted as District Supply Officer on 13.04.1993. While so, on credible information that the petitioner was possessing disproportionate assets obtained through corrupt and dubious means by abusing her official position, the Director, ACB, issued proceedings No.203/RCA-NZB/2001 dated 06-12-2001, directing the Deputy Superintendent of Police, ACB, Nizamabad to register a case and investigate. Consequently, the Deputy Superintendent of Police registered a case in Crime No. 10/ACB-NZB/2001 under Section 13(1) (e) r/w 13(2) of the Prevention of Corruption Act, 1988 and took up investigation. Simultaneously, on 07-12-2001 searches were conducted at her residential premises situated at Hyderabad and Nizamabad and some incriminating documents pertaining to her assets, income and expenditure were seized. The investigation disclosed that the petitioner acquired assets in her name and in the name of her family members to a tune of Rs.70,98,152.48 ps. Total known source of her income for the relevant period was only Rs.43,98,654.80 ps. but the petitioner was found in possession of disproportionate assets to a tune of Rs.50,28,133.78 ps. For possessing the alleged disproportionate assets, the Government issued orders in G.O.Ms.No.58 Consumer Affairs, Food & Civil Supplies (VS) Department, dated 02.08.2006, according sanction for prosecution against the petitioner for the offences punishable under Section 13(1) (e) r/w 13(2) of the Prevention of Corruption Act, 1988 and under Sections 420, 468 and 471 read with 34 IPC and for any other cognate offences punishable under any other provisions of law. Thereafter, the Government issued orders in G.O.Rt.No.73, dated 22.05.2008, stating that after issuing earlier G.O.Ms.No.58 dated 02.08.2006, articles of charges were issued against the petitioner under Rule 20 of APCS (CC & A) Rules, 1991 and after receiving her explanation, the Enquiry Officer was appointed and charge sheet was also filed before appropriate SPE and ACB Court, which returned the same with an observation that when two persons are involved, sanction of prosecution was ordered only against the petitioner alone and that charge sheet was also to be filed in respect of other person namely Sri K. Anji Reddy, Former District Supply Officer, Medak. The Government, after examining the matter with reference to the material available on record, decided to withdraw the prosecution against the petitioner. 2. We are not inclined to express any opinion with regard to the bonafides on the part of the Government in deciding to withdraw the prosecution against the petitioner and also we are not inclined to express any opinion with regard to legality and validity of G.O.Rt.No.73, dated 22.05.2008, more so, in the enquiry it was said to have been found that the petitioner was possessing disproportionate assets to a tune of Rs.50,28,133.78 ps. It appears that as the criminal proceedings were dropped against Sri K.Anji Reddy, the Government decided to withdraw the prosecution against the petitioner also. 3. Learned counsel appearing for the petitioner submits that though the Government passed orders in G.O.Rt.No.73 dated 22.05.2008, withdrawing prosecution against the petitioner, the SPE and ACB Court took cognizance on 10.07.2008 i.e., after withdrawal of the prosecution and, therefore, taking cognizance is illegal and without jurisdiction and contrary to the orders of the Government in G.O.Rt.No.73 dated 22.05.2008. 4. A reading of the aforesaid order of the Government in G.O.Rt.No.73 dated 22.05.2008 does not disclose that the Government cancelled earlier G.O.Ms.No.58 dated 02.08.2006 sanctioning prosecution against the petitioner. As G.O.Ms.No.58, dated 02.08.2006, is not at all modified or withdrawn, it cannot be said that there was no sanction accorded by the Government. In G.O.Rt.No.73 dated 22.05.2008, the Government only took decision to withdraw the prosecution against the petitioner. Taking decision to withdraw prosecution is distinct and different from according sanction for the prosecution. However, G.O.Rt.No.73, dated 22.05.2008 is to be acted upon through the concerned Public Prosecutor by filing an application under Section 321 of the Criminal Procedure Code. 5. Learned counsel appearing for the petitioner further submits that the husband of the petitioner namely U.Gopalakrishna Murthy filed W.P.No.13896 of 2009 questioning continuation of criminal proceedings on the ground that his personal assets were also seized and included in the said Criminal Case No.13 of 2008 on the file of the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad and the said writ petition was admitted on 04.07.2009. It is stated that when that writ petition was admitted, this writ petition cannot be dismissed in view of the judgment of the Hon’ble Supreme Court in BIR BAJRANG KUMAR Vs. STATE OF BIHAR AND OTHERS[1]. 6. A perusal of the aforesaid judgment of the Hon’ble Supreme Court indicates that when a writ petition involving identical point is admitted, the other writ petition cannot be dismissed. The point involved in the writ petition filed by the husband of the petitioner is not identical or similar to the case on hand. In the instant case, the petitioner seeks to issue a Writ of Prohibition prohibiting the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, from proceeding against her in view of the orders of the Government in G.O.Rt.No.73 dated 22.05.2008, whereas the husband of the petitioner filed W.P.No.13896 of 2009 questioning continuation of criminal proceedings on the ground that his personal assets were also seized and included in the said Criminal Case No.13 of 2008 on the file of the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad. Merely because the criminal proceedings are one and the same and that assets of her husband are included in the criminal proceedings, it cannot be said that the present writ petition is similar to that writ petition. 7. For the aforesaid reasons, we are of the opinion that unless the concerned Public Prosecutor withdraws the prosecution by filing an appropriate application under Section 321 Cr.P.C. and that application is independently considered and decided by the Special Court, whether permission can be granted or not, it cannot be said that taking cognizance against the petitioner is illegal or unsustainable and that the first respondent has no jurisdiction or authority to proceed with the said criminal case. Therefore, the writ petition is devoid of merits and the same is liable to be dismissed. 8. The writ petition is accordingly dismissed. There shall be no order as to costs. _________________ V. ESWARAIAH, J ____________________ Date: 30-07-2009 P.SWAROOP REDDY KL/PRV [1] AIR 1987 SUPREME COURT 1345