*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL REVISION CASE NOs.534, 605 & 606 OF 2010 % 30-07-2010 +CRIMINAL REVISION CASE NO.534 OF 2010 #T. Gopala Rao, I.A.S., (Retd.,) Former Chairman, Visakhapatnam Port Trust, Hyderabad. …… Petitioner. And: $State, rep. by the Deputy Superintendent of Police, C.B.I.S.P.E., Visakhapatnam rep. by Special Public Prosecutor, High Court of AP., Hyderabad. …..Respondent. +CRIMINAL REVISION CASE NO.605 OF 2010 #Dr. Vijay Kumar …… Petitioner. And: $State, rep. by Special Public Prosecutor for C.B.I, High Court of AP., Hyderabad. …..Respondent. +CRIMINAL REVISION CASE NO.606 OF 2010 #M.G. Gopal …… Petitioner. And: $State, rep. by Special Public Prosecutor for C.B.I, High Court of AP., Hyderabad. …..Respondent. !Counsel for the Petitioner : Sri C. Praveen Kumar Counsel for the Respondent: Special Public Prosecutor for CBI <Gist : >Head Note: ? Cases referred: 1 AIR 1999 SC 2405 2. 2009 (3) Supreme Court Cases 681 3. 1997 Criminal Law Journal 919 4. AIR 2006 Supreme Court Cases 336 5. 2010(1) ALD (Crl.) 419 (AP) 6. 2000(4) ALD 191(DB) 7. 2000(5) Supreme Court Cases 440 8. 1996(1) ALT 270 (AP) *THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL REVISION CASE NOs.534, 605 & 606 OF 2010 % 30-07-2010 +CRIMINAL REVISION CASE NO.534 OF 2010 #T. Gopala Rao, I.A.S., (Retd.,) Former Chairman, Visakhapatnam Port Trust, Hyderabad. …… Petitioner. And: $State, rep. by the Deputy Superintendent of Police, C.B.I.S.P.E., Visakhapatnam rep. by Special Public Prosecutor, High Court of AP., Hyderabad. …..Respondent. +CRIMINAL REVISION CASE NO.605 OF 2010 #Dr. Vijay Kumar …… Petitioner. And: $State, rep. by Special Public Prosecutor for C.B.I, High Court of AP., Hyderabad. …..Respondent. +CRIMINAL REVISION CASE NO.606 OF 2010 #M.G. Gopal …… Petitioner. And: $State, rep. by Special Public Prosecutor for C.B.I, High Court of AP., Hyderabad. …..Respondent. !Counsel for the Petitioner : Sri Counsel for the Respondent: <Gist : >Head Note: ? Cases referred: 1 AIR 1999 SC 2405 2. 2009 (3) Supreme Court Cases 681 3. 1997 Criminal Law Journal 919 4. AIR 2006 Supreme Court Cases 336 5. 2010(1) ALD (Crl.) 419 (AP) 6. 2000(4) ALD 191(DB) 7. 2000(5) Supreme Court Cases 440 8. 1996(1) ALT 270 (AP) HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NOs.534, 605 & 606 OF 2010 DATE:30.07.2010 CRIMINAL REVISION CASE NO.534 OF 2010 Between: T. Gopala Rao, I.A.S., (Retd.,) Foremer Chairman, Visakhapatnam Port Trust, Hyderabad. …… Petitioner. And: State, rep. by the Deputy Superintendent of Police, C.B.I.S.P.E., Visakhapatnam rep. by Special Public Prosecutor, High Court of AP., Hyderabad. …..Respondent. CRIMINAL REVISION CASE NO.605 OF 2010 Between: Dr. Vijay Kumar …… Petitioner. And: State, rep. by Special Public Prosecutor for C.B.I, High Court of AP., Hyderabad. …..Respondent. CRIMINAL REVISION CASE NO.606 OF 2010 Between: M.G. Gopal …… Petitioner. And: State, rep. by Special Public Prosecutor for C.B.I, High Court of AP., Hyderabad. …..Respondent. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NOs.534, 605 & 606 OF 2010 COMMON ORDER: 1. These three criminal revision petitions are filed questioning three orders dated 31.12.2009 passed by the Special Judge for C.B.I Cases, Visakhapatnam in Criminal M.P.Nos.540 of 2005, 830 of 2005 and 132 of 2009 in C.C.No.15 of 2004, by which petitions filed by A-1 to A-3 under Section 239 Cr.P.C were dismissed refusing to discharge them. 2. The petitioners/A-1 to A-3 are accused of offences punishable under Sections 120-B, 416, 420, 468, 471 IPC, Section 13(2)/13(1)(d)(iii) of Prevention of Corruption Act, 1988 and Section 5(2)/5(1)(d) of the Prevention of Corruption Act, 1947 along with 12 others. A-1 was the then Chairman of Visakhapatnam Port Trust, Visakhapatnam. A-2 was the then Collector, Visakhapatnam District. A-3 was the then Joint Collector, Visakhapatnam District. A-2 and A-3 are serving All India Service Officers in Indian Administrative Service. A-1 was also in Indian Administrative Service and by the time charge sheet was filed by the Central Bureau of Investigation (CBI) in the lower court, he retired from service. Subject- matter of the criminal case is acquisition of land on the requisition of Visakhapatnam Port Trust, Visakhapatnam for construction of staff quarters therein. The acquired lands were Ac.15.00 in S.No.1/2 and Ac.18.39 cents in S.Nos.3/1, 3/2 and 4 of Kancharapalem village lying within Visakhapatnam Municipal Corporation limits. Compensation was paid under the Land Acquisition Act to A-7 to A-12 at the rate of Rs.800/- per sq. yard for land in S.No.1/2 totalling Rs.5.80 crores and at the rate of Rs.900/- per sq. yard for lands in S.Nos.3/1, 3/2 and 4 totalling Rs.8.15 crores. 3. Trouble was ignited by one Gundu Appala Raju, President of Visakha Seva Sangham, Visakhapatnam by filing a Public Interest Litigation which was registered by this Court as Taken up W.P.No.4362 of 1998. By judgment dated 28.03.1997, Division Bench of this Court directed the Superintendent of Police, C.B.I, Visakhapatnam to register a case for offences disclosed in petition of President of Visakha Seva Sangham and reports of the Commissioner of Police, Visakhapatnam and the District Judge, Visakhapatnam and file its report under Section 173(2) Cr.P.C before the lower court. After registering the case, investigating into the same, the C.B.I filed charge sheet in the lower court against A-1 to A-15. A- 6 died pending investigation. 4. Brief history or past events relating to the subject-matter have some relevance in this case. All the events were chronologically arranged in the charge sheet. Visakhapatnam Port Trust (in short, VPT) took possession on paper of Ac.18.39 cents in S.Nos.3/1, 3/2 and 4 on 29.8.1972 and of Ac.15.00 in S.No.1/2 on 30.08.1972. No physical possession of the lands was taken on the ground that there was one tenant in the land. On 28.09.1972, the Estate Manager, VPT addressed letter requesting the Special Thasildar, Land Acquisition, Revenue Division, Visakhapatnam to initiate land acquisition proceedings as the above lands were urgently required. It is stated that there was correspondence between VPT and Land Acquisition Authorities and the State Government about implications of Urban Land (Ceiling and Regulation) Act, 1976 (in short, ULC Act) during the period from the year 1974 to the year 1980. A-15 the then Special Officer and competent authority under ULC Act excluded the said lands from holding of the owners for computing their holding under the ULC Act on the ground that possession of the lands was given to VPT. Subsequently, after receipt of letter dated 03.02.1987 from Special Officer, ULC, Visakhapatnam, the Government of Andhra Pradesh, Revenue (UC-1) Department vide memo dated 20.07.1994 came to the conclusion that the competent authority, ULC, Visakhapatnam erroneously excluded the lands and issued show-cause notices to the land owners as to why proceedings of the Special Officer and competent authority, ULC, Visakhapatnam should not be set aside. Thereupon, owners of land in S.No.1/2 filed W.P.No.17622 of 1994 and owners of land in S.Nos.3/1, 3/2 and 4 filed W.P.No.11754 of 1994 in this Court. This Court by order dated 21.07.1995 allowed W.P.No.17622 of 1994 quashing the show-cause notice dated 20.07.1994 on the ground that power under Section 34 of the U.L.C Act has to be exercised by the Government within reasonable period and not after 14 years. G.O.Ms.No.21 dated 20.01.1995 was issued to set aside orders of A-15 declaring the land owners as non surplus land holders. Therefore, owners of S.Nos.3/1, 3/2 and 4 filed W.P.No.3102 of 1995 in this Court for quashing G.O.Ms.No.21. On 04.06.1996 this Court while setting aside G.O.Ms.No.21 directed initiation of fresh proceedings commencing from Section 4(1) notification under the Land Acquisition Act (in short, the LA Act) and complete entire proceedings including passing of award and payment of compensation within three months. By order dated 21.07.1995 in W.P.No.17622 of 1994 also this Court directed the Revenue Authorities to pay compensation to the land owners within three months. Thus, proceedings under the ULC Act were set at rest holding that original owners of S.Nos.1/2, 3/1, 3/2 and 4 are all non surplus holders under the ULC Act. Thereafter there were no proceedings pending under the ULC Act in respect of these lands. 5. There is equally some history relating to land acquisition proceedings also. Though notification under Section 4(1) of the LA Act was stated to have been issued for the first time on 10.08.1973, there was no proof produced to that effect before this Court in the prior proceedings. As per record first notification under Section 4(1) of the L.A Act was published in the Gazette dated 01.09.1981. Again a fresh notification under Section 4(1) of the L.A Act was published in the Gazette dated 11.02.1986. By order dated 04.06.1996 in W.P.Nos.3102 of 1995 and 11754 of 1994 Single Judge of this Court directed issuance of fresh notification under Section 4(1) of the LA Act and complete land acquisition proceedings including payment of compensation within three months. Thereupon, the Revenue Department of the State Government and VPT filed Writ Appeal Nos.109 of 1997 and 479 of 1997 and batch in this Court. 6. In view of directions of this Court by order dated 21.07.1995 in W.P.No.17622 of 1994 and order dated 04.06.1996 in W.P.Nos.3102 of 1995 and 11754 of 1994, A-2 as Chairman of Negotiations Committee constituted under the A.P. Land Acquisition (Negotiations Committee) Rules 1992 convened Negotiations Committee and arrived at compensation for land in S.No.1/2 at the rate of Rs.800/- per sq. yard and compensation for lands in S.Nos.3/1, 3/2 and 4 at the rate of Rs.900/- per sq. yard. When the said fact was communicated by A-3 to VPT, A-1 as Chairman of VPT deposited the amounts accordingly. It is this action of A-1 to A-3 which is subject matter of the criminal case pending in the lower court. In the Negotiations Committee meeting, apart from land acquisition A-6 and A-13 also participated. A-6 claimed that he obtained un-registered agreement for the lands in question in his favour. A-13 is Advocate for the land owners. In between A-6 and the land owners, there was no dispute with regard to existence of sale agreement between them. 7. Allegations in the charge sheet as against A-1 are as follows: “Sri T. Gopala Rao (A-1) failed to insist on finalising the award on the basis of detailed preliminary valuation approved @ Rs.375/- per sq. yard and accepted the process of negotiations initiated by A-2 and failed to protect the interests of VPT. Sri T. Gopala Rao (A-1) deputed the junior most officer of Estate Division of VPT without any instructions or briefing and ordered for deposit of compensation amount @ Rs.800/- per sq. yard for 15 acres of land in S.No.1/2 and @ Rs.900/- per sq. yard for 18.39 acres of land in S.No.3/1, 3/2 & 4. Sri T. Gopala Rao (A-1) ordered his subordinates to deposit a total amount of Rs.12.86 crores during the years 1995 and 96 without budget allocation and without approval of Ministry of Surface Transport. He ordered payment of Rs.1,61,390/- in Nov. 1995 even without approval of VPT Board. In respect of lands in S. No.1/2 Sri T.Gopala Rao (A-1) recorded a note in the VPT files that they should take a stand that the lands in question should be acquired under the provisions of ULC Act and not LA Act. However, he changed his stand while making payments as required by the Land Acquisition authorities. The maximum compensation payable under Urban Land Ceiling Act was only Rs.2,00,000/-.” 8. Allegations against A-2 in the charge sheet are as follows: “A-2 after taking a stand in the first week of September, 1995 to take up the matter of ULC aspect with the Govt. for obtaining opinion of the Advocate General, strangely changed his views on 24.09.95 while approving the market value of Rs.375/- per sq. yard proposed by A-3 and instead of directing the Land Acquisition Officer to pass the award on the rates so approved, he decided to conduct negotiations on 04.1095. After A-4 received the legal notice on 25.09.95 from A-13 threatening with contempt proceedings. A-2 invited the land owners for discussions on the same day. During the discussions the land owners along with A-6 and A-13 participated in violation of Rule 10 (xii) of AP Land Acquisition (Negotiation Committee) Rules 1992 to ensure that the interests of the Pattadars are protected and to discourage middlemen or advocates. On 30.09.95, A-13 obtained the so called market value certificate from the Sub-Registrar’s office by giving a declaration that the market value of the land was Rs.1,800/- per sq. yard and that the certificate was required for valuation of the lands for valuation of Court fee purposes. A-6, A- 13 and the land owners A-7 to A-12 used the said certificate to claim compensation at the rate of Rs.1,800/- per sq. yard during the negotiations on 4.10.95. It is thus evident that A-2 was a party to the conspiracy to cheat VPT in the matter of granting inflated compensation amount on the basis of claim put forth by the land owners in the name of negotiations. There was no reason to conduct negotiations. Neither the land owners nor the requisitioning Dept., requested for settlement through negotiations before A-2 decided to conduct negotiations. During the negotiations on 4.10.1995, Sri M.G.Gopal (A-2) decided a rate of Rs.800/- per sq. yard on the basis of a certificate obtained by A-13 @ Rs.1800/- per sq. yard issued under AP Court Fees & Suits Valuation Rules, which should not have been considered under Land Acquisition proceedings. This resulted in compensation amount being increased to Rs.5.80 crores from 4.21 approved earlier forS.No.1/2.” 9. Allegations against A-3 in the charge sheet are as follows: “The role of A-3 is equally dubious for the reason that in his note dated 4.9.95, he had pointed out that the lands were taken possession by VPT in undue haste and there was no urgency since they were meant only for construction of quarters. He also expressed his opinion that there would have been collusion between the land owners, the requisitioning department and the Land Acquisition Authorities and the lands were taken over to compulsorily acquire the lands to benefit the land owners by escaping the provisions of ULC. He suggested to take up the matter to the Supreme Court in SLP under ULC aspect. However, after the negotiations were ordered by A-2, he justified that the rate of Rs.800/- per sq. yard decided during negotiations was reasonable against the rate approved by him on 28.9.95 at the rate of Rs.375/- per sq. yard. Dr. Vijay Kumar (A-3) addressed DO Lr. Dt. 14.6.96 to A-1 requesting to deposit amount of Rs.8,34,27,000/- @ Rs.800/- per sq. yard for the lands in S.Nos.1/1, 3/1, 3/2 and 4 even though the lands in S.No.1/1 were not covered by the order dated 4.6.96 of AP High Court.” 10. Before scrutinising the above allegations against A-1 to A-3, it is necessary to consider a preliminary objection raised by A-2 and A-3 with regard to lack of sanction for filing prosecution against them. Though this point was specifically raised by A-2 and A-3 in the lower court and necessary documents were filed before the lower court along with memo dated 07.09.2009, the lower court did not consider and did not decide this point. 11. The Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training by letter No.107/14/2001-AVD.I dated 22.12.2003 addressed to the DIG, CBI, Hyderabad stated that since A-1 had retired from service, no sanction of the competent authority under Section 19(1) of the Prevention of Corruption Act, 1988 (in short, PC Act) is required and that sanction of the competent authority under Section 197(1) Cr.P.C is required to be accorded against him. In that letter it was stated that two copies of the sanction orders for prosecuting A-1 to A-3 are enclosed for taking necessary follow up action by the CBI in that regard. In that letter, it was further stated as follows: “Since, at the time of committing the alleged IPC offences, S/Shri M.G. Gopal and Dr. Vijay Kumar were functioning in connection with the affairs of the Government of A.P., sanction of the Competent Authority under the State Government u/s. 197(1) of Cr.P.C is also required to be accorded against them. It is, therefore, requested that the matter of according such a sanction against both these officers, may be taken up with the State Government.” 12. Thereupon, the CBI took up the issue with the Government of Andhra Pradesh for sanction of prosecution against A-2 and A-3 in particular. The Chief Secretary to Government of Andhra Pradesh addressed letter No.893/S.C.D/A-3 2001-13 dated 01.10.2007 to the Deputy Inspector General of Police, C.B.I, Hyderabad region conveying decision of the State Government to reject request of the C.B.I for according sanction of prosecution orders under Section 197 Cr.P.C against A-2 and A-3. In that letter, the Chief Secretary stated that the State Government have examined the entire matter once again in greater detail and the view taken was as follows: “01. The CBI perception of the whole matter appears flowed, as far as the land acquisition is concerned. 02. In view of increasing litigation, mounting decretal costs and delays due to pending land acquisition, Land Acquisition Officers have been charged with the responsibility of quick, litigation free land acquisition. Learned Advocate General has repeatedly gone on record stating that it is Government which invariably takes a beating in Land Acquisition case in courts of appeal. To combat this, the method of Land Acquisition by negotiation is now widely accepted. 03. The CBI perception of fixation of market value and the process of negotiation in Land Acquisition appears to reflect the older view on the subject where the Land Acquisition Officers were advised to be conservative depend strictly on sale statistics and leave the rest to the courts. 04. The views of the CBI, reflect a similar lack of understanding. It is invariably found that the market value in Land Acquisition matters and in other land allotments is higher than the values fixed in the Basic Value Register of the Registration Department, but a contrary view is expressed by the Central Bureau of Investigation. 05. In any case there is more to fixing market value in Land Acquisition than sales statistics and basic value figures, though these are important indicators. Sri V.K. Srinivasan, in his report, has more or less come to the same conclusion. 06. The CBI officials have not fully understood the process of Land Acquisition in the light of the current trend in Land Acquisition matters. 07. The report of Sri V.K. Srinivasan is a quasi-judicial one and deserves to be treated with some deference and there is no reason to differ with its findings. 08. The Negotiation Committee under the Collector is discharging a statutory duty. Mere suspicion backed by proof that some middlemen have made money, cannot put the Land Acquisition Negotiation Committee members in jeopardy by way of prosecution, unless there is independent proof of these committee members having benefited personally. 09. When we come to the question whether the acquisition through the negotiation route was unilaterally decided upon, we are treading on ‘thin ice’. The end use of Land Acquisition by the requisitioning Department in this case is Staff Quarters and Green belt. These cannot be deemed as urgent matters as a project of public importance. However, the requisitioning Dept., consented and participated in the process of negotiation as did the Pattadars. In the absence of any objection from thee quarters purely from the Land Acquisition point of view, the decision to go in for the Land Acquisition by the negotiation route can at best be termed as a ‘matter of judgment’. 10. Land Acquisition by negotiation is widely prevalent now. If sanction of prosecution is given without clear evidence of malafide, Land Acquisition Officers and ‘Negotiation Committee Members’ may tend to err on the safe side, demoralisation will set in and the very purpose of negotiated Land Acquisition will be defeated.” Thus, ultimately, the State Government rejected request of the CBI for prosecution sanction orders against A-2 and A-3 under Section 197 Cr.P.C. The said decision of the State Government was not challenged by the C.B.I in any court and it was not set aside. 13. In spite of it, the Special Public Prosecutor for CBI placing reliance on certain reported decisions contended that as per the prosecution case, fixation of compensation amount by the Negotiations Committee and payment of compensation by VPT were in conspiracy with the other accused and therefore, no sanction under Section 197 Cr.P.C is required in this case for prosecuting A-2 and A-3. In State of Kerala v. V. Padmanabhan Nair[1], it was held by the Supreme Court that it is no part of duty of a public servant while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct and that therefore, no sanction under Section 197 Cr.P.C is required for prosecuting such a public servant. In that case, the Executive Engineer is alleged to have joined into a criminal conspiracy with 4 others for defrauding the Government by misappropriating about 600 tonnes of steel rods causing loss to an extent of Rs.1,26,000/-. It is a case of misappropriation of Government stores. Undoubtedly, it is no duty of a public servant to commit misappropriation of Government stores to the extent of 600 tonnes of steel rods. I n M. Gopalakrishnan v. State[2], the Chairman and Managing Director, Indian Bank raised plea that he cannot be prosecuted without sanction under Section 197 Cr.P.C issued by the competent authority. Allegation against him was that by using his official position as public servant, he recommended/sanctioned credit limits without proper appraisal, ignoring banking norms, R.B.I guidelines, exceeding delegated powers, violating Board directions despite glaring adverse features in the conduct of the account, without ensuring proper end use of funds and safeguarding interest of the bank. The Supreme Court left the question open to be considered by the trial court after trial. In D.V.Venkateswara Rao v. State of A.P[3], this Court held that no sanction under Section 197 Cr.P.C is required for prosecuting the doctor/medical officer who issued false certificate to an accused person in a murder case for creation of plea of alibi, without admitting and effecting operation on that person. It is observed therein that if the doctor admitted and effected operation on that person and had issued the medical certificate, then definitely it can be said that he had done that act in his official capacity, and not when he gave a false certificate without admitting the patient and performing operation. In Romesh Lal Jain vs. Naginder Singh Rana[4], the Sub Inspector of Police allegedly misappropriated 24 cylinders and accepted bribe of Rs.20,000/- for avoiding maltreatment to the complainant. In those circumstances, the Supreme Court held that no sanction for prosecution in terms of Section 197 Cr.P.C is necessary. 14. None of the above four reported decisions of the Supreme Court and this Court can be applied to facts of this case. In the case on hand, A-2 and A-3 were exercising statutory powers under the L.A. Act and in particular under the A.P. Land Acquisition (Negotiations Committee) Rules, 1992 (in short, Negotiation Committee Rules). It is not the prosecution case that any of A-1 to A-3 had any private negotiations with land holders apart from negotiations held under the above rules. In order to constitute offence punishable under Section 120-B IPC, it is pre-requisite that there must be meeting of minds of all the accused. There is no allegation by the prosecution that there was any prior meeting of minds among A-1 to A-3 much less for A-1 to A-3 with other unofficial or official accused. The only allegation against A-2 and A-3 is that in the Negotiations Committee compensation payable was fixed at the rate of Rs.800/- and Rs.900/- per sq. yard even though preliminary valuation statement (PV Statement) was approved for Rs.350/- and Rs.233.35 ps per sq. yard. Approval of P.V. Statement at the rate of Rs.350/- and Rs.233.35 ps per sq. yard was during the period of previous Joint Collector who is cited as witness No.26 in the charge sheet.