Umesh Kumar Vs State of A.P.

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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.1304 of 2013

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Both these appeals have been preferred against the impugned

judgment and order dated 11.4.2012 passed by the High Court of

Andhra Pradesh at Hyderabad in Criminal Petition No. 12791 of 2011

by way of which the High Court has quashed the charge sheet in C.C.

No. 555 of 2011 in respect of the offence under Section 468 of Indian

Penal Code, 1860 (hereinafter referred to as ‘IPC’). However, it has

not quashed the charge sheet in respect of offences punishable under

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Sections 471, 120-B and 201 IPC. Hence, these cross appeals by both

parties i.e. the accused and the State of Andhra Pradesh.

2. Facts and circumstances giving rise to these appeals are that:

A. A letter dated 22.4.2011 was received by the Secretary,

Ministry of Home Affairs, Union of India, purported to have been

written by one Shri M.A. Khan (Member of Parliament) enclosing a

representation of All India Banjara Seva Samithi (hereinafter referred

to as the ‘Samithi’) asking for an impartial enquiry against Shri V.

Dinesh Reddy, the then DG (Vigilance and Enforcement) Department

– respondent no.2 alleging that he had amassed disproportionate assets

in the name of his wife and her power of attorney holders. A large

number of documents were annexed in support of the allegations in

the complaint. The Joint Secretary, Ministry of Home Affairs

forwarded the said complaint to the Chief Secretary, Govt. of A.P. on

5.5.2011 for enquiry into the matter. The said letter was received by

the Chief Secretary, Govt. of A.P. on 23.5.2011. On the same day, a

letter purporting to have been sent by Shri M.A. Khan, M.P., was

received by Govt. of A.P. through Shri V. Dinesh Reddy – respondent

no.2, wherein it had been alleged that the letter sent by the Central

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Government to the Chief Secretary, A.P. had not been authored by

Shri M.A. Khan, M.P.

B. When the Chief Secretary, A.P. was examining the matter, Shri

V. Dinesh Reddy, - respondent No.2, the then DG (V & E) wrote a

letter to the State Government annexing a copy of the letter of Shri

M.A. Khan, M.P., dated 23.5.2011 denying the authorship of that

letter and ask a junior police officer to give his report about the

genuineness of the Samithi. Upon being informed that it was

fictitious, respondent no.2 asked for a detailed enquiry to be

conducted to ascertain who had forged the said letter and signature of

Shri M.A. Khan, M.P., on the complaint. Meanwhile, Shri V. Dinesh

Reddy - respondent no.2, was appointed as Director General of Police,

A.P. on 30.6.2011.

C. The State Government asked the Additional D.G.P., Crime

Investigation Department, namely Shri S.V. Ramana Murthi to

enquire and submit a report to the Government in respect of

fabricating the letter and forging the signature of Shri M.A. Khan,

M.P. The said officer Shri Ramana Murthi did not conduct any

enquiry himself, rather he entrusted the same to one Shri M. Malla

Reddy, Deputy SP, CID. After conducting the enquiry, Shri Malla

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Reddy submitted the enquiry report to Addl.D.G.P., CID on

22.8.2011, pointing out that one Shri T. Sunil Reddy obtained

certified copy of the documents from the office of the Sub-Registrar

on the instructions of some senior officer. The said certified copies

were the same as the ones that had been annexed alongwith the

complaint submitted in the name of the Samithi.

D. On the same day, i.e. 22.8.2011, Shri Ramana Murthi,

Addl.D.G.P., CID submitted the said report to Shri V. Dinesh Reddy,

respondent no.2 seeking directions and further requesting him that the

report be forwarded to the State Government.

E. On 24.8.2011, Shri Dinesh Reddy - respondent no.2 himself

directed the registration of the First Information Report (in short

‘FIR’) and that an investigation be conducted by CID. As a

consequence, the FIR was registered on 25.8.2011 and one Shri J.

Ranjan Ratan Kumar, Dy. S.P. was appointed as the Investigating

Officer.

F. During the course of investigation, Shri T. Sunil Reddy was

arrested on 26.8.2011. His statement was recorded on 27.8.2011 under

Section 161 of Code of Criminal Procedure, 1973 (hereinafter referred

to as ‘Cr.P.C.’) wherein Umesh Kumar, appellant was not named.

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G. The report submitted by Shri Malla Reddy was forwarded by

Shri V. Dinesh Reddy - respondent no.2 to the State Government on

27.8.2011. Shri T. Sunil Reddy was remanded to judicial custody on

27.8.2011. It was during that judicial custody on 3.9.2011 that his

statement was recorded a second time under Section 161 Cr.P.C.

wherein he named Umesh Kumar, appellant. On being enlarged on

bail on 5.9.2011, Shri T. Sunil Reddy made an application on

7.9.2011 under Section 306 Cr.P.C. to become an approver.

H. Umesh Kumar, appellant, asked the Govt. of A.P. to hold an

investigation on the basis of the certified copy of the sale deeds

against respondent no.2. In the meanwhile, on 26.9.2011, the

Investigating Officer filed a statement in the court that unless the said

Shri T. Sunil Reddy was granted pardon, there would be no evidence

against Umesh Kumar. The trial court vide order dated 10.10.2011

accepted the application of Shri T. Sunil Reddy and granted him

pardon and made him an approver. However, the said order dated

10.10.2011 was quashed by the High Court vide judgment and order

dated 1.4.2012 in Writ Petition No. 31927 of 2011 filed by Umesh

Kumar, appellant.

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I. After completing the investigation, a charge sheet dated

14.11.2011 was filed naming Umesh Kumar, appellant showing that

offences punishable under Sections 468, 471, 120-B and 201 IPC had

been committed.

J. Aggrieved, Umesh Kumar approached the High Court under

Section 482 Cr.P.C. for quashing the said charge sheet. However, the

High Court vide impugned judgment and order dated 11.4.2012

quashed the charge sheet only in part as referred to hereinabove.

Hence, these cross appeals.

3. The matter was heard at length and after considering the gravity

of the allegations against respondent no.2 and his alleged

involvement, this court issued notice to him suo motu and after

hearing his counsel he was impleaded as a respondent.

4. Shri Rakesh Dwivedi, learned senior counsel appearing for

Umesh Kumar, appellant has submitted that the purported complaint

sent by Shri M.A. Khan, M.P., to the Central Government was duly

supported by a large number of documents showing that respondent

no.2 had amassed wealth which was disproportionate to his known

sources of income. His wife had purchased various benami properties.

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The certified copies of the said sale deeds are admissible in evidence

in court. Even if the allegations against Umesh Kumar, appellant are

correct, there could have been a fair enquiry on the said allegations

against respondent no.2. However, the State of A.P. discriminated

against the appellant and has taken no action whatsoever till today to

examine whether the said respondent has acquired disproportionate

assets.

When the matter was referred by the State Government to the

Addl. D.G.P. directly without informing respondent no.2 to hold an

enquiry to find out whether the signature of Shri M.A. Khan, M.P.

was genuine and about the existence of the Samithi, in such a

situation, respondent no.2 had no business to interfere with the matter

and pass any order. The enquiry had been entrusted to the Addl.

D.G.P. However, the said Addl. D.G.P. further entrusted the same to

the Deputy S.P. who arrested one Shri T. Sunil Reddy, made him an

approver and got his statement recorded naming Umesh Kumar.

Before the report submitted by Shri Malla Reddy could reach the State

Government, respondent no.2 directed that an FIR be lodged without

waiting for the direction of the State Government. Since by that time,

respondent no.2 had been appointed as D.G.P., A.P., unofficially, he

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had been in contact with Shri M.A. Khan, M.P., and created a

situation where the enquiry could be directed only against Umesh

Kumar, appellant.

In spite of the fact that this court passed an order on 24.7.2013

directing the Chief Secretary, A.P. to disclose whether any enquiry

had ever been made against the said respondent no.2 with respect to

disproportionate assets, the Chief Secretary, A.P. had not submitted

any clear cut reply to this court. The Chief Secretary gave an evasive

reply without disclosing any fact in this regard. The evidence

collected illegally is admissible in law. Thus, the Govt. of A.P.

should have conducted inquiry against respondent No. 2 on the basis

of the sale deeds annexed alongwith the complaint. There is collusion

between the State Government and respondent no.2 discriminating

against the appellant. The High Court ought to have quashed the

whole charge sheet being a product of malafides and illegal activities

of the State and respondent no.2. Thus, the appeal filed by Umesh

Kumar deserves to be allowed and appeal filed by the State is liable to

be dismissed.

5. Shri R. Venkataramani, learned senior counsel appearing for

the State has submitted that Umesh Kumar hatched a conspiracy and

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obtained the certified copies of the sale deeds which were in the name

of different persons and filed a complaint in the fictitious name

forging the signature of Shri M.A. Khan, M.P. Such a fact had been

disclosed by his accomplice Shri T. Sunil Reddy and other persons

like Shri Lokesh Kumar etc. Respondent no.2 being the head of the

police department has rightly issued the direction to lodge an FIR and

investigate the matter. The High Court committed an error

entertaining his petition under Section 482 Cr.P.C. without any

ground. As it was at the pre-emptive stage the matter could have been

examined by the competent court; issues raised by Umesh Kumar

could have been examined at the time of framing of the charges; and

he could have filed an application for discharge. As charges can be

altered at any stage during the trial, the High Court could not have

quashed the charge sheet in respect of only Section 468 IPC. Thus,

the appeal filed by Umesh Kumar is liable to the dismissed and the

appeal filed by the State deserves to be allowed.

6. Shri U.U. Lalit, learned senior counsel appearing for respondent

no.2 has submitted that by filing a complaint in the fictitious name

and forging the signature of Shri M.A. Khan, M.P., the reputation of

respondent no.2 was put at stake. Admittedly, the complaint was in a

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fictitious name and with a forged signature. A case had been

registered in respect of the same with Delhi Police, however, it could

not proceed further. The office of the CID was chosen by the Chief

Secretary and an enquiry was entrusted to the said department.

Therefore, there could be no malice or malafides so far as respondent

no.2 is concerned. More so, the name of Umesh Kumar, appellant,

was not disclosed till the respondent no.2 was appointed as D.G.P. His

name could be unearthed at a subsequent stage. Shri M.A. Khan,

M.P. contacted the said respondent and asked for a preliminary

enquiry. The said respondent forwarded the said report. Therefore,

there could be no malice against him whatsoever. In view of the

above, the appeal of Umesh Kumar, appellant is liable to be

dismissed.

7. We have heard the rival submissions made by learned counsel

for the parties and perused the record.

8. The facts are not in dispute. The letter dated 22.4.2011

purported to have been written by Shri M.A. Khan, M.P., suggests

that various properties had been purchased by respondent no.2 as

benami and the copies of the sale deeds etc. filed alongwith the said

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letter fortify the same. The Government of India wrote a letter to the

Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in

respect of alleged disproportionate assets made by the respondent no.2

by purchase of huge lands either by himself or in the name of his wife

or through benamis. Shri M.A. Khan, M.P. vide letter dated

23.5.2011 pointed out to the Central Government that he had not

signed the complaint and his signature had been forged. Umesh

Kumar, appellant had asked the State Government to conduct an

enquiry in respect of the disproportionate assets of the respondent

no.2.

The memo dated 2.8.2011 issued by the Govt. of A.P. revealed

that respondent no.2 had conducted an enquiry in the matter of the

letter purported to have been sent by Sh. M.A. Khan, M.P. He reached

the conclusion that the complaint had been filed with the forged

signature of Shri M.A. Khan, M.P., and made a request to the State

Government to order a CID probe into the matter of forgery, criminal

conspiracy, and cheating as no such Samithi was in existence and the

letter was bogus. It was in view thereof, the Government directed the

enquiry on the following issues:

(i) Who forged the letter of Member of Parliament?

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(ii) Who obtained all the documents running into hundreds of pages

from the concerned Sub-Registrar’s office?

The Memo further revealed that Addl. D.G.P., Crime

Investigation Department would conduct the enquiry into the above

issues and submit a report to the Government at an early date. The

copy of the same was sent to respondent no.2 and to the Central

Government in addition to the Addl. D.G.P.

9. Admittedly, no attempt has ever been made by any person to

hold the enquiry relating to the genuineness of the allegations in the

complaint purported to have been signed by Shri M.A. Khan, M.P.

The letter dated 24.8.2011 makes it clear that before the report could

reach the Government, respondent no.2 directed that an FIR be

lodged, enquiry conducted and the report of the same be submitted to

his office. The documents revealed that the statement made by Shri T.

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

However, when he was in police custody and his statement was

recorded a second time he named the appellant. It is also evident that

he was made an approver with the help of the public prosecutor and

later on the said order of the trial court was set aside by the High

Court at the behest of Umesh Kumar.

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10. The aforesaid facts clearly reveal the following things:

(I) Even if the said complaint was in a fictitious name with a

forged signature, the material annexed with the said complaint

revealed that various properties had been purchased by the respondent

No.2, in his name or in the name of his wife or her General Power of

Attorney holders.

(II) The Central Government had asked the State Government to

conduct an inquiry of the allegations in the said complaint which the

State Government did not ensure compliance of.

(III) In spite of our order dated 24.7.2013 directing the Chief

Secretary to file his personal affidavit as to whether any attempt had

ever been made to find out the truth in the said allegations, the Chief

Secretary filed a defective affidavit which does not reflect any light on

the issue whatsoever.

(IV) When the enquiry was entrusted by the State Government

directly to a particular police officer and the officer submitted the

report, but before reaching the Government, respondent no.2 directed

that an FIR be lodged against Umesh Kumar, appellant and an

investigation be conducted. The report was sent to the State

Government subsequent thereto, and even on that report the State

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Government had never taken any decision whatsoever, and in the

meanwhile the charge sheet was filed.

(V) The charge sheet was filed under various provisions of the IPC

and some of them are exclusively triable by the Court of Sessions and

not by the magistrate. There are no committal proceedings till now in

the case. Therefore, the stage of framing the charges or considering an

application for discharge has not yet arrived.

(VI) Shri T. Sunil Reddy had not disclosed the name of Umesh

Kumar, appellant in his first statement. However, subsequently when

he was in police custody and his statement was recorded a second

time he revealed his name. He was also granted pardon and made an

approver by the order of the trial court and the said order has been set

aside by the High Court at the behest of Umesh Kumar as referred to

hereinabove.

(VII) Various other cases regarding the enquiry against respondent

no.2 by the CBI or an independent agency, are reported to be pending

before the High Court, and it is pointed out that the learned Single

Judge has allowed the said writ petition, but the Division Bench had

stayed the operation of the said order at the behest of respondent No.2.

The learned Additional Advocate General at the direction of the High

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Court had placed a large number of sale deeds in respect of land

purported to have been purchased by respondent No.2’s wife and her

sister Smt. S. Nalini between 1998 and 2005, either in her name or her

relatives or General Power of Attorney holders.

(VIII) The High Court partly quashed the charge sheet observing that

the offence under Section 468 IPC is not made out.

Case against Umesh Kumar – appellant :

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

forging some one else signature may affect his reputation. Reputation

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

personal right and an enquiry to reputation is a personal injury. Thus,

scandal and defamation are injurious to reputation. Reputation has

been defined in dictionary as “to have a good name; the credit, honor,

or character which is derived from a favourable public opinion or

esteem and character by report”. Personal rights of a human being

include the right of reputation. A good reputation is an element of

personal security and is protected by the Constitution equally with the

right to the enjoyment of life, liberty and property. Therefore, it has

been held to be a necessary element in regard to right to life of a

citizen under Article 21 of the Constitution. International Covenant on

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Civil and Political Rights 1966 recognises the right to have opinions

and the right of freedom of expression under Article 19 is subject to

the right of reputation of others. Reputation is “not only a salt of

life but the purest treasure and the most precious perfume of life.”

(Vide: Smt. Kiran Bedi & Jinder Singh v. The Committee of

Inquiry & Anr., AIR 1989 SC 714; Board of Trustees of the Port

of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors.,

AIR 1983 SC 109; Nilgiris Bar Association v. TK Mahalingam &

Anr., AIR 1998 SC 398; Dr. Mehmood Nayyar Azam v. State of

Chattisgarh & Ors., AIR 2012 SC 2573; Vishwanath Sitaram

Agrawal v. Sau Sarla Vishwanath Agrawal, AIR 2012 SC 586; and

Kishore Samrite v. State of U.P. & Ors., (2013) 2 SCC 398).

12. In view thereof, if any person has forged in a letter under the

name of the Samithi and forged the signature of Shri M.A. Khan,

M.P., the matter being of grave nature requires investigation and, in

view of above, we cannot find fault with the action initiated against

Umesh Kumar, appellant. Once criminal law is put in motion and after

investigation the charge sheet is filed, it requires scrutiny in the court

of law. However, before the charges could be framed, Umesh Kumar,

appellant, approached the High Court under Section 482 Cr.P.C. for

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quashing of the charge sheet. The scope of Section 482 Cr.P.C. is

well defined and inherent powers could be exercised by the High

Court to give effect to an order under the Cr.P.C.; to prevent abuse of

the process of court; and to otherwise secure the ends of justice. This

extraordinary power is to be exercised ex debito justitiae. However, in

exercise of such powers, it is not permissible for the High Court to

appreciate the evidence as it can only evaluate material documents on

record to the extent of its prima facie satisfaction about the existence

of sufficient ground for proceedings against the accused and the court

cannot look into materials, the acceptability of which is essentially a

matter for trial. Any document filed alongwith the petition labelled as

evidence without being tested and proved, cannot be examined. Law

does not prohibit entertaining the petition under Section 482 Cr.P.C.

for quashing the charge sheet even before the charges are framed or

before the application of discharge is filed or even during its pendency

of such application before the court concerned. The High Court

cannot reject the application merely on the ground that the accused

can argue legal and factual issues at the time of the framing of the

charge. However, the inherent power of the court should not be

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exercised to stifle the legitimate prosecution but can be exercised to

save the accused to undergo the agony of a criminal trial.

(Vide: Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate &

Ors., AIR 1998 SC 128; Ashok Chaturvedi & Ors. v. Shitulh

Chanchani & Anr. AIR 1998 SC 2796; G. Sagar Suri & Anr. v.

State of U.P. & Ors., AIR 2000 SC 754; and Padal Venkata Rama

Reddy @ Ramu v. Kovvuri Satyanarayana Reddy & Ors., (2011)

12 SCC 437)

13. In Rajiv Thapar v Madan Lal Kapoor, 2013 (3) SCC 330,

this Court while dealing with the issue held as follows:

“ Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:

(i) Step 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) Step 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.

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(iii) Step 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) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?”

14. In State of Bihar v. P.P. Sharma & Anr., AIR 1991 SC 1260,

this Court dealt with an issue of whether an application under Section

482 Cr.P.C. for quashing the charge sheet should be entertained

before cognizance is taken by a criminal court and held as under:-

“Quashing the charge-sheet even before cognizance is taken by a criminal Court amounts to killing a still born child. Till the criminal Court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground alternative remedies provided by the Code as a bar. It may be relevant in an appropriate case. My 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…. It is not to suggest that under no circumstances a writ petition should be entertained….. The charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the chargesheets and the First Information Report.” (Emphasis added)

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15. The issue of malafides looses its significance if there is a

substance in the allegation made in complaint moved with malice.

In Sheo Nandan Paswan v. State of Bihar & Ors., AIR 1987

SC 877, this Court held as under:

“It 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.”

16. In Parkash Singh Badal v. State of Punjab & Ors., AIR 2007

SC 1274, this Court held as under:

“The ultimate test, therefore, is whether the allegations have any substance. An 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. Therefore, the plea of mala fides as raised cannot be maintained.”

17. In State of A.P. v. Goloconda Linga Swamy & Anr., AIR

2004 SC 3967, this Court held as under:

“It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of malafides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding.”

(See also: K. Karunakaran v. State of Kerala, (2007) 1 SCC 59).

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18. Thus, in view of the above, it becomes evident that in case there

is some substance in the allegations and material exists to substantiate

the complicity of the applicant, the case is to be examined in its full

conspectus and the proceedings should not be quashed only on the

ground that the same had been initiated with mala fides to wreak

vengeance or to achieve an ulterior goal.

19. Scheme for inquiry/trial provided under the Cr.P.C. is quite

clear. After investigation, report under Section 173(2) Cr.P.C. is to be

submitted before the competent court i.e. magistrate having

jurisdiction in the matter and the magistrate may take cognizance

under Section 190 Cr.P.C. However, it is still open to the magistrate to

direct further investigation under the provisions of Section 173(8)

Cr.P.C. If the case is triable by the Court of Sessions, the magistrate

would commit the case to the said court under Section 209 Cr.P.C. It

is for the court to examine whether there is sufficient material

collected during investigation and filed alongwith the charge sheet

that a prima facie view can be taken to proceed against the accused

and in view thereof, frame charges under Section 228 Cr.P.C. At this

stage the remedy available to the accused is to ask for discharge under

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Section 227 Cr.P.C. In case charges are framed the accused has to

face the trial, charges can be added/altered at any stage of the trial,

before the pronouncement of the judgment to suit the evidence

adduced before the court, under the provisions of Section 216 Cr.P.C.

The only legal requirement is that a witness has to be recalled as

provided under Section 217 Cr.P.C. when a charge is altered or added

by the court.

20. In the instant case, charge sheet had been filed and the

cognizance had been taken by the magistrate concerned; the

committal proceedings have not yet taken place; and some of the

offences attracted in this case are exclusively triable by the Sessions

Court. Umesh Kumar, appellant approached the High Court under

Section 482 Cr.P.C. and the charge sheet has been partly quashed

observing that the provisions of Section 468 IPC are not attracted.

21. The question does arise as to whether such an order attained

finality and in case the evidence is adduced before the court

concerned, whether the trial court can still hold that the applicant is

required to be tried for the offence under Section 468 I.P.C. and

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further whether the trial would be competent on the said charge in

exercise of its power under Section 216 Cr.P.C.?

22. In State of Maharashtra v. Salman Salim Khan, AIR 2004

SC 1189, this Court depreciated the practice of entertaining the

petition under Section 482 Cr.P.C. at a pre-mature stage of the

proceedings observing as under:

“….The arguments regarding the framing of a proper charge are best left to be decided by the trial court at an appropriate stage of the trial. Otherwise as observed in this case, proceedings get protracted by the intervention of the superior courts….The High Court by the impugned order had allowed the said application quashing the charge under Section 304 IPC against the respondent herein while it maintained the other charges and direct the Magistrate’s court to frame the de novo charges…… We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial Court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. ……we think the High Court was not justified in this case in giving a finding as to the non-existence of material to frame a charge for an offence punishable under Section 304, Part II, IPC, therefore so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought

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not to have been given at this stage .….”. (Emphasis added) The Court set aside the order of the High Court and left it open

to the trial court to modify the charges in accordance with the

evidence adduced before it.

(See also: Sohan Lal & Ors. v. State of Rajasthan, AIR 1990 SC

2158)

23. A Constitution Bench of this Court reiterated a similar view in

CBI & Ors. v. Keshub Mahindra etc., AIR 2011 SC 2037

observing that when the charges are framed, the court makes an

endorsement till that stage. So charges are framed on the materials

produced by the prosecution for framing the charges “at that stage”.

Such indication is necessary otherwise the provisions contained in

Sections 216, 323, 386, 397, 399, 401 etc. Cr.P.C., would be rendered

nugatory and denuded a competent court of the powers under those

provisions. The court cannot be restrained from exercising its powers

either under Section 323 or Section 216 Cr.P.C.

24. The High Court was approached by Umesh Kumar, appellant

under section 482 Cr.P.C. at a premature stage. At the said stage the

High Court could examine the chargesheet, case diary and other

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material in the chargesheet which by no means can be termed as

substantive evidence. (Vide: Lok Ram v Nihal Singh & Ors. AIR

2006 SC 1892).

25. Thus, in view of above, the order of the High Court impugned

before us cannot be termed as a final decision. The order is subject to

further order which could be passed by the trial court under Section

216 Cr.P.C., on the basis of the evidence to be led during trial. If the

impugned order is dubbed as having attained finality, the provisions

of Section 216 Cr.P.C. would render otiose/nugatory. Thus, the same

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

consideration the material which was available “at that stage” and it

is still open to the trial court to add or alter the charges according to

the evidence produced before it.

Complaint against Respondent No.2:

26. The complaint was initially made in respect of acquiring huge

immovable properties by respondent No. 2 in his name and in the

name of his wife, and the Central Government had asked the State

Government to conduct an inquiry into the said allegations. The

complaint may be forged or fabricated, but it is nobody’s case that the

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copies of sale deeds annexed alongwith the said complaint were not

genuine. While issuing direction to hold inquiry/investigation as to

who had fabricated the said complaint and forged the signatures of

Shri M.A. Khan, M.P., the allegations of acquiring properties by the

respondent No.2 have been abandoned and unattended altogether.

Even though the complaint was bogus, however, the sale deeds

annexed alongwith the same though illegally collected by someone,

have not been found to be fabricated documents.

27. It is a settled legal proposition that even if a document is

procured by improper or illegal means, there is no bar to its

admissibility if it is relevant and its genuineness is proved. If the

evidence is admissible, it does not matter how it has been obtained.

However, as a matter of caution, the court in exercise of its discretion

may disallow certain evidence in a criminal case if the strict rules of

admissibility would operate unfairly against the accused. More so, the

court must conclude that it is genuine and free from tampering or

mutilation. This court repelled the contention that obtaining evidence

illegally by using tape recordings or photographs offend Articles

20(3) and 21 of the Constitution of India as acquiring the evidence by

such methods was not the procedure established by law. (Vide:

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Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968

SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888;

R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran

Mal v. Director of Inspection, Income-Tax, New Delhi & Ors.,

AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias

Afsan Guru, (2005) 11 SCC 600).

28. In such a fact-situation if illegally collected material can be

examined by the court of law, we fail to understand how the State

Government could not examine the contents of the complaint on the

basis of the annexed copies of sale deeds etc.

During the arguments of this case, our conscious was shocked

as to the manner the State of Andhra Pradesh has misdirected itself

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

Dinesh Reddy – respondent no.2 and concentrated exclusively against

Umesh Kumar, appellant. Thus, vide order dated 24.7.2013, we have

asked the Chief Secretary of the State of Andhra Pradesh to disclose

as to whether any preliminary/disciplinary inquiry has ever been

conducted by the State in respect of the alleged sale deeds in favour of

the spouse or her general power of attorney holders or relatives of

respondent No. 2.

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29. In reply to our order dated 24.7.2013, the Chief Secretary has

filed an undated affidavit though attested by a Joint Secretary to Govt.

of A.P., and has given numerous explanations in respect of the alleged

pseudonymous petition filed with a fictitious name of the Samithi and

with the forged signature of Shri M.A. Khan, M.P. The Chief

Secretary has taken the plea that the Government of A.P. could not

investigate an enquiry about the disproportionate assets of the

respondent no.2 in view of the fact that the High Court of Andhra

Pradesh vide order dated 2.5.2013 stayed the operation of the learned

Single Judge’s order to conduct an enquiry into the allegations. The

Chief Secretary to the Govt. of Andhra Pradesh has not revealed

whether a preliminary enquiry or a domestic enquiry had ever been

conducted till 2.5.2013 when the High Court passed the restraint

order. The complaint was filed on 22.4.2011 and more than two years

had elapsed when the High Court passed the order. No explanation

has been furnished as to why for two years the enquiry could not be

held in this regard.

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

provisions of Section 139 of the Code of Civil Procedure, 1908.

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(hereinafter referred to as the `CPC’). The Supreme Court Rules 1966

under Order XI, Rule 7 also require adherence to the provisions of

Section 139 CPC. Hence, his reply is not worth taking on record and

being undated, renders the same to be a piece of waste paper.

The definition of ‘affidavit’ in Section 3(3) of the General

Clauses Act 1897 provides that it “shall include affirmation and

declaration in the case of persons by law allowed to affirm or declare

instead of swearing”. Thus, it is an essential characteristic of an

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

having authority to administer the oath or affirmation, and thus, duty

to state on oath on the part of the deponent is sacrosanct. Same

remains the position in respect of administration of oath as required

under the Oaths Act 1873.

(See: Krishan Chander Nayar v. The Chairman, Central Tractor

Organisation & Ors., AIR 1962 SC 602; Chhotan Prasad Singh &

Ors. v. Hari Dusadh & Ors., AIR 1977 SC 407; and M.

Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28).

31. In view of the above, we have no hesitation to hold that the

Chief Secretary had the audacity not to ensure the compliance of the

order of this court dated 24.7.2013, and we have no words to express

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our anguish and condemn the attitude adopted by the Chief Secretary.

More so, holding such a responsible post in the State, he must have

some sense of responsibility and should have been aware of what are

the minimum requirements of law, and even if he did not know he

could have consulted any law officer of the State before filing the

undated affidavit.

32. Be that as it may, facts of the case warranted some enquiry in

respect of the allegations of acquiring huge properties by Shri V.

Dinesh Reddy – respondent no.2. The State took the courage to flout

the order of the Central Government and did not look into the contents

of the complaint and misdirected the enquiry against Umesh Kumar,

appellant. In such a fact-situation, this court would not fail in its duty

to direct the enquiry in those allegations.

33. In view of the above, the appeals are disposed of directing the

CBI to investigate the matter against Shri V. Dinesh Reddy –

respondent no. 2 on the allegations of acquiring the disproportionate

assets. However, this should not be considered as expressing any

opinion upon the merits of the case. The Chief Secretary to the

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Government of Andhra Pradesh is directed to make the copies of the

said sale deeds available to the CBI for investigation.

34. Case of Umesh Kumar – appellant would proceed before the

Trial Court as explained hereinabove.

A copy of the judgment and order be sent to the Director, CBI,

forthwith. The CBI shall submit the Status Report to this Court within

four months.

……..…………..…………J. (Dr. B.S. CHAUHAN)

………..……………..……J. (S.A. BOBDE)

New Delhi, September 6, 2013

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UMESH KUMAR Vs STATE OF A.P.

UMESH KUMAR Vs STATE OF A.P.