Naidu’s Petition in High Court

Hyderabad: Here is the full text of the petition filed in Hyderabad High Court on Thursday on behalf of AP Chief Minister Chandrababu Naidu pleading to grant a stay on the proceedings in ACB special court in ‘Note for Vote’ case.

MEMORANDUM OF CRIMINAL PETITION

(Under Section 482 of Criminal Procedure Code)

IN THE HIGH COURT OF JUDICATURE :: AT HYDERABAD

(FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH)

Criminal Petition No.        of 2016

 

Between:

Nara Chandrababu Naidu,

S/o late Kharjura Naidu, Aged 67 years,

R/o. Chief Minister’s Camp Office,

Undavalli village, Tadepalli Mandal,

Guntur District, Andhra Pradesh                    …Petitioner/Accused

 

And

 1. The State of Telangana,

Rep. by its Public Prosecutore for ACB Cases

High Court of Judicature at Hyderabad

For the State of Telangana

And the State of Andhra Pradesh                               …Respondent

 

  1. Alla Ramakrishna Reddy,

S/o Dasaradharami Reddy, Aged 47 years,

Occ: MLA, Mangalagiri Assembly Constituency,

Opp. Old Bus Stand, Nidamarru Road,

Mangalagiri, Guntur District,

Andhra Pradesh.                                             …Respondent/Complainant

 

The address for service of all notices and process on the above named Petitioner is that of his counsel Sri.Posani Subba Rao Advocate, #A-29, Madhura Nagar, Ameerpet, Hyderabad-38

******

1. It is submitted that the respondent herein has, on 08.08.2106, filed private complaint C.C.SR.No. 958 of 2016 before the Principal Special Judge for SPE & ACB Cases, Hyderabad against the petitioner herein under Section 190 and 200 Cr.P.C in Crime No.11/ACB-CR-1-HYD/2015, praying under:

Hence, it is prayed that this Hon’ble Court may be pleased to take the complaint on file and deal with the Accused for the offences u/s 12 of the P.C.Act.and 120I.P.C and it is humbly submitted that as the Police investigation is simultaneously proceeding in the same offence the Hon’ble Court may be pleased to invoke section 210 Cr.P.C.

The learned Special Judge (FAC), vide order dated 29.8.2016 forwarded the said private complaint to the police U/s 156(3) for thorough investigation and report.

The present Criminal Petition Is filed for quashing the said as the same is contrary to law and non-application of mind in reference to the facts of the case, without jurisdiction and without assigning reasons and the respondent herein has no locus to maintain such complaint and seek relief.

2.(a) It IS submitted that Crime No.ll/ACB-CR/2015 of ACB Police Station, City Range-1 Hyderabad was registered on 31.5.2015 U/s 12 P.C Act and U/s 120(B) r/w 34 IPC. This crime was registered based on a written complaint said to have been submitted by one Sri Sebastian on 28.5.2015. According to the said defacto complaint, he was a member of the Legislative Council of the State of Telangana and one of the voters for the Election scheduled to be conducted by the Election Commission of India under the Representation of People Act, 1951 for electing the members to the Legislative Council. He alleged that he was offered money by some of the accused to cast vote in favour of a candidate contesting for such election.

(b). The ACB revered the laid crime against four persons, investigated into the matter and filed a charge sheet (report under S.173(2) CrPC before the court of Principal Special Judge for SPE & ACB cases, Hyderabad. It, was stated in the charge sheet that investigation is still pending as against A5 Sri Sandra Venkata Veeraiah. It was further stated that any other material which would come to light during further course of investigation against A1 to A4 would be placed before the Special Judge by filing a supplementary charge sheet. The charge sheet dated 27.7.2015 is pending consideration.

(c). The Accused No 4 (in this crime) filed criminal petition No.5520 of 2015 before this Hon’ble High Court U/s Cr.P.C to quash the proceedings in the crime. This Hon’ble, Court, vide its judgment dated 3.6.2016, was pleased to quash the proceedings in so far as A4 is concerned. While quashing the proceedings, this Hon’ble Court was pleased to hold that the allegations in the written report and in the charge sheet regarding the alleged bribe (offering money to vote) do not attract the ingredients of Section 12 of P.C Act. It is further held that Sections 120(B) and 107 IPC also are not attracted based on the ingredients of the written report.

(d). It must be pointed out that the State of Telangana filed a Special Leave Petition against the judgment dated 03.06.2016 before the Hon’ble Supreme Court, being SLP (Cri) 5248 of 2016, Vide order dated 22.07.2016. Notice was issued in the Special Leave Petition, however no stay was granted of the judgment dated 03.06.2016.

3 (a). It is submitted that in the meanwhile, the respondent herein, who has no connection with the crime in question & pending investigation (being neither the informant nor a witness) is an MLA representing Mangalagiri Assembly constituency in Andhra Pradesh who belongs to YSRCP, filed a private complaint against the petitioner herein on 8.8.2016 before the Principal Special Judge SPE & ACB cases. This private complaint was filed in the crime already registered and where a charge sheet had been filed on 27.7.2015. AT the it is pertinent to point that that this complaint makes no mention of the charge sheet filed.

(b). In the present complaint, the respondent alleges that the petitioner herein was a conspirator of the alleged offering of money to the defacto complainant in Crime No. 11. He relied on a phone conversation and a public speech and interview said to have been made by the petitioner herein. He further alleged that the investigation into the crime was not effectively conducted. Based on such vague, bald, and unfounded allegations, the respondent herein filed a Complaint before the Special Court (ACB) the prayer in which has been reproduced above.

(c). The learned Special Judge vide order dated 29.8.2016, chose to refer the private complaint to the investigating agency U/s 156(3) Cr.P.C for conducting investigation and submit report, despite the fact that a charge sheet had already been filed on 27.7.2015

4 (a). It is submitted that the Order of the Special Judge directing investigation and report under Section 156(3), CrPC after the filing of the charge sheet on 27.7.2015, is legally impermissible since the power under S.156(3) is not available at that stage.

(b). The Order of the Special Judge directing investigation and report under Section 156(3), CrPC would result in an anomalous situation, wherein after the filing of the charge sheet on 27.7.2015 there would be a second FIR being registered with respect to the same matter / transaction.

(c). Further, the prayer (though misconceived as well) was for invoking Section 210, CrPC which mandates the pre-existence of a private complaint before a Magistrate, which is not the case in the present matter. Here, the Complaint was filed on 08.08.2016 whilst the charge sheet had been filed on 27.7.2015. more than a year before the filing of the private complaint. This delay has not been explained by the Complainant.

(d). The respondent herein has no locus to file such private complaint especially to refer to the Police for investigation U/s 156(3) Cr.P.C as he was not an aggrieved person to invoke such jurisdiction and power by the Special Court.

(e) As per the law laiddown by the Hon’ble Supreme Court in Priyanka Srivastava v. State of UP, (2015) 6 SCC 287, before a petition is filed under Section 156(3), there have to be prior applications made under Section 154(1)and Section 154(3), CrPC. Both these aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed.

(f). Further,     it is now settled that applications under Section 156(3) have to be supported by an affidavit duly sworn by the Applicant who seeks the invocation of the jurisdiction of the Magistrate. All these aspects are mandatory in terms of Priyanka Srivastava v. State of UP. (2015) 6 SCC 287. In the present case the private complaint which was referred to the police, was not supported by an affidavit and no application was filed to any authority seeking such investigation and he did not file copy of such application if any and there is no such assertion in the complaint

(g). Exercise of power U/s 156(3) Cr.P.C requires application of judicial mind and the court must be vigilant with regard to nature of allegation made and shall not issue directions without proper application of mind in reference to the allegations and material if any placed. Mere recording of the Magistrate that he has gone through the com plaint, documents and heard the complainant in the order, will not be sufficient. The Magistrate must reflect in the order as to what weighed with him before passing directions under S.156(3) CrPC. In the present case, the impugned order is silent and fails to disclose any reasons nor referes to any material.

5 On merits, it is submitted that the petitioner herein has not committed any offence much less as alleged by the respondent herein/complainant. The petitioner denies all the allegations made against him in the complaint. The complaint does not disclose any cognizable offence either to take on file or refer to the police. The allegations made therein are vague, untenable and false.

6 (a). It is submitted that the respondent being a private complainant, has relied on the evidence and material already collected by the investigating agency, yet made allegations against the investigating agency of not conducting investigation effectively, there was no justification for the Respondent to have invited an order to refer his complaint to the Police for investigation and submit report (contrary to the prayer sought).

(b). In view of the observations and findings arrived at by the Hon’ble High Court in a quash petition filed by one of the accused that P.C Act has no application to the facts and circumstances of the case (which judgement though challenged is not stayed or set aside) the Special judge for SPE & ACB cases acted with undue haste and contrary to judicial propriety though he has no jurisdiction either to entertain the complaint or to refer the same to the Police for investigation.

(c). The respondent/complaint did not seek such relief as ordered by the court & sought only to take into cognizance of his complaint by the court and to proceed further in terms of Section 210 Cr.P.C. There is no reason assigned and there are no circumstances and facts mentioned by the Special Court to refer the complaint to the Police for investigation contrary to the relief sought by the complainant.

7. It is submitted that the respondent herein who filed private complaint is an MLA of Andhra Pradesh Legislative Assembly and belongs to opposition party of Respondent. The complaint by Respondent against the sitting Chief Minister of the State of Andhra Pradesh, is solely intended to embarasss, harass and malafidely wreak political vengeance against him. He intended to take the private complaint as a weapon for taking such vengeance. He is no way concerned with this crime which is registered in the State of Telangana and in connection with the election to the Legislative Council of the State of Telangana. He is neither a victim nor an aggrieved person. The complaint and impugned order are an abuse of process of law & Court.

8. Other grounds, if any, may be permitted to be pleaded at the time of hearing.

 9. It is submitted that the Certified Copy of the Private Complaint which was filed by the respondent herein before the Special Judge could not be secured. The true typed copy is herewith filed. The filing of the Certified Copy may be dispensed with.

For the reasons stated above, it is prayed that this Hon’ble court may be pleased to quash

a) the private complaint CCSR.No. 958 of 2016 before the Principal Special Judge for SPE & ACB Cases, Hyderabad against the petitioner herein under Section 190 and 200 Cr.P.C in Crime No.ll/ACB -CR-l-HYD/2015,

 b) the order dated 29.8.2016 passed in CC SR No.958 of 2016 by the Principal Special Judge for SPE & ACB cases, Hyderabad, and

 c) to pass such other order or orders in the interest of justice.

It is further prayed that this Hon’ble Court may be pleased to stay the operation of order dated 29.8.2016 passed in CC SR No.958/2016 by the Principal Special Judge for SPE & ACB cases, Hyderabad and consequential investigation, if any pending disposal of the criminal petition and pass such other order or orders in the Interest of justice.

It is further prayed that this Hon’ble Court may be pleased to dispense with the filing of Certified Copy of the Private Complaint in C.C.SR.No.958 of 2016 on the file of the Principal Special Judge for SPE & ACB Cases. Hyderabad, in the present criminal petition and pass such other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

Hyderabad,

Date: 01.09.2016                                                        Counsel for the Petitioner

Click here to download the petition

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