AI Insights
This case involves a criminal petition filed by Smt. K. Ratna Prabha, IAS, seeking to quash the charges against her under various sections of the Indian Penal Code (IPC) and the Prevention of Corruption Act, 1988. The charges were related to her alleged role in the allotment of land for IT parks in Andhra Pradesh, which was claimed to be done in a manner favoring certain private companies. The petitioner argued that her actions were in line with the policy decisions of the government and that she had followed all necessary procedures. The prosecution, led by the CBI, alleged that the petitioner had conspired with private companies to secure undue benefits. The court examined the roles and responsibilities of the petitioner and other officials involved, the procedures followed in the land allotment, and the evidence presented by both sides.
Appeal Details
Counselvise Citation
[2014] 140 COUNSELVISE.COM (IT) 731905 (HC-ANDHRA_PRADESH)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
18-06-2014
Assessment Year
misc
Judgement Text
"THE HON’BLE SRI JUSTICE V. SURI APPA RAO CRL. P.No.14146 OF 2013 ORDER: This Criminal Petition has been filed under Section 482 of Cr.P.C. seeking to quash the C.C.No.27 of 2013 on the file of the Principal Special judge for CBI Cases, Nampally, Hyderabad for the offences punishable under Section 120-B r/w 420, 409, 468, 471, 477-A of IPC and Sections 9, 11,12, 13(2) r/w. Section 13(1)(c) & (d) of Prevention of Corruption Act, 1988. Averments of the petition in brief are as follows: It is averred by the petitioner that the investigation agency failed to appreciate the distinction of the policy decisions of the State, its implementation by the Executive and the criminal culpability, if any, for the offences under various enactments as alleged. The respondents erred in implicating the petitioner and toying with her career, reputation subjecting her to untold misery, agony and mental trauma. The petitioner cannot be faulted for having scrupulously implemented the directives of the policy decision of a popular political Government elected by a democratic process in the country in due discharge of her service conditions. The action of the investigating agency to implicate the public servants who implemented the policy decisions of the Government of a polity ignoring the fact that their role is only to guide the State in implementation of its policy legally but not to appreciate and critically analyse the policy formulated by the Cabinet. Having failed to differentiate the subtle distinction and disillusioned itself of the role of the public servant, the respondent erred in implicating the petitioner in the impugned proceedings as A.7 relegating it to be only a persecutor rather a prosecutor in the case of the petitioner. It is also submitted that the impugned proceedings are also vitiated for illegal mode adopted by the investigation agency in initiating the proceedings without following the mandatory provisions of law. The procedure followed by the investigation agency in trying to implicate the petitioner without obtaining the sanction from the concerned Government in sheer abrogation of both Section 19 of the P.C. Act and also Section 197 of Cr.P.C. is a factor which categorically establishes the anxiety and the craving of the respondent to seek prosecution of the petitioner. In the charge sheet it is alleged that A.1 having used his influence with his father and other public servants managed to see that benefits were conferred on the chosen persons. The entire effort to implicate the petitioner apparently is to achieve the said objective of the allegations against A.1. The prosecution alleged inter alia that A.1 company (M/s. Indu Projects Ltd.) received undue favours from the Government of A.P. namely allotment of 250 acres of land for M/s.Indu Tech Zone Pvt. Ltd. (A.5), that the petitioner/accused no.7 as Principal Secretary, IT & C has conspired with A1 and others in favouring by allotment of lands, that the petitioner/A.7 dishonestly and fraudulently acted causing undue favours. The Government of Andhra Pradesh after technological strides that India has made during the recent past few decades in the field of Information Technology with a view to promote the same and to give a special thrust to its endeavour to be the pioneer in the said field framed a policy and created a separate department for Information Technology and Communications by its order in G.O.Ms.No.133 of the General Administration (AR&T.I) Department, Government of Andhra Pradesh dated 10.4.2000. In the said G.O. it is categorically stated that the department “will function as an officer oriented department” thereby intending to assign the other responsibilities of distribution/allocation of lands/other largess of the State to the other departments constituted for such core purposes. The State Government therefore intended to promote the IT industry proposed to create IT parks developed by the reputed and leading real estate developers in the State and nominated the Andhra Pradesh Industrial Infrastructure Corporation Ltd., (APIIC) as the nodal agency for undertaking the said activity. As per the said role assigned to the APIIC, the nodal agency it shall have to coordinate with the other agencies to provide basic infrastructure by requisitioning the Government for acquisition and alienation of land to have it allotted in its favour to enable it thereafter to take necessary steps in furtherance of the policy. The role of the IT&C Department is only to the extent of referring the applications of the prospective entrepreneur to the APIIC for verification of their credentials to see that the policy implemented in accordance with law. The rest of the role is with the nodal agency like APIIC, the Revenue, Finance etc. This fact was clearly ignored to be taken note of by the investigation agency during the course of its investigation and therefore it is wholly vitiated. It is further submitted that three applications of the entrepreneurs who intended to commence their activities in the field of the Information Technology in the State of Andhra Pradesh made applications for allotment of lands. In fact M/s. Indu Projects Ltd (A.4) made application in the month of October, 2005 and further requested for the same on 16.11.2005 to the APIIC, the nodal agency as well as marking a copy of the same to the IT&C Department. As the same was not in the prescribed format it was asked to file an application in the said format to enable the State to consider the request. The similar three applications of the entrepreneurs referred to above on 13.12.2005 were directed to be filed in the prescribed format by the department and the same was filed on 17.12.2005. The Department of IT & C after following the due procedure contemplated as per the Business Rules and Secretariat Instructions considered the said applications in a single note sheet and circulated the same to the Cabinet in a single file proposing the clearance of the said three files. The three proposals for development of IT/SEZ Zones have been received after evaluation of the guidelines by the Consultative Committee on IT Industry i.e. CCITI. On 3.1.2006 the Department of IT & C communicated to the APIIC the minutes of CCITI which had decided to direct the APIIC to examine the applications keeping the parameters of the selection criteria for IT Park developers. Originally the IT policy was only employee subsidy oriented land allotment to the IT entrepreneurs but subsequently it was modified upon the suggestive initiation of the petitioner into a reasonable cost oriented link also in addition to the employment commitment in the interests of the State. The Note which was circulated was for all the three IT parks mentioned above after the recommendations and observations of the various officers in the IT& C Department including the Joint Director(Promotions) and the Special Secretary, IT, (IPS Officer). After obtaining the comments of Law, Finance, Revenue, the Cabinet Note has been prepared and circulated to the Chief Secretary. The Chief Secretary has endorsed on 15.4.2006 to the effect that “the IT Department should take care of Finance Department observations vide Para 23 and Revenue Department minute vide para 25”. Since the same have been incorporated already in the Note file and also draft MoUs., the Cabinet Note was circulated through the Minister of Information Technology to the Chief Minister for ‘for consideration’ of placing the proposal to Cabinet as per the Business Rules of the State of Andhra Pradesh and the same is within the knowledge of the Chief Secretary. It is further stated that proposals of the three entrepreneurs were sent on a single note in a single sheet in a single file and the same were approved together by the Chief Secretary in consultation with the then Chief Minister and got included in the Meeting of the Council of Ministers as an Agenda item. Subsequently on 7.4.2007, the petitioner was transferred from IT&C Department thereafter three officers held the said post. They have also not found fault with the manner of movement of the file or for that matter any illegalities as are now being alleged. In fact upon being reposted as Principal Secretary, IT& C, on 23.3.2010, the petitioner having noticed the lack of progress in the project of A.5 recommended for resumption of the lands after the field inspection as a remedial measure for the deviation of the terms of the agreement by A.5. The said proposal was sent to the Minister, IT& C and is pending consideration even as on this date which is a factor which was lost sight of by the respondent agency to test the bonafides of the petitioner and her commitment for upholding the interests of the State in precedence to any individual interests. The said factor would go a long way in disproving the allegations against A7 and the alleged conspiracy with the other accused. The entire investigation by the premier department like the C.B.I. is motivated and makes it apparently clear that that it is interested to have some credibility projected to its investigation by implicating some senior officer too in the charge sheet along with A.1, A4, A5 and others. The respondent acted illegally in concluding that the petitioner is alone responsible for the resultant clearance of the file related to M/s. Indu Projects leaving the fact that the said project has been sent along with the other proposals of the other two entrepreneurs namely M/s. Brahmani and M/s. Stargaze groups against whom the investigation found no culpability. The respondent also failed to appreciate in its investigation the important fact that there is ample material available with the respondent demonstrating the role of the then Chief Secretary, the Additional Secretary in the Department ( an IPS officer ) and the Joint Director (Promotions) of the Department and other officers in considering the file of A5 and in the light of the said approvals made, no fault can be found against the petitioner. The said fact is being winked at by the CBI thereby trying to victimize the petitioner for reasons best known to it. The entire procedure adopted appears to be shoddy, motivated, predetermined, misleading, malicious investigation apart from being subjecting the petitioner to an unfair and abusive process of law. The respondent has fabricated a false case against the petitioner by projecting an impression in the charge sheet as though the petitioner has processed the file of A5 single handedly in isolation as part of the conspiracy and is a figment of imagination of the CBI. The expression in para 47 of the charge sheet that “This signifies a sudden and significant shift in the stand of A7” is without reference to the true and correct factual matrix and the subsequent paras of the charge sheet proves the quality of investigation made by the CBI which is apparently self contradictory to the statement quoted above. The tenure of the petitioner was from May 18, 2005 to 1st week of April, 2007, but an impression has been created as if the petitioner was the Secretary, IT & C during the entire period of investigation i.e. 2005 to 2010. In fact the three successors in office after the petitioner herein from 2007 to 2010, have not been even questioned nor made responsible during which period the alleged divisions have taken place. It is pertinent to note that the important aspect of the execution of the MOU between the Government and the concerned entrepreneur entered into during the tenure of the petitioner wherein the clauses of the said MOU were found favour by the investigation in the charge sheet, a factor which goes a long way in the contradictions in the case of the prosecution. The lands were given on agreement to sale and not directly sold during the tenure of the petitioner. However, the APIIC much after the tenure of the petitioner seems to have alienated the land and violated the terms and conditions of the MOU prepared and finalised by the petitioner while she was in office. This is lost sight of by the CBI therefore the investigation against A7 is wholly vitiated thereby. The CBI further relies upon the statement of the Chief Secretary to allege that he did not see the Cabinet Memorandum and the petitioner deliberately circulated the Draft Cabinet Memorandum to the Minister of IT and also to the Chief Minister and got placed it before the Cabinet on 29.4.2006 without it being referred to the Chief Secretary. The said allegation is without any regard for truth as the files categorically demonstrates the notings of the then Chief Secretary and also the other officers like the Additional Secretary, Joint Director(Promotions) of IT&C Department and others and the fact that it is not a Tabled Item but is an Agenda Item as finalized and included by the Chief Secretary. The said allegation is wild, false, frivolous and is made without even verifying the file movement and the procedure related thereto as without the notice and application of the mind of the Chief Secretary, a Secretary to the Cabinet of the State no file in an Agenda Item will be placed for discussion before the cabinet in its meetings. It is also pertinent to note that the file to be placed before the Cabinet goes before the Chief Secretary not only once but on four occasions, firstly the Chief Secretary sees the file as reflected on page 13, para 26 of the Circulation Note therefore, when the file was circulated to the IT Minister, there were no changes either in the note for circulation or memorandum to the Council of Ministers. The petitioner further states that the approval of the Minister for IT and also the Chief Minister has been sent to the General Administration (Cabinet) Department (GAD), well in advance i.e. on 25.4.2006 itself, the second occasion, for placing before the Cabinet meeting scheduled on 29.4.2006, in the first set of proposed listed items for the Agenda, leaving enough time for GAD to process the proposal for inclusion in the Agenda to Cabinet. Incidentally the Chief Secretary is the Head of General Administration (Cabinet) Department and Secretary to the Cabinet/Council of Ministers will have the occasion to peruse the proposed items for being listed and only upon discussion with the Honourable Chief Minister the Agenda for the Cabinet Meeting will be finalised which will be sent for preparation of the Agenda. In fact the agenda of the Cabinet is decided by the Chief Minister in consultation with the Chief Secretary in the third occasion, in case the Chief Secretary wants to record his remarks on the proposal, he can return the file without inclusion in the agenda to the Cabinet. The General Administration Department (GAD) or Chief Secretary’s Office cannot include any proposal in the agenda for the Cabinet without the prior approval of the Chief Secretary as per the Business Rules and Secretariat Instructions of the Government of Andhra Pradesh. Therefore, the Chief Secretary can always defer a proposal in case he is of the view that the same is not processed as per the Business Rules or Secretariat Standing Instructions and return the same to the Department without placing or discussing in the Cabinet. As Secretary to the Cabinet, the Chief Secretary can voice his dissent, rejection, deferment of the proposal even during the meeting of Council of Ministers i.e., in the Cabinet Meeting, if he feels that the proposal is not in order or for that matter not legal. A Cabinet meeting cannot be held without the presence of the Chief Secretary. In fact it is the Chief Secretary, who presents the Agenda in the Meeting, advises on all aspects and facilitates the Cabinet meeting. Once a decision has been taken by the Council of Ministers, the same would come up before the Chief Secretary for the fourth occasion at the time of signing the Resolution of the Cabinet. When the amendments were proposed by the entrepreneurs in the impugned proceedings the same was again circulated to the Cabinet by the IT & C Department after following the entire procedure as aforesaid. The same has been initiated by the Chief Secretary as could be seen in Page 28 of the Note Sheet. The said fact demonstrates that the then Chief Secretary has not only perused the file once but had ten occasions to see the file and appreciate the legality thereof on all the occasions is a factor which was deliberately ignored by the respondent apparently due to the falsehood in the statement of the Chief Secretary as recorded and filed by the respondent along with the Charge sheet. Therefore it is totally false and obnoxious to allege that the Chief Secretary was ignorant of the total proposal that was submitted to the Cabinet and such a statement, if at all, was made by the Chief Secretary as is presented along with the charge sheet, which he must not and could not have made, would only be to rejected by the prosecution as utter falsehood which is necessarily obligated to make a critical appraisal of the respective versions of the officers relating to the facts in issue by acting in a fair and impartial manner but not to adopt pick and chose procedures. In the light of the above the petitioner for her role as Secretary of IT & C cannot be held responsible. If at all, the CBI has found any fault, they should have to hold the Chief Secretary and the entire Council of Ministers responsible for any illegal decisions and they alone could be alleged for the commission of the offences of conspiracy and such other offences that are to be found by the investigation but not the petitioner. The State Cabinet in its wisdom decided and approved the proposals before it, as finalized by the Chief Secretary of the State and the same cannot be construed as a conspiracy, cheating or breach of trust involving the petitioner as A7. The respondent transgressed its limits, ignored the fundamental provisions of Criminal Law and also the constitutional provisions relating to the service conditions and protection of the Members of All India Service under Article 311 of the Constitution of India. The investigation agency failed to notice the fact that it is the policy of the Government of Andhra Pradesh with regard to the promotion and development of the IT Industry in the State and the acts done in furtherance thereof are only under and as per the policy and no undue favours have been shown to the entrepreneurs in the field. It is settled law that the policy decisions of the State cannot be assailed by the Secretaries working in the State ad they can at best only express their demur against the decisions of the Council of Ministers. Therefore, the act of the respondent which culminated impugned charge sheet is liable to be quashed. The petitioner through her Department submitted the applications of three companies namely M/s. Brahmani Infra Tech Pvt. Ltd., M/s. Stargaze Properties Pvt. Ltd and A4 Company in the same file which transactions also were under the scrutiny of the investigation agency which ultimately were found to be clear without any quid pro quo deal insofar as the other two companies namely, M/s. Brahmani Infra Tech Pvt. Ltd., M/s. Stargaze Properties Pvt. Ltd., are concerned as reflected in their Memo dated 23.9.2013 before the Court of the Principal Special Judge for CBI Cases, Hyderabad. The same should have been the case with the proposal of A5 the Special Purpose Vehicle of A4 sent along with the said two companies stand on the same footing and there cannot be any different yard stick of appreciation for the sake of implicating the petitioner. Surprisingly, the respondent hatched an evil scheme to implicate the petitioner alleging that she conspired with other accused but obviously the sections referred under IPC and also under the Prevention of Corruption Act cannot be made applicable to the case on hand against A7 as even if the same are found to have been done, the same are done in good faith in obedience to the orders of the Council of Ministers. It is also submitted that the APIIC is the only agency concerned with the allotment of land and it is within its domain of business to examine as to whether the so called allottee is a true IT entrepreneur or otherwise. It is stated by the petitioner that the impugned charge sheet and its concomitant cognizance order passed by the learned Judge for CBI Cases, Hyderabad are not sustainable as they are sheer infraction of law. On a plaint reading of Section 19 of the Prevention of Corruption Act and also Section 197 of the Cr.P.C. it can be discerned that no public servant can be prosecuted except with the sanction of the Government, if the alleged offence is said to have committed by him/her during the course of discharge of his official functions. The petitioner also contends that there is no malice anywhere in the entire conduct of the petitioner in discharge of her functions and she discharged her duties as exemplary officer without any fear or favour for anybody. The petitioner, truly on account of her relentless efforts, the IT field in the State of Andhra Pradesh has achieved stupendous growth as desired by the Government of Andhra Pradesh. The petitioner is also instrumental in the resultant generation of lot of employment in the software filed. The petitioner relying on the decisions of the Supreme Court stated that on meticulous reading of entire charge sheet the offence shown against the petitioner is not all made out since the ingredients necessary to constitute any of the above are conspicuously absent. However, it is loosely used that there is criminal conspiracy and dishonest intention but on plain reading of the entire subject matter, these two also are incapable of being discerned since the petitioner was never alleged to have even a meeting with the other accused either in person or by phone or by gestures or any means whatsoever and as such, it can be safely concluded that the conspiracy is alleged without any basis going by surmises and conjectures against the petitioner. Similarly the dishonest intention alleged is also non-traceable on a thorough reading/critical analysis of the charge sheet and that grave sections under both IPC and P.C. Act were cited against the petitioner most callously and slip shoddily without bestowing any application of mind and caution. The petitioner therefore seeks to quash the proceedings insofar as the petitioner concerned in C.C.No.27 of 2013 on the file of the Principal Special Judge for CBI Cases, Hyderabad and also the cognizance order against the petitioner. The respondent filed counter inter alia stating that on the basis of the orders of the Division Bench of this Court in Writ Petition Nos.794 and 6604 of 2011 dated 10.8.2011, the CBI, Hyderabad registered a case vide RC 19 (A)/2011-CBI/Hyderabad under Section 120-B r/w 420, 409, 420 & 477 IPC and 13(2) r/w 13(1) (c) & (d) of the PC Act, 1988 against Y.S. Jaganmohan Reddy and 73 others. One of the main allegations in the FIR was that Government of Andhra Pradesh awarded VANPIC Project and allotted more than 15,000 acres of land in Prakasam and Guntur Districts to the companies promoted by Sri Nimmagadda Prasad violating all norms and granted several concessions. As a quid pro quo, Nimmagadda Prasad invested in the companies belonging to Y.S. Jaganmohan Reddy through his group companies. That during the period between 2006 and 2009 the Government of Andhra Pradesh led by the then Chief Minister Dr. Y.S. Rajasekhara Reddy under the influence of his son Y.S.Jaganmohan Reddy (A.1) has extended several undue favours as a quid pro-quo to Nimmagadda Prasad who paid Rs.854.50 Crore to Y.S. Jaganmohan Reddy and several companies owned and controlled by him and accordingly a charge sheet has been filed before the Principal Special Judge for CBI Cases, Hyderabad on 13.8.2012, which has taken cognizance on 13.9.2012 vide C.C.No.14/2012. During the course of investigation, it has come to light that Nimmagadda Prasad has been a Director M/s.Indu Projects Ltd from the year 2006 onwards and the said company also had received several undue favours in the form of allotment of 250 acres at Shamshabad, 8,444 acres in Ananthapur District under the cover of developing infrastructure projects. M/s. Indu Projects Ltd., in turn paid an amount of Rs.70,00 Crore to the companies owned and controlled by Y.S. Jaganmohan Reddy routing them through the private companies of Nimmagadda Prasad as quid pro quo to the undue benefits received by them. The investigation further revealed that 250 acres of land at Shamshabad was allotted to M/s. Indu Techzone Pvt. Ltd., by Information Technology & Communications Department, Government of Andhra Pradesh headed by the petitioner Smt. Ratna Prabha and that she played a dubious role in allotment of the lands to an otherwise unqualified and ineligible company M/s.Indu Techzone Pvt. LTd., owned by M/s. Indu Projects Ltd. Accordingly, a charge sheet has been filed before the Principal Special Judge for CBI Cases, Hyderabad on 17.9.2013 against 15 persons/companies including the petitioner herein as A.7 for her involvement in commission of the offences punishable under Sections 120-B, 420, 409, 420, 467, 469, 471, 477-A IPC and under Section 9,11,12,13(1) r/w 13(1)(c) of the PC Act, 1988. The Trial Court took the charge sheet into cognizance and allotted CC No.27 of 2013 against the accused no.7 under Sections 120-B, 420 & 409 IPC and relevant sections against the other accused persons in view of prima facie case on the basis of material placed before the Court i.e. charge sheet, statements of witnesses and documents. The Trial Court took the cognizance as the criminal conspiracy u/s. 120-B, cheating u/s.420, and criminal breach of trust u/s409 relying on the judgments of the Supreme Court wherein it was held that becoming party to a criminal conspiracy and committing the offence of cheating and criminal breach of trust do not form part of official duties of the public servants and therefore the protection contemplated u/s.197 Cr.P.C. is not applicable to the delinquent public servants. Sanction Orders u/s.19 of the PC Act, 1988 for prosecution of the public servants including the petitioner herein are awaited for taking cognizance u/s.13(2) r/w 13(1)(c) & (d) of the PC Act, 1988. It is further stated in the counter that the charge sheet has clearly elaborated on several omissions and commissions of the petitioner herein as the then Secretary of IT & C Department, Government of Andhra Pradesh facilitated arbitrary allotment of 250 acres of land at Shamshabad by entering into an MOU dated 12.7.2006 with the accused private company M/s. Indu Techzone Pvt. Ltd., in gross violation of the Cabinet decision. The promoters of the said accused private company have paid an amount of Rs.15.00 Crore as bribe to Y.S. Jaganmohan Reddy under the guise of investments in M/s. Carmel Asia Holdings Pvt Ltd (A.12) for exercising personal influence on his father and late Chief Minister Dr.Y.S. Rajasekhara Reddy and persuading him to abuse his official position and to extend undue favours to Sri I. Syam Prasad Reddy (A.3) and other accused private companies. The Government of Andhra Pradesh vide G.O.Ms.No.114, Finance ad Planning (Planning IT & C ) Department dated 25.5.1999 announced the first IT policy spelling out policy of incentives for the IT Industry. Further, vide G.O.Ms.No.133 General Administration (AR&T Department) Dated 10.4.2000 created the Department of Information Technology and Communication (IT & C Department). Later, as per the IT policy, vide G.O.Ms.No.3 IT & C Department dated 25.5.2000, a Consultative Committee on IT Industry (CCITI) has been constituted to achieve co-ordinate between the Government and the representatives of the Industry and to prescribe procedures/guidelines from time to time; allotment of land ; stamp duty rebates etc., After the first and second ICT Policies announced in May,1 999 and in June 2002 respectively, Government of Andhra Pradesh announced ICT Policy 2005-2010 vide G.O.Ms.No.11 dated 21.3.2005 with an objective to transform the State into a knowledge society and attain leadership in the formation economy by attracting best-in-class ICT companies and institutions. As per the Policy, Government of Andhra Pradesh has decided to allot lands to the IT industry through APIIC and for all such lands, the APIIC is the nodal and implementing agency. Several incentives such as supply of power at highly subsidized rates; 100% reimbursement of stamp duty and registration charges etc., were also proposed to be provided. The Secretary/Principal Secretary, IT & C Department will act as the Chairman of CCITI with heads of APIIC, power companies, representatives of various other Departments, industry etc., as other members of the Committee. Joint Director (Promotions), IT&C Department is the Convener of the Committee. The ICT policy states that the IT Parks developed by construction firms/builders shall provide the amenities/infrastructure as specified in the policy and furnish an undertaking to sell/lease/rent the built up space only to IT units recognized by IT&C Department. The Policy further provides that 60% of the net developable/usable area shall be earmarked for IT activities and the balance 40% for providing other amenities like housing/shopping centre; school and other support activities like water supply system, electric power etc., A proforma of application for allotment of land to IT industry was enclosed to the ICT Policy 2005-2010. In May, 2005, Government of India passed with Special Economic Zone Act (SEZ Act, 2005) on 10.02.2006 published SEZ Rules, 2006. Having recognized the importance of exports in development of nation’s economy, Government of India announced several incentives to encourage and enable the exports to price the goods at competitive prices in international markets. The incentives include exemption/relief from Central Excise/Customs on inputs/exports; Income Tax Exemption for 10 years; IT exemption u/s 10(23G) to infrastructure capital companies; exemption on long term capital gains; tax holiday u/s 80-IAB; availability of bank finance at confessional rate and on priority basis etc., The Government of India encouraged establishment of SEZs by the State Government themselves or in the private or joint sector with a view to ensure number of SEZs start functioning sooner than later. SEZ is a geographically demarcated piece of land where all the units which are set up get specific privileges and are specifically delineated duty free enclave and shall be deemed to be foreign territory for the purposes of trade operations and duties and tariffs. These are provided with state of the art infrastructure and support services and are governed by specific fiscal and regulatory regimes which ensure hassle free operation for the exporters. The SEZ has full operational freedom within the area and all facilities for export and import are provided within the zone itself. SEZ Act 2005 prescribes that sector specifies SEZ for IT/Gems & Jewellery, the minimum area prescribed was 10Ha. (25 Acres). The SEZ Act, 2005 states that an application for approval of SEZ will have to be made to the Board of Approval (BOA) under Ministry of Commerce constituted by the Central Government. The process has two approaches (i) Direct Application to BOA for final approval where the applicant has identified the land and the concerned State Government has already agreed to extend the mandatory dispensation/facilities. In such cases, the applicant, after grant of approval from the BOA, has to obtain concurrence of the State Government within 6 months to the said approval; (ii) Application to State Government – in cases, where the land has not been identified and the State Government has not provided any of the mandatory dispensations/facilities, an application has to be filed with the State Government, which in turn will forward the same to the BOA along with its recommendations. The SEZ Rules, 2006 allows 100% FDI under automatic route to the SEZ developers for setting up townships with residential, educational and recreational facilities on a case to case basis apart from many other incentives contemplated in the Act. It also stated in the counter that Food & Agriculture Department, Government of Andhra Pradesh in G.O.Ms.No.1489 dated 22.5.1965 have issued orders for allotment of Ac.2,131.00 of forest land in favour of Director of Animal Husbandry who has taken physical possession of the land on 6.8.1996. Government of Andhra Pradesh vide G.O.Ms.No.271 Industries & Commerce dated 12.9.2003 has accorded permission to APIIC Ltd., to take over possession of Ac.1,226.21 gts. In Sy.No.991/ of Mamidipally Village, Saroornagar Mandal, Ranga Reddy District, belonging to Animal Husbandry Department on payment of Rs.7.29 Crore. After making the payment, APIIC had taken over physical possession of the land on 12.9.2005. In a review meeting held on 30.9.2005, the then Chief Minister late Dr.Y.S. Rajasekhar Reddy issued directions for acquisition of lands earmarked for development of IT/Hardware SEZ in two phases and directed that the established procedure of IT& C Department should be followed for allotment of land to IT hardware and software companies. It was further directed that APIIC or any other agency should make land allotments with approvals of CCITI only, which is the legitimate committee approved by the Cabinet for allotments to IT companies in this regard. The petitioner the then Secretary IT & C Department and the Chairperson of the CCITI communicated these decisions to APIIC through a DO letter No.1498/IT&C/2005, dated 4.10.2005 and requested Sri B.P. Acharya, the then VC & MD, APIIC to prepare a project report so that the same can be processed within the Government and sent to the Government of India, Ministry of Commerce for approval of the SEZ Committee. In order to streamline the allotment process, the CCITI in their meeting held on 17.10.2005 decided that IT companies (i) should have a five year track record Iii) should be in production for at least three years on the date of application and (iii) should have at least 50 employees and above on their rolls. The Committee further decided that APIIC should transfer the title of the lands to the company after completion of 3 years of commercial operations and upon fulfilment of the conditions of completion of construction and commencement of commercial operations etc., In accordance with the directions of the petitioner, the then Secretary, IT & C Department vide DO letter dated 4.10.2005, APIIC submitted application dated 19.10.2005 to set up SEZ on Ac.1,582.24 in Sy. No.99/1 & 1/1 of Mamidipally and Raviryal villages in Ranga Reddy District on the lands taken over from Animal Husbandry Department on 12.9.2005. On the same day, Sri I. Syam Prasad Reddy (A.3) of M/s. Indu Projects Ltd., submitted an application dated 19.10.2005 addressed to VC & MD, APIIC stating that they are specialized in urban infrastructure development and have right type of highly reputed strategic allies and know-how providers to partner them in establishing IT parks. He further stated that they have tied up with 2/3 highly reputed international partners to develop an integrated world class SEZ that could provide facilities to world players in software/hardware/ITES/Residential &Retail and allied sectors and requested to allot 1,000 acres of land near international airport for the purpose. In another letter of even dated addressed to the VC & MD with similar contents, Mr. Ram Pujari, Director, M/s. Indu Projects Ltd requested to allot 500 acres of land near the international airport. Copies of both the letters were endorsed to the Secretary, IT & C Department and were received by the petitioner as the then Secretary as evidenced by her initials thereon. Next day, the Chief Minister, Dr. Y.S. Rajasekhar Reddy conducted another meeting on 20.10.2005 under the aegis of IT & C Department to review the progress on new IT parks, in which Sri B.P. Acharya, VC & MD, APIIC also participated, apart from the officials of IT&C Department. During the meeting, the VC& MD, APIIC stated that considering the fact that internal infrastructure need to be developed by APIIC it was decided to charge a rate of Rs.20.00 lakh per acre. The Chief Minister also directed that 1,286 acres in Mamidipally and Kanch Imarth villages be arranged for notification by Government of India for APIIC, IT SEZ for making lands available for reputed IT software companies. It was also stated in the counter that the rate of Rs.20.00 lakh per acre was decided in the context that APIIC, a wholly company of Government of Andhra Pradesh shall develop the SEZ for which application has already been submitted by them and forwarded to Government of India. Subsequent to the CM’s review meeting, the application of APIIC was forwarded to Central Government for approval. The proposal was accepted ‘in principle’ by Government of India vide letter dated 29.12.2005. However, on 13.12.2005 the petitioner being Secretary, IT & C Department has directed P.S. Murthy, JD (Promotion) to write letter to M/s. Indu Projects Ltd., Hyderabad to submit an application in the prescribed proforma along with the requisite information in the checklist/criteria before 17.12.2005. In reply, on 17.12.2005, I. Syam Prasad Reddy (A.3) M.D. of M/s. Indu Projects Ltd., submitted the application for allotment of 250 acres of land in Sy.No.99/1 at Mamidipally in Ranga Reddy District along with incorporation certificate and other relevant documents. The petitioner endorsed on the application “Process and Put Up” on the same day. This signifies a sudden and inexplicable shift in the stand adopted by the petitioner. Earlier APIIC was asked to develop the SEZ on the above lands and APIIC application was already forwarded to Government of India for approval. However, the petitioner solicited applications of the accused private company for allotment of the same land without there being any justification recorded in the file. This clearly indicates unilateral and oblique manner in which the petitioner has operated and taken decisions. Investigation revealed that around that time I. Syam Prasad Reddy (A.3) has been enjoying a high degree of rapport and patronage of late Chief Minister Dr. Y.S. Rajasekhara Reddy in allotment of housing projects through APHB. In his application I. Syam Prasad Reddy (A.3) proposed to develop IT park through a consortium. M/s. Indu Projects Ltd was incorporated on 7.12.2001 and turnover of the company for the preceding years was shown at Rs.128.490 Crore (2004-05); Rs.59.245 Crore (2003-04); Rs.16.62 (2002-03) and Rs.1.35 Crore (2001- 02) and enclosed annual reports. As per the certificate dated 19.12.2005 issued by Sri C.V.Koteswara Rao (A.15), Chartered Accountant, M/s.Indu Projects Ltd h as constructed 27,47,255 SFT of projects during the period between 2002-05. M/s. Golf Links Software Park Pvt Ltd., Bangalore and M/s.Kotak Mahindra Investments Ltd., Mumbai were declared as other members of the proposed consortium. Combined net worth of the proposed consortium was shown at Rs.1,000 Crore and enclosed a copy of the Power of Attorney dated 17.12.2005 in favour of M/s. Indu Projects Ltd., as the lead member of the consortium. The consortium agreement was signed by the representatives of M/s.Indu Projects Ltd., and M/s.Golf Links Software Park Pvt Ltd only. No person from M/s.Kotak Mahindra Investments Ltd whose financials form the backbone of the consortium signed the GPA. Immediately on the next day i.e. 21.12.2005, the petitioner herein has conducted 334th meeting of the CCITI which was attended by Sri M. Gopi Krishna, Additional Secretary, IT &C Department, Sri D. Pardhasaradhi Rao, Chief Engineer, APIIC among others. The Committee, after deliberations, evolved a two fold criteria for selection of the developers. On the technical front, it was decided that the company should have developed and/or constructed either on its own or on behalf of the reputed clients, the buildings related to IT parks/SEZ and/or large commercial, residential, office building projects of not less than a minimum of 4 million (40 lakh) SFT. Project under development or at the proposal shall not form part of the constructed space. The Committee also decided that the developer company should have minimum net worth of Rs.250.00 Crore as per the last audited annual accounts and the developer was required to submit the basic documents like annual reports; net worth statements; IT returns for preceding 3 years. The Committee further decided that the experienced companies that built space should continue in the consortium of developers till completion of the project and till at least 50% of the built space is occupied. The issue of allotment of lands to M/s.Indu Projects Ltd., M/s. Brahmani Infratech Pvt Ltd and M/s. K. Raheja Corporation Pvt Ltd came up for discussion in the meeting. In the meting it was further decided that APIIC may set aside 250 acres of land for each developer. Since it was decided that a minimum of 5 million SFT should be developed per each 100 acres of land, the Committee decided that the handing over of land should be made only after achieving financial closure; building minimum of 5 million SFT for 100 acres of land and as such, handing over of 250 acres of land need not be done in one go. It was further decided that in the MOU a condition may be stipulated that further release and allotment of land will depend on fulfilling the terms and conditions of the contract in terms of land handed over in the earlier period. The application of M/s.Indu Projects Ltd should not have been considered at all for the reasons that the company did not meet fulfil the eligibility criteria of having a net worth of Rs.250 Crore and did not construct 40 Mn. SFT. Further, the claim of forming consortium with M/s.Kotak Mahindra Investments Ltd., is not supported by any consortium agreement or GPA signed by all the three purported constituent members. The petitioner as head of the IT & C Department cannot absolve herself of the responsibility to ensure that the applications placed before CCITI are complete in all aspects and supported with the necessary documents. In the absence of valid consortium agreement/GPA, it should not have been allowed to place before the Committee. The meeting discussed the issued involved at length and resolved to adopt a transparent and short duration method to identify the developers who can bring in quality IT space along with associated social infrastructure on a large scale. Defining the word transparency, Dr.V.P. Jauhari, former Special Chief Secretary, Revenue Department has stated that the selection has to be through on the basis of criteria based on sound guideline/procedure to ensure that there should not be any undue favour to any one nor and should not be any loss to the Government and it should serve the public purpose enunciated in Government ICT Policy. In normal situation, transparency means a proper tendering process supported by evaluation and selection at different stages by a high calibre tendering committee. Investigation revealed that the petitioner the Secretary, IT & C Department and Chairperson of the CCITI has not followed the above transparent policy in allotment of lands to the accused private companies. It is further submitted in the counter that subsequent to the CM’s review meeting the application of APIIC was forwarded to the Central Government for approval. The proposal was accepted ‘in principle’ by the Government of India vide letter No.F.2/88/2005/EPZ dated 29.12.2005. subsequent to the CCITI meeting, petitioner being Secretary of IT & C Department vide D.O.Lr.dated 3.1.2006 forwarded the applications of M/s.Indu Projects Ltd., M/s. Brahmani Infratech Pvt Ltd, M/s.K.Raheja Corp Pvt Ltd and M/s.Maven Park to APIIC with a direction to examine the applications keeping in view the parameters evolved in the CCITI’s meeting on 21.12.2005 for selection of IT park developers. It is also stated that contradictory stands adopted by the petitioner and Sri B.P. Acharya, APIIC in selection of the developers. On one hand, in CCITI meetings, they have decided to adopt transparent method for selection of IT developers. On the other hand applications were sought only from the selected companies, violating their own decisions without any justification. That in clear deviation from the established procedure APIIC has not published any tender notification in the instant case. That on 30.1.2006 Sri B.P. Acharya circulated a single note file stating that Government after careful consideration has short listed some companies for Hyderabad and Visakhapatnam. Advance copies were submitted to the Secretary, IT & C Department and Addl. Secretary to the Chief Minister as directed. In the Note file Sri B.P. Acharya A.8 has stated that M/s.Indu Projects Ltd has proposed to form consortium with M/s.IDFC and M/s.Gold Links Software Park Pvt LTd and the information furnished by the company satisfied the requirement as fixed by the Government. He has further stated that during a review meeting on 20.10.2005, the Chief Minister has directed to allot land at a rate of Rs.20.00 Lakh per acre. These facts clearly prove that the proposed SPV should consist of M/s.Indu Projects Ltd., M/s.IDFC and M/s. Golf Links Software Parks Pvt Ltd. Since their experience/financial details were considered to decide their eligibility fixed by the CCITI, a fact which was declared by Sri Syam Prasad Reddy himself in his letter dated 20.1.2006. The counter further states that B.P. Acharya who was acting in league with other accused persons has not exercised any sort of due diligence about the claims of the private company and accepted the claims of consortium without therebeing any supporting documents of formation of the purported consortium with M/s IDFC and M/s.Golf Links Software Parks Pvt Ltd. Moreover Sri B.P. Acharya is well aware of the fact that the rate of RS.20.00 lakh per acre in the CM’s meeting held on 20.10.2005 was agreed to only in the context that APIIC on its own would develop the SEZ. It is further stated that minutes of CM’s meeting on 20.10.2005 have not been formally approved. However at a subsequent stage the petitioner has falsely informed the Council of Ministers that rate of Rs.20.00 lakhs per acre was acceptable to APIIC which is the custodian of the lands. Immediately, the petitioner has conducted the CCITI meeting on 2.2.2006 and the committee under the Chairmanship of the petitioner has resolved to recommend to the Government for allotment of 250 acres of land. The minutes did not record any clarification/justification to allot 250 acres of land in one go, in the light of the decision taken in the previous meeting held on 21.12.2005 that 250 acres of land need not be allotted in one go. The counter further states that role of the petitioner as mentioned in the charge sheet dated 13.8.2012 on the basis of the documentary and oral evidence revealed during the course of investigation that: “ ( i) Smt. K. Ratna Prabha, IAS knowing fully well that the application of APIIC Dated 19.10.2005 to develop the SEZ on Ac.1,582.24 in Mamidipally and Raviryal villages had been recommended to Government of India for approval, had procured the application of M/s.Indu Projects Ltd., without any justification. (ii) Smt. Ratna Prabha, IAS has acted in furtherance of criminal conspiracy with others and has not followed a transparent method of inviting IT developer companies in an open and competitive manner which was categorically laid/emphasized by the CCITI in a project with an estimated cost of RS.1,302 Crore against the established procedures/rules of Government of Andhra Pradesh. (iii) Smt. K. Ratna PRabha, IAS in furtherance criminal conspiracy has wilfully omitted to exercise due diligence to assess the eligibility criteria criteria of M /s. Indu Proejcts Ltd (A.4) and by abusing her official position as Secretary, IT & C Department has wilfully accommodated the false claims of Sri I. Syam Prasad A.3) in forming consortium with M/s.Kotak Mahindra Investments Ltd and M/s.Golflinks Software Parks Pvt Ltd. (iv) Smt. K.Ratna Prabha, IAS in furtherance of criminal conspiracy has decide to allot 250 acres of land in the CCITI meeting held on 2.2.2006 without any clarification/justification, contrary to the earlier stand taken in the 21.12.2005 meeting that the handing over of 250 acres of land need not be done in one go and should be made subject to achieving financial closure; building of 5 mn. SFT for 100 acres of land; … (xiv) The aforesaid acts of omissions and commissions on the part of Smt. K. Ratna Prabha, IAS (A.7) constitute the offences of criminal conspiracy, cheating and criminal breach of trust as defined in IPC and criminal misconduct as defined in the PC Act, 1988.” The counter affidavit also states that the statement of the then Chief Secretary based on the facts on record that the petitioner has violated Rule 15 in circulating and obtaining the approval of the Minister to the draft Cabinet Memorandum and Rule 37 in ignoring the observations of Finance and Revenue Development in fixing the price for government lands prove the contentions false. Statements of the Principal Finance Secretary and Special Chief Secretary, Revenue independently corroborate the observations/remarks of the Chief Secretary. In the light of the notings in the official records dealt by the petitioner and the statements of the senior officials of the Government including the former Chief Secretary prove that the allegations on the process of investigation are not correct and untenable. It is also submitted that the CBI has filed charge sheet after following all procedures and guidelines as per the CBI Manual and the said case was registered as per the orders of this Court and therefore sought to dismiss the criminal petition. Heard Sri H. Prahalad Reddy, learned counsel representing Sri Y. Srinivasa Murthy, learned counsel for the petitioner, Sri Wilson, learned Additional Solicitor General of India and Sri P. Keshava Rao, learned Standing Counsel for CBI. Sri H. Prahalad Reddy, learned counsel for the petitioner submitted that three enterprises have submitted their applications for allotment of land to APIIC only intending to commence their activities in the field of the Information Technology that the Department of IT & C after following the due procedure contemplated as per the Business Rules and Secretariat Instructions considered the said applications in a single note sheet and circulated the same to the Cabinet in a single file proposing the clearance of the said three files. After obtaining the comments of Law, Finance, Revenue the Cabinet Note has been prepared and circulated to the Chief Secretary, and the Chief Secretary has endorsed on 15.4.2006 to the effect that “the IT Department should take care of observations Finance Department vide Para 23 and Revenue Department minute vide Para 25.” It is further submitted that the Cabinet Note was circulated through the Minister of Information Technology to the Chief Minister for ‘for consideration’ of placing the proposal to Cabinet, after following the procedure contemplated under Business Rules of the State of Andhra Pradesh and also after perusal of file by the Chief Secretary. It is the case of the petitioner that after APIIC forwarding the file the proposals of the three entrepreneurs were sent on a single note in a single sheet in a single file and taking necessary precautionary endorsements made by the various departments more so no head of the department have made any contrary endorsements on the file and infact made suggestive measures and that the same were approved together by the Chief Secretary in consultation with the then Chief Minister and got included in the Meeting of the Council of Ministers as an Agenda Item. The Chief Secretary who was present at the time of discussion in the Cabinet Meeting has not pointed out any lapses on the part of the petitioner and the same was approved and accordingly the G.O. was issued. After the petitioner was reposted as Principal Secretary IT & C Department on 23.3.2010, the petitioner having noticed lack of progress in the project of A.5, recommended for resumption of the lands after the field inspection as a remedial measure for the deviation of the terms of the agreement by A5. The said proposal after sent to the Minister, IT&C and is pending consideration even as on this date is a factor which was lost sight of by the CBI to test the bonafides of the petitioner and her commitment for upholding the interests of the State in precedence to any individual interest and the said factor would go a long way in disproving the allegations against A7 and the alleged conspiracy with the other accused. The respondent thus fabricated up a false case against the petitioner by projecting an impression in the charge she et as though the petitioner has processed the file of A5 single handedly in isolation as part of the conspiracy and is a figment of imagination of the CBI. Learned counsel further submitted that lands were given on agreement to sale and not directly sold during the tenure of the petitioner. However, the APIIC much after the tenure of the petitioner seems to have alienated the land and violated the terms and conditions of the MOU prepared and finalized by the petitioner while she was in office. This was also lost sight of by the respondent and therefore the investigation against A.7 is wholly vitiated. It is further submitted that the Chief Secretary has not only perused the file once but had ten occasions to see the file and appreciate the legality thereof on all the occasions is a factor which was deliberately ignored by the respondent apparently due to the falsehood in the statement of the Chief Secretary as recorded and filed by the respondent along with the charge sheet. The petitioner was falsely implicated on the alleged statement made by the Chief Secretary presented along with the charge sheet would only be to rejected as utter falsehood as the Chief Secretary had occasion to peruse the file and approved the Cabinet note without making any objection. Therefore the petitioner for her role as Secretary of IT & C cannot be held responsible, if at all, the CBI has found any fault, they should have to hold the Chief Secretary and the entire Council of Ministers responsible for any illegal decisions and they alone could be alleged for the illegal decisions. It is further submitted that State Cabinet in its wisdom decided and approved the proposals before it, as finalized by the Chief Secretary of the State and the same cannot be construed as a conspiracy, cheating or breach of trust involving the petitioner as A.7. In support of his contentions, the learned counsel for the petitioner has relied on the decisions reported in ALL CARGO MOVERS (INDIA) (P) LTD. V DHANESH BADARMAL JAIN [1], wherein the Supreme Court has held as follows : “ The allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. No allegation whatsoever was made against the appellants in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefore. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, the court can for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondence exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice.” Relying on the above decision, the learned counsel for the petitioner submitted that the court to find out as to whether the allegations made against the petitioner are prima facie correct or not can take into consideration the correspondence made by the petitioner and also the documents processed by the petitioner in that regard. Learned counsel in that regard referred to the minutes of the Review Meeting of the Chief Minister on IT & C Department Activities on 20.10.2005 and para ‘d’ of the same reads as under : “As regards the cost of land for allotment in Hardware Park area, VC & MD stated that the present rate being charged by APIIC is Rs.26.00 lakhs per acre considering the fact that internal infrastructure need not be developed by APIIC for allotment to be made to developers and major companies where more than 100 acres is allotted, it was decided to charge a rate Rs.20.00 lakhs per acre for the present. During the review meeting on allotment of lands at Hardware Park, the Hon’ble Chief Minister has agreed to the proposal to allot around 250 acres in the area adjacent to land allotted to Catelytic Software in Hardware Park to M/s.K.Raheja Corp., for setting up of IT/ITES and Hardware facilities @ Rs.20,00,000/- per acre duly providing approach road to the site from Srisailam State Highway. This area may also be included in the proposed IT SEZ, if necessary. It was also directed by the Hon’ble Chief Minister that 1286 acres in Mamidipally and Kancha Imarth villages be arranged for notification by Government of India for APIIC IT SEZ for making lands available for reputed IT Software Companies.” Learned counsel for the petitioner further referred to the office note C.No.1954/IT &C/Prom2/2005 (vide page no.75 of the material papers filed by the prosecution) wherein it was stated that – “ 2. In the Review Meeting of the Hon’ble Chief Minister on 20.10.2005 on the growth of IT in the State and in order to promote alternative location for providing world class IT/ITES infrastructure, it was agreed to charge a rate of Rs.20 lakhs per acre and also consider the proposals/applications received from private IT Park Developers to allot lands near Hardware Park, Mamidipalli/Raviryal village, Ranga Reddy District. 3. Subsequently, the following applications for development of IT/ITES Product Specific Special Economic Zones (SEZs) have been received: HYDERABAD: (i) M/s.Brahmani Infratech Pvt Ltd – a special purpose vehicle floated by M/s.Nava Bharat Group and M/s.Zelan Constructions Sdn. Bhd, Malaysia. (ii) Indu Infra Park – consortium with M/s.Infra Development Finance Company Ltd and M/s.Gulf Links Software Park Pvt Ltd (iii) Stargaze properties Pvt Ltd – this unit is subsidiary of M/s.K.Raheja IT Park (Hyderabad) Pvt Ltd VIZAG : A) M/s.Maven Corp. 4. However, as the applications from the above IT Park Developers were not in proper proforma, a draft letter to the above companies asking them to apply in proforma as per the application proforma and criteria evolved by us is placed below for consideration. ” Referring to this Note, the learned counsel submitted that all the 3 applications of three different companies have been processed, therefore the allegation that the petitioner conspired with the A.5 company would not arise and the same is baseless. It is further contended by the petitioner that A.5 company submitted application for allotment of land for development of SEZ in IT and the same was returned to the A.5 company to fill up the enclosed application specially furnishing the information as per the criteria/check list. Thereafter A.5 company has submitted an application in the proforma and the same was received on 17.12.2005 with a certificate of experience of A.5 company in executing projects at various places in India. Learned counsel further referred to the copy of Draft Minutes of the 34th Meeting of the Consultative Committee on IT Industry held on 21.12.2005 at 3.30 pm. in the IT & C Conference Hall, which indicates that the petitioner and 18 other officers have attended the meeting. It was stated therein that the applications as to allotment of land to develop IT Parks may be examined by the APIIC keeping in view the parameters evolved for selection of IT park developers. Following are the parameters. “ Parameters for Selection of IT Park Developers: As per NASSCOM-McKinsey Report – 2005 between the year 2005 and 2010, it is estimated that the IT and BPO industries will have to employ an additional workforce of approximately 10 lakh workers near five Tier I cities (New Delhi, Bangalore, Hyderabad, Chennai and Mumbai) and approximately 6 lakh workers across other towns in India. Thus the IT and BPO industries need at least five new “Gurgoan’plus: and five to seven new “Pune-plus” integrated townships. In Andhra Pradesh by 2009, it is aimed to create 3 lakh direct employment in IT and 12 lakh indirect employment in other sectors of the society. … Criteria for selection : Minimum Technical Expertise : - Should be in existence with credible track record in construction activity for a minimum period of 3 years. - Should have developed and/or constructed either on its own or on behalf of reputed clients, the buildings related to IT Parks/Special Economic zones, and/or large commercial, residential, office building projects of not less than a minimum of 4 million (40 lakh sq. ft). (Projects under development or at the proposal shall not form part of the constructed space). - Shall demonstrate adequate marketing capability commensurate with size and nature of IT project being contemplated - Shall indicate the optimum/maximum built up space to be constructed - Shall indicate the projected/expected employment to be generated in the area identified/applied. - The anticipated/expected list of ICT companies proposed to be mobilized/brought into the Park in the area identified/applied. - Expected time of completion of the project. …. …. APIIC is requested to keep the above criteria as benchmarks for evaluation and selection of private IT Parks/SEZ developers. Item N o.5. Applications received since 33rd CCITI for allotment of land in Hyderabad: Software: Presently CCITI is considering allotment of land to Mega projects/home grown IT companies/Multi-National Companies, having more than 1000 employees. It is suggested by the members of the CITI that IT companies having between 500- 1000 employees can be allotted land outside the city near Shamshabad area. As such, it may be ascertained from the companies having employees between 500-1000 whether they are willing to go to Shamshabad area. ” Relying on the draft minutes of the meeting, the learned counsel for the petitioner submitted that allotment of land to development IT Parks are referred to APIIC to examine the parameters fixed by the CCITI committee, therefore the allegation that the petitioner singled out A.5 company is false and baseless. Learned counsel further stated that it is pursuant to the applications came relying on the D.O. Lr.No.1954/IT&C/Prom2/2005 dated 3.1.2006 addressed to Sri B.P Acharya, Vice Chairman and Managing Director, APIIC Ltd, Hyderabad, whereunder the petitioner being the Secretary to Government, IT & C Department stated that the applications from M/s.Maven Park (Visakhapatnam), M/s.Indu Projects Limited (Hyderabad), M/s.Brahmani Infratech Pvt Ltd ( Hyderabad) and M/s.K.Raheja Corp Pvt Ltd ( Hyderabad & Visakhapatnam) for allotment of land to develop IT Parks/SEZ were discussed in the 34th CCITI Meeting on 21.12.2005 and it has been decided that APIIC may examine those applications, keeping in view the parameters evolved for selection of IT Park developers; that the Vice Chairman and Managing Director of APIIC was asked to take further action in the matter. Thereafter, it is submitted, the Vice Chairman and MD of APIIC submitted proposals dated 30.1.2006 to the Principal Secretary to the Government & CIP Industries and Commerce Department requesting to take decision for allotment of lands. Thereafter, IT and C Department circulated note to the Law Department, Finance Department, Revenue Department, Chief Secretary, Minister for IT and the Chief Minister. The matter was thereafter placed before the Cabinet and the Cabinet has taken a decision for allotment of land to the A.5 company, therefore, petitioner has not placed any role in allotment of land to A.5 company deviating the procedure. Learned counsel relied on the decision reported in ARUN KUMAR AGRAWAL v. UNION OF INDIA AND OTHERS [2] submitted that court cannot sit in judgment over the policy decisions taken by the State or its instrumentalities. In ARUN KUMAR AGARWAL’s case ( 2 supra), the Hon’ble Supreme Court reiterated that the court cannot sit in judgment over commercial or business decision taken by the State or its instrumentalities, which ahs been duly taken after evaluating and assessing the monetary and financial implications, unless the decision is in clear violation of statutory provisions or is perverse or is taken for extraneous considerations or improper motives. The Supreme Court further held that State and its instrumentalities can enter into various contracts which may involve complex economic factors. There is always an element of risk in such decisions. If the decision is taken bona fide and in public interest, the mere fact that a decision ultimately proves to be wrong, would not by itself be a ground to hold that the decision was mala fide or taken with ulterior motives. Matters relating to economic issues always have an element of trial and error; and so long as the trial and error is bona fide and with best intentions, such decisions cannot be questioned as arbitrary, capricious or illegal. Relying on the above decision, learned counsel for the petitioner also contended that the Government has taken decision for allotment of land to A.5 company in order to create employment opportunities in IT sector, therefore the policy decision taken by the State bona fidely in the interests of State cannot be interfered unless the decision is in clear violation of the statutory provisions or taken for extraneous considerations. It is nowhere alleged in the charge sheet that the petitioner has unilaterally taken a decision for extraneous considerations or with improper motives. Learned counsel for the petitioner further contended that the respondent filed chargesheet against the petitioner without obtaining valid sanction order from the competent authority, therefore the charge sheet is liable to be quashed. In support of his contention he placed reliance on the decision of the Supreme Court reported in ANIL KUMAR AND OTHERS v. M.K. AIYAPPA AND ANOTHER[3]. In ANIL KUMAR’s case (3 supra) the Special Judge referred the matter under Section 156(3) Cr.P.C. against a public servant without a valid sanction order. In a writ petition the High Court quashed the order passed by the Special Judge while holding that the Special Judge could not taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant. The Supreme Court while dismissing the appeal filed against the order of the High Court held that it is obligatory on the part of the executive authority to protect a public servant. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void abinitio. The Supreme Court in SUBRAMANIAN SWAMY v. MANMOHAN SINGH AND OTHERS [4] has held that time limit for three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office. In future every competent authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in the decision of the Supreme Court in VINNEET NARAIN v. UNION OF INDIA [5] and the guidelines framed by Central Vigilance Commission. In VINEET NARAIN’s case (5 supra) the Supreme Court gave directions in relation to CBI, CVC and the Enforcement Directorate. In para 58, the Supreme Court gave the following direction : “ 58. (I)(15) Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office.” Learned counsel for the petitioner also relied on the decision reported in PATHAN MOHAMMED SULEMAN REHMATHKAN v. STATE OF GUJARAT AND OTHERS [6] wherein the Supreme Court held as follows: “We are of the view that these are purely policy decision taken by the State Government and, while so, it has examined the benefits the project would bring into the State and to the people of the State. It is well settled that non- floating of tenders or absence of public auction or invitation alone is not a sufficient reason to characterize the action of a public authority as either arbitrary or unreasonable or amounted to mala fide or improper exercise of power. The Courts have always held that it is open to the State and the authorities to take economic and management decision depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. We are of the view that it is what has been done in the instant case and the High Court has rightly held so. We, therefore, find no reason to entertain this Special Leave Petition and the same is dismissed.” Per contra, Sri Wilson, learned Assistant Solicitor General of India submitted that the investigation into the allotment of 250 acres of land in favour of A.5 company by the IT and C Department, Government of Andhra Pradesh, Hyderabad headed by the petitioner revealed that she played a dubious role in allotment of lands to an otherwise unqualified and ineligible company M/s. Indu Techzone Pvt. Ltd owned by M/s. Indu Projects Ltd. Therefore a charge sheet has been filed before the Principal Special Judge for CBI Cases, Hyderabad on 17.9.2013 against the accused including the petitioner. He also submits that the trial Court took the cognizance as the criminal conspiracy u/s.120-B, cheating u/s.420, and criminal breach of trust u/s 409 IPC relying on the judgments of the Supreme Court of India. He submits that becoming party to a criminal conspiracy and committing the offence of cheating and criminal breach of trust do not form part of official duties of the public servants and therefore the protection contemplated under section 197 Cr.P.C. is not applicable to the petitioner herein. Learned counsel further submitted that the petitioner facilitated arbitrary allotment of 250 acres of land at Shamshabad by entering into an MOU dated 12.7.2006 with the M/s.Indu Techzone Pvt. Ltd., A.5 company in gross violation of the Cabinet decision. The promoters of the said accused private company have paid an amount of Rs.15.00 Crore as bribe to Y.S. Jaganmohan Reddy under the guise of investments in M/s.Carmel Asia Holdings Pvt Ltd (A.12) for exercising personal influence on his father and late Chief Minister Dr. Y.S. Rajasekhara Reddy and persuading him to abuse his official position and to extend undue favours to Sri Syam Prasad Reddy and other accused private companies. He also submits that the petitioner solicited applications from A.5 company for allotment of land without therebeing any justification in that regard. In the committee meeting it was decided that APIIC may set aside 250 acres of land for each developer. Since it was decided that a minimum of 5 million SFT should be developed per each 100 acres of land, the Committee decided that the handing over of land should be made only after achieving financial closure; building minimum of 5 Million SFT for 100 acres of land and as such, handing over of 250 acres of land need not be done in one go. It was further decided that in the MOU a condition may be stipulated that further release and allotment of land will depend on fulfilling the terms and conditions of the contract in terms of the land handed over in the earlier period. It was further contended that the application of M/s. Indu Projects Ltd should not have been considered at all for the reasons that the company did not meet fulfil the eligibility criteria of having a net- worth of Rs.250 Crore and did not construct 40 Mn.SFT. Further, the claim of forming consortium with M/s.Kotak Mahindra Investments Ltd is not supported by any consortium agreement or GPA signed by all the three purported constituent members. Therefore in the absence of valid consortium agreement/GPA, it should not have been allowed to place before the Committee. It was further submitted that applications were sought only from the selected companies. The learned Additional Solicitor General would further contend that the prosecution has taken all the steps to obtain sanction orders from the competent authority for prosecution of the petitioner and the same is awaited; that the competent authority can file sanction order even during the pendency of the trial, therefore charge sheet filed against the petitioner without obtaining sanction orders from the competent authority is not illegal. In support of his contentions, the learned counsel relied on the decisions reported in STATE OF BIHAR AND ANOTHER v. P.P. SHARMA [7], STATE OF WEST BENGAL AND ANOTEHR V. MOHD. KHALID AND O T H E R S [8], A.K. SINGH AND OTHERS v. UTTARAKHAN JAN MORCHA AND OTEHRS [9], K.KALIMUTHU v. STATE BY DSP [10], ROMESH LAL JAIN v. NAGINDER SINGH RANA AND OTHERS [11] STATE OF KARNATAKA AND ANOTHER v. PASTOR P. R A J U [12], GENERAL OFFICER COMMANDING RASHTRIYA RIFLES v. CENTRAL BUREAU OF INVESTIGATION AND ANTOEHR [13]. Relying on the above decisions of the Supreme Court, Sri Wilson submitted that sanction under Section 197 Cr.P.C. is not condition precedent for taking cognizance against the petitioner and that sanction under Section 197 Cr.P.C. is required to be obtained only when the offence complained against the public servant is attributable to the discharge of public duty; and that the investigation agency is competent to file charge sheet even before obtaining sanction order from the competent authority. The issues that fall for consideration in this case are – 1) Whether the order of sanction is mandatory from the competent authority for filing chargesheeet against the petitioner ? 2) Whether there are any grounds to quash the proceedings against the petitioner exercising powers under Section 482 Cr. P. C? Issue No.1 In the instant case the respondent investigating agency has not obtained sanction orders from the competent authority to file charge sheet. According to the respondent charge sheet was filed in R.C.No.19(A)/2011 against A.1 to A.15 under Sections 120-B, 409, 420, 468, 471, 477-A and under Section 9,11, 12, 13(2) r/w 13(1)(c) & (d) of P.C. Act, 1988, and the Special Judge for CBI Cases, Hyderabad has taken cognizance on 10.10.2013 insofar as petitioner (A.7) concerned u/s.120B, 420, 409 IPC. It is mentioned in the Charge Sheet that sanction orders u/s 19 of the PC Act, 1988 for prosecution of the petitioner is awaited for the offences u/s.13(2) r/w 13(1)(c) & (d) of the PC Act, 1988. It is settled principle of law that the order of sanction is only an administrative act and not a quasi judicial one. The competent authority can apply its mind on those facts and may pass appropriate orders for sanction of prosecution considering the facts and the prima facie evidence of commission of offence. The competent authority may grant or refuse to grant sanction. Section 197 Cr.P.C. reads as follows: “ 197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1[ Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression\" State Government\" occurring therein, the expression\" Central Government\" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression\" Central Government\" occurring therein, the expression\" State Government\" were substituted. (3A) 1[ Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held.” The emphasis of Section 197 Cr.P.C. “ that no court shall take cognizance of such offence except with the previous sanction” suggests that before taking cognizance of offence alleged prior sanction from the competent authority is required. Before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is at liberty to produce the order of sanction even during the trial of the case. It is therefore clear from the reading of provisions contained in Section 197 Cr.P.C. and in view of the decisions of the Supreme Court referred supra, that filing of charge sheet and taking cognizance against the petitioner is not per se illegal nor a condition precedent and the prosecution can file the sanction order even during the trial of the case. In GENERAL OFFICER COMMANDING RASHTRIYA RIFLES’ s case ( supra) the Supreme Court held that if alleged act or omission of public servant can be shown to have reasonable connection or interrelationship with, or to be inseparably connected with discharge of his official duty, he is entitled to protection of sanction. When, where court proceeds against public servant without sanction, he can raise the issue of jurisdiction of court. Sanction can be obtained even during trial depending upon facts of individual case. In that view of the matter, the respondent investigating agency is competent to file chargesheet even without obtaining prior sanction from the competent authority. Therefore the first issue is answered against the petitioner. Issue No.2. Coming to the next issue as to whether any prima facie case is made out against the petitioner as per the material placed by the prosecution agency warranting interference of this Court under Section 482 Cr.P.C. Adverting to this issue, learned Additional Solicitor General appearing for counsel for the respondent however submitted that the petitioner has played active role in allotment of 250 acres of land in favour of A.5 company, which is unqualified and ineligible for the said allotment. He also submits that after thorough investigation, and after recording the statements of the witnesses and after scrutinizing the documents the respondent agency has filed charge sheet against the petitioner under Section 120-B, 409 and 420 IPC and that the Trial Court has taken cognizance of the same pointing out several omissions and commissions of the petitioner in allotment of 250 acres of land in favour of A.5 company in utter violation of cabinet decision and business rules. It is further submitted that the petitioner has even ignored the directions of the Chief Secretary from time to time and played active role in allotment of land, therefore there are no grounds to quash the proceedings at this stage. In support of his contention the learned counsel relied on the decisions of the Supreme Court reported in STATE OF H.P. v. PIRTHI CAHND AND ANOTHER [14], CENTRAL BUREAU OF INVESTIATION v. K.M. SHARAN [15] In STATE OF H.P.’s case ( 13 supra) the Supreme Court held that when the investigating officer spends considerable time to collect the evidence and when the charge sheet is placed before the Court, further action should not be short-circuited by resorting to exercise of inherent powers to quash the charge sheet. In K.M. SHARAN’s case ( 14 supra) the Supreme Court held that the High Court in its jurisdiction under Section 482 Cr.P.C. is not called upon to embark upon the inquiry whether the allegations in the charge sheet are reliable or not. These are matters which can be examined only by the Court concerned after the evidence is led. Learned Additional Solicitor General further submitted that as per the directions of the Division Bench of this Court in W.P.Nos.794 and 6604 of 2011 dated 10.8.2011, the respondent agency investigated into the matter and after completion of the investigation has filed charge sheet against the petitioner and others therefore the respondent investigating agency has got jurisdiction to investigate into the offence. Learned counsel for the respondent in support of the said contention has relied on the decision reported in NIRMAL SINGH KAHLON AND J.P. SINGLA v. STATE OF PUNJAB AND OTEHRS [16], wherein the Supreme Court held that merely because the lodging of FIR by the CBI has been done at the instance of High Court could not lead to arrive at a conclusion that its direction in that behalf was wholly without jurisdiction. Learned counsel relying on the decision reported in PADAL VENKTA RAMA REDDY ALIAS RAMU v. KOVVURI SATYANARAYANA REDDY AND OTHERS [17], wherein the Supreme Court has considered in detail the provisions of Section 482 Cr.P.C. and the power of the High Court to quash criminal proceedings and has summarized the legal position by laying down several guidelines to be followed by the High Court in exercise of its inherent powers to quash a criminal complaint or a charge sheet. It was further held by the Supreme Court that in a proceeding instituted on a complaint exercise of inherent powers to quash the proceedings is called for only in a case in which the complaint does not disclose any offence or is frivolous or oppressive. In AMIT KAPOOR v. RAMESH CHANDER AND ANOTHER [18] the Supreme Court held that the factual foundation and ingredients of an offence being satisfied the Court will not either dismiss the complaint or quash such proceedings in exercise of its inherent or original jurisdiction. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The power under Section 482 of the Code to quash criminal proceedings particularly after charges are being framed, should be exercised very sparingly and with circumspection and that too in the rarest of rate cases. The High Court should not unduly interfere. In exercise of its jurisdiction under Section 482 of the Code, the Court cannot take into consideration external materials given by the accused. The Court has to consider the record and documents annexed therewith by the prosecution. Quashing of the charge is an exception to the rule of con tenuous prosecution. Where the offence is broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at the initial stage. In STATE OF MADHYA PRADESH v SURENDRA KORI [19], the Supreme Court held that in view of the magnitude of the crime, the reports referred to in the charge sheet and the involvement of the accused could be decided only if an opportunity is given to the prosecution. The High Court in such circumstances is not justified in quashing the charge sheet in exercise of its powers under Section 482 of the Code. In M/s. JAGATHI PUBLICATIONS LTD v. CBI, HYDERABAD [20] it was held that economic offences destroy the economic fabric of this Court and all such offences have to be dealt with iron hand. The Central Government should consider it seriously. In Y.S. JAGAN MOHAN REDDY v. CBI [21], the Supreme Court held that economic offences constitute a class apart and need to be visited with a different approach. The economic offences having deep rooted conspiracies and involving huge loss of public funds, needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing threat to the financial health of the country. Relying on the above decisions, the learned counsel for the respondent submitted that the prosecution has collected various documents official notes from the Department of IT and C which prima facie disclose that the petitioner being Secretary of the Department has accepted the proposal of A.5 company without calling for tenders and without notifying other companies and had played major role in allotting 250 acres of land at a cheaper rate than the prevailing market value contrary to the instructions issued by the then Revenue Secretary and the Chief Secretary and grossly violated the cabinet decision in allotment of the land to A.5 company. The material collected by the prosecution reveals fraudulent act of the petitioner in allotting the land by not following the regular transparent procedure; therefore there are no grounds to interfere with the proceedings by this Court. It is the main contention of the petitioner that the investigating agency’s allegations that the State assigned to the IT & C Department several duties and that the petitioner had changed her stand inexplicably, that she acted in a unilateral and opaque manner and that the respondent is sitting over the decisions of the Cabinet, are all surmises of persons directly not connected with the issue. Learned counsel for the petitioner submitted that APIIC is the nodal agency in respect of the allocation of land, fixation of price, preparation and finalisation of MOUs with the intending entrepreneurs and securing the works of execution and establishment of IT Parks, thus respondent agency acted in its blissful ignorance of the role of CCITI and the Department of IT & C in the entire gamut of event insofar petitioner A.7 concerned. The IT & C Department is a single officer oriented department intended to give thrust to IT Department and no other role relating to allocation of lands etc and that the actions or the proposals of the petitioner in discharge of her official duties is always subject to the final approval of the various heads of departments including the Chief Secretary, concerned Minister, the Chief Minister of State of Andhra Pradesh and the Cabinet on the whole. It is also not the duty or obligation cast on the petitioner in discharge of her official duties to look into the aspect of pricing of the land, allocation of the same to the entrepreneurs, vetting of recitals in the MoUs to be entered into with the allottees of the land etc., as they are within the domain of the APIIC which is the nodal agency of the project and the land owner even according to the counter of the respondent itself and that the chargesheet also explicitly makes it clear in that regard, therefore it is a fit case for quashing the charge sheet insofar as the petitioner is concerned. It is also further contended that it is not the petitioner who has solicited the applications from the IT entrepreneurs as is being alleged. In fact it is three entrepreneurs who made applications to the APIIC marking a copy to the IT & C Department, Government of Andhra Pradesh which have been rejected by the petitioner to be submitted in the prescribed format. The time taken from the date of making the initial application in a wrong format till the date of signing of the MOUs after modifications would go a long way in establishing the lack of malafides or any extraneous considerations on the part of the petitioner which have been failed to be taken note of by the respondent in its investigation. In any view of the matter as either the Chief Secretary who has seen the file on several occasions, the other Departmental heads who are involved in the allocations, and the Cabinet on the whole have not taken any action in the event of they coming to a conclusion that there is any deviation made by the petitioner in furtherance of her alleged conspired policy as is being alleged goes a long way to establish that no deviation has done and it is also clear that there is no reason to suspect the conduct of the petitioner. It is also contended that the respondent adopting convenient stands of dual nature while understating the duties and responsibilities of the petitioner as Secretary of a Department vis a vis the duties and responsibilities of the Chief Secretary ignoring the fact of the Chief Secretary being the Secretary of the General Administration Department and that in the event of the Chief Secretary noticing any semblance of the deviation of the movement of the file in accordance with the Business rules he is obligated and empowered under Rule 28 of the Rules to call for any file and report about this deviation to the concerned Minister, which was not adopted by him at any point of time, therefore his version in Section 161 Cr.P.C statement cannot be made basis for implicating the petitioner in the impugned proceedings. It is further brought to the notice that the respondent failed to notice the conduct of the petitioner who made field inspection long prior to filing of the writ petition nos.794 of 2011 and batch and her recommendations as reflected in the note file dated 10.3.2011 and marking the same to the Minister for IT on 10.3.2011 recommending for resumption of the balance land restricting the allotment of land to A.5 to 25.00 guntas of land only, the factors which establish the manner in which the petitioner discharged her official duties consciously and in the interests of the State alone. The petitioner also refuted the allegation that the petitioner has signed the MoU. In W.P.Nos.794 and 6604 of 2011 dated 10.8.2011 the Division Bench of this Court passed the following order : “ … 54. Accordingly, writ petition nos.794 and 6604 are disposed off directing the Central Bureau of Investigation to register a crime and investigate into the accusations indicated hereinabove and other aspects relevant thereto and take the investigation to its logical end in accordance with law.” It is seen from the record that it is on the basis of the orders of the Division Bench of this Court in W.P.Nos.794 and 6604 of 2011 dated 10.8.2011, CBI, Hyderabad registered a case vide RC No.19(A)/2011- CBI/Hyderabad u/s120-B r/w 420, 409, 420 & 477-A IPC and 13(2) r/w 13(1)(c) & (d) of the PC Act against Sri Y. S. Jaganmohan Reddy and 73 others. One of the main allegations in the FIR was that Government of Andhra Pradesh awarded VANPIC Project and allotted more than 15,000 acres of land in Prakasam and Guntur Districts to the companies promoted by Sri Nimmagadda Prasad violating all norms and granted several concessions. As a quid pro quo, Sri Nimmagadda Prasad invested in the companies belonging to Sri. Y. S. Jaganmoha Reddy viz., M/s.Carmel Asia Holdings Pvt. Ltd., M/s. Bharati Cements, M/s. Jagathi Publications Pvt. Ltd., M/s.Silicon builders; M/s.Sandur Power Company etc., through his group companies. It is alleged that Nimmagadda Prasad received several undue favours in the form of allotment of lands under the cover of developing infrastructure projects and in turn paid amounts to the companies owned and controlled by Y.S. Jaganmohan Reddy routing them through the private companies of Nimmagadda Prasad as quid pro quo to the undue benefits received by them. Investigation into allotment of 250 acres of land at Shamshabad to M/s.Indu Techzone Pvt. Ltd was made and charge sheet has been filed before the Principal Special Jduge for CBI Cases, Hyderabad against 15 persons including the petitioner herein (A.7) for her involvement in commission of offence punishable under Sections 120-B, 420, 409, 420, 467, 468, 471, 477-1A IPC and u/s 9,11,12,13(2) r/w 13(2)© & (d) of the PC Act, 1988. Insofar as the taking of cognizance the order dated 10.10.2013 of the Principal Special Judge for CBI Cases, Hyderabad in C.C.No.27 of 2013 in R.C.19(A)/2011 reads as follows : “ Charge sheet filed in R.C.No.19(A)/2011 against A1 to A15 u/s120-B, 409, 420, 468, 471, 477-A IPC and u/s 9,11,12,13(2) (1)(c) & (d) of P.C. Act 1988 and this court taken cognizance on 10.10.2013 as follows : COGNIZANCE ORDER DATED 10-10-2013. Perused the charge sheet, office note and record. The charge sheet is taken on file for the following offences against the accused : A.1 - Y.S. Jagan Mohan Reddy – u/s 120-B, 420 IPC and Section 9 of P.C. Act, 1988 A.2 – V. Vijay Sai Reddy – U/s 120-B, 420 IPC & Section.9 of P.C.Act 1988 A.3 – I. Syam Prasad Reddy u/s 120-B, 420, 468, 471 IPC and Section 12 PC Act. A.4 M/s. Indu Projects Ltd u/s 120-B, 420 IPC rep. by I.Syam Prasad Reddy, M.D. A.5 – M/s. Indu Techzone P. Ltd u/s 120-B, 420 IPC rep. by I. Syam Prasad Reddy, M.D. A.6 M/s. SPP Properties P.Ltd u/s 120-B, 420IPC rep by I. Syam Prasad Reddy, M.D. A.7. Smt. K. Ratna Prabha – u/s 120-B, 420, 409 IPC A.8 Smt. P. Sabita Reddy – u/s 120B, 420, 409 IPC & Section 13(2) r/w 13(1)© (d) P.C. Act. A.9. B.P. Acharya – u/s. 120B, 420, 409 IPC A.10 - D. Pardhasaradhi Rao u/s 120B, 420, 409 IPC and Section 13(2) r/w 13(1)(c ) (d) P.C. Act. A.11 – Nimmagadda Prasad – U/s 120B, 420 IPC. A.12 – M/s. G2 Corp. Service Ltd u/s 120-B, 420 IPC Rep. by N. Prasad. A.13 – M/s. Bhoomi Real Estates Inv.Pvt Ltd rep by I. Syam Prasad Reddy – u/s 120-B, 420 IPC. A.14 – M/s. Carmel Asia Holding P. Ltd – u/s 120-B, 420 IPC rep by Y.S. Jagan Mohan Reddy. A.15 – C.V. Koteswara Rao – 120B, 420, 468, 471 IPC. Register CC and issue summons to accused for their appearance before this Court on 13.11.2013.” From a reading of the above order, it is clear that the petitioner has been charged with the offence punishable under Sections 120-B (criminal conspiracy), 420 ( cheating), and criminal breach of trust 409 IPC. Section 120-B IPC reads as under : “ 1[120B. Punishment of criminal conspiracy.— (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] Section 409 IPC reads as under : “ 409. Criminal breach of trust by public servant, or by banker, merchant or agent.— Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Section 420 IPC reads as under : “ 420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. ” I n MADHAVRAO JIWAJIRAO SCINDIA AND OTHERS V. SAMBHAJIRAO CHANDRAOJIRAO ANGRE AND OTHERS [22], the Supreme Court held that “ when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue. The court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage. I n STATE OF HARYANA v. BHAJAN LAL [23] a question came up for consideration as to whether quashing of the FIR filed against the respondent Bhajan Lal for the offences under Sections 161 and 165 IPC and Section 5(2) of the Prevention of Corruption Act was proper and legal. Reversing the order passed by the High Court, this Court explained the circumstances under which such power could be exercised. Apart from reiterating the earlier norms laid down by the Supreme Court, it was further explained that such power could be exercised where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. It is also settled law that at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuiness of the allegations made therein. The power to quash shall not, however be used to stifle or scuttle a legitimate prosecution and such power should be used sparingly and with abundant caution. The legal principles in regard to quashing of a first information report in view of a large number of decisions are well settled. The Supreme Court in R. KALYANI v. JANAK C. MEHTA [24] while considering the entire case law has held as follows : “ 15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. ” It is also settled law that no hard-and-fast rule can be laid down and each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Section 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint. In HAMIDA V. RASHID [25] the Supreme Court inter alia held that it is well established principle that every court has inherent power to act ex debito justitia to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. In the above mentioned backdrop, now it is to be seen as to whether any ingredients of any of the offences alleged against the petitioner are prima facie established as per the material placed by the investigating agency. It is relevant to extract relevant portions of the charge sheet insofar as accusations against the petitioner are concerned. It was mentioned at page 20 of the charge sheet insofar petitioner as follows : “ Smt. K. Ratna Prabha is an IAS officer of 1981 Batch and belongs to Karnataka Cadre. During the relevant period, she was on deputation to AP and worked as Secretary, Information Technology & Communications Department. As Chairperson, CCITI and Secretary, IT&C Department, she played pivotal role in the process of selection of private companies and allotment of lands to them for development of IT/ITES product specific SEZ.” According to the prosecution, the petitioner (A.7) played pivotal role in the process of selection of private companies and allotment of lands to them for development of IT/ITES product specific SEZ. According to the charge sheet at page 30 it was mentioned that – “ Investigation revealed that in furtherance of said criminal conspiracy Sri I. Syam Prasad Reddy (A.3) of M/s. Indu Project Ltd (A.4) submitted an application dated 19.10.2005 addressed to VC&MD, APIIC stating that they are specialized urban infrastructure development and have right type of highly reputed strategic allies and know-how providers to partner them in establishing IT parks. Sri Syam Prasad Reddy A(.3) further stated that they have tied up with 2/3 highly reputed international partners to develop an integrated world class SEZ that could provide facilities to world players in software/hardware/ITES/residential & Retain and allied sectors. He requested to allot 1,000 acres of land near international airport for the purpose. In another letter of even dated addressed to the VC & MD with similar contents, Mr. Ram Pujari, Director, M/s. Indu Projects Ltd (A.4) requested to allot 500 acres of land nearthe international airport. Copies of both the letters were endorsed to the Secretary, IT&C Department and were received by Smt. K.Ratna Prabha A.7, the then Secretary as evidenced by her initials thereon.” …. CM’s meeting on 20.10.2005: In furtherance of said criminal conspiracy, on the next day i.e. on 20.10.2005, the then Chief Minister, Dr. Y.S. Rajasekhar Reddy conducted another meeting in which Sri B.P. Acharya (A.9), VC & MD, APIIC also participated, apart from the officials of IT Department. During the meting Sri B.P.Acharya A.9, in furtherance of said criminal conspiracy, stated that APIIC decided to charge a rate of Rs.20.00 lakh per acre. It is pertinent to note that the rate of Rs.20.00 per acre was decided earlier in the context that APIIC a wholly owned company Government of Andhra Pradesh shall develop the SEZ for which application has already been submitted by them and forwarded to Government of India. The Charge sheet further reads that: “Letter sent to M/s. Indu Projects Ltd: Investigation revealed that in furtherance of said conspiracy, on 13.12.2005 Smt. K. Ratna Prabha, IAS Secretary, IT&C Department has directed Sri P.S. Murthy JD (Promotion), to write letter to M/s.Indu Projects Ltd (A.4), Hyderabad to submit application in the prescribed proforma along with the requisite information in the checklist/criteria before 11.12.2005. This signifies a sudden and inexplicable shift in the stand adopted by Smt. K.Ratna Prabha (A.7). Earlier APIIC was asked to develop the SEZ on its own and accordingly an application in the prescribed proforma was already submitted to the Board of Approval, Government of India. However, applications from private companies are solicited without there being any justification recorded in the file. This clearly indicates unilateral opaque manner in which Smt. K. Ratna Prabha (A.7) has operated and took decisions.” … CCITI Meeting on 21.12.2005: 54. Immediately on the next day on 21.12.2005, Smt. K. Ratna Prabha (A.7) Secretary has conducted 34th meeting of CCITI, which was attended by Sri D. Pardhasaradhi Rao (A.10), Chief Engineer, APIIC among others, discussed the issue of allotment of lands to M/s.Indu Projects LTd., M/s. Brahmani Infratech Pvt Ltd., and M/s.K. Raheja Corp. Pvt. Ltd., and resolved to adopt a transparent and short duration method to identify the developers who can bring in quality IT space along with associated social infrastructure on a large scale.” Application forwarded to APIIC: 60. Subsequent to the CCITI meeting Smt. K. Ratna Prabha Secretary IT & C Department vide DO Lr.No.1954/IT&C/Prom2/2005 dated 3.1.2006 has forwarded the applications of M/s. Indu Projects Ltd., (A.4) M/s. Brahmani Infratech Pvt LTd., M/s. K. Raheja Corp. Pvt., Ltd and M/s. Maven Park to APIIC with a direction to examine the applications keeping in view the parameters evolved in the CCITI’s meeting on 21.12.2005 for selection of IT Park developers. 62. Investigation revealed that Smt. K. Ratna Prabha, Secretary, IT&C Department (A.7) and Sri. B.P. Achaarya, VC&MD, APIIC (A.9) dishonestly and fraudulently adopted the contradictory stands in selection of the developers. On one hand, in CCITI meetings, they have decided to adopt transparent method for selection of IT developers and on the other hand, applications were sought only from the selected companies, in total deviation without any justification.” The charge sheet further states as :- “65. However, in a clear deviation from the established procedure, APIIC has not published any tenders/notifications in the instant case, even though the CCITI under the Chairmanship of Smt.K.Ratna Prabha, Principal Secretary (A.7) in their meeting held on 21.12.2005, has decided to adopt transparent and short duration method. ” .. 67. Therefore, Smt. K. Ratna Prabha A.7 did not act transparently in calling for the applications from a few selected private companies. Recommendations of Sri B.P. Acharya, CMD, APIIC (A.9): 74. Investigation revealed that Sri B.P. Acharya (A.9) VC & MD, APIIC on 30.1.2006 circulated a single Note file stating that Government, after careful consideration has shortlisted some companies for Hyderabad and Visakhapatnam at the first instance. 75. Advance copies were submitted to Secretary, IT& C Department and Addl. Secretary to CM, as directed. Sri Ch. Balasubrahmanyam former GM, APIIC has stated that normally APIIC files need not be marked to CMO. 76. Investigation revealed that Sri B.P.Acharya in the note file stated that M/s.Indu Projects Ltd A(.4) has proposed to form consortium with M/s.IDFC (Financial Member ) and M/s.Golf Links Software Park Pvt Ltd (Technical Member) and the information furnished by the company satisfied the requirement as fixed by the Government. He has further stated that during a review meeting on 20.10.2005, the CM has directed to allot land at a rate of Rs.20.00 lakh per acre. ” … 79. Moreover, Sri B.P. Acharya (A.9) is well aware of the fact that he only suggested the rate of Rs.20.00 lakh per acre in the CM’s meeting held on 20.10.2005 only in the context that APIIC on its own develop the SEZ. Therefore, his efforts or assertions on the applicability of the rate of Rs.20.00 lakh per acre for private companies also shows his dishonest intentions. 80. It many not be out of context that the minutes of 20.10.2005 have not been formally approved. Further, at a subsequent stage, while placing the proposals before the Council of Ministers, Smt.K. Ratna Prabha (A.7) has stated that the rate of Rs.20.00 per acre was acceptable to APIIC which is the custodian of lands. CCITI Meeting on 2.2.2006. 81. Investigation revealed that in furtherance of the criminal conspiracy Smt. K. Ratna Prabha, Secretary, IT&C Department (A.7) has conducted CCITI meeting immediately, on 2.2.2006. The Committee under the chairmanship of Smt.K.Ratna Prabha resolved to recommend to Government for allotment of 250 acres of land located at Mamidipally, Ranga Reddy District to M/s.Indu Projects Ltd. (A.4) and to two others for development of IT/ITES SEZ, basing on the report given by APIIC. Even though the decision was taken that 250 acres of land need not be allotted in one go in the previous meeting held on 21.12.2005, these Minutes dated 2.2.2006 did not record any clarifications/justifications to allot 250 acres of land in one go. The rate of Rs.20.00 lakh per acre as per the deliberations of the CM’s Meeting on 20.10.2005 was also approved in this meeting. 82. In fact the rate of Rs.20.00 lakh per acre approved in the CM’s meeting dated 20.10.2005 was applicable to APIIC, wholly owned by Government of Andhra Pradesh. Government Proposals : 87. Investigation revealed that on 23.3.2006 IT&C Department had circulated a Note highlighting the key decisions of the CCITI in their meetings held on 21.12.2005, 2.2.2006; sub-committee meeting held on 14.3.2006 for finalization of built up space and employment generation and the salient features of terms and conditions of the draft MOU. 88. Investigation revealed that Smt. K. Ratna PRabha (A.7) Secretary, IT& C Department endorsed the noting and circulated the file to Law Department for their comments. 89. On 25.3.2006 Sri B.P. Acharya (A.9) VC&MD, APIIC has forwarded the remarks on the draft MOU with the suggestion to handover the land as per APIIC allotment Regulations, which means that sale agreement will be executed initially and sale deeds shall be executed after implementation of the project. (Rule 19.1). Opinion of Law Department: 90. Investigation revealed that Addl. Secretary Law vide his Note dated 27.3.2006 remarked that the Department shall ensure that the reliefs and concessions being extended to the developers and as per the ICT Policy of the State and returned the file. 91. Smt. K. Ratna Prabha (A.7) Secretary, IT&C has endorsed that the observations of Law Department will be incorporated in the MOU and further circulated the file to Principal Finance Secretary. 95. IT is revealed that the Principal Secretary, Finance vide his Note dated 28.3.2006 remarked that IT&C Department may prepare an enabling policy on commercial lines without any financial commitment to Government or Government agencies and ensuring prevailing market value is recovered in a competitive, open and transparent process. 96. Investigation revealed that Dr.V.P. Jauhari, the then Special Chief Secretary, Revenue vide his Note dated 13.4.2006 suggested to incorporate a clause in the MOU that in case of any violation of the conditions the Government and APIIC will be at liberty to resume the land. He further remarked that it was ‘presumed that selection process has been done in a transparent and impartial manner. The cost of the land at Rs.20.00 lakh per acre is extremely low. The current price may be over a crore per acre. However, in order to provide incentive to IT companies and achieve the objective of the IT Hub Development, Government may take its own view to provide land at concessional rate” and suggested that the Cabinet approval be obtained before taking any further action. He has further observed that the suggestions of Finance Department on resumption of lands in case of violation of the terms and conditions of MOU should be taken care of. …. Draft Cabinet Memorandum : 98. Investigation revealed that later, the file was marked to the Chief Secretary, who vide his Notes dated 15.4.2006 remarked that the IT Department should take care of the observations of the Finance and Revenue Departments. 99. Investigation revealed that subsequent to the remarks of the Chief Secretary, in furtherance of the said criminal conspiracy, Smt. K.Ratna Prabha (A.7) has dishonestly interrupted circulation of the file and a draft Memorandum for Council of Ministers has been prepared and submitted to the Minister for IT, Smt. P. Sabita (A.8) and the Chief Minister who in furtherance of the said criminal conspiracy, dishonestly accorded their approval on the same day i.e.15.4.2006. … Revised Cabinet Proposals : 132. Investigation revealed that after elaborate discussions with Sri M. Gopi Krishna, Special Secretary and Smt. K. Ratna Prabha (A.7) Secretary, Sri P.S. Murthy JD (Promotions) has processed the file and submitted a Note on 26.5.2006 (sheet No.10 to 12) incorporating the proposed amendments to the modified draft MOU for approval of the Cabinet…. 143. IT may be pertinent also to note that it is a fact on record that M/s.Indu Techzone Pvt Ltd (A.5) which has been projected as the SPV is a 100% owned private company of M/s.Indu Projects Ltd (A.4)., and M/s.IDFC and M/s.Golflinks Software Parks Pvt Ltd., the declared financial and technical members of the consortium have not been the shareholders in the company. 144. Yet M/s. Indu Techzone Pvt Ltd (A.5) has been given the credence as an SPV consisting of all the three companies discussed above. This forms part of the deception played by Sri I. Syam Prasad Reddy (A.3) on IT&C Department headed by the Minsiter Smt. P. Sabita (A.8) and the Secretary, Smt. K. Ratna Prabha (A.7) who in turn played the deception on the highest executive authority i.e. the Council of Ministers. .. 146. Investigation revealed that the State Council of Ministers in their meeting held on 7.7.2006 approved to enter into/add/modify MOU with the three IP Park Developers as per the exact names of the Special Purpose Vehicles (SPV) created by them including M/s.Indu Techzone Pvt. Ltd. (A.5), as per revised additional modified terms and conditions of MOU conveyed vide Council Resolution No.146/2006 dated 10.7.2006. … Role and Responsibility of the Secretary, Smt. K.Ratna Prabha (A.7) and the Minister Smt.P. Sabita Reddy (A.8) in the facts of the present case : 190. During the course of investigation, the Chief Secretary at the relevant time referring the relevant records, stated that the IT&C Department/APIIC has not followed a transparent method of inviting IT companies in an open and competitive manner which was categorically laid/emphasised by the Finance and Revenue Departments and duly endorsed by him in the capacity of the then Chief Secretary vide his minutes recorded. 191. He further opined that the Cabinet Memorandum prepared by Smt. K. Ratna Prabha (A.7) the then Secretary, IT&C Department is silent on the minimum financial and technical criteria prescribed by the CCITI for selection of the IT developers. The original MOU as approved by the Cabinet has been sought to be diluted without incorporating inbuilt safety mechanism to ensure that the government land should not go into the hands of parties which do not fulfil the criteria as laid down by the CCITI. 192. The draft Memorandum was approved by the then Minister, IT& C Smt. P. Sabita Reddy (A.8) on 28.6.2006 and the Chief Minister Late Dr. Y.S Rajasekhara Reddy on 1.7.2006. The same has been placed before the Council of Ministers in their meeting held on 7.7.2006, which approved the proposed amendments to the MOU. 193. All relevant facts have not been incorporated in the Cabinet Memorandum as required under Business Rule and Secretariat Instruction 18(1) while obtaining the approval fo the Council of Ministers. 194. The constitution and ownership of M/s.Indu Techzone Pvt Ltd., which are in variance to the proposals/approvals of the CCITI hae not been specifically mentioned in the Memorandum for the Council of Ministers as prepared by the Secretary, IT&C Department Smt.K .Ratna Prabha and approved by the Minister, IT&C, Smt. P. Sabitha. … 198. Therefore, it is seen that for preparation of the Cabinet Memorandum with accurate details and explaining the proposals to the Council of Ministers, the Minister and Secretary of the Department concerned are responsible as laid down in AP Government Business Rules and Secretariat Instructions as quoted above. 199. However, in this case the Secretary, IT&C, Smt. K.Ratna Prabha and the Minister Smt. P.Sabita Reddy have not followed the laid down Rules and Instructions and have completely deviated from the laid down procedure while obtaining the Cabinet approval. Implementation of the Cabinet Decision – Provisional Allotment Letter and physical handing over of possession : 200. As per Rule 21(1) of AP Government Business Rules which states that “whenever a deviation has to be made from a decision taken at a meeting of the Council of Ministers, such deviation should be got approved by the Council of Ministers or in case of urgency by the Chief Minister. Where a deviation has been got approved by the CM due to urgency, it should be got ratified later by placing it before the Council. Remarks of the Chief Secretary: 324. The former Chief Secretary has stated that by inclusion of enabling provisions for development of 100 acres of land by the company or its subsidiaries/joint venture companies ‘ the original MOU as approved by the Cabinet has been sought to be diluted without incorporating inbuilt safety mechanism to ensure that the Government land should not go into the hands of parties which do not fulfil the criteria as laid down by the CCITI.” 325. These facts clearly proves the criminal conspiracy among the accused persons and dishonest intentions of Smt. K. Ratna Prabha (A.7), Secretary, IT&C Department and Sri I. Syam Prasad Reddy (A.3), MD of M/s. Indu Techzone Pvt. Ltd., (A.5) in inclusion of such enabling clauses in the MOU through the revised proposals placed before the Cabinet on 7.7.2006.” As to fixation of rate for the land to be allotted to the company that in the minutes for the review meeting of the Hon’ble the Chief Minister on IT & C Department activities on 20.10.2005 at 12.30 p.m. and again at 4.00 pm it was stated that : “ d) as regards the cost of land for allotment in Hardware Park area, VC & MD stated that the present rate being charged by APIIC is Rs.26.00 lakhs per acre considering the fact that internal infrastructure need not be developed by APIIC for allotment to be made to developers and major companies where more than 100 acres is allotted, it was decided to charge a rate Rs.20.00lakhs per acre for the present. During the review meeting on allotment of lands at Harware Park, the Hon’ble Chief Minister has agreed to the proposal to allot around 250 acres in the area adjacent to land allotted to Catelytic Software in Hardware Park in M/s.K. Raheja Crp., for setting up of IT/ITES and Hardware facilities @ Rs.20,00,000/- per acre duly providing approach road to the site from Srisailam State Highway. This area may also be included in the proposed IT SEZ if necessary. It was also directed by the Hon’ble Chief Minsiter that 1286 acres in Mamidipally and Kancha Imarath Villages be arranged for notification by Government of India for APIIC IT SEZ for making lands available for reputed IT software companies. Hon’ble Chief Minister also opined to incorporate necessary conditions while allotting lands to Developers & IT companies, to responding commitment such as employment, period of completion, minimum investment without employee related incentives. Necessary penal clauses may also be incorporated for not fulfilling the required commitments. ” Learned counsel for the petitioner also referred to the letter dated 17.10.2005 sent by the VC &MD of APIIC to the petitioner wherein it is stated that land can be allotted to the IT Software companies at the rate of Rs.2600/- psm without development which is prevailing for undeveloped land in Hardware park. It is also relied on the copy of the CS approved the note file for placing the item in Agenda to the Cabinet and the approval of the CS got further approval by the Chief Minister for placing the same before the Cabinet, therefore contention that the petitioner enrooted the file cannot stand prima facie. Learned counsel for the petitioner by placing reliance on the proceedings of the 1058th Meeting of the council of Ministers held at 11.00 am on 29th April, 2006 would submit that the agenda item was got approved by the Chief Secretary himself for placing before the Cabinet meeting and the same was got approved as : (i) “Resolved to approve the allotment of 250 acres of land each to the identified IT Park/Township developers i.e. M/s.Stargaze (Raheja), M/s. Indu Projects and M/s. Brahmani Infotech in mamidipalli, Kancha Imarat villages, Maheswaram Mandal, Ranga Reddy District by APIIC @ 20.00 lakhs per acre without applying employment linked rebate on land cost) for development of IT/ITES SEZs/IT Parks/Integrated IT Townships. (ii) resolved to approve the terms and conditions of the draft MoU. (iv) Resolved to approve IT&C Dept to enter into an MoU with M/s.Stargaze (Raheja), M/s.Indu Projects and M/s.Brahmani Infotech for allotment of 250 acres of land each, as mentioned in (i) above.” It is the decision of the Government vide G.O.Ms.No.11 to invite applications from the reputed IT company; that APIIC shall act as nodal agency for allotment of land and fixation of land value; that as per the counter averments of the respondent at para 53 that subsequent to the CCITI meeting the petitioner forwarded the applications of M/s.Indu Projects Ltd (A.4), M/s.Brahmani Infratech Pvt. Ltd., M/s.K. Raheja Corp. Pvt Ltd and M/s.Maven Park to APIIC with a direction to examine the applications keeping in view the parameters evolved in the CCITI’s meeting on 21.12.2005 for selection of IT park developers. The counter further runs that vide para 57 that in a clear deviation from the established procedure, APIIC has not published any tenders/notification in the instant case, even though the CCITI under the chairmanship of Smt. K. Ratna Prabha, Principal Secretary (A.7) in their meeting held on 21.2.2005 has decided to adopt transparent and short duration method”. It is also stated by the respondents in para 64 of counter itself that on 30.01.2006 Sri B.P. Acharya, VC & MD, APIIC circulated a single Note file stating that “the Government after careful consideration has shortlisted some companies for Hyderabad and Visakhapatnam” and in the note file, pursuant to the directions of the CCITI, the VC & MD of APIIC who is authorised on that behalf has also stated that “information furnished by the company satisfied the requirement as fixed by the Government” and that during a review meeting on 20.10.2005 the CM has directed to allot land at a rate of Rs.20.00 lakh per acre. If that be the factual position, even according to the record placed by the prosecution and in view of the categorical averments made in the counter also, the irresistible conclusion one can reach is that no prima facie case is made out against the petitioner is concerned in the present scenario. Countering the stand of the respondent that the petitioner ought to have followed the tender process, it is submitted that the Government took a policy decision to allot the land for boosting the IT industry expeditiously and in one of such circumstances the petitioner was addressed by the APIIC as follows by letter dated 29.11.2005 the APIIC which is the nodal agency in allotment of land and fixation of rate. “ …. A copy of the letter dated 10.10.2005 received from K. Raheja Corp. Private Limited, Mumbai is furnished herewith for ready reference. This issue was discussed during the review meeting conducted in the chambers of Hon’ble Chief Minister on 6.11.2005 (camp office) and it was agreed, in principle, to allot around 250 acres of land to M/s.K. Raheja Corp. ( in the area adjacent to the Gems Park) at a rate of RS.20.00 Lakhs per acre. I therefore, request you to communicate necessary orders of the Government to facilitate allotment of land in this regard.” The petitioner further submits that the role of IT&C Department is only to the extent of referring the applications of the prospective entrepreneur to the APIIC for verification of their credentials to see that the policy implemented in accordance with law, the rest of the role is with the nodal agency like APIIC, the Revenue, Finance Departments etc., and the said fact is clearly ignored to be taken note of by the investigation agency. It is also petitioner’s contention that applications for allotment of lands from three enterprises were received by the APIIC, while marking copies to the IT Department. In fact M/s. Indu Projects made an application in the month of October,2005 and further requested for the same on 16.11.2005 to the APIIC, the nodal agency as well as marking a copy of the same to the IT&C Department. However, as the same was not in the prescribed format it was asked to file the application in the prescribed format. Similar three applications of the entrepreneurs were filed on 17.12.2005 and that the Department of IT&C, in a single note circulated the same to the Cabinet in a single file proposing the clearance of the said three files. On 3.1.2006, the Department of IT& C communicated to the APIIC the minutes of the CCITI which had decided to direct the APIIC to examine the applications keeping the parameters of the selection criteria for IT Park Developers. The note which was circulated was for all the three IT parks mentioned above after the recommendations and observations of the various officers in the IT & C Department including the Joint Director, and the Special Secretary, IT, (IPS Officer). After obtaining the comments of Law, Finance, Revenue, the Cabinet Note has been prepared and circulated to the Chief Secretary. The Chief Secretary has endorsed on 15.4.2006 to the effect that “the IT Department should take care of observations of Finance Department vide para 23 and Revenue Department vide Para 25.” Since the same have been already incorporated in the Note file also draft MOUs., therefore according to the petitioner the further circulation was interrupted and sent to the concerned IT Minister, since no deferring or contrary remarks as to movement of file was endorsed by any of the departmental heads including the Chief Secretary; and that the Cabinet Note was circulated through the Minister of Information Technology to the Chief Minister for ‘for consideration’ of placing the proposal to the Cabinet. It was approved in the Cabinet on 29.4.2006 and the Chief Secretary on 2.5.2006 directed the Secretary to Government IT& C Department to “ Please report the action taken on the above Resolution to G.A. (Cabinet) Department. It is the submission of the petitioner that proposals of the three entrepreneurs were sent on a single note in a single sheet and the same was approved together by the Chief Secretary in consultation with the Chief Minister and got included in the Meeting of the Council of Ministers as an Agenda Item. The decision as to allotment being policy decision was taken by the Cabinet and therefore accusations levelled by the CBI cannot be attributed to the petitioner, more so in view of the fact that upon being reposted as Principal Secretary IT & C on 23.3.2010, the petitioner having noticed the lack of progress in the project of A.5 has recommended for resumption of the lands after filed inspection as a remedial measure for the deviation of the terms of the agreement by A.5. the said proposal sent to the Minister IT & C and is still pending consideration even this date is a factor which was lost sight of by the CBI to test the bonafides of the petitioner. It is apt to refer to the counter affidavit which states at para 30, as follows: “ 30. Next, the Chief Minister, Dr. Y.S. Rajasekhar Reddy conducted another meeting on 20.10.2005 under the aegis of IT& C Department to review the progress on new IT Parks, in which Sri B.P. Acharya, VC& MD, APIIIC also participated, apart from the officials of the IT Department. During the meeting, the VC&MD, APIIC stated that considering the fact that internal infrastructure need to be developed by APIIC it was decided to charge a rate of Rs.20.00 lakh per acre. ” The record further reveals that A.1 MD of M/s.Indu Project Ltd submitted applications for allotment of land apart from two other companies to APIIC. That three applications of the enterprises were forwarded by APIIC and as they were not in prescribed format, they were returned by the petitioner for presentation in prescribed format. Thereafter the APIIC forwarded the application stating that they satisfy the norms and thereafter petitioner processed the applications after receiving the same in prescribed format from the three entrepreneurs and circulated the note in single note to the various departments. It is apt to refer to the remarks of the Additional Secretary (Law) made on the note file: “ 20. The department shall ensure that the reliefs and concessions being extended to the Developers are as per the ICT policy of the State. 21. Subject to above, the alternations indicated in pencil on the draft MOU may be made.” After circulation to the Law Department again the file was circulated to the petitioner herein who endorsed on the file at para 22 that “noted observations will be incorporated in the MOU.” It is therefore clear that the petitioner as Secretary IT & C Department has incorporated the observations of the Law Department. After that the file was referred to the Finance Department i.e. Principal Secretary Finance, Government of Andhra Pradesh who endorsed as follows : “IT & C department can frame appropriate enabling policy on commercial lines without any financial burden to the Government or Government Agencies and ensure that the prevailing market value is recovered in an effective open transparent process.” Thereafter, the file was referred to the Special Secretary (Revenue) Dr.V.P. Jawary, who made the following remarks. “25. Please refer to the proposal at para 19 on page 10 nf. Following are the comments of the Revenue Department on each of the items as per the Sl. No. at para 19. I. Draft MOU has to be vetted by the Law Department and should in corporate a clause that in case of any violation of the conditions, the Government and APIIC will be at liberty to resume the land.” It was further stated at para II that : “ Revenue Department has no comments on this item containing the selection of the Company. It is presumed that selection process has been done in a transparent and impartial manner. The cost of the land at Rs.20 lakhs per acre is extremely low. The current price may be over a crore per acre. However, in order to provide incentive to IT companies and achieve the objective of the IT Hub Development, Government may take its own view to provide land at concessional rate.” III. No comments. IV. Approval of the Cabinet may be obtained before taking any further action.” From the above endorsement, it is clear that Revenue Secretary opined that though the current price fixed at Rs.20.00 lakhs per acre is extremely low, however, in order to provide incentive to IT companies government may take its own view to provide land at confessional rate. Thereafter, the file was referred to the Chief Secretary, who endorsed thus : “ IT Department should take care of Finance Department observations vide para 23 and Revenue Dept. minutes vide para 25(II).” At this stage, the circulation of the file was interrupted and the petitioner observed that as per the observation of Chief Secretary the observation of Finance and Revenue Departments and the justification of IT & C Department has been prepared and the file was circulated to concerned Minister for IT. According to the petitioner observations of all the departments have been taken into consideration and that no remarks as to deferring or contrary remarks were made; and that the concerned IT Minister also approved the file and it was referred to the Chief Minister and it was endorsed by the then Chief Minister on 15.4.2006 to place it before the Cabinet for approval before the Cabinet it was placed at item no.8 and it was also approved by the Cabinet. Therefore, it is contended that the petitioner cannot be attributed any of the accusations levelled by the prosecution. Learned counsel for the petitioner also referred to the letter dated 17.10.2005 sent by the VC &MD of APIIC to the petitioner wherein it is stated that land can be allotted to the IT Software companies at the rate of Rs.2600/- psm without development which is prevailing for undeveloped land in Hardware park. It is also relied on the copy of the CS approved the notefile for placing the item in Agenda to the Cabinet and the approval of the CS got further approval by the Chief Minister for placing the same before the Cabinet, therefore contention that the petitioner enrooted the file cannot stand prima facie. Learned counsel for the petitioner by placing reliance on the proceedings of the 1058th Meeting of the council of Ministers held at 11.00 am on 29th April, 2006 would submit that the agenda item was got approved by the Chief Secretary himself for placing before the Cabinet meeting and the same was got approved as : (i) “Resolved to approve the allotment of 250 acres of land each to the identified IT Park/Township developers i.e. M/s.Stargaze (Raheja), M/s. Indu Projects and M/s. Brahmani Infotech in mamidipalli, Kancha Imarat villages, Maheswaram Mandal, Ranga Reddy District by APIIC @ 20.00 lakhs per acre without applying employment linked rebate on land cost) for development of IT/ITES SEZs/IT Parks/Integrated IT Townships. (ii) resolved to approve the terms and conditions of the draft MoU (v) Resolved to approve IT&C Dept to enter into an MoU with M/s.Stargaze (Raheja), M/s.Indu Projects and M/s.Brahmani Infotech for allotment of 250 acres of land each, as mentioned in (i) above.” Countering the stand of the respondents that the petitioner ought to have followed the tender process it is submitted that the Government have already taken policy decision to allot the land for boosting the IT industry expeditiously and in one of such circumstances the petitioner was addressed by the APIIC as follows by letter dated 29.11.2005 the APIIC which is the nodal agency in allotment of land and fixation of rate. “ …. A copy of the letter dated 10.10.2005 received from K. Raheja Cor.Pvt Limited, Mumbai is furnished herewith for ready reference. This issue was discussed during the review meeting conducted in the chambers of Hon’ble Chief Minister on 6.11.2005 (camp office) and it was agreed, in principle, to allot around 250 acres of land to M/s.K. Raheja Corp. ( in the area adjacent to the Gems Park) at a rate of RS.20.00 Lakhs per acre. I therefore, request you to communicate necessary orders of the Government to facilitate allotment of land in this regard.” The petitioner further submits that the role of IT&C Department is only to the extent of referring the applications of the prospective entrepreneur to the APIIC for verification of their credentials to see that the policy implemented in accordance with law, the rest of the role is with the nodal agency like APIIC the Revenue, Finance Departments etc., and the said fact is clearly ignored to be taken note of by the investigation agency. The decision as to allotment being policy decision was taken by the Cabinet and therefore accusations levelled by the CBI cannot be attributed to the petitioner, more so in view of the fact that upon being reposted as Principal Secretary IT & C on 23.3.2010, the petitioner having noticed the lack of progress in the project of A.5 has recommended for resumption of the lands after filed inspection as a remedial measure for the deviation of the terms of the agreement by A.5. the said proposal after sent to the Minister IT & C and is pending consideration even this date is a factor which was lost sight of by the CBI to test the bona fides of the petitioner. In the Memorandum of Council of Ministers submitted by the IT and C Department in C No.1954/IT&C/Prom2/2005, M284 for development of integrated town ship/parks/IT SEZs – allotment of land of 250 acres each to M/s Brahmani Infotec, M/s Stargaze, and M/s Indu Projects in Mamidipalli and Kancha Imarat Villages, near new International Airport. The petitioner has incorporated the opinion of the Finance Department and the opinion of the Revenue Department also and justification of IT and C Department, to approve the terms and conditions of the draft MOU, to approve the IT department to enter into MOU with the three entrepreneurs for allotment of 250 acres of land. It is further seen from the record that on the same day, the Minister of Councils have approved the allotment of 250 acres of land each to the developers at the rate ofRs.20 lakhs per acre without applying employment linked rebate on land cost, for development of IT/ITES, SEZs/IT parks/integrated IT Town ships. The council of Ministers of also approved the terms and conditions of MOU with the above mentioned developers. The said proceedings of meeting of Council of Ministers held on 29.04.2006 are approved by the Chief Secretary and the Chief Minister. Importantly no deviation was not pointed out by the Chief Secretary on these occasions. It is further seen from the record that the proposal of the IT department was included as Agenda No.8 in CC No.85 of 2006, and after approval of the Council of Ministers in the Cabinet Meeting, the Chief Secretary and the Chief Minister signed the minutes and that the Chief Secretary communicated the proceedings dated 27.04.2006 to the petitioner as the Secretary of the Government IT and C Department with endorsement ‘please report the action taken on the above resolution to the G.A. Cabinet Department by endorsement dated 10.07.2006. As per the business rules concerned, Secretary, who placed the proposal of the department before the council of Ministers, the Chief Secretary has to compulsory to attend the meeting for explaining the back ground and the features of the cabinet agenda. In the proposal submitted to the Cabinet the opinion of the Finance Department and Revenue Department have been incorporated by the petitioner and that as per the business rules in force, the Agenda items along with materials will be communicated in advance to the Council of Ministers and the Secretaries concerned and the Chief Secretary. Further, as regards amendments to the MoU., Vide C.No.1954/IT&C/PROM/2005, IT & C Department note was prepared by mentioning the subject “Signing of MoU with IT Park developers – Certain Modifications in the MoU” and the note was forwarded by the Special Secretary (Prom) IT & C, JD Prom-IT&C, and Secretary IT & C. The Secretary Legal Affairs (i/c) has endorsed that : “(53). In view of the position indicated by the Secretary IT & C Department at para 52 ante and in view of ICT Policy 2005-2010 as envisaged at paragraph 36 f. of G.O.Ms.No.11, IT& C Department, dt.21.3.2005, there is no objection to take action as proposed at paragraph 47 ante. However the scope and specific purpose of the power of Attorney may be specified.” The note file further states that: (54) As per the endorsement of Law Department at 53 nt para above, the remakrs of Law on the “Power Attorney” shall be specified in the MoU at appropriate place. (55)The file is therefore circulated for placing this before the next council of Ministers meeting, for consideration of the amendments/modifications to the terms and conditions of MoU as proposed at para 47 nt. Ante. …. (65) In view of what has been stated earlier at paras 42 -64 n.f. ante, the file is circulated for placing the proposed/modifications/amendments to certain terms and conditions of MoU with the three IT Park Developers before the next cabinet meeting on 7.7.2006 along with DRAFT MEMORANDUM FOR THE COUNCIL OF MINISTERS for consideration & approval.” The above note file was fully approved by the Chief Secretary and the concerned IT Minister and finally approved by the Chief Minister. In the Cabinet meeting on 7.7.2006 it was item 16 and 19 and the same was approved. The Chief Secretary on 10.7.2006 has endorsed to the petitioner stating that “Please report the action taken on the above Resolution to G.A. (Cabinet) Department.” In the instant case, APIIC is the nodal agency with regard to allotment and fixation of price of land and the fact that the petitioner being the Secretary of the IT and C Department even according to the material placed by the prosecution is head of the Department only to process the application received by the department pursuant to the decision taken by the Government and also in view of the meetings conducted by the then Chief Minister. It is in fact, the APIIC which has forwarded the application and thereafter, the petitioner returned it on the ground that it was not submitted in prescribed proforma that the entrepreneurs claimed to have submitted applications to the APIIC and against it was re-circulated to the petitioner department, who in turn processed and finally placed it before various departments, the concerned IT Minister and the Chief Minister, who approved the same for placing the same before the Cabinet. As the petitioner has not taken any independent decision as to alleged fixation of price of land and also allotment of land to the A5 company in violation of settled procedure. Learned counsel for the petitioner further relied on the decision reported in M.C. MEHTA v. UNION OF INDIA [26] wherein the Supreme Court as to formation of opinion of the officer in charge has held as follows : “ 31. As stated above, the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. Under the CBI Manual, the officer in charge of the police station is the SP. In this connection, we quote herein below the CBI Manual, which though not binding on this Court in Supreme court monitored cases, nonetheless, the said Manual throws light on the controversy in hand. We quote clauses 6.1. and 19.15 of the CBI (Crime) Manual, 2005 hereinbelow : “Director, CBI – Matters to be shown to DCBI. 6.1. Director, CBI should be informed of all important matters and his advice or instructions obtained wherever this is considered necessary by Special Director, Additional Director, Joint Directors, DIGs, Director of Prosecution, Direction, CFSL and other senior officers. In particular the following matters should be referred to him. ….. 34. We, accordingly, direct CBI to place the evidence/material collected by the investigating team along with the report of the SP as required under Section 173(2) CrPC before the court/Special Judge concerned who will decide the matter in accordance with law. … Relying on the decisions of the Supreme Court in M.C. MEHTA’s case (24 supra), it is contended that formation of opinion by the officer as per Section 173(2) of Cr.P.C is required insofar as petitioner is concerned while forwarding the charge sheet to the court and the same is lacking in this case. It is seen from the record that vide G.O.Ms.No.8 IT & C Department dated 15.3.2005, it was stated that Government of Andhra Pradesh are keen to significantly increase the levels of employment being generated in the IT sector, by attracting leading and large multinational IT companies to establish their operations in the State by proving investments friendly climate, physical infrastructure of international standards in an around major towns and cities of the State. APIIC was made as nodal agency for development of IT parks which shall take steps required for calling and finalizing expression of interest/tenders, selection of leading and reputed developers, enter into agreements/MoUs, allocate and allot land for IT parks in the State and to monitor construction of IT parks. From this G.O. it is clear that it is the APIIC which was made nodal agency for development of IT parks and shall take steps required for “calling and finalizing expression of interest/tenders”. Thereafter, the Government issued G.O.Ms.No.11, Information Technology & Communication Department dated 21.3.2005 whereby the policy of the Government was segmented into two section, Section I is on eGovernance and Section II on investment promotion, whereby IT policy seeks to focus on the development of human resources, infrastructure, capital and incentives “by attracting best-in-class ICT companies and institutions”. Insofar as Infrastucture is concerned it was mentioned in the G.O. while announcing the ICT Policy 2005-2010 as follows : “ 36. Infrastructure: “All allotments of land to the IT Industry shall be made through APIIC. For all such lands the APIIC is the nodal agency with powers to provide all State Government clearances including the Building Plan Approvals (except Fire Services Clearance). APIIC will also facilitate and co-ordinate for the provisions of utilities to the IT industry and it will provide demand assessment for the requirements of support infrastructure from time to time. This provision aims at facilitating the IT industry getting all clearance at a single point.” Vide Annexure-I in the said while announcing the ICT policy, it was held that : “ For administering the incentives to the ICT Industry in a smooth manner a high level co- ordination between the various Departments of the Government and the Industry is required. For effectively resolving the problems, overcoming the impediments and ensuring growth of the ICT Industry in the State, a Consultative Committee on IT industry (CCITI) is constituted. 2. The CCITI shall act as a single window for granting incentives announced through this ICT Policy. 3. the terms of the reference of CCITI are indicated below : a) to grant various incentives to ICT industry on examination of applications made by them including approving allotment of lands to the ICT industry. b) to resolve the problem in implementation of the ICT Policy for speed realization of the goals set forth c) to prescribe the procedures and to issue guidelines and clarifications in the implementation of the ICT Policy. 4. The term of the CCITI shall be coterminous with the ICT policy. The CCITI can approve/reject applications for incentives at its sole discretion.” In the said G.O., itself application proforma for allotment of land to IT industries was annexed vide Annexure-IV. From the above G.O. 11 it is manifest that the Government has taken a policy decision to boost the IT industry and to invite applications from the IT companies and that APIIC was directed to act as nodal agency for development of IT parks: that CCITI committee was constituted to act as single window for granting incentives under ICT policy and for approving for allotment of land. It is to be noted that allotment of land is kept with the APIIC vide para no.36 referred above. As per the material placed by the prosecution, the Chief Minister on review of IT & C Department meeting held on 30.9.2005 it was stated that : “ Hon’ble Chief Minister gave his decisions as mentioned below : a) 1000 acres of land in possession with APIIC should be immediately allocated for IT as SEZ phase I b) Of the 5000 acres of land under acquisition by APIIC at the hardware park 2500 acres should be allocated for IT as SEZ phase II c) Land should be fixed at Rs.26 lakhs per acre without developmental charges. d) For allotment of land to IT hardware and software companies established procedure of IT&C department should be followed. APIIC or any concerned should not deviate by making independent allotments to IT companies. ” Vide minutes of the review meeting of the Chief Minister on IT & C department held on 20.10.2005 at 12.30 p.m. it was stated that VC & MD, APIIC has explained on the process of each IT park as detailed therein. On the same day at 4.00 p.m. as regards the cost of land, it was recorded that : e) As regards the cost of land for allotment in Hardware Park area, VC & MD stated that the present rate being charged by APIIC is Rs.26.00 lakhs per acre considering the fact that Internal infrastructure need not be developed by APIIC for allotment to be made to developers and major Companies where more than 100 acres is allotted, it was decided to charge a rate Rs.20.00 lakhs per acre for the present. f) During the review meeting on allotment of lands at Hardware Park, the Hon’ble Chief Minister has agreed to the proposal to allot around 250 acres in the area adjacent to land allotted to Catelytic Software in Hardware Park to M/s. K.Raheja Corp., for setting up of IT/ITES and Hardware facilities @ Rs.20,00,000/- per acre duly providing approach road to the site from Srisailam State Highway. This area may also be included in the proposed IT SEZ, if necessary. It was also directed by the Hon’ble Chief Minister that 1286 acres in Mamidipally and Kanch Imarth villages be arranged for notification by Government of India for APIIC IT SEZ for making lands available for reputed IT Software Companies.” The above proceedings makes it clear that the Chief Minister has already allotted lands to K. Raheja Company @ Rs.20.00 lakhs per acre duly providing approach road to the site from Srisailam State Highway. In the meanwhile some other companies have applied to the APIIC for allotment of lands pursuant to the G.Oms.No.11 issued by the Government. Proposals were on to call for EOI/tenders for development of IT parks. Vide C.No.1954/IT&C/Prom.2/2005 it was stated by the petitioner that three applications were received the same were not in correct proforma. Vide letter dated 3.1.2006 the APIIC was directed to examine the applications keeping in view the parameters evolved for selection of IT parks developers by enclosing copy of 34th CCITI meeting minutes held on 21.12.2005. According to the petitioner, it is basing on the report given by the APIIC on fulfilment of eligibility as per the criteria laid down as per the 35th CCITI minutes meeting held on 2.2.2006, note was prepared for allotment of land to three IT Park developers, wherein Additional Secretary (Law), Principal Finance Secretary, Spl. Chief Secretary Revenue, and the Chief Secretary have made endorsements as referred supra. After getting the noting of the Chief Secretary the circulation was interrupted by the petitioner stating that as per the observation of the Chief Secretary the observations of the departments will be taken note of in the MOU and then sent the same for approval to the concerned IT Minister and thereafter to the Chief Minister and the same were also approved. The endorsement made reads that - “ As approved by hon’ble C.M. Memorandum to Council of Ministers reg; development of integrated township/IT parks – along with Check list is sent herewith for placing before the next Cabinet meeting on 29.4.2006. ” Thereafter the matter was placed before the council of Ministers vide agenda item no.8 along with necessary material and it was got approved by the Council of Ministers. The note file dated 30-1-2006 sent by the APIIC read as follows : “…. To fulfil this need on quick time frame given the fact that Hyderabad is one of the preferred destination for IT/ITES, after deliberate discussion, CCITI resolved to adopt a transparent and short duration method to identify developers who can bring in quality IT space along with associated social infrastructure on a large scale and market the same around the world and the certain criteria was fixed for selecting international world- class/reputed IT Park developers. Some developer companies have approached the Government for undertaking development of IT Parks around Hyderabad and other parts of the State to accommodate the Software Companies and to develop supporting infrastructure viz., commercial/residential buildings etc., Government after careful consideration has short listed some companies for Hyderabad & Visakhapatnam at the first instance. In the Minutes of CCITI meeting dt. 21.12.2005, at Item No.4 it was resolved to examine the parameters as prescribed therein, for consideration of applications of M/s.Maven Park (Visakhapatnam) M/s. Indu Projects Limited (Hyderabad), M/s.Brahmani Infratech Prviate Limited (Hyderabad), K. Raheja Corp. Private Limited (Hyderabad & Visakhapatnam) for allotment of land to develop IT Parks. In the minutes the criteria for selection of developers with (a) Minimum Technical Expertise, (b) Minimum Financial Qualification was fixed. Based on the above minutes a check slip for the criteria was prepared and sent to the above 4 developers for furnishing of details along with relevant documents. The above four developers have furnished the information as called for therein, in the format along with relevant records.” .. The information as furnished by the above 3 Companies as per the check list are placed in the file for taking further action for allotment of the lands as requested by them.” From the above, it follows that the petitioner has not taken any independent decision in allotment of land or to fixation of price of land. Even otherwise, the charge sheet or the material does not disclose any criminal offence at all much less an offence either under Section 420 or Section 120-B IPC and 409. As observed by the Supreme Court, “ to constitute an offence of criminal breach of trust it is essential that prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriate or dishonest use or disposal in violation of a direction of law or legal contract by the accused himself or by someone else which he willingly suffered to do.” Normally, power to quash the Criminal Proceedings should be exercised sparingly and cautiously by looking into the allegations made in the charge sheet as to whether any offence is prima facie made out or not. So far as the petitioner is concerned, as discussed supra, the respondent has not made out any offences levelled against the petitioner including the offences under the provisions of the provisions of Prevention of Corruption Act. The petitioner has carried out the directions issued pursuant to the decision of the Government and that the applications were sent by the APIIC for allotment of land and the same were processed through the department heads and to the Chief Secretary and that the note was sent for concerned Minister and the Chief Minister while noting that observations of the concerned authorities will be kept while drafting MoU; that the Cabinet also approved the proposal and also the amendment in that regard, therefore, insofar as the petitioner is concerned, the ingredients of the offence prima facie alleged are not attracted. Even according to the counter filed by the respondent in the year 2006 itself list of developers have been shortlisted by APIIC and the same was forwarded to the petitioner and thereafter note was processed and sent to various department heads for remarks and finally it was approved in the Cabinet meeting. None of the authorities have raised any contra comment on the approval of the file or recorded any comments. Even the Special Chief Secretary while passing remarks on the file ultimately states that “ cost of the land at Rs.20 lakhs per acre is extremely low, however, in order to provide incentive to IT companies and achieve the objective of the IT Hub Development, Government may take its own view to provide land at concessional rate; that approval of the Cabinet may be obtained before taking any further action.” Be it noted that in the charge sheet and also vide para 47 of the counter the respondent categorically stated that –“ the petitioner herein, Smt. K. Ratna Prabha, as head of the IT& C Department cannot absolve herself of the responsibility to ensure that the applications placed before CCITI are complete in all aspects and supported with the necessary documents and in the absence of valid consortium agreement/GPA, it should not have been allowed to place before the Committee.” However, according to the respondent agency it is the APIIC which received the applications and forwarded the same stating that they satisfy the norms and that the petitioner as head of the department of IT&C has only processed the file and no independent decision has been taken by her in that regard. As stated earlier the petitioner has also incorporated the observations made by other departments and placed the same before the Cabinet. As stated above since APIIC pursuant to the observations of CCITI forwarded the applications stating that it has satisfied the norms, the applications were thereafter processed. Thus the contention that in the charge sheet as though the petitioner has processed the file of accused company single handedly in isolation as part of the conspiracy and is a figment of imagination. Further the expression in para 47 of the charge sheet that “This signifies a sudden and significant shift in the stand of A7” is without reference to the true and correct factual matrix. In instant as discussed above, from the counter averments and also the contents of the charge sheet itself the respondent investigation authority categorically stated that it is the APIIC which is the nodal agency for allotment of land and fixation of land value; and that after receiving the applications from three companies note was sent by the APIIC pursuant to the decision of the Government vide G.O.Ms.No.11 inviting applications from the companies for establishment of IT companies, that the APIIC which was authorised in that behalf, pursuant to the recommendations of the CCITI has forwarded the file after stating that “the Government after careful consideration has short listed some companies for Hyderabad and Visakhapatnam” and also stated in the note file that “information furnished by the company satisfied the requirement as fixed by the Government”, whereupon the note was processed and sent to the Law Secretary, Finance, Revenue and Chief Secretary and that taking into consideration the opinion of the Chief Secretary and thus the file passed through various phases. Ultimately it was referred to the Cabinet and the MoUs are being entered into and that amendments to the MoUs., were also approved by the Cabinet, and finally the three companies were allotted the land. The signatures of the then Chief Secretary on various occasions on the Note file and also while finalizing the agenda before the Cabinet and at the time of his presence in the Cabinet meeting and subscribing his signatures on the minutes of the Cabinet meeting and the resolutions and his signatures on the extracts of the Note file filed by the Prosecution along with the charge sheet would show that the petitioner has followed the instructions relating to movement of files and she being the Head of the IT & C Department and she has processed the job entrusted in that regard. It is also further seen from the record placed by the Prosecution that the petitioner has infact incorporated the notings of the Finance Department and placed the said material before the Cabinet, therefore it is for the Government either to approve or disapprove and that the petitioner cannot be found fault with in that regard. A memo was also filed by the CBI discharging the two other applicant companies M/s.Brahmani and M/s.Starzage, the applicants similarly situated with. Since no ingredient under Section 120-B and 409 have been made out so also the ingredients of Section 420 IPC therefore, there is no reasons as to why the petitioner must be made to undergo the agony of a criminal trial. For the foregoing discussion more so the contents of the charge sheet, counter averments and material produced by the prosecution itself referred supra are inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground to proceed against the petitioner; that allegations made in the charge sheet and the evidence collected in support of the same do not disclose commission of any offence alleged against the petitioner. Therefore, allowing the proceedings to continue against the petitioner would also amount to an abuse of the process of court. Hence, the cognizance of offence and the chargesheet filed insofar as the petitioner is liable to be quashed in order to meet the ends of justice. Accordingly the order dated 10.10.2013 passed by the Prl. Special Judge for CBI Cases, Hyderabad taking cognizance and the entire proceedings of the charge sheet in C.C.No.27 of 2013 insofar as the petitioner is concerned are quashed. The Criminal Petition is accordingly allowed. JUSTICE V. SURI APPA RAO Dt: 18-6-2014 Kk/kvrm- THE HON’BLE SRI JUSTICE V. SURI APPA RAO CRL. P.No.14146 OF 2013 18-6-2014. sgs [1] (2007) 14 Supreme Court Cases 776 [2] (2013) 7 Supreme Court Cases 1 [3] 2013(12) SCALE 283 [4] (2012) 3 Supreme Court Cases 64 [5] (1998) (1) scc 226 [6] 2013 LawSuit (SC) 1076 [7] 1992 Supll (1) SCC 222 [8] (1995) 1 SCC 684 [9] (1999) 4 SCC 476 [10] (2005) 4 SCC 512 [11] (2006) 1 SCC 294 [12] (2006) 6 SCC 728 [13] 2012(6) SCC 228 [14] (1996) 2 SCC 37 [15] (2008) 4 SCC 471 [16] (2009) 1 SCC 441 [17] (2011) 12 SCC 437 [18] (2012) 9 SCC 460 [19] (2012) 10 SCC 155 [20] MANU/AP.0392/2012 [21] MANU/SC/0487/2013 [22] (1988) 1 SCC 692 [23] 1992 Supp (1)) SC 335 [24] ( 2009) 1 SCC (Cri) 567 [25] (2008) 2 SCC 705 [26] (2007) 1 SCC 110 "
Other Referred Cases
ALL CARGO MOVERS (INDIA) (P) LTD. V DHANESH BADARMAL JAIN, ARUN KUMAR AGRAWAL v. UNION OF INDIA AND OTHERS, K.KALIMUTHU v. STATE BY DSP, ROMESH LAL JAIN v. NAGINDER SINGH RANA AND OTHERS, STATE OF KARNATAKA AND ANOTHER v. PASTOR P. R A J U, GENERAL OFFICER COMMANDING RASHTRIYA RIFLES v. CENTRAL BUREAU OF INVESTIGATION AND ANTOEHR, Y.S. JAGAN MOHAN REDDY v. CBI, STATE OF H.P. v. PIRTHI CAHND AND ANOTHER, CENTRAL BUREAU OF INVESTIATION v. K.M. SHARAN, STATE OF WEST BENGAL AND ANOTEHR V. MOHD. KHALID AND O T H E R S, A.K. SINGH AND OTHERS v. UTTARAKHAN JAN MORCHA AND OTEHRS, M.C. MEHTA v. UNION OF INDIA, M/s. JAGATHI PUBLICATIONS LTD v. CBI, HYDERABAD
Laws Referred To
Indian Penal Code, Prevention of Corruption Act, 1988, Code of Criminal Procedure
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