Telangana High Court reserves orders in revision case filed by SIT challenging ACB court directive

Hyderabad: Justice D Nagarjun of the Telangana High Court on Thursday "reserved" orders in the criminal revision case filed by the ACP, Special Investigation Team (SIT), challenging the order of the First Additional Special Judge for Trial of SPE & ACB Cases, Nampally, proposing to array B L Santosh, Bhusarapu Srinivas, Tushar Vellapally and Jaggu Swamy as accused 4 to 7 in the TRS MLAs' poaching case.

N Ramchander Rao, former MLC and senior counsel, arguing for Srinivas (A-7), said as lawyer practising in lower courts he had not come across the procedure now adopted by SIT of filing a memo, proposing to array the accused. He pleaded before the court not to stay the ACB court order as it had rightly gone into very minute details of the case, before rejecting the memo. "The ACB court has rightly said Section 8 of the Prevention and Corruption Act is not applicable to this case as no money was found at the scene of offence."

Rao argued that the ACB Judge, during the course of adjudication of the memo even observed that the entire case is registered under the Prohibition of Corruption Act and other election related offences, wherein the punishment is less than seven years. If that be the case, how the law and order police are investigating the case. It is the SIT, which approached the ACB court. When the order went against it SIT has challenges it before the HC.

Justice Nagarjun while agreeing with Rao's contention said that he too didn't come across such a procedure in lower courts, which SIT has followed. He posed a question hypothetically, as to what will happen to the entire investigation if the HC allows all the petitions challenging 41A CrPC notice.

After lunch recess, V Ravichandran, senior counsel appearing for A-1 Ramchandra Bharati, found fault with the procedure adopted by SIT in filing a memo arraying the accused, stating that such a practice is unheard of in criminal law.

"The SIT cannot go on adding accused to FIR without filing an affidavit on oath". Upholding the order of the ACB court, he said it had rightly pointed out that cases are registered under PC Act and no evidence under the Act is placed before the court viz., the Rs. 100 crore which was spoken of during the conversation between the three accused and the complainant, but not even a single pie was recovered from the scene of offence.

"Sections of the PC Act and sections relating to election offences were registered in the FIR against the accused, but no evidence of either luring a person with case and inducing a person or official to commit an election-related offence is probed in this case. If that be the case, we never know, as to how many new persons will be arrayed as accused", he argued.

"The WhatsApp messages and the photographs produced cannot be relied upon", he averred and prayed the court to dismiss the criminal revision case filed by SIT. Prior to arraying the accused, the SIT ought to have filed an affidavit on oath in the court.

Advocate-General Banda Shivananda Prasad, representing the SIT, presented a series of judgments of the Supreme Court to buttress his contention that the investigating officer has the power to array any suspect as an accused in criminal cases...it is a simple memo informing the court about the proposed accused, who are necessary for further investigation.

The A-G said the ACB judge has no jurisdiction to deal with the memo in this manner, that too, when the entire batch of writ petitions are seized of by the HC. When a final report is yet to be filed, passage of such an order by ACB court is illegal.

He argued that the accused have not challenged the FIR filed in the Moinabad police station and their only plea is to transfer the investigation of the case to CBI or any other SIT.

What is the fate of cases investigated by CCS and CB-CID which are adjudicated by an ACB court, if cases are heard in this manner?

Prasad pleaded before the court to consider the plea of SIT in setting aside the ACB court order and allow the criminal revision case, in view of the cases pertaining to Poachgate being adjudicated by the HC tomorrow. Orders in the case will be pronounced on December 9.