VIJAYAWADA: The Andhra Pradesh government on Monday filed a special leave petition (SLP) in the Supreme Court challenging the High Court's interim orders staying probe in a case registered against former advocate general Dammalapati Srinivas and 12 others in the Amaravati land scam and gagging the media from reporting on the contents of the FIR against them.
The government submitted that the impugned order was passed on a petition in which the FIR was not even questioned and sought to know if an investigation can be stayed in such a case, that too "at the very threshold of investigation."
Recalling the sequence of events, it explained that Dammalapati had moved the high court on September 14 evening fearing coercive action. An FIR was lodged the next morning.
"... upon filing of the FIR, the petition had become infructuous. However, not only was the petition considered but a slew of directions/restraint directions were issued... even when the FIR was not questioned. More importantly, these directions were passed not only in respect of the respondent (Dammalapati) but also all the other accused without reference to the contents of the FIR." the government pointed out and termed the HC orders "wholly perverse."
Refuting arguments of Dammalapati, the government said even if his contention that the case was politically motivated was correct, it is settled law that it cannot be quashed if it is otherwise maintainable. Citing the Prakash Singh Badal vs State of Punjab case, it quoted the apex court order which says "the ultimate test, therefore, is whether the allegations have any substance. An investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence."
Similarly, it cited the verdict in the Umesh Kumar vs State of Andhra Pradesh case wherein it was held that the "issue of mala fides loses its significance if there is substance in the allegation made in complaint moved with malice."
It further argued that a writ petition seeking to pre-empt investigation even before an FIR is registered cannot be entertained. Quoting earlier judgements, it pointed out that a prospective accused/suspect does not have in any manner a right of hearing before the registration of the FIR.
"Such a right is not envisaged under any provision of CrPC," it said.
Citing the apex court order in the Imtiyaz Ahmad vs State of UP, it said the power to grant stay of investigation and trial is a very extraordinary power given to high courts and the same is to be exercised sparingly. But the impugned judgement reveals no such circumstances existed to warrant a blanket stay on investigation, it added.
The government expressed the fear that granting stay at an initial stage of investigation would lead to destruction of all documentary evidence at the hands of the accused, influencing and tampering of material witnesses and evasion of investigation process by the accused and termed the HC order an impediment to fair investigation.
The government also said Dammalapati's claim that he's a senior advocate at the Bar doesn't confer any protection or immunity even under the Advocates Act 1961. Urging the Supreme Court to set aside the impugned high court orders, it said a prima facie case is made out against Dammalapati and the other accused and if the HC order is not stayed during the pendency of the SLP, a great prejudice would be caused to the government.
Questions raised in SLP
1) Whether probe can be stayed when FIR has not even been questioned
2) Can a probe be stayed as a routine at the very threshold of investigation
3) Whether a prospective accused/suspect has a right of hearing before registration of FIR
4) Can the HC interfere in investigation which is the domain of the investigation agency
5) Can probe be stayed when there is prima facie evidence
6) Can protection orders be granted for those who have not even approached the court