IN THE SUPREME COURT OF INDIA

[Order XVI Rule 4 (i) (a)] CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Under Article 136 of the Constitution of India

Special Leave Petition (C) No,

(With Prayer for Interim Relief)

of 2011

IN THE MATTER OF: BETWEEN IN THE HIGH COURT In the High Court Sh.Y.S.Jaganmohan Reddy S/o Late Dr. Y. Rajshekhar Reddy, S. BEFORE THIS HON'BLE COURT Before this Hon'ble Court.

R/o 8-2-269/S/98, Sagar Society, Road No. 2. Banjara Hills, Hyderabad - 34.

Respondent No. 52 AND

Petitioner

Mr. P. M.L.A.

Shankar

Rao,

Secunderabad Cantonment, Petitioner 1-7-574/23/A., Gemini Colony, Musheerbad, Hyderabad -500 020. 2 The Government of A.P., Rep. by its Respondent Principal Secretary, Industries Department, Secretariat, Hyderabad. No.l Respondent No. 2 Respondent No. 1

3.

The Vice-Chairman and Managing Director, A.P. Industrial Infrastructure Corporation Limited, Basheerbagh, Hyderabad. The Government of A.P. Rep. by its Principal Secretary Revenue Department, Secretariat, Hyderabad. The Government of A.P. Rep. its Chief Secretary, Industries Department, Secretariat, Hyderabad. Union of India, Rep. by its principal Secretary, Ministry of Home Affairs, New Delhi. The Central Bureau of Investigation, Rep. by its Director, New Delhi. The Director of Vigilance, State of A.P. Hyderabad.

Respondent
No.2

Respondent
No.3

4.

Respondent
No.3

Respondent
No.4

5.

Respondent No.4

Respondent No.5

6.

Respondent Respondent No. 5. No. 6 Respondent No.6 Respondent No.7 Respondent No. 7 Respondent No. 8 Proforma Respondent Proforma Respondent Proforma Respondent

7.

8.

9.

India Cements Limited, rep. by its Chairman, Chennai.

Respondent No.8. Respondent No.9. Respondent No.10

10. Dalmia Cement ( Bharati) Limited, New Delhi rep. by its Chairman. 11. Pennna Cements Group, Rep. by its Director P.Pratap Reddy, Sriniketan Colony, Hyderabad.

12. LANCO Group ( Sridhar) Rep. by its Director Lagadapati Sridhar and Sirisha, Vasantha Nagar, Bangalore 13. Sajjala Group (Obulapuram Mining Company Group) , Rep. by its Directors S.Divakar Reddy, N.Sangi Reddy & G.Muralidhar, Krishna Sindhu Residency, Banjara Hills, Hyderbad. 14. B.Purushothama Naidu. Plot No.10 A.P. Photographers Colony Road No. 10, Banjara Hills Hyderabad. 15. Sandesh Labs ( P) Ltd, Rep by its Director J.V. Ramana Reddey and M.Nagi Reddy, 1283, Road No. 64, Jubliee Hills, Hyderabad. 16. PVP Business Ventures (P) Ltd rep by Potluri Vara prasad, Hyderabad. 17. Cuboid Realtors ( P) Ltd rep by Potluri Vara Prasad, Hyderabad. 18. Mantle Realtors(P) Ltd rep by Potluri Vara Prasad, Hyderabad. 19. Metaphor Real Estates & Projects (P) Ltd, rep by potluri Vara Prasad, Hyderabad.

Respondent No.ll.

Proforma Respondent

Respondent No.12,

Proforma Respondent

Respondent No.13.

Proforma Respondent

Respondent No.14.

Proforma Respondent

Respondent No.15 Respondent No.16 Respondent No.17 Respondent No.18

Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent

20. PVP Business Towers (P) Ltd., rep by Potluri Vara Prasad, Hyderabad. 21. G2 Corporate Services Limited rep by Nimmagadda Prasad, Hyderbad. 22. Sughuni Constructor (P) Ltd. rep by Nimmagadda Prasad, Hyderabad. 23. Alpha Villas ( P) Ltd rep by Nimmagadda Prasad, Hyderbad. 24. Alpha Avenus ( P) Ltd rep by Nimmagadda Prasad, Hyderbad. 25. Beta Avenues (P) Ltd rep by Nimmagadda Prasad, Hyderabad. 26. Gillchirst Investments (p) Ltd rep by Nimmagadda Prasad, Hyderabad. 27. Indira Television Ltd., Sakshi Towers, Road No.l, Bajara Hills, Hyderabad.

Respondent No.19 Respondent No.20 Respondent No.21 Respondent No.22 Respondent No.23. Respondent No.24 Respondent No.25 Respondent No.26 Respondent No.27. Respondent No.28

Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent

28. Jagati Publications Ltd., Sakshi Towers, Road No.l Bajara Hills, Hyderabad. 29. Carmel Asia Holdings (P) Ltd., Office at 56B/34, 1st Main, Vyalikaval, Lower Palace Orchads, Bangalore.

30. Janani Infrastructure (P) Ltd, Office at 24, 1st Main, Near Bhashyam Circle Petrol Pump, Vyalikaval, Bangalore.

Respondent No.29

Proforma Respondent

31. Bhagavath Sannidhi Estates (P) Ltd., Office at 56B/34, 1st Main, Vyalikaval, Lower Palace Orchads, Bangalore.

Respondent No.30

Proforma Respondent

32. Classic Realty Private Ltd., Office No. 84, 16th Cross, 14th main 4lh Sector, HSR Layour, Bangalore.

Respondent No.31

Proforma Respondent

33. Bharathi Cement Corporation Limited, Office at 8-2-269/S/98, Sagar Society, Road No.2, Bajara Hills, Hyderabad.

Respondent No.32.

Proforma Respondent

34. Silicon Builders (P) Ltd., office at 56B/34, 1st Main, Vyalikaval, Lower Palace Orchads, Bangalore.

Respondent No.33.

Proforma Respondent

Respondent 35. Capstone Infrastructure Private Ltd., Office at 56B/34, lst Main Vyalikaval, Lower Palace Orchads, Bangalore.

Proforma

No.34

Respondent

36. Pulivendula Polymers (P) Ltd., Office at 269/S/98, Sagar Society, Road No.2., Banjara Hills, Hyderbad.

Respondent No.35.

Proforma Respondent

Respondent 37. Harish Infrastructure Private Ltd. Office at 56B/34, 1st Main, Vyalikaval, Lower Palace Orchads, Bangalore.

Proforma

No.36.

Respondent

38.

R.R. Global Enterprises Private Ltd, Office at 8-2120/86/3, Krishna Sindhu Residency Road No.3, Banjara Hills, Hyderabad.

Respondent No.37. Respondent

Proforma Respondent Proforma Respondent Proforma Respondent

39. Kanti Conductors Ltd. Office at 8-2-268-C/10/C, Aurora Colony, Road No.3, Bajara Hills, Hyderabad. 40. Sandesh Labs (P) Ltd, Office at 6-103/166, Golmohar Park, Serilingampally, Hyderabad. 41. Swagruha Hotels (P) Ltd Office at 102, Empress Court, Khairatabad, Hyderabad. 42. Jubliee Media Comm. (P) Ltd., Office at No.5, 1st Floor, 1st Cross, 8th Main, Vasantha Nagar, Bangalore. 43. ERES Projects (P) Office at 501, Nirmal Ratna Apartments, Chandanagar, Hyderabad. 44. M.Srinivasa Reddy, Plot No.933 Vivekananda Nagar Colony, Kukatpaoly, Hyderabad. 45. G.Srinivasa Raju, Srinigar Colony, Hyderabad.

No.38. Respondent No.39.

Respondent No.40.

Proforma Respondent

Respondent No41.

Proforma Respondent

Respondent No.42 Respondent

Proforma Respondent Proforma

No.43 Respondent No.44

Respondent Proforma Respondent

46. A.K. Danda Mudi, 88, Gunrock Enclave, Secunderabad. 47. K.Srinivasa Naidu and Ors, Plot No. 27, Sagar Society, Banjara Hills, Hyderabad. 48. Ajay Garapati, 1260, Road No 36, Jubliee Hills, Hyderabad. 49. Madhav Ramachandran, 196, Nandi Durga Road, Jaimal Extension, Bangalore. 50. G.Ananth Sena Reddy, Plot No. 18, Road No.9, Jubilee Hills, Hyderabad. 51. K.Prasad Reddy, Road No. 10, Banjara Hills, Hyderabad. 52. D.Sarojanamma and D.Srinivasulu Reddy, A, 121, Anna Nagar, Chennai600102.

Respondent No.45 Respondent No.46 Respondent No.47. Respondent No.48 Respondent No.49. Respondent No.50. Respondent No.51

Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent Proforma Respondent

To

The Hon'ble Chief Justice of India and his Companion Justices of the Hon'ble Supreme Court of India, at New Delhi. The Humble Petition of the above named Petitioner MOST RESPECTFULLY SHOWETH:

1.

The Petitioner herein is filing the present Petition under Article 136 of the Constitution of India for Special Leave to Appeal against the final Judgment and Order of the High Court of Andhra Pradesh dated 10.8.2011 in Taken Up W.P.No.794/2011 directing the C.B.I to register a crime and investigate into the allegations made against the Petitioner herein by a sitting Minister in the State Government.

2.

QUESTIONS OF LAW: Whether the High Court has committed a grave error in stating that a "prima facie" case is made out against the Petitioner, without a single finding being rendered on the allegations of the Writ Petitioner and the detailed response of the Petitioner herein? Whether the impugned judgment is at all sustainable in view of the statement by the High Court at Paragraphs 22 & 50 that it would not go into the factual allegations that are made, and yet, relies entirely on the allegations made by the Petitioner in his letter and affidavit and extracted at Paragraphs 36, 51 & 52 to direct CBI investigation? Whether the High Court judgment is unsustainable in view of the fact that not a single finding has been rendered giving reasons to accept any one the allegations as prima facie possible? Whether the High Court ought to have considered the fact that the State Government and none of the official authorities had filed counter affidavits or made their position clear, failing which the onus would be against the Writ Petitioner to prove his case against the Petitioner herein, in view of the decision of this Hon'ble Court in City and Industrial Development Corporation, (2009) 1 SCC 168?

Whether the High Court failed to examine whether there was any prima facie indication of a "quid pro quo" between the various respondent companies and the Government, which is in fact the crux of the allegations? Whether the High Court has wholly failed to consider that all the decisions of the Government were in fact collective decisions of the Cabinet, and therefore, as long as the principle of collective responsibility applies, there can be no wrongdoing attributed solely to the father of the Petitioner? g)/Whether the High Court has erred in not considering the fact that the writ petition ought to have been rejected in light of the judgments of this Hon'ble Court in Kunga Nima Lepcha, (2010) 4 SCC 513 and Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542? h) -~ Whether the High Court gravely erred in ignoring

the fact that the Petitioner had not even bothered approaching the police or filing a complaint against the Petitioner but instead directly sent a letter to the Chief Justice of the High Court, which was acted upon with great alacrity? i) Whether the impugned judgment is per incuriam for not having considered the judgment of this Hon'ble Court in Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409 which makes it clear that the High Court cannot be directly available? approached when alternate remedies are

j)

Whether the High Court ought to have considered the fact that the Petitioner is an MLA and a Minister in the State Government, and who has strangely implied a lack of confidence in the very Government of which he is a part, in seeking CBI investigation?

k)

Whether the High Court has erred in not considering the fact that while the alleged acts of wrongdoing took place between 2004 and 2009, the Writ Petitioner was a ruling party MLA who did not make any complaint or report, until as late as November 2010, when the present letter was sent to the Chief Justice of the High Court?

l)

Whether the High Court ought to have observed the basic principles of natural justice in granting the Petitioner an opportunity of perusing the Preliminary Report of the CBI, as the same had been perused by the High Court?

m) Whether the High Court ought to have overlooked the fact that this Hon'ble Court had, by way of its Order dated 22.7.2011 specifically observed that the principles of natural justice need to be observed in case the High Court sought to proceed against the Petitioner? n) Whether justice can be seen to be done by the High Court where the Preliminary Report of the CBI has in fact been perused by the judges, but copies not given to the Petitioner on the ground that the conclusions in the judgment are based on independent material? o) Whether, when both the Enforcement Directorate and the State Government are seized of the complaints, the High Court ought to have at all interfered with the steps being taken by the executive?

p)

Whether the High Court has already pre-judged the Petitioner's guilt by stating at Paragraph 36 that "glaring illegalities are writ large" in the case?

q)

Whether the High Court should have directed the registration of a crime if in fact the Preliminary Enquiry Report was not being relied upon?

3.

DECLARATION IN TERMS OF RULE 4(2): The Petitioner states that no other petition seeking leave to appeal has been filed by him against the final Judgment and Order of the High Court of Andhra Pradesh dated 10.8.2011 in Taken Up W.P.No.794/2011.

4.

DECLARATION IN TERMS OF RULE 6: The Annexures (P-l to P- ) accompanying the Special Leave Petition are true copies of the pleadings/documents which formed part of the records of the case in the court below against whose order the leave to appeal is sought for in the present Petition.

5.

GROUNDS: A. It is submitted that the High Court has disturbingly already pre-judged the guilt of the Petitioner by stating at Paragraph 36 that "glaring illegalities are writ large", as a result of which the possible mala fides of the Writ Petitioner are of no consequence. B. The High Court has observed at Paragraph 22 that: "...we are of the view that it would not be appropriate within the scope of the present writ petition to examine each and every allegation and to probe into the correctness, validity or

genuineness of every investment and every business venture and to compare and verify as to whether the same is linked with any corresponding Quid Pro Quo benefit received by such investor from the State of Andhra Pradesh." Again, at Paragraph 50, the Court says: "We are of the view that in these proceedings it is not possible for us to deliberate upon the rival factual contentions" The High Court has therefore admittedly not even made a prima facie perusal of the responses to the allegations to decide as to whether a prima facie case has been made out or not. It was incumbent on the High Court to satisfy itself that these allegations were substantiated, and that at least one of them was unrebuttable by the Petitioner. Instead, the Court chooses not to "deliberate" upon the contentions and yet, at Paragraphs 36, 51 and 52 arrives at a prima facie finding of the guilt of the Petitioner. For this set of contradictions alone, the impugned judgment ought to be set aside. C. A perusal of Paragraphs 50-52 of the impugned judgment make it amply clear that the High Court has been satisfied with merely reproducing the allegations made by the Writ Petitioner, without at all considering the detailed 62 page Counter Affidavit filed by the Respondent. There has been no finding rendered on any of the allegations by weighing them against the Petitioner's responses, and this in itself renders the judgment vulnerable to challenge.

This flies in the teeth of the judgment of this Hon'ble Court in Secy., Minor Irrigation & Rural Engg., Services v. Sahngoo Ram Arya & Anr., (2002) 5 SCC 526, which follows the earlier judgment in Common Cause v. Union of India, (1999) 6 SCC 667 and states as follows: "7. ...While directing an inquiry by the CBI, the High Court, as stated in the judgment of this Court in the case of Common Cause (supra), must record a prima facie finding as to the truth of such allegations with reference to the reply filed. In the instant case, we have noticed that the High Court has merely proceeded on the basis of the averments made in the petitions without taking into consideration the reply filed and without expressing its prima facie opinion in regard to these allegations. This having been not done, we find it necessary that the judgment impugned should be set aside and the matters be remanded to the High Court to consider the pleadings of the parties and decide whether the material on record is sufficient to direct the inquiry by the CBI." D. It is further submitted that there is not a single finding regarding whether there was even the possibility of a quid pro quo arrangement between the Government and the Respondent companies, which is actually at the very root of the allegations made. Absent any trace of a quid pro quo, no case is at all maintainable against the Petitioner. E. All orders and decisions are taken by the Cabinet of Ministers, and these are issued in the name of the Governor. It is precisely because of the principle of collective responsibility that no decision could have been presumed to have been taken by the Chief Minister alone.

If the High Court's finding is correct, then the present Cabinet, which comprises three-fourths of the Ministers who were in the Petitioner's father's Cabinet would have to also accept responsibility and resign en-masse while awaiting the investigation. F. In the judgment of this Hon'ble Court in City and Industrial Development Corporation v. Dosu Ardeshir Bhiwandiwala, (2009) 1 SCC 168, where the State Government had not filed its counter affidavit in writ I proceedings, this Court observed as follows: "It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties. The State and other authorities are bound to produce the complete records relating to the case once Rule is issued by the court. It is needless to remind the Governments that they do not enjoy the same amount of discretion as that of a private party even in the matter of conduct of litigation. The Governments do not enjoy any unlimited discretion in this regard. No one needs to remind the State that they represent the collective will of the society." Despite having pointed this very passage out to the High Court to seek a counter affidavit from the State of Andhra Pradesh as to the prima facie truth in these allegations, the High Court has ignored the same, and strangely concluded that the absence of an affidavit by the State Government (to which the Writ Petitioner belongs) would enure against the Petitioner herein.

G.

In addition to the above, the High Court has failed to consider the very questionable antecedents of the Writ Petitioner, which are as follows: i. Respondent No.l is a sitting Minister in the Government of Andhra Pradesh, and a known political rival of the Petitioner. ii. No FIR or complaint had been filed by him to the police authorities, the Central Governmem or any magistrate authorized by law. iii. No credible material had been placed on record, except what had already been circulated widely by the TDP. iv. Although the so-called wrongdoings had been committed from 2004 onwards, the letter was sent only in November 2010, more than 6 years later. v. Respondent Nol had been made a Minister in the State Government barely a few days after his letter petition to the High Court.

vi. Respondent No.l has nowhere stated what apprehension he has of his own Government that the State police could not be entrusted the task of investigating the allegations by

following the due procedure of law. When both the Central and State Governments are that of the Congress, it is only political rivals like the Petitioner who have any reason to harbour apprehensions.

vii.

There is no evidence that over the last 7 years, Respondent No. 1 had ever brought these issues up on the floor of the House or in any other way democratically addressed his so-called \ grievance.

It is clear that the letter Petition by respondent No.l is only an invidious attempt to take away every swell of political and public support enjoyed by the Petitioner, and to downgrade the image of his hugely popular late father. It is submitted that this Court cannot allow itself to become a tool in the hands of a rival in converting a political battle into a war on the turf of the court. H. Despite having made sweeping allegations in his letter and his affidavit, Respondent No.l fails to explain why he did not attempt to: i. Register an FIR with a police station; ii. Make a complaint to the Magistrate under Section 156(3) CrPC; iii. Approach the Central Government for alleged violations of the Prevention of Corruption Act and the Prevention of Money Laundering Act; In the case of Safari Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409, this Hon'ble Court had discouraged the practice of directly filing writ petitions without exhausting alternative remedies under the criminal law. The Court said: "25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the

High Court to file a writ petition or a petition under Section 482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3). 26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? Even on this count, the law has been unequivocally laid down under Article 142 that a criminal proceeding cannot be initiated by utilizing writ proceedings. As remarked in Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542, "the High Courts cannot be converted into Station Houses". This is precisely what the High Court of Andhra

Pradesh has allowed itself to become by entertaining this mischievous and motivated petition. I. The High Court has repeatedly referred to W.P.No.29358 of 2010 and its own Judgments and Orders passed in that matter regardless of the fact that the subject matter is quite distinct and that the Petitioner was not a party in that case. The reasons why the orders passed in that Writ Petition cannot be made applicable to the present case are as follows: i. Counter Affidavits and Additional Affidavits were filed by the State Government and its functionaries including APIIDC in W.P.29358 of 2010, in which the merits of the case was discussed and specific averments of fraud and collusion were made against certain parties. In the present case, no Counter Affidavits were filed by the State, and the only official response which was the CBI Report is only within the knowledge of the Court. ii. In W.P.No.29358 of 2010, there were Vigilance Reports which revealed cheating and forgery along with corporate conspiracy. None of this existed in the present case. J. It is submitted that as stated in M.C.Mehta v. Union of India, (1987) 1 SCC 395, "where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting pro bono publico would suffice to ignite the jurisdiction of this Court". It is

extremely ironic that a Minister in the State Government is being likened to these hapless souls for whom the epistolary jurisdiction of the Court was created. It is submitted that the Chief Justice of the High Court ought not to have taken this letter on board as a Writ Petition in such a mechanical fashion on the administrative side, and then adjudicated on its maintainability while on the judicial side. K. The directions sought by means of the letter Petition are in the nature of Writ of Mandamus. It is well settled that such directions are issued only when the Petitioner has first approached the relevant authorities and has failed to obtain the relief. It is not the case of Respondent No. 1 that he wanted to file an F.I.R but the state police/C.B.I refused to register the same. It is also not his case that he approached the magistrate U/s 156 (3) of the CrPC for the registration of a complaint. In the circumstances, the Letter Petition ought not to be entertained in the form of a Writ Petition. L. It is submitted that the High Court ought to have refrained from granting prayers directing investigation by the CBI and other authorities. It is submitted that the Writ jurisdiction of the Court is only ought to be used for the purpose of protecting and enforcing the rights of those who are in genuine need of such help. In this regard, the Hon'ble Supreme Court of India in State of West Bengal & Ors v. Committee for Protection of Democratic Rights, West Bengal & Ors., (2010) 3 SCC 571, while upholding the power of the High Court under Article 226 to direct a CBI to investigate a matter, has cautioned that such a power ought to be exercised only in exceptional circumstances and must be exercised sparingly. Dealing

with the dangers of exercise of such power in detail, the five Judges of the Hon'ble Supreme Court held: "70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."

The impugned judgment precisely does what the Constitution Bench cautioned against, leading to the CBI being burdened again with no real necessity to do so when the local authorities had not even been approached. M. In addition to the fact that a direction to carry out investigation can only be issued in exceptional

circumstances, it is further submitted that such exceptional circumstances can be held to be justifiable only once the Writ Petitioner has approached the relevant statutory authorities. In this regard, a reference may be made to the Judgment of three Judges of this Hon'ble Court in Kunga Nima Lepcha v. State of Sikkim (2010) 4 SCC 513, wherein, while dealing with a similar situation of political opponents having filed a so-called PIL, it was held as follows: "15. Furthermore, we must emphasize the fact that the alleged acts can easily come within the ambit of statutory offences such as those of "possession of assets disproportionate to known sources of income" as well as "criminal misconduct" under the Prevention of Corruption Act, 1988. The onus of launching an

investigation into such matters is clearly on the investigating agencies such as the State Police, Central Bureau of Investigation (CBI) or the Central Vigilance Commission (CVC) among others. It is not proper for this Court to give directions for initiating such an investigation under its Writ jurisdiction. 16. While it is true that in the past, the Supreme Court of India as well as the various High Courts have indeed granted remedies relating to

investigations in criminal cases, we must make a careful note of the Petitioners' prayer in the present case. In the past, Writ jurisdiction has been used to monitor the progress of ongoing investigations or to transfer ongoing

investigations from one investigating agency to another. Such directions have been given when a specific violation of fundamental rights is shown, which could be the consequence of apathy or partiality on the part of investigating agencies among other reasons. In some cases, judicial intervention by way of Writ jurisdiction is warranted on account of obstructions to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests. In all of these circumstances, the Writ court can only play a corrective role to ensure that the integrity of the investigation is not compromised. However, it is not viable for a Writ court to order the initiation of an investigation. That function clearly lies in the domain of the executive and it is up to the investigating agencies themselves to decide whether the material produced before them provides a sufficient basis to launch an investigation." Clearly, in keeping with the tenor of the Supreme Court's views, there has been no violation of the fundamental rights of Respondent No.l, nor can a writ court direct the initiation of an investigation. Hence, the Writ Petition ought to have been dismissed at the threshold itself.

N.

It is submitted that the very case of Viswanath Chaturvedi, that has been relied upon by the High Court in the impugned judgment to support the direction for preliminary enquiry has in fact been reviewed by this Hon'ble Court in the case of Akhilesh Yadav v. Vishwanath Chaturvedi & Ors., R.P.(c) No.272 of 2007, and in which the judgment has been reserved. Considering the truly exceptional circumstances in which the judgments of this Hon'ble Court are reviewed, and in view of the judgment in State of Karnataka v. Arun Kumar Agarwal & Ors., (2000) 1 SCC 210 where it has been held that an investigation cannot be directed on mere suspicion without analyzing the rival submissions, the impugned order ought to be set aside.

O.

The very fact that the High Court has directed the registration of a crime against the Petitioner would show that the Preliminary Enquiry Report has been taken on board and relied upon. Otherwise, as per the CBI Manual, the registration of a crime would await the outcome of the Preliminary Enquiry. This shows that the High Court has gravely erred.

P.

The High Court has recorded at Paragraph 53 as follows: "Therefore, a million dollar question would arise as to whether a copy of preliminary report could be furnished in the given facts and circumstances but this question need not be dwelt upon in this case because we have not taken the preliminary report of the CBI into consideration against the respondents and have drawn prima facie satisfaction for registration

of case and investigation independently on the basis of material available on record relating to the writ petitions." As is evident from the paragraphs that follow, the High Court had opened the sealed cover, perused the Preliminary Report of the CBI and resealed the same. Yet, the Court declines to give a copy of this Report to the Petitioner on the ground that it has drawn prima facie satisfaction "independently" of the CBI Report. It is submitted that this is a grave breach of natural justice. The principle of 'justice being seen to be done' mandates that there must be no reasonable likelihood of bias when a case is decided. In the present case, there is a strong possibility that the High Court was biased against the Petitioner after having perused the contents of the Preliminary Report of the CBI. Q. In A.K.Kraipak & Ors., v. Union of India & Ors., [1970] 1 SCR 457, this Hon'ble Court stated as follows: "The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for

believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct."

It is submitted that the ordinary course of human conduct would be to be influenced by the contents of the CBI Report rather than to clinically compartmentalize the contents of the same when arriving at a prima facie conclusion against the Petitioner. R. It is also submitted that by way of the Order of this Hon'ble Court dated 22.7.2011, it was stated that: "It is needless to mention that principles of natural justice would be complied with, in case the Court wants to proceed against the Petitioner." The above Order arose out of proceedings initiated by the present Petitioner challenging the interim order of the High Court dated 12.7.2011 directing for a preliminary CBI investigation. The apprehension of the Petitioner that the CBI Report would be relied upon without a copy of the same being furnished to the Petitioner was sought to be allayed by way of this Order. The Petitioner had even filed an Application in his regard in the High Court, which was numbered but for some reason not listed before the Court. Yet, without any consideration to this Order, which has in fact been reproduced at Paragraph 38 of the impugned judgment, the Court seems to have been influenced by the CBI Report.

6.

GROUNDS FOR INTERIM RELIEF: A. It is submitted that the Petitioner is the victim of political vendetta, as is evident from the very admission of the Writ Petitioner (Respondent No. 1) that his petition was at the behest of the party high command. There has been no whisper of these

allegations for the last 7 years, and no approach has been made under the ordinary criminal law to the police or a magistrate to register a case. Even the delegation to the CBI of the judicial task of finding a prima facie case is without any basis in law. B. In opening and perusing the CBI Report and in not handing over a copy of the same to the Petitioner despite an application, an oral request and the Order of this Hon'ble Court, there is a reasonable likelihood that the Court would have been biased against the Petitioner. In not observing the basic principles of natural justice, a strong prima facie case is made out in favour of the Petitioner herein. C. Over several years, the Petitioner has been a successful entrepreneur with interests in cement, power projects and the media. It may be noted that Sakshi newspaper brought out under the Petitioner's chairmanship from March 2008 has, in just 3 years become the second largest selling newspaper in Andhra Pradesh with sales of more than 14,50,000. Therefore, it is only through skill in legitimate business that the Petitioner has been financially successful. As a result of the impugned judgment, the CBI investigation would severely harm the reputation and net worth of both the Petitioner and his companies. The Petitioner has repeatedly stated that he has no objection to any proceeding which is as per procedure established by law. Grave prejudice would be caused to the Petitioner if the present judgment and proceedings were not stayed, and Respondent No.l were allowed to gain political mileage by claiming responsibility for the successful initiation of CBI enquiry against the Petitioner. D. As the Writ Petitioner himself admits that the genesis of the alleged wrongdoing was 2004, there is no explanation from him as to why he waited 7 years to bring these facts to light and why the police or the magistrate were not approached under

Sections 154 and 156 of the Cr.PC. Therefore, there can be no urgency in the present matter which requires immediate CBI investigation over the next two weeks. The balance of convenience would be in favour of the Petitioner if the impugned judgment and proceedings were stayed pending the disposal of the present Petition. E. If the present judgment were not stayed, the Petitioner and his family would be subject to questioning by the CBI by a procedure unknown to law, and the Petitioner apprehends that the accounts of these successful businesses would be frozen only in order to facilitate other corporate rivals.

7.

MAIN PRAYER: In view of the above, it is most respectfully and humbly prayed that this Hon'ble Court may be pleased to:

a)

Grant Special Leave to appeal against the final judgment and order dated 10.8.2011 passed by the High Court of Andhra Pradesh in Taken Up W.P.No.794/2011; and

b)

Pass any other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

8.

PRAYER FOR INTERIM RELIEF It is most respectfully prayed that this Hon'ble Court may be pleased to:

a) Grant ad-interim ex-parte order staying the operation of the impugned judgment dated 10.8.2011 passed by the High Court of Andhra Pradesh in Taken Up W.P.No.794/2011 and further proceedings arising therefrom; and

b)

To pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IS DUTY BOUND SHALL EVER PRAY.

Drawn by: Gopal Sankaranarayanan Advocate, Supreme Court of India Drawn On: 13.08.2011 Filed on: 16.08.2011

Filed by: A.D.N.Rao Advocate on Record for the Petitioner