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The Andhra Pradesh government has moved the Supreme Court assailing the gag order passed by the Andhra Pradesh High Court in relation to an FIR registered against a former Advocate General and others.
The High Court had also stayed the investigation in relation to the Amravati land scam case, in which the FIR registered by the State’s Anti Corruption Bureau named daughters of a sitting Supreme Court judge.
The Jagan Mohan Reddy government has mounted a challenge against this order, primarily stating that the order came to be passed in relation to an FIR which itself was not questioned.
Moreover, while only one petitioner had moved the High Court seeking relief in terms of protection from coercive action and bar of media reportage, the order passed by the High Court extends the relief to all the other accused persons as well. The SLP states,
“It is most respectfully submitted that the impugned order has been passed by the Hon’ble High Court in a Petition where the FIR was not even questioned. Besides, the orders have been passed not only in respect of the Respondent who had filed the writ petition but also in respect of all other accused persons.”
The former AG of the State had moved the High Court on September 14 on the grounds that he apprehended coercive steps against him by the State machinery. However, the FIR pursuant to which the AG's plea was filed in the High Court, was registered one day later, on the morning of September 15.
This in effect rendered the petition infructuous, the state government contends.
The relief granted by the High Court is “wholly perverse”, the YSRCP government says in its petition.
It is averred that the petition should not have been entertained by the High Court at a time when the FIR was not even registered. The High Court also proceeded to pass directions without examining the contents of the FIR, “which on bare perusal reflect that a massive scam has taken place.”
“What is more shocking is that the writ petition was filed in anticipation of the FIR. Such a petition was completely unprecedented and not maintainable and ought to have been dismissed… A writ petition seeking to pre-empt investigation even before an FIR is registered cannot be entertained.”
Petition filed by Andhra Pradesh government
The Code of Criminal Procedure does not confer a right or protection on a “prospective suspect or accused” to seek a hearing before the Court even before registration of the FIR, the plea goes on to state.
It is also argued that the investigation in the case ought not to have been stayed by the High Court and an order to this effect goes against Supreme Court’s 2012 judgment in the case of Imtiyaz Ahmad v. State of Uttar Pradesh and Ors.
The investigation, it is averred, is at the threshold stage, and thus a stay on the same was not warranted, the plea states. The stay was granted by the High Court just hours after the FIR was registered. To buttress the point, the petition adds,
“This Hon’ble Court has, in a catena of judgments, categorically deprecated the practise of granting stay of investigation/refraining the investigating agency from taking any adverse or punitive action against the accused persons while hearing petitions filed under Section 482 of the Code of Criminal Procedure, 1973.”
The alleged scam in relation to which this order was passed by the High Court names high dignitaries and functionaries of the State. With a stay on the investigation in place, there is an apprehension of destruction of documentary evidence at the hands of the accused persons, influencing or tampering of evidence and witnesses, and evasion of the investigation process by the accused persons, the state government claims.
“...the impugned order has caused as an impediment to a fair and just investigation into the said FIR and is therefore, unsustainable in the eyes of law. Granting stay of investigation, especially at the initial stage, not only impedes the entire criminal machinery, which has been set into motion pursuant to the registration of the said FIR, but is also against the basic tenets of criminal jurisprudence. Thus, the impugned order is clearly erroneous and is therefore liable to be set aside.”
The petition is drawn and filed by Advocate Mahfooz Nazki.