[Breaking] Andhra Pradesh Govt. Moves SC Challenging AP HC's Stay Of FIR and Gag Order In Amaravati Land Case.

Andhra Pradesh Government has moved the Supreme Court against High Court  Order restraining any media reporting as to the FIR registered by the Anti-Corruption Bureau alleging corruption and illegal land transactions in relation to the shift of the capital to Amaravti following the bifurcation of the erstwhile state of Andhra Pradesh in 2014.

On September 16, the Andhra Pradesh High Court through Chief Justice J K Maheshwari ordered :

* a) No coercive steps to be taken in furtherance to FIR No. 08/RCO-ACB-GNT/2020 dated 15.09.2020 by ACB, Guntur u/s 13(2) r/w 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 and Sections 409, 420 r/w 120B of the Indian Penal Code, 1860 (said 'FIR') [Pertinently, the said FIR had not even been questioned in the writ petition]

* b) Enquiry/Investigation into the said FIR is stayed.

* c) News in regard to the registration of the said FIR or in the context of the said FIR not to be made public in any electronic, print or social media with respect to the said Respondent as also the other accused persons.

The AP Government in the Petition submitted that the impugned order has been passed by the  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 matter before the High Court was filed in the evening of 14.09.2020 alleging that the Respondent was anticipating that the Petitioner herein would take coercive measures against the Respondent. It is primarily to prevent such alleged coercive measures that the matter had been filed.

An FIR came to be lodged thereafter at about 9.00 A.M. in the morning of 15.09.2020. It is most respectfully submitted that 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 passed by the Hon'ble High Court even when the FIR was not questioned. More importantly, these directions were passed not only in respect of the Respondent herein but also in respect of all other Accused Persons – without reference to the contents of the FIR"

The Petitioner (AP Govt) has submitted that right from Emperor Vs Khwaja Nazir Ahmad AIR 1945 PC 18, Courts have repeatedly frowned upon High Courts interfering with the course of investigation. It is time and again been held that investigation is the domain of the investigation agencies and the Courts ought not to interfere until the investigation is complete. The Court passed the order following an urgent hearing held at 6.30 PM on Tuesday (September 15)., Senior Advocates Mukul Rohatgi and Shyam Divan appeared for the petitioners.

"A writ petition seeking to pre-empt investigation even before an FIR is registered cannot be entertained. In fact, the Hon'ble Courts have repeatedly held (albiet in a different context) that an Accused has no right of hearing before the registration of FIR. The aforesaid principle is applicable to the present proceedings with even more vigour. [See Anju Chaudhary v. State of U.P. and Another (2013) 6 SCC 384]"

Quoting the above Judgment the Petitioner submitted that the prospective accused/suspect does not have, in any manner, a right of hearing before the registration of FIR. Such a right is not envisaged under any provision of Cr.P.C. as well as it runs contrary to the observations made by the Supreme Court in various judicial pronouncements Hence, the impugned judgment lies in the teeth of the various judicial rulings of this Court as well as the provisions of the Code and is therefore, wholly unwarranted, unprecedented and liable to be set aside.

The petitioner raises following questions in the Petition

A. Whether investigation can be stayed when the FIR has not even been questioned?

B. Whether a stay on investigation can be granted as a matter of routine at the very threshold of such investigation?

C. Whether the stay of investigation at the threshold not only impedes the entire criminal machinery, which has been set into motion pursuant to the registration of an FIR, but is also against the basic tenets of criminal jurisprudence

D. Whether the stay of investigation ought to be granted ordinarily and in a routine manner?

E. Whether any proposed accused/suspect has a right of hearing even before the registration of an FIR under the provisions of the Code of Criminal Procedure, 1973?

F. Whether the Hon'ble High Court ought to have interfered with the investigation process which is a distinct domain of the investigation agency?

G. Whether the investigation process against any person ought to be stayed when there are prima facie specific allegations against him in the FIR?