The YS Jagan Mohan Reddy government in Andhra Pradesh has again gone after former chief minister Chandrababu Naidu in the alleged Amaravati land scam. The state Crime Investigation Department (CID) has filed a fresh FIR against Naidu and his former minister P Narayana in various cases.
The significance of the move is since the former CM and former minister are sought to be implicated, several officers are also complained against. It’d appear the government is going to implicate several officers too, who stood by then Telugu Desam Party government. Significantly, these charges are not aimed at personal corruption charges.
Then there are amendments to criminal procedure and limitations on arresting powers which the present government would have to address before putting Naidu and Narayana in the dock.
This becomes all the more important as the CID notice warns that failure to attend or comply with the terms of notices will make the accused liable for arrest under section 41(3) and (4) of CrPC. The notice asks Naidu and P Narayana to appear in person before the investigating officer March 23 at the CID regional office in Vijaywada.
These charges include Section 120 B (conspiracy) and IPC sections 166, 167 and 217 of, read with Prohibition of Assigned Lands Alienation Act of 1977 and the SC/ST Prevention of Atrocities Act.
The case deals with alleged irregularities in acquiring land and assigning compensation for the capital city when Naidu was the chief minister and also the Chairman of AP Capital Region Development Authority.
The CID action came following a complaint by YSRC (Yuvajana Sramika Rythu Congress) Party MLA Alla Ramakrishna Reddy on February 24. The CID registered the FIR on March 12.
The complaint by Alla Ramakrishna Reddy, MLA from Mangalagiri constituency, says some farmers had represented to him saying influential persons of the then government cheated them by taking away their lands fraudulently by keeping the innocent peasants under confusion and fear of insecurity about their lands.
“Middlemen who were a part of the conspiracy made false representation that the government was going to take away their assigned lands without giving any compensation,” it said. The complainant found that several irregularities were committed by the respondents causing irreparable loss to the SC and ST community members and weaker sections.
The Additional DGP CID has instructed S Surya Bhaskar Rao, DSP RO CID Vijayawada, to conduct a preliminary inquiry. “Based on the inquiry, a report was submitted on March 12 stating that a cognizable offence was made out. A case was registered, and necessary legal action was initiated”, the FIR says.
The FIR alleges that former CM Naidu and former minister Narayana have committed offences prescribed under Section 3 (1) (f) and (g) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Section 3 (1)(f) defines an offence as: “wrongfully occupying or cultivating any land, owned by, or in the possession of or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe, or getting such land transferred”.
Section 3 (1) (g) defines another offence: “wrongfully dispossessing a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interfering with the enjoyment of his rights, including forest rights, over any land or premises or water or irrigation facilities or destroying the crops or taking away the produce therefrom.
Explanation to these two provisions says: For the purposes of clause (f) and this clause, the expression ‘wrongfully’‖ includes (a) against the person‘s will; (b) without the person‘s consent; (c) with the person‘s consent, where such consent has been obtained by putting the person, or any other person in whom the person is interested in fear of death or of hurt; or (d) fabricating records of such land.
For these offences the wrongdoer “shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine”.
The explanation that is applicable to sub clauses (f) and (g) clearly says the dispossession by will or consent or fabricating records is not an offence. However, it says if the consent is obtained by fraud or putting a person in fear of death or hurt, it is not considered to be consent.
The FIR says that Chandrababu and Narayana have dispossessed the farmers by obtaining the consent of landowners without consent, or that their consent was obtained by putting the landowners under threat or fear of death or hurt. This must be proved by evidence.
Taking over assigned lands
The complainants alleged an offence under Andhra Pradesh (Prohibition of Transfer) of Assigned Lands Act, 1977 was committed for which Section 7 imposes a penalty. It says: (a) Whoever acquires any assigned land in contravention of the provisions of sub-section (2) of Section 3 shall be punished with imprisonment which may extend to six months or with fine which may extend to two thousand rupees or with both.
According to statement of Objects and Reasons, this Act is meant for prohibiting sale of assigned lands by assignees to the others. If in this case, the transfer is for the sake of capital under a scheme devised by the government, it is not possible to blame the public servants under this Act. It may not be possible to invoke this penal provision because it was done in accordance with the policy.
Provisions of Indian Penal Code invoked
The Andhra police is also trying to invoke Section 166 which deals with disobeying law by a public servant with intent to cause injury to any person, leading to simple imprisonment for a term of one year or fine, or both.
Section 167 deals with a public servant framing an incorrect document with intent to cause injury that could result in imprisonment to public servant for a term of three years.
The FIR assumes that two legislations — SC & ST Prevention of Atrocities Act and AP Prohibition of Transfer of Assigned Lands Act — are blatantly breached by public servants and hence they would be criminally prosecuted.
The ex-CM and his then minister were public servants and they have no immunity from penal consequences of breach of law. If the lands were proved to have been given voluntarily, the main allegations along with these peripheral issues will collapse. It is almost impossible to personally implicate the persons who decided a policy in their capacity as Chief Minister and Minister. Unless wrongful gain is shown to the accused, there cannot be any criminal charge for evolving a policy for the capital requiring lands in a notified area, even if they include some of assigned lands, and lands belonging to SCs and STs.
Reform of Criminal Procedure
The criminal procedure law of arrest was reformed by the Supreme Court followed by an amendment to the Code of Criminal Procedure in 2009 and 2010. For instance, Section 41A notice of appearance is a step before the arrest which may help in avoiding arrest of a person. This provision has been inserted by way of reforming the law of curtailing personal liberty to enhance and ensure the life and liberty of persons under Article 21. It will also prevent the abuse of arresting power at the hands of the executive or police.
The major reform was initiated in 2009 and was further amended in 2010. Section 41A was added by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009).
However, recently after the enactment of this Amendment, representations were received by the Union government. Thus, some specific amendments were brought in by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010).
The earlier sub-section (1) of Section 41A read: The police officer may, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
Limitations on arresting powers
In this section, the expression ‘may’ allowed arbitrary arrest by authorities. As ‘may’ always include ‘may not’, in law, a further reform was felt necessary and in 2010 the ‘may’ was replaced by ‘shall’. A proviso to section 41(1)(b)(ii) was also added which provided for recording of reasons for not arresting an accused. However, the Supreme Court desired in Arnesh Kumar case that notice of appearance under Section 41A should thoughtfully be implemented. The judiciary wanted to ensure that a police officer does not arrest any accused unnecessarily, and the magistrate does not authorize detention casually and mechanically.