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2000 DIGILAW 642 (AP)

GOGULA LINGAMMA v. GOVT. OF A. P.

2000-08-23

ELIPE DHARMA RAO

body2000
JUDGEMENT This writ petition was filed by the unfortunate mother, aged about 60 years of the deceased G. Gijay, who was alleged to have been murdered by the second respondent Jalagam Sudershan Rao and his associates on 4-3-1995 on account of political rivalry, seeking for the relief to declare G.O. Rt. No. 452 Home (Police F) Department dated 25-2-1999 withdrawing the criminal case in SC No. 528 of 1996 on the file of the I Addl. Sessions Judge. Nalgonda, as illegal, null and void and to pass such others as the Court deems fit and proper in the circumstances of the case. 2. It is stated by the petitioner Smt. Gogula Lingamma, that the second respondent is alleged to have filed representation dated 23-7-98 to the Honourable Minister for Home Affairs. Government of Andhra Pradesh, Hyderabad to consider his case and suggest the Public Prosecutor, Naglonda under S. 321 of the Code of Criminal Procedure (for brevity the Code) to delete his name from the arena of accused. Therefore, after obtaining the opinion of Public Prosecutor, Nalgonda and Director General of Police, Hyderabad, the Government passed the impugned order suggesting the Public Prosecutor, Nalgonda under S. 321 of the Code to withdraw criminal case in SC No. 528 of 1996 pending on the file of the 1 Addl. Sessions Judge, Nalgonda against the second respondent. 3. Questioning the said Government Order, the present writ petition is filed contending that there are no merits in the application submitted by the second respondent so as to order to withdraw the criminal case against the second respondent, that while passing the impugned order the Government has not assigned any reasons but only on the ground that the second respondent is Z.P.T.C. Member belonging to Telugu Desam Party and a dogmatic follower of the local Minister, late Sri A. Madhava Reddy, the impugned G.O. came to be passed by the Government which is illegal and contrary to law offending principles of natural justice and provisions of Indian Constitution. It is further contended that based on the application made by the Addl. Public Prosecutor, under S. 321 of the Code the Addl. Sessions Judge, Nalgonda by his order dated 12th March, 1999 discharged the respondent No. 2 -- accused No. 1 in the criminal case and the Sessions Case is pending against other 11 accused. 4. It is further contended that based on the application made by the Addl. Public Prosecutor, under S. 321 of the Code the Addl. Sessions Judge, Nalgonda by his order dated 12th March, 1999 discharged the respondent No. 2 -- accused No. 1 in the criminal case and the Sessions Case is pending against other 11 accused. 4. The Government has filed its counter in reply to the various allegations and contentions raised by the petitioner stating that Section 321 of the Code contemplates withdrawal from prosecution, which is an executive function of the Government, the Public Prosecutor, who is a representative of the State and conducts prosecution on its behalf, but since the matter pertains to law and order, he was instructed to withdraw the case against the second respondent and thus the Public Prosecutor is free from any opinion capable of influencing him, that the request for withdrawal from prosecution by the Public Prosecutor can broadly be in furtherance of the administration of justice but not a hindrance of such administration. The application made by the Public Prosecutor is as per S. 321 of the Code and as per the instructions issued in G.O. Rt. No. 452 Home (Police F) Department dated 25-2-1999 and accordingly, the I Addl. Sessions Judge, Nalgonda vide his order dated 12-3-1999 allowed the said petition in SC No. 528 of 1996 and the case against the first accused -- second respondent herein, was permitted to be withdrawn and thus the A-1/R-2 was discharged of the offence punishable under S. 147, 148, 302 read with S. 149 of Indian Penal Code. It is further submitted that the discretion is vested with the Court consenting for such request or rejecting the same and the I Addl. Sessions Judge, Nalgonda having been convinced with the request of the Public Prosecutor gave his consent for withdrawal of the case against the second respondent. 5. This matter was listed before this Court on 15-11-1999, 17-11-1999, 18-11-1999, 22-12-1999, 21-1-2000 and was ultimately heard and reserved for judgment on 17-2-2000. But the respondent No. 2 has not chosen to file his counter and the counsel representing respondent No. 2 has not made any submissions. 6. 5. This matter was listed before this Court on 15-11-1999, 17-11-1999, 18-11-1999, 22-12-1999, 21-1-2000 and was ultimately heard and reserved for judgment on 17-2-2000. But the respondent No. 2 has not chosen to file his counter and the counsel representing respondent No. 2 has not made any submissions. 6. From the above facts and circumstances of the case, it is clear that the instant writ petition is filed questioning the Government Order suggesting the Public Prosecutor under S. 321 of the Code to withdraw the criminal case SC No. 528 of 1996 against A-1 second respondent herein, as the impugned order does not contain any reason. Whereas, the Government have placed reliance on S. 321 of the Code under which the Public Prosecutor is empowered either to withdraw from the criminal case against a particular accused or not. But nowhere, they have stated under what circumstances, the Government has passed the above said order suggesting the Public Prosecutor to withdraw the criminal case against the second respondent. On the other hand, they relied on the powers of the Public Prosecutor exercisable under S. 321 of the Code. 7. Since I am unable to get any relevant information from the counter the circumstances which prompted the Government to pass the impugned G.O., I called for the records and the records were produced by the Assistant Secretary, who filed the counter. 8. On a perusal of the records, it is found that an application was filed by the second respondent addressed to the Hon'ble Home Minister, which was received on 23-7-1998 and the same was forwarded to the Principal Secretary, Home, for his examination and the Principal Secretary received the same on 25-7-1998. After examining the representation filed by the respondent No. 2, through Memo No. 29542/Pol.F/A1/98-2 dated 12-11-1998 while enclosing a copy of the representation of the second respondent, the Director General and the Inspector General of Police were requested to furnish remarks along with the opinion of the Public Prosecutor, Nalgonda, immediately. 9. After examining the representation filed by the respondent No. 2, through Memo No. 29542/Pol.F/A1/98-2 dated 12-11-1998 while enclosing a copy of the representation of the second respondent, the Director General and the Inspector General of Police were requested to furnish remarks along with the opinion of the Public Prosecutor, Nalgonda, immediately. 9. In reply to the memo issued by the Government, the Public Prosecutor, Nalgonda has tendered his opinion and the same was forwarded by the Superintendent of Police, Nalgonda, with his opinion through his proceedings No. C.2275/C1/98 Dated 25-11-1998 to the Director General and Inspector General of Police, Hyderabad wherein, the Public Prosecutor has opined that the respondent No. 2 Jalagam Sudershan Rao, accused No. 1 in Crime No. 9 of 1995 of Gurrampode Police Station, for the offence under Ss. 147, 148, 302 read with S. 149 of the Indian Penal Code was absconding for about six months and was arrested on 28-9-1995 and remanded to judicial custody. As per the complaint given by the mother of the deceased, it is alleged that her son, the deceased, was called to examine to bore well point and he was done to death by the second respondent and his associates and the accused No. 1 -- second respondent was present at the time of offence and she immediately rushed to the spot after the incident and identified accused No. 1 who participated in the offence. Though the accused No. 1 - second respondent has stated that on the date of murder, he was away from Theratigudem village and he was busy in electioneering work, but as per the eye-witnesses to the incident, including wife of the deceased, it is fully established that the second respondent A-1 was present at the scene of offence. 10. On the bais of the above said facts and circumstances, he has opined that in view of the presence of eye-witnesses, there is a prima facie case against the first accused -- second respondent herein, and the criminal case against him cannot be withdrawn by the prosecution. 11. 10. On the bais of the above said facts and circumstances, he has opined that in view of the presence of eye-witnesses, there is a prima facie case against the first accused -- second respondent herein, and the criminal case against him cannot be withdrawn by the prosecution. 11. The Government after receiving the opinion of the Director General and Inspector General of Police and the Additional Public Prosecutor, Nalgonda, has referred the matter to Law Department and the Law Department who were consulted for their remarks in the matter, have stated that there is no objection to reject the request of the petitioner-second respondent for withdrawal of the criminal case against him. When the matter was referred to concerned Minister for Home Affairs, on extensive consideration of the matter, ordered withdrawal of the criminal case against the first accused-second respondent. Accordingly, the impugned G.O. was issued. 12. In the backdrop of these circumstances, while arguing the matter the learned counsel for the petitioner, Sri K. Durga Prasad, has submitted that the impugned G.O. was issued on political consideration, inasmuch as no circumstances are put forth either before this Court or enumerated in the impugned G.O. which promoted the Government to pass the same, that apart, no opportunity was given to the petitioner before issuing the impugned G.O. and thereby the principles of natural justice have been infringed. 13. So far as the stand of the Government in their counter-affidavit that under S. 321 of the Code the Public Prosecutor is empowered to withdraw the case or reject the request made by the Government, is concerned, the petitioner is more concerned with the way in which the G.O. was passed and not with the functions of the Public Prosecutor either to withdraw or reject the request of the Government. But neither the impugned G.O. nor the counter-affidavit filed by the Government assigns any reasons or explain the circumstances under which the impugned G.O. came to be passed, and therefore, the same is illegal, null and void and liable to be quashed. 14. While defending the impugned G.O. issued by the Government, the learned Government Pleader Sri E. Madan Mohan reiterated what was laid down in the counter affidavit that under S. 321 of the Code, the Public Prosecutor has got powers either to obey the order passed by the Government or to reject it. 14. While defending the impugned G.O. issued by the Government, the learned Government Pleader Sri E. Madan Mohan reiterated what was laid down in the counter affidavit that under S. 321 of the Code, the Public Prosecutor has got powers either to obey the order passed by the Government or to reject it. But the learned Government Pleader has failed to state under what circumstances the G.O. was issued without assigning any reason, but he relied on a judgment of the Supreme Court Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877 : 1987 Cri LJ 793 wherein the Supreme Court while interpreting S. 321 of the Code, has made clear the functions, duties and powers of the Public Prosecutor and the Court. Therefore, in my considered opinion, the ratio laid down by the Supreme Court in Sheo Nandan's case, cannot be applied to the facts and circumstances of the instant case. That apart, it appears the learned Government Pleader has lost sight of the fact that the impugned G.O. was issued contrary to the opinion given by the Addl. Public Prosecutor, Director General and Inspector General of Police. Therefore, it shows how much respect the Government is having towards the opinion tendered by the Public Prosecutor. 15. The Supreme Court in a decision R. K. Jain v. State Through Special Police Establishment AIR 1980 SC 1510 : 1980 Cri LJ 1084 has set some legal propositions flowing from S. 321 of the Code. In Jain's case, the Hon'ble Sri Justice O. Chinnappa Reddy has laid down the following principles (at page 1090 of Cri LJ) : "1. Under the scheme of the Code, prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he can not surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and political purposes sans Tammany Hall enterprise. 6. The Public Prosecutor is an officer of the Court and responsible to the Court. 7. The Court performs as supervisory function in granting its consent to. the withdrawal. 8. The Court's duty is not to re-appreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution." While approving the legal proposition, the Constitution Bench in Jama's case made the following observations (at page 1091 of Cri LJ) :- "....We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S. 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its Officers alone must have control over the case and decide what is to be done in each case." As seen from the above legal propositions, it is the responsibility of the Executive to prosecute the offenders for serious offences. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor as its 'Minister of Justice' against possible abuse or misuse by the Executive by resorting to the provisions of S. 321 of the Code. The broad ends of public justice will certainly include appropriate economic and political purposes sans Tammany Hall enterprise. The broad ends of public justice will certainly include appropriate economic and political purposes sans Tammany Hall enterprise. When the suggestion was made by the Executive to withdraw the criminal case against a particular accused, it is for the Court to consider whether the public prosecutor applied his mind as a free agent uninfluenced by irrelevant and extraneous consideration. 16. In view of these legal propositions, let us examine the case on hand. In the present case, as opined by the Addl. Public Prosecutor, basing on the complaint made by the mother of the deceased, the respondent No. 2 was present at the scene of offence and thus there is a prima facie case. Accordingly, after investigating the crime, the Police have filed charge sheet arraying respondent No. 2 as the prime accused No. 1 for the offence of murder punishable under S. 302 of Indian Penal Code, which is a grave crime. Therefore, it is the responsibility of the Executive to prosecute the offender instead of suggesting the Public Prosecutor to withdraw from prosecuting the offender against his opinion tendered previously and the impugned action of the Government is contrary to the above legal propositions. 17. As contended by the learned counsel for the petitioner, Sri K. Durga Prasad, when I have gone through the records produced by the Government, I could not find any reason making it manifestly clear that the impugned G.O. was issued only on the representation made by the Respondent No. 2 herein, as submitted by the petitioner due to political considerations inasmuch as he is alleged to be strong follower of late Home Minister. Therefore, the impugned G.O. issued by the Government suggesting the Public Prosecutor, Nalgonda to withdraw criminal case against respondent No. 2 is contrary to the legal propositions set out in Jain's case and is passed without giving any reasons offending public justice, public order and peace. Therefore, it has no legs to stand. Accordingly, the impugned G.O. Rt. No. 452 Home (Police C) Department Dated 25-2-1999 is accordingly set aside and the I Addl. Sessions Judge, Nalgonda is directed to restore SC No. 528 of 1996 to file against the second respondent--1st accused also, try and dispose of the same according to law. 18. In the result, the writ petition is allowed with costs of Rs. 5000/- directing the second respondent to pay the same to the petitioner. Petition allowed.