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2002 DIGILAW 1411 (AP)

V. THUKARAM GOUD v. State Of A. P.

2002-12-05

GHULAM MOHAMMED

body2002
GHULAM MOHAMMED, J. ( 1 ) THIS writ petition is filed seeking to issue a writ of certiorari calling for the records relating to G. O. Rt. No. 1395, dated 5-9-2001 and to declare the action of the 1st respondent in directing the district Collector, Kurnool, to direct the add1. Public Prosecutor to withdraw the prosecution case against A-1, who is the 2nd respondent herein, in SC No. 317 of 2000 on the file of II Addl. District and Sessions judge, Kurnool, as illegal, arbitrary and against the principles of natural justice and consequently quash the same in the interest of justice. ( 2 ) THE case of the petitioner is that on 30-5-1999 at about 10-15 a. m. he along with his brother-in-law Laxman Goud and another were travelling on Rajdoot motorcycle towards Kurnool side and at that time, the 2nd respondent herein and two others hurled bombs on them and due to the impact of the same, he and his brother- in-law fell down from the motorcycle and he sustained grievance injuries, but is brother-in-law Laxman Goud died immediately. It is further stated that he lodged a complaint with the Police and on the basis of the same a case in Cr. No. 76 of 1999 was registered by the SI of Police, iv Town PS, Kurnool, for the offences punishable under Sections 147, 148, 307, 302 read with 149 IPC and Sections 3 and 5 of the Explosive Substances Act. It is further stated that the Police have recorded his statement under Section 161 Cr. PC wherein it was stated that the 2nd respondent and two others are responsible for causing the death of his brother-in-law. It is further stated that the matter was entrusted to the CB-CID for investigation and that the cb-CID again re-examined him and put him under pressure and made him to tell that A-l the 2nd respondent herein, was not present at the time of occurrence of the incident. It appears, basing on the report submitted by the CB-CID to the effect that the involvement of A-1, the 2nd respondent herein, in the offence was doubtful, the government by the impugned G. O. Rt. No. 1395, dated 5-9-2001 directed the District collector, Kurnool to direct the concerned public Prosecutor to file a petition under section 321 Cr. It appears, basing on the report submitted by the CB-CID to the effect that the involvement of A-1, the 2nd respondent herein, in the offence was doubtful, the government by the impugned G. O. Rt. No. 1395, dated 5-9-2001 directed the District collector, Kurnool to direct the concerned public Prosecutor to file a petition under section 321 Cr. P. C for withdrawing the prosecution case against A-l, the 2nd respondent herein, in SC No. 317 of 2000 pending trial on the file of II Addl. District and Sessions Judge, Kurnool, and accordingly a petition was filed by the Public Prosecutor. Kurnool, seeking withdrawal of the prosecution case against A-1, which was allowed by the Sessions Court, Kurnool, by granting permission to withdraw the prosecution case against A-1. It is further stated that as against the said order passed by the Sessions Court, the petitioner seems to have filed Crl. R. C. No. 320 of 2002 on the file of this Court and this Court by order dated 17-4-2002 dismissed the said crl. R. C. No. 320 of 2002 on the ground that the Government has power to withdraw the prosecution case if it is satisfied that there is no prima facie case against a person involved in the offence. Hence, this writ petition seeking appropriate directions. ( 3 ) HEARD the learned Counsel for the petitioner, the learned Counsel for the 2nd respondent and the learned Government pleader for Home. ( 4 ) LEARNED Counsel for the petitioner vehemently contends that though the petitioner has stated that A-1 who is the 2nd respondent herein was not present at the time of occurrence before the CB-CID, under pressure by the said Police, but in his statement recorded under Section 161 Cr. P. C. he has clearly stated that A-1 along with two others were involved in the offence and they were responsible for the death of the deceased and in such circumstances, the Government ought not to have directed to withdraw the prosecution case against a-1. Learned Counsel further submits that the statement recorded by the CB-CID should not have been given credence as the same was recorded under coercion and therefore the impugned G. O. R. T. No. 1395, dated 5-9-2001 is liable to be set aside and the prosecution case against A-1 should proceed. ( 5 ) ON the other hand, Mr. Learned Counsel further submits that the statement recorded by the CB-CID should not have been given credence as the same was recorded under coercion and therefore the impugned G. O. R. T. No. 1395, dated 5-9-2001 is liable to be set aside and the prosecution case against A-1 should proceed. ( 5 ) ON the other hand, Mr. Bal Reddy, learned senior Counsel appearing for A-1, 2nd respondent herein, contends that as A-1 was falsely implicated in this case, he made a representation to the Government on 21-9-1999 requesting to entrust investigation to CB-CID and accordingly the Government entrusted the matter to CB-CID, and while the investigation is under progress, the inspector of Police, Kurnool, filed charge-sheet on 31-12-1999 implicating the 2nd respondent herein as A-1 in the case. It is further stated that the CB-CID after investigation submitted a report to the government stating that A-1, 2nd respondent herein was falsely implicated in the case. It is further stated that as per the report of the CB-CID, on the date of occurrence, the 2nd respondent herein was in the meeting of trade union leaders, chaired by Sri S. V. Mohan Reddy, from 9-30 a. m. , to 12-30 noon and further LW-1, petitioner herein who claims to be an eye-witness to the incident did not disclose the presence of 2nd respondent herein at the scene of occurrence, and based on the information collected, the Zonal Inspector, CB-CID, kurnool, reached a conclusion that the involvement of 2nd respondent herein was very much doubtful and the same was affirmed by the Dy. Superintendent of Police, cid, Kurnool. It is further stated that the matter was placed before the concerned public Prosecutor who in turn after applying his mind to the facts of the case opined that A-l has not participated in the crime and that he was falsely implicated in the offence. It is further stated that basing on the report submitted by the CB-CID and also the opinion of the Public Prosecutor concerned, the Government after careful consideration of the matter issued G. O. R. T. No. 1395, dated 5-9-2001 directing the concerned Public Prosecutor to withdraw the prosecution case against A-l. Learned counsel in support of his contention relied on the decision of the Apex Court in sheonandan Paswan v. State of Bihar, AIR 1983 SC 194 . ( 6 ) THE short point that arises for consideration is whether in the facts and circumstances of the case the Government was justified in withdrawing the prosecution case against A-l who is 2nd respondent herein, by the impugned G. O. Rt. No. 1395, dated 5-9-2001. ( 7 ) UNDISPUTEDLY the Government has power to withdraw prosecution case against an accused if it has reasons and sufficient material to believe that such persons is falsely implicated in the such case. In this case, the decision made by the Government is based on the opinion rendered by the concerned Public Prosecutor and also the letter dated 2-6-2001 addressed by the director-General and IGP and also the report of the CB-CID finding that the presence of A-1 who is 2nd respondent herein at the time of the incident was very much doubtful. It is further seen that the petitioner in his statement recorded under section 161 Cr. P. C. stated that A-1 and two others are responsible for the death of the deceased, but whereas in the statement recorded by the IO, CID, Kurnool, he stated that some unknown persons have hurled bombs on the deceased. This statement is quite contrary to the statement recorded under section 161 Cr. PC. Though he allege that such statement was recorded under coercion, but there is nothing to establish that the statement was recorded under coercion. Further the Apex Court in Sheonandan paswan s case (supra) held thus:"section 321 enables the Public Prosecutor or Assistant Public Prosecutor in-charge of a case to withdraw from the prosecution with the consent of the Court. Before an application is made under Section 321, the public Prosecutor has to apply his mind to the facts of the case, independently without being subject to any outside influence. But it cannot be said that a Public Prosecutor s action will be illegal if he receives any communication or instruction from the government. Unlike the Judge, the Public prosecutor is not an absolutely independent officer. He is an appointee of the government, Central or State appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public prosecutor and the Government. Unlike the Judge, the Public prosecutor is not an absolutely independent officer. He is an appointee of the government, Central or State appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public prosecutor and the Government. A Public prosecutor cannot act without instructions of the Government; a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government in Section 321 does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instructions from the government. " ( 8 ) IN this case, the Government, after considering all the aspects objectively, issued the impugned G. O. Rt. No. 1395, dated 5-9-2001 seeking to withdraw the prosecution case against A1 who is 2nd respondent herein. I do not find any legal infirmity or illegality in the impugned G. O. Rt. No. 1395, dated 5-9-2001 warranting interference by this Court.