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2009 DIGILAW 76 (AP)

M. Subhash Chandra Bose v. State of A. P.

2009-02-17

GOPALA KRISHNA TAMADA

body2009
JUDGMENT This Criminal Revision Case is preferred by the Petitioner/A-2 against the order, dated 08-09-2008 passed by the learned Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad in Cri. M.P. No. 522 of 2008 in C.C. No. 49 of 2007, wherein the petition filed by the learned Special Public Prosecutor under Section 321 Cr.P.C. on behalf of the prosecution to accord permission to withdraw the case of the prosecution in respect of trap of Rs. 5,00,000/- and to treat the same as withdrawn, was dismissed. 2. After investigation into Cr. No. 3/ACBCR/2006 and also after obtaining necessary sanction, the Deputy Superintendent of Police, Anti Corruption Bureau, City Range, Hyderabad filed a charge sheet against the petitioner and another for the offences punishable under Sections 7, 13(2) read with Section 13( 1)( d) of Prevention of Corruption Act, 1988 (for short 'the Act') read with Section 34 of Indian Penal Code (for short 'IPC') and the same was numbered as C.C. No. 49 of2007 on the file of the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad. 3. It appears, the Government after careful examination of the allegation of corruption made against the petitioner herein, giving benefit of doubt decided to withdraw the case of the prosecution and accordingly, issued G.O. Ms. No. 19, dated 30-01-2008 to drop all actions against him. Pursuant thereto, the Special Public Prosecutor, Anti Corruption Bureau, Hyderabad filed an application under Section 321 Cr.P.C. seeking permission of the Court to withdraw the case against the petitioner herein who was arrayed as second accused in the said Calender Case. On a consideration of the material on record, the learned Principal Special Judge for SPE and ACB Cases vide his order, dated 08-09-2008 dismissed the said petition i.e., Cri. M.P. No. 522 of 2008 in C.C. No. 49 of 2007. Assailing the said order, this revision is filed invoking the jurisdiction of this Court under Section 397 and 401 of Cr.P.C. 4. It may be necessary to refer to the facts that led to the filing of the present application and this revision. 5. The petitioner A-2 was working as Inspector of Police, at Palakole, where the first accused was working as Sub-Inspector of Police, Palakole Rural Police Station. One Smt. Paruchuri Sumana was involved in a kidnap case and in that connection, a case in Cr. 5. The petitioner A-2 was working as Inspector of Police, at Palakole, where the first accused was working as Sub-Inspector of Police, Palakole Rural Police Station. One Smt. Paruchuri Sumana was involved in a kidnap case and in that connection, a case in Cr. No. 32 of 2005 was registered against her for the offences punishable under Sections 385, 341, 506(2) read with Section 34 of IPC against her and others at Palakole Rural Police Station. The Palakole police arrested her on 21-12-2005 in the above said kidnap case. While so, after her release on bail, she received number of phone calls from accused NO.2 in Cr. M.P. No. 522 of 2008, that he would help her to get out of the case and directed her to bear the expenses and also asked her to contact the petitioner/ A-1 in the said matter. On 20-1-2006, on the instructions of A-1, A-1 went to the residence of Paruchuri Sumana and asked money at the instigation of A-2, and also he again contacted her through phone and personally several times and said that he was being pressurized by A-2 therein and demanded the amount as bribe to show favour by himself and said that he would come to Hyderabad to receive the bribe on his behalf and on behalf of A-2 on 03-02-2006. As Smt. Paruchuri Sumana was not willing to pay the bribe amount, lodged a complaint before the Deputy Superintendent of Police, ACB, City Range-II, Hyderabad on 02-02-2006 at 11.00 a.m., and requested to take necessary action against the accused. The said complaint was registered as Cr. No. 3/ ACB-CR2/2006 on 03-02-2006 at 12.15 p. m. Petitioner/A-1 was trapped in the presence of the mediators led by the Deputy Superintendent of Police, ACB, City Range-II, Hyderabad, when he demanded and accepted the bribe amount of Rs. 5,00,000/- from her, as illegal gratification, other than legal remuneration for showing official favour on 03-02-2006 at her residence, which was found by phenolphthalein test conducted on both hand fingers of the petitioner to be positive and the amount of Rs. 5,00,000/- was seized from the possession of A-1 at his instance in the presence of the med iators. 5,00,000/- from her, as illegal gratification, other than legal remuneration for showing official favour on 03-02-2006 at her residence, which was found by phenolphthalein test conducted on both hand fingers of the petitioner to be positive and the amount of Rs. 5,00,000/- was seized from the possession of A-1 at his instance in the presence of the med iators. After the arrest of the accused, the petitioner herein contacted the de facto complainant and tried to dilute the case at the time of charge sheet and to close the case in compromise, which transactions were recorded by her and on the request of the ACB officials, the digital tape recorder was seized by them. But the Government of Andhra Pradesh, being the competent authority to remove the accused from service, has accorded sanction for prosecution of the accused in a Court of law foe the aforesaid offences vide G.O. Ms. No. 141, Home (SC A) Department dated 22-6-2007 and G.O. Ms. No. 142 respectively. 6. Heard Sri Padmanabha Reddy, learned counsel for the petitioner and the learned Additional Pubic Prosecutor. 7. According to the learned senior counsel, Mr. Padmanabha Reddy, Government issued orders holding that no case is made out against the petitioner and thereafter, the Special Public Prosecutor exercised his discretion independently in coming to the conclusion that there is no case against the petitioner and accordingly filed the said application under Section 321 Cr.P.C. and when once the Special Public Prosecutor applied his mind and filed an application, it is not for the Court to reject the said application. 8. Per contra, the Special Public Prosecutor Sri V. Ravi Kiran Rao opposed the said submission stating that it is only in cases where public interest is involved and when the Special Public Prosecutor applies his mind and files an application under Section 321 Cr.P.C. the Court has to accept the same but not in every case, simply because the Government had decided to withdraw the case against a particular accused and according to him, the trial Court is justified in rejecting the said application filed by the Special Public Prosecutor in the Court below. 9. There are two important provisions in Criminal Procedure Code, in account of which, the case of the prosecution can be compounded and also can be with drawn. Section 320Cr.P.C. deals with compounding of offences and Section 321 Cr.P.C. deals with withdrawal from prosecution. 9. There are two important provisions in Criminal Procedure Code, in account of which, the case of the prosecution can be compounded and also can be with drawn. Section 320Cr.P.C. deals with compounding of offences and Section 321 Cr.P.C. deals with withdrawal from prosecution. As the case on hand relates to withdrawal from prosecution, it is necessary to refer to the said provision of law. According to the said provision, the Public Prosecutor or the Assistant Public Prosecutor can file an application before the Court seeking permission to withdraw the case against an accused and if such an application is filed before framing of charges, the Court, if satisfied, may discharge the said accused and if the charge is framed, it may record an acquittal. The said provision of law was interpreted by various High Courts and also by the Apex Court and it was held that the application to be filed by the Public Prosecutor shall be only where public interest is involved or where he feels that a case against a particular accused need not be proceeded further. 10. The recent case touching on the Subject is Abdul Karim v. State of Karnataka and others1. I n the said judgment, their Lordships have clearly held that the power of the Court under Section 321 Cr.P.C. is supervisory, but that does not mean that while exercising the power, the consent has to be granted on mere asking. The Court has to examine that all relevant aspects have been taken into consideration by the Public Prosecutor and/or by the Government in exercise of its executive function. It may be apt to refer to the relevant portion of the judgment, which was discussed at paras 19 and 20 and the same is as under: "The law is that though the Government may have ordered, directed 'or asked a Public Prosecutor to withdraw from a prosecution it is for the Public Prosecutor to apply his mind to all the relevant material and in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor acting in good faith is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. It must therefore follow that the application under Section 321 must aver that the pubic prosecutor is in good faith, satisfied, on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the public prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or in a given case placed before the Court, with its permission, in a sealed envelope. The Court has to give an informed consent. It must satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the Court to weigh the material. The Court must be satisfied that the Public Prosecutor has considered the material and in good faith reached the conclusion that his withdrawal from the prosecution will serve the public interest. The Court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If upon such consideration, the Court accords consent, it must make such order on the application as will indicate to a higher Court that it has done all that the law requires it to do before granting consent." 11. In the light of the said law laid down by the apex Court and also keeping in view the provision of law i.e., Section 321 Cr.P.C. this Court looked into the application filed by the Special Public Prosecutor in the Court below under Section 321 Cr.P.C. seeking permission of the said Court to withdraw the prosecution against the petitioner herein. 12. From the facts, it is clear that no public interest is involved in this case. Hence, the petitioner cannot be discharged or acquitted on the ground that public interest is involved. 12. From the facts, it is clear that no public interest is involved in this case. Hence, the petitioner cannot be discharged or acquitted on the ground that public interest is involved. Then the only question as per the law laid down by the Courts is as to whether the said Government Order which was followed by the Special Public Prosecutor is after application of mind or not. In this context, having looked into the application filed by the Special Public Prosecutor in the Court below, this Court is thoroughly satisfied that the Special Public Prosecutor had not given any reason for his conclusion that it is a fit case for withdrawal except stating that he is thoroughly convinced. I After perusing the Government Order and material available on record, he has not assigned any reason for his conclusion that it is a fit case for withdrawal. The said application filed by the Special Public Prosecutor under Section 321 Cr.P.C. before the Court below reads as follows: "It is respectfully submitted that charge sheet has been filed against respondent accused officer-2 for the offence under Sections 7, 13(2) r/w 13(1 )(d) of P.C. Act, 1988 r/w 341PCfor having demanding and accepting illegal gratification other than legal remuneration from the de facto complainant for showing official favour. The Government has accorded sanction vide G.O. Ms. No. 141 Home (SC-A) Department dt. 22-6-2007 for prosecution of the respondent/accused officer-2 and consequently a charge sheet was filed against the petitioner/A.O.2 and the same has been taken on the file in the above Calendar Case and the charges against the petitioner/A.O.2 is yet to be framed. As matter stood thus the Government of Andhra Pradesh after careful examination of the case against the respondent/A.O. 2 has decided to drop further action against respondent/A.O. 2 with respect to the above said case by giving the petitioner/A.O. 2 benefit of doubt and ordered withdrawal the prosecution sanction already issued in G.O. Ms. No. 141, dt. 22-6-2007. The Government Order is filed herewith for consideration. On perusal of the Government Order and the material evidences available on record, on application of the mind independently and for reasons accorded by the Government I am satisfied that the case is fit for withdrawal from prosecution in accordance with the settled principles of law laid down by the Hon'ble Supreme Court of India. On perusal of the Government Order and the material evidences available on record, on application of the mind independently and for reasons accorded by the Government I am satisfied that the case is fit for withdrawal from prosecution in accordance with the settled principles of law laid down by the Hon'ble Supreme Court of India. Therefore, under the said circumstances it is prayed that the Hon'ble Court may be pleaded to permit me to withdraw the case of the prosecution against the respondent/A.O. 2 Sri M. Subhash Chandra Bose, Court of Poi ice, Palakollu, West Godavari District and the same may be treated as withdrawn and respondent/A.O. 2 may be discharged in the interest of justice and equity." 13. This is not what is expected by the Court from the Special Public Prosecutor. When once the Public Prosecutor files an application, he shall assign reasons for his conclusions that it is a fit case for withdrawal. Simply reiterated the words used in the Government Order and stating that he is convinced, cannot be said to be using his discretion or applying his mind. The said satisfaction shall be to his conscious but not because of the orders issued by the Government. The said application filed by the Special Public Prosecutor clearly reveals that he was simply guided by the Government Order in filing the said application under Section 321 Cr.P.C. which is not expected by the Courts. The trial Court has gone in detail in holding that the case against the petitioner cannot be withdrawn on the basis of such an application and rightly dismissed the said application. This Court having considered the entire material on record, is thoroughlysatisfied that the trial Court is justified in dismissing the said application filed by the Special Public Prosecutor under Section 321 Cr.P.C. 14. Accordingly, I see no merit in this revision. However, this order does not preclude the Special Public Prosecutor to file an application afresh detailing his reasons for coming to the conclusion that the case against the petitioner need not be proceeded further and if an application of that nature is filed, it is for the Court to take an independent decision, as to whether the said application shall be allowed or rejected. 15. With the above said observations, this revision is dismissed.