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2014 DIGILAW 221 (ALL)

Panna Lal v. State of U. P.

2014-01-17

BHARAT BHUSHAN

body2014
Bharat Bhushan,J. This criminal revision is directed against the order dated 17.7.2009 passed by Special Judge (Prevention of Corruption Act) Varanasi in Special Trial No. 6/2003 (State Vs. Panna Lal) under Sections 7/13 (2) and 13 (1) (Prevention of Corruption Act) 1988 ( in short Corruption Act) in Case Crime No. 240 of 2001, P.S. Sadat, district Ghazipur whereby the application under Section 321 Cr.P.C. moved by Assistant District Government Counsel (Criminal) on behalf of State for withdrawal of criminal prosecution pursuant to the Government Order No. 639/VII-Nyay-5-2008-290 WC/2007 dated 25.2.2009 has been rejected by the court. 2. Factual matrix of the case is that one Ganesh Yadav wanted to obtain loan of Rs.25,000/- from Regional Gramin Bank, branch Modhiya, Ghazipur in a scheme. The revisionist/accused Panna Lal was a Branch Manager of that bank. He negotiated a bribe of Rs.1,000/- (One Thousand Only) for advancing the loan of Rs. 25,000/-. Complainant made a complaint to the Superintendent of Police (Vigilance) Varanasi Sector who laid a trap. Revisionist was caught redhanded on 22.10.2001 during the delivery of bribe money. Pursuant to the investigation and sanction, a charge-sheet was submitted but suddenly during the course of arguments on framing of charges, prosecution moved Application No. 40 Kha (Supra) on 11.5.2009 for withdrawal of criminal prosecution under Section 321 Cr.P.C. Both accused and prosecutor supported the withdrawal of criminal case. 3. The trial court held that veracity and credibility of evidence can only be tested during the course of trial. The allegations under Corruption Act are offences in special category and normal standard for withdrawal of cases should not be applied for cases under the Corruption Act. No public interest was visible to the trial court and therefore, the trial court rejected the application. Aggrieved, accused Panna Lal has preferred this criminal revision. 4. Despite revision of the list, none appeared on behalf of revisionist. Revision is listed peremptorily, therefore, this Court is constrained to decide this criminal revision without the assistance of counsel for revisionist. In any case the application for withdrawal of criminal prosecution was moved by State and Sri Fahim Ahmad learned A.G.A. is present and hence, in view of Section 403 Cr.P.C., this criminal revision is being disposed of with the help of learned A.G.A. 5. In any case the application for withdrawal of criminal prosecution was moved by State and Sri Fahim Ahmad learned A.G.A. is present and hence, in view of Section 403 Cr.P.C., this criminal revision is being disposed of with the help of learned A.G.A. 5. The instant revision reveals that it has been filed primarily on the ground that the complainant Ganesh Yadav has died after filing affidavit in support of revisionist on 20.3.2003; that there was no sufficient evidence on record against the revisionist; and observations of the trial court that no case of public interest is made out is misplaced. 6. A bare perusal of Section 321 Cr.P.C. would show that State does not have unfettered right of withdrawal from prosecution. Court is not silent spectator as far as withdrawal proceedings are concerned. Section 321 itself entails that public prosecutor or assistant public prosecutor in-charge of a case may, with the consent of the Court can withdraw from the prosecution, meaning thereby that the consent of the court is necessary for such withdrawal. It is duty of the Court to satisfy itself that the executive function of the public prosecutor has been properly exercised or that it is not attempt to interfere with the normal course of justice for illegitimate reasons or purposes. 7. In Sheonandan Paswan Vs. State of Bihar (1983) 1 SCC 438 ,, the Hon'ble Supreme court has held that while considering the application moved by the public prosecutor, the court has to see that the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law. 8. In Mahmadhusen Abdulrahim Kalota Shaikh (2) (2009) 2 SCC 1 , Supreme Court held that Section 321 Cr.P.C. is a codified version of judicial review. It ensures that the judiciary makes the final decision by approving or disapproving the decision of Public Prosecutor. In the aforesaid case the Apex Court has held that the final decision rests with the judge as far as application under Section 321 Cr.P.C. is concerned. 9. A full Bench of this Court in Ms. Ranjana Agnihotri and others (PIL) Vs. Union of India (Misc. Bench No. 4683/2013) has held that the State Government can issue Government Orders for withdrawal of cases under Section 321 Cr.P.C. but such instructions or orders shall not be binding on public prosecutor. 9. A full Bench of this Court in Ms. Ranjana Agnihotri and others (PIL) Vs. Union of India (Misc. Bench No. 4683/2013) has held that the State Government can issue Government Orders for withdrawal of cases under Section 321 Cr.P.C. but such instructions or orders shall not be binding on public prosecutor. The public prosecutor has to record his own satisfaction before moving an application for withdrawal from the prosecution. Four questions were referred to full Bench and they have been answered thus: ANSWER TO QUESTION NO.1 The Government can issue an order or instruction for withdrawal from prosecution without there being request from the Public Prosecutor Incharge of the case, subject to the rider that the Public Prosecutor shall apply his/her independent mind and record satisfaction before moving an application for withdrawal from prosecution (supra). ANSWER TO QUESTION NO.2 The prosecution cannot be withdrawn without assigning reason, may be precisely. If an application is moved for withdrawal from prosecution in a case relating to terrorism and waging of war against the country, special and specific reason has to be assigned keeping in view the discussion, made in the body of judgment (supra). ANSWER TO QUESTION NO.3 Prosecution under Central Acts where with regard to the offences, executive power of the Union extends, prosecution cannot be withdrawn without permission of the Central Government (supra). For offences under Unlawful Activities (Prevention) Act, 1967, Explosive Substances Act, 1908 and Arms Act, 1959 etc and the offences falling in Chapter VI of Indian Penal Code or alike offences the executive power of the Union of India extends, hence permission from the Central Government with regard to withdrawal of prosecution under Section 321 CrPC shall be necessary. ANSWER TO QUESTION NO.4 State Government has got power to issue instruction or pass order even after sanction for prosecution has been given in a pending criminal case, subject to condition that the Prosecuting Officer has to take independent decision with due satisfaction in accordance with law on his own, before moving the application for withdrawal from prosecution in the trial court. 10. The aforesaid decision has held that State Government is empowered to issue instructions for withdrawal from prosecution without there being request from the public Prosecutor in-charge of the case but public prosecutor is required to apply his/her independent mind and record satisfaction before moving application for withdrawal from prosecution. 10. The aforesaid decision has held that State Government is empowered to issue instructions for withdrawal from prosecution without there being request from the public Prosecutor in-charge of the case but public prosecutor is required to apply his/her independent mind and record satisfaction before moving application for withdrawal from prosecution. Full Bench has further held that prosecution under Central Acts with regard to the offences where executive powers of the Union extends, cannot be withdrawn without prior permission of the Central Government. 11. Coming back to the facts of the present case, it is apparent that certain directions were issued by the State Government for withdrawal of the prosecution. The letter written by the Special Secretary does not disclose even a single reason for withdrawal from the prosecution. It is also apparent that prosecutor has not recorded its own independent satisfaction before moving the application for withdrawal of case under Corruption Act. Insufficiency of evidence or lack of credibility of available evidence by itself would not be an appropriate ground for withdrawal of case for the simple reason that these can only be tested during the course of trial as concluded by the trial judge. A direction was issued by the State Government without assigning any reason for withdrawal of case and an application was moved by the prosecution before trial court without assigning any reason and without recording his own independent satisfaction. 12. I have carefully examined all material available on record. There is no illegality, impropriety and jurisdictional error as far as impugned order of trial court is concerned. This Court enjoys limited power as far as revisional jurisdiction is concerned. It can only interfere if the impugned judgment is either illegal, irregular, perverse or suffers from jurisdictional error. No such ground is available in the instant case. 13. Considering all facts and circumstances, this criminal revision is liable to be dismissed and is, accordingly, dismissed. 14. Let a copy of this order be sent to learned trial judge for concluding the pending trial expeditiously, preferably, within 9 months. _______________