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2015 DIGILAW 1383 (KER)

SIVAPRASAD S. v. STATE OF KERALA

2015-10-05

B.KEMAL PASHA

body2015
ORDER : B. Kemal Pasha, J. The accused in CC No. 3 of 2010 pending before the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram is the petitioner herein. The case was originally registered as VC 2/2000/TVM. After investigation, the Vigilance Department has chosen to file a final report, arraigning the petitioner as the first accused. The allegation against the petitioner is that he, while working as Assistant Director of Agriculture, caused to obtain undue pecuniary advantage of Rs. 7,90,167/- for a particular firm. The sanction for prosecution was accorded by the Government vide order dated 13/10/2009. 2. It seems that, thereafter, proceedings were initiated by the Under Secretary, Vigilance Department, Additional Secretary to Government, Vigilance Department and the Principal Secretary, Home and Vigilance Department for withdrawal of the prosecution under Section 321 Cr.P.C. Annexure-A6 recommendation was prepared and the said file was directed to be circulated to the Chief Minister through the Minister of Home and Vigilance. The recommendation was to the effect that in view of a persuasive precedent in a similar matter, which is Annexure-A1 judgment passed by a learned Single Judge of this Court in Crl MC No. 5308/2004, there could not be a successful prosecution. It was on that ground that the recommendation was made by the aforesaid officers for the withdrawal of the prosecution under Section 321 Cr.P.C. 3. On getting the file, it seems that the Minister for Home and Vigilance has passed the following order, "The petitioner may approach the Trial Court or any Apex Court to seek for relief’s in the light of the precedents vide VC-3/2000/TVM". 4. The learned Senior Counsel for the petitioner has argued that the aforesaid observation and direction made by the Minister for Home and Vigilance is unworkable and the petitioner cannot approach any forum at all, seeking the withdrawal of the case against him by the Government, under Section 321 Cr.P.C. Even though the application under Section 321 Cr.P.C. has to be filed by the Public Prosecutor or Assistant Public Prosecutor, as the case may be, it is evident that to give a direction for the same is solely the prerogative of the Government. In a way, the present relief sought for is nothing but a direction to the Government to invoke the power under Section 321 Cr.P.C. which cannot not be exercised by this Court under Section 482 Cr.P.C.. In a way, the present relief sought for is nothing but a direction to the Government to invoke the power under Section 321 Cr.P.C. which cannot not be exercised by this Court under Section 482 Cr.P.C.. When it is purely the prerogative of the Government, whether the prosecution has to be withdrawn or not, is a question to be decided by the Government. This Court cannot direct the Government once again to look into the matter and pass appropriate orders. It seems that ultimately the Government has decided not to withdraw the prosecution as is evident from Annexure-A6. That is why, the Minister for Home and Vigilance has passed such an order. When the Minister has decided not to grant sanction to withdraw the prosecution under Section 321 Cr.P.C., this Crl MC is devoid of merits, and is only to be dismissed, and I do so. It is made clear that this order will not stand in the way of the petitioner from pursuing appropriate remedies. It is also made clear that this Court has not entered any finding with regard to the merits or otherwise of the case against the petitioner. Dismissed.