Andhra Pradesh High Court - Amravati
Shaik Mastan Vali, Prakasam Dist. vs The State Of A.P.,Home,Guntur Dist., 4 ... on 22 August, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION (PIL) No. 191 of 2017
ORDER:(per Hon'ble the Acting Chief Justice C.Praveen Kumar)
1) The present Writ Petition, in the form of Public Interest Litigation, came to be filed by one Shaik Mastan Vali, Ex-Service Man seeking issuance of a writ of mandamus for quashing G.O.Rt.No.379 dated 09.05.2017 and further to direct the court of Additional Judicial First Class Magistrate, Giddalur to proceed in P.R.C.No.37 of 2016 in accordance with law.
2) The facts in issue are as under:-
The 5th respondent herein was a sitting MLA of Giddalur Assembly Constituency, who after getting himself elected from YSR Congress party, joined TDP in July 2016. A case in Cr.No.152 of 2014 came to be registered against the 5th respondent, his brother and followers basing on a report given by a home-guard for the offences punishable under Sections 120-B, 143, 341, 435 read with Section 149 IPC and Section 4 of the Prevention of Damage of Public Property Act. The Police investigated into the matter and filed a charge-sheet, which was taken on file as P.R.C.No.37 of 2016 before the Court of I Additional Judicial First Class Magistrate, Giddaluru. While things stood thus, G.O.Rt.No.379 dated 09.05.2017 came to be issued by the Government of Andhra Pradesh recommending 2 withdrawal of prosecution against the 5th respondent and 20 others in Cr.No.152 of 2014. Challenging the same, the present Public Interest Litigation came to be filed.
3) The present Writ Petition came to be filed questioning the authority of the first respondent viz., the State of Andhra Pradesh represented by its Principal Secretary to issue the said G.O. under Section 321 Cr.P.C. It is pleaded that the power under Section 321 Cr.P.C., should be confined only to such cases, where no evidence could be gathered by the prosecution with reference to the facts of such cases. It is further stated that the impugned G.O. is not disclosing any reasons for its issuance. Since the criminal prosecution cannot be scuttled down in such a manner, by the persons in authority, he pleads that the action of the first respondent in issuing the said G.O. is illegal, improper and incorrect.
4) Learned Government Pleader placed on record material to show that the said G.O., came to be issued in accordance with the procedure established by law. While disputing the averments made in the affidavit filed in support of the writ petition, it is pleaded that only after being satisfied with the material available on record, instructions were given to the Public Prosecutor to make an application for withdrawal of prosecution and that too only after he being satisfied with the reasons given therein.3
5) Material placed before the Court would show that out of the three crimes registered against the 5th respondent, the petitioner is not an accused in P.R.C.No.36 of 2016 and C.C.No.414 of 2016, which are pending before the Court of Additional Judicial First Class Magistrate Court, Giddaluru.
Therefore, the question of withdrawal of prosecution against the 5th respondent in respect of those two crimes would not arise. Insofar as Cr.No.152 of 2014 is concerned, the same is pending as P.R.C.No.37 of 2016, in which he is shown as first accused. Basing on the material available on record, it was decided by the Government that it is a fit case for filing an application for withdrawal of prosecution. The Superintendent of Police in his report to the Director General of Police dated 24.01.2017 observed that on a perusal of C.D. file it is evident that the material collected is not cogent and convincing to sustain a conviction against the 5th respondent and other accused, even if the trial is allowed to continue. It was opined that basing on material available on record, the accused could not be found guilty beyond reasonable doubt. It was further observed that the Assistant Public Prosecutor also opined that the proposal could be given for the withdrawal of prosecution against R-5. Hence, the Superintendent of Police felt that it is to be a fit case for ordering withdrawal. Basing on the letter given by the Superintendent of Police, the Director General of Police addressed a letter to the Principal Secretary to the Government expressing his opinion about the case. This is the material 4 available on record. Even the counsel for the writ petitioner is not able to show as to what happened thereafter.
6) Section 321 Cr.P.C., speaks about withdrawal of prosecution. It states that the Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person, either generally or in respect of any one or more of the offences for which he is tried. Mere issuance of G.O., for withdrawal of prosecution does not automatically lead to withdrawal of the case. Various procedural aspects are required to be followed from stage to stage before seeking withdrawal of prosecution. It is well established principle of law that the action of the Government from withdrawal of the prosecution is only to request the Public Prosecutor to exercise such power. Discretion to take a decision is on the Public Prosecutor concerned with the case and the court has the power either to accept or reject such a request (see D.Bharathi v. State of Andhra Pradesh and others (2009 (3) ALT 209)
7) While filing an application seeking withdrawal of the prosecution, the Public Prosecutor must apply his mind, independent of the external pressure and decide whether it is a fit case for withdrawal of prosecution. Recommendations by the authorities concerned shall not be the basis for the Public Prosecutor to file an application seeking to withdraw the case. 5 He cannot act like a post box in filing applications on the instructions issued by the Government. If that is done, it cannot constitute a valid exercise of executive functions enjoined on him. Therefore, Public Prosecutor who files an application should be satisfied with the reasons given by the Government and only after he being satisfied with the reasons given, he shall make an application giving reasons in his application as to why he intends to make an application seeking withdrawal of the prosecution. On an application made giving reasons it is for the Court concerned to decide as to whether the case warrants invocation of Section 321 Cr.P.C. Absolutely there is no material on record to show as to whether such an application is filed by the Public Prosecutor for withdrawal of the case, and if so, whether the Court acted on it. Therefore, the apprehension of the learned counsel for the petitioner that the very issuance of G.O., would terminate the proceedings is incorrect.
8) One of the arguments advanced by the learned counsel for the petitioner is that the Government has no authority to issue the said G.O. We are not in acceptance of the same. The Code itself contemplates issuance of such G.O., by the Government, for withdrawal of the case and thereafter the procedure prescribed has to be followed. Hence, the argument advanced that the authority has no power to issue the G.O., cannot be accepted.
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9) Since no material has been placed before this Court as to whether any application has been filed by the Public Prosecutor applying his mind to facts in issue, pursuant to the G.O. issued and also as to whether any order has been passed therein, the judgment of the Apex Court in Abdul Wahab K. v. State of Kerala and others (Crl.Appeal No.1047 of 2018 arising out of S.L.P.(Crl.)No.10703 of 2013 decided on 13.09.2018) relied upon by the petitioner may not come to his rescue.
10) Viewed from any angle, we feel that there are no merits in the petition and the same in our view appears to be premature. Accordingly, the writ petition is rejected giving liberty to the petitioner to avail the remedy available under the Code of Criminal Procedure, in case of any application being fuiled under Section 321 Cr.P.C., and an order thereon has been passed.
11) No order as to costs. Miscellaneous Petitions pending if any in this Writ Petition shall stand closed.
__________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR ______________________________ JUSTICE M. SATYANARAYANA MURTHY Dated:22.08.2019 GM