Andhra HC (Pre-Telangana)
K.V.V. Krishna Rao vs The State Of A.P. And Ors., Rep. By Its ... on 10 December, 2002
Equivalent citations: 2003(2)ALT32A, 2003CRILJ2894
ORDER D.S.R. Varma, J.
1. This writ petition is filed to declare the G.O. Rt. No. 1233 Home (Police-F) Department dated 24-5-1996 issued by the 1st respondent-Government and the consequential proceedings in Roc. No. 5081/ 98(C1) dated 3-6-1996 issued by the 3rd respondent -- Collector and District Magistrate, West Godavari, District, as illegal and arbitrary and further to direct the 4th respondent -- Assistant Public Prosecutor to continue the prosecution launched against the 5th respondent and 30 others in Crime No. 59/1994 of Pedapadu Police Station.
2. The facts in brief are that the petitioner is the de facto complainant. He lodged a complaint against 31 persons, complaining offences punishable under Sections 147, 148, 447, 438, 307, 323 read with 506, IPC in Crime No. 59/1994 on the file of Pedapadu Police Station and the same was taken into cognizance by the II Additional Judicial Magistrate of First class, Eluru and numbered as P.R.C. No. 64/1995. Before the matter was committed to the Court of Sessions, the Assistant Public Prosecutor-4th respondent herein, filed a petition under Section 321 of the Cr. P.C., seeking permission of the Court to withdraw from prosecution against the accused. In the said petition, he also gave some other reasons apart from the instructions in the impugned G.O. Accordingly the Court below granted permission and discharged all the accused, except A-10, since he died and the case against him stood abated.
3. Challenging the G.O. Rt. No. 1233, instructing the Assistant Public Prosecutor to withdraw from prosecution, the petitioner who is the de facto complainant, filed this writ petition.
4. The counsel for the petitioner raised following contentions :--
(1) that the 1st respondent-Government has no jurisdiction to issue the impugned G.O. after the charge sheet is filed;
(2) that no reasons were assigned by the Government in the impugned G.O. while instructing the Assistant Public Prosecutor to withdraw from the prosecution of the case;
(3) 4th respondent-Assistant Public Prosecutor did not apply his mind independently while filing the petition under Section 321 of Cr. P.C. for withdrawal of the prosecution;
(4) that the Magistrate also did not give any reasons for granting permission to withdraw from prosecution and;
(5) that before issuing the impugned G.O., no notice has been given to the petitioner.
5. In order to substantiate the above contention, the learned counsel for the petitioner relied on the judgments reported in Rajender Kumar v. State, , Sheonandan Paswan v. State of Bihar, , M. Balakrishna Reddy v. Principal Secretary to Govt., Home Dept., Hyderabad and Abdul Karim v. State of Karnataka, AIR 2001 SC 116 : (2001 Cri LJ 148).
6. On the other hand, the counsel appearing for the 5th respondent i.e., A-1 contended that appropriate Government has power to issue G.O. instructing the Public Prosecutor or the Assistant Public Prosecutor to withdraw from the prosecution and upon such instructions, the P.P. or A.P.P. apart from the said instructions of the G.O. after considering the entire material and only on being satisfied, will file a petition under Section 321 of Cr. P.C. seeking permission of the Court to withdraw from prosecuting the case. He further contended that the 4th respondent-Assistant Public Prosecutor exercising his discretion independently basing on the material available on record, filed the petition under Section 321 of Cr. P.C. Finally he contended that the procedure contemplated under Section 321 of Cr. P.C. has been scrupulously followed and there is no illegality either in issuing the impugned G.O. or granting the permission thereof and there is also no violation of principles of natural justice.
7. In support of his contention, he also relied on the judgments of the Apex Court relied by the counsel for the petitioner in Rajender Kumar's case (cited supra) and Sheo Nandan's case (cited supra). Apart from that he relied on two Constitutional Bench judgments of the Apex Court in Mohd. Mumtaz v. Nandini Satpathy, and Sheo Nandan Paswan v. State of Bihar, .
8. Since the whole controversy revolves around Section 321 of Cr. P.C. and the procedure contemplated thereunder, it is necessary to extract the said section to the extent relevant for better appreciation, as under :--
WITHDRAWAL FROM PROSECUTION :--
The 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 : and, upon such withdrawal.--
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences :
Provided that where such offence.--(i) to (iv) .........................
From a reading of the above Section, the following would emerge :--
(a) the Public Prosecutor or the Assistant Public Prosecutor can move the Court for withdrawal of the case;
(b) the consent of the Court is required;
(c) such application seeking withdrawal of the prosecution, can be filed at any stage of the case before judgment is pronounced.
(d) Such withdrawal can be sought for against a person generally or insofar as one or more offences tried against him.
Of course the above procedure is subject to certain exceptions, which are incorporated under Sub-section (b) of Section 321.
9. In the decision relied on by the counsel for the 5th respondent in Mohd. Mumtaz's case (cited 5 supra) it was observed by the Constitutional Bench of the Apex Court at paragraph No. 4 as under :--
"..........A cursory glance at Section 321 will satisfy anyone that consent can be given for withdrawal from the prosecution of a case, not only when the charge is not framed, but even after the charge is framed and at any time before the judgment."
10. In the said judgment, at paragraph No. 23, it was further observed as under :--
".........Consequently, it follows that even where reliable evidence has been adduced to prove the charges, the Public Prosecutor can seek the consent of the Court to withdraw the prosecution. The Section does not, therefore, lay down that an application for withdrawal of the prosecution should necessarily be made at the earliest stage of the case or only if the evidence is of a weak and infirm nature."
11. In view of the above legal position and also in view of the provisions of Section 321 of Cr. P.C., the first contention of the counsel for the petitioner that the Government has no power to issue G.O. instructing the Public Prosecutor or the Assistant Public Prosecutor to withdraw from prosecution, after the charge-sheet is filed, cannot be accepted and the same is accordingly rejected.
12. Further the Hon'ble Supreme Court in the decision reported in Sheo Nandan Paswan's case (cited 6 supra), summarized the legal position at paragraph No. 44 thus :
1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4. The Government, may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and political purposes sans Tammany Hall enterprise.
6. The Public Prosecutor is an officer of the Court and responsible to the Court.
7. The Court performs a supervisory function in granting its consent to the withdrawal.
8. The Court's duty is not to re-appreciate the grounds, which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard, as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.
We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its "Minister of Justice". Both have a duty to protect the administration of Criminal Justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case."
13. In the above judgment, their Lordships concluding the paragraph No. 45 further observed as under :--
......The judgment of the Public Prosecutor under Section 321 of the Criminal P.C., 1973 cannot be lightly interfered with unless the Court comes to the conclusion that he has not applied his mind or that his decision is not bona fide.
14. A combined reading of the above two Constitutional Bench judgments of the Apex Court (cited 5 and 6 supra) would abundantly make it clear that Public Prosecutor is the Executive Authority and even though there are instructions from the appropriate Government to withdraw from prosecuting the case, he has to apply his mind independently notwithstanding any reasons accorded by Government, if any, before filing a petition under Section 321 of the Cr. P.C. In other words, he is not simply bound by the reasons of the Government. Further it is to be noted that the Hon'ble Supreme Court while summarizing the legal position in this regard, as extracted above, had considered the earlier judgment of the Apex Court in Rajender Kumar's case (cited 1 supra).
15. Coming to the case on hand, the further contentions of the learned counsel for the petitioner is that the Government did not apply its mind and also did not give any reasons in the impugned G.O. for instructing the Public Prosecutor to withdraw from the prosecution and that the Court also did not apply its mind. His further contention is that no notice was given to the petitioner by the Government while issuing the impugned G.O.
16. It is to be noted that Section 321 of Cr. P.C. does not postulate that the Government should assign reasons before instructing the Public Prosecutor to take steps for withdrawal of the prosecution and also no notice to the de facto complainant is contemplated under the said section. What all is intended is that if the Government is of the view that the charge against any person can be withdrawn, it can instruct the Public Prosecutor appropriately. However, just because it was not stated in the provision that the Government should assign reasons or apply its mind before issuing any instructions to the Public Prosecutor, it does not automatically mean that the Government has no reasons or that it did not apply its mind at all for instructing the Public Prosecutor. Such a decision of the Government to instruct Public Prosecutor to file a petition under Section 321 of Cr. P.C. will indubitably be upon a genuine source of information.
16-A. From a reading of the impugned G.O. it is clear that the basis for the Government to decide to withdraw the prosecution is the letter dated 22-2-1996 of the Director General and Inspector General of Police, Andhra Pradesh, Hyderabad. When the letter of the responsible senior police official was referred to, it implies that the Government have considered and applied its mind before issuing the G.O. and that there are justifiable grounds and further the contents of any such letter need not necessarily be reproduced. Therefore, the contention of the counsel for the petitioner that the Government did not assign any reasons or that it did not apply its mind cannot be countenanced.
17. Apropos the other contention that the Assistant Public Prosecutor did not apply his mind before filing the petition under Section 321 of Cr. P.C., it is necessary to look into the said petition.
18. From a reading of the petition filed under Section 321 of Cr. P.C. it is clear that the Assistant Public Prosecutor has applied his mind. In the petition it is stated that there were civil disputes between the prosecution witnesses L.Ws. 1 to 3 and the accused, as regards possession of land at Vallur for which a Civil suit is pending; that there were no injuries on the vital parts of L.W. 2; that the doctor who examined them opined that the injuries on L.Ws. 2 and 3 are simple in nature as they are superficial injuries; that those two persons received injuries in an incident not connected to the dispute between L.W. 1 and A-1 and; that the disputes are only between L.W. 1 and A-1. It is further stated as under :--
"Except L.Ws. 1 to 3 there are no other witnesses to the occurrence, though the alleged offence was committed in open fields and in day light.
Even if the prosecution is proceeded against A-1 to A-31, their case may end in acquittal, as the evidence of L.Ws. 1 to 3 is not trustworthy and story of alleged incident was exaggerated."
19. He further opined that the charge sheet was glorified with ulterior motive of P.W. 1 to settle his civil disputes with A-1 by filing the present case.
20. A reading of the above comments of the Assistant Public Prosecutor makes it amply clear that he has examined the case thoroughly and hence it is difficult to come to the conclusion that he did not apply his mind or that he simply followed the instructions issued by the Government in the impugned G.O. It is also to be noted that the reasons given by the Assistant Public Prosecutor were not referred to in the impugned G.O. Therefore, it can safely be held that the Assistant Public Prosecutor has applied his mind and acted independently.
21. Further when the above reasons are given by the Public Prosecutor, as observed by the Apex Court in Sheo Nandan Paswan's case (cited 6 supra), it is not for the Court to re-appreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution and the only concern of the Court is whether the Public Prosecutor has applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. Further the petitioner has not pressed into service any additional material to substantiate his contention.
22. In view of the discussion in the preceding paragraphs, I am of the view that the Assistant Public Prosecutor has acted independently and the Court has rightly discharged the alleged accused and hence the contention of the counsel for the petitioner in this regard is rejected.
23. The other contention of the counsel for the petitioner is that the petitioner is entitled to notice and since no notice was given before issuing the impugned G.O., the same is liable to be set aside. As already noticed, no notice is contemplated under Section 321 of Cr. P.C. However, it cannot be understood that he cannot challenge the G.O. and it is always open to him to challenge the G.O., provided he could establish that there are gross violations of the conditions prescribed under Section 321 of Cr. P.C. As already pointed out, in the instant case, there are no such violations. Hence, this contention also merits rejection.
24. Before parting with the case, it is necessary to look into the judgments cited by the counsel for the petitioner. In so far as the judgments reported in Rajender Kumar's case (cited 1 supra) and Sheo Nandan's case (cited 2 supra), Their Lordships of the Apex Court in the Constitutional Bench judgments (cited 5 and 6 supra) have considered these judgments and summarized the legal position. Hence, it is not necessary to look into the judgments (cited 1 and 2 supra) once again, though the law laid down in the said judgments is unexceptionable.
25. Coming to the decision reported in M. Balakrishna Reddy's case (cited 3 supra), the facts of the said case reveal that the Public Prosecutor therein simply basing on the instructions issued by the Government filed a petition under Section 321 of Cr. P.C. The learned single Judge, of this Court in the above decision having perused the petition of the Public Prosecutor came to the conclusion that absolutely no reasons are assigned and further found that the Public Prosecutor even did not look into the records made available to him. In those circumstances, the learned single Judge of this Court held that withdrawal of the case by Public Prosecutor under Section 321 of Cr. P.C. without applying his mind is illegal and arbitrary. It was further held that the complainant therein is entitled to challenge the instructions issued by the Government. There cannot be any dispute with this proposition.
26. But in the present case, as already observed, the Public Prosecutor has given sufficient reasons in the petition filed under Section 321 of Cr. P.C. Therefore, this judgment cannot be made applicable to the facts of this case.
27. Coming to the decision reported in Abdul Karim's case (cited 4 supra), the facts of this case also reveal that the Public Prosecutor therein while filing the petition under Section 321 of Cr. P.C. for withdrawing from prosecution, assigned no reasons whatsoever and simply followed the orders of the Government. In such factual background, the Apex Court found that the Public Prosecutor did not act independently as there was no application of mind and held that it is violative of postulates of Section 321 of Cr. P.C.
28. At the cost of repetition, in the present case, the Assistant Public Prosecutor apart from the orders of the Government, had examined the case independently and gave sufficient reasons in the petition filed under Section 321 of Cr. P.C. and hence, it can safely be said that the act of the Assistant Public Prosecutor is perfectly within the four corners of Section 321 of Cr. P.C. and I do not find any reason to interfere either with the impugned G.O. or with the consequential proceedings of the District Collec-tor-3rd respondent dated 3-6-1996.
29. For the foregoing reasons, I pass the order as under :--
30. The writ petition is dismissed. No costs.