Kerala High Court
N. Appukuttan Pillai And Anr. vs State Of Kerala on 18 November, 1998
Equivalent citations: 1999CRILJ965
Author: D. Sreedevi
Bench: D. Sreedevi
ORDER D. Sreedevi, J.
1. Petitioners are accused Nos. 1 and 2 in C.C. No. 20 of 1996 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The Deputy Superintendent of Police, Vigilance, Kollam, had registered Crime No. 1 of 1995 of the Vigilance Police Station, Kollam on 14-3-1995, under Sections 468, 471 and 120B of the Indian Penal Code and also under Section 13(1)(d) read with Section 15 of the Prevention of Corruption Act, 1988, against the petitioners, alleging that the first accused, who was the village Officer of Palliman Village committed forgery and changed his date of birth in his SSLC Book and School Records as 7-11-1115 M.E., while his correct date of birth is 7-1 -1115 ML E. and entered into criminal conspiracy with the second accused, who changed the date of birth of the first accused in his Service Book as 20-6-1940 instead of 23-8-1939, on the basis of the certificate issued from the State Librarian and allowed the first accused to continue in service after his due date of retirement on 31-8-1994 for the purpose of obtaining pecuniary advantage. Annexure-I is the first information report in Crime No. 1 of 1995. Thereafter a charge-sheet was also filed by the Dy. S.P., Vigilance, against the petitioners under Sections 468, 471 and 120B I.P.C. and also under Section 15 of the Prevention of Corruption Act, 1988 under Annexure-II. The Enquiry Commissioner and Special Judge has taken cognisance of the charge as C.C. No. 20 of 1996. The same is pending trial.
2. The prosecution case is that the date of birth of the first accused in Malayalam era is 7-1-1115 M.E., corresponding to 23-8-1939 of the Christian Era. While the first accused was working as Village Assistant in Pajliman Village, he altered his date of birth in Malayalam Era as 7-11-1115, in page No. 2 of his SSLC Book. The first accused had to retire from service on superannuation on 31-8-1994 as his date of birth is 23-8-1939. According to the prosecution, the first accused corrected his date of birth for deriving undue pecuniary gain by continuing in service after his due date of retirement. It is also alleged that the first accused obtained a certificate from the Deputy Librarian, Public Library, Thiruvananthapuram to the effect that Christian Era corresponding to Malayalam Era 7-11-1115 is 20-6-1940. The first accused produced the above certificate to the second accused, who was working as Tahsildar and requested to correct his date of birth in Christian Era as 20-6-1940. It is also alleged that the first accused entered into a criminal conspiracy with the second accused to correct the date of birth. According to the petitioner-first accused, he is not guilty of Annexure-II charge. He states that he has not committed forgery or tampered the date of birth originally entered into in any of the records and there was no conspiracy between accused 1 and 2. While the matter was pending in Court, the Legal Adviser, Vigilance and Anti-corruption Bureau filed an application under Section 321, Cr.P.C., for permission to withdraw from the prosecution under Annexure-IV. But the Court below did not accord sanction to withdraw from the prosecution. Annexure-IV was dismissed by the Court under Annexure-V.
3. According to the learned counsel for the petitioners, the Legal Adviser has acted in good faith after taking into consideration all the materials before him and if those materials are considered by the Court, it could have been seen that the Public Prosecutor has exercised his discretion properly and therefore the dismissal of the application by the Court below is not justified. So the question to be looked into in this case is whether the Public Prosecutor has exercised his discretion in filing the application for withdrawal after taking all the materials before the Court.
4. Annexure-III report was prepared by the Assistant Director of Forensic Science Laboratory, Thiruvananthapuram. This goes to show that the first accused has no hand in making any alteration of his date of birth from 7-1-1115 M.E. to 7-11-1115 M.E. In Annexure-V order, it is stated that on 1-2-1994 and 2-2-1994 the first accused has written letters to the District Collector, Kollam, stating that he has to retire on superannuation on 3-8-1994, taking into his correct date of birth as 7-1-1115 M.E. According to the Legal Adviser, there is no evidence to show that the first and second accused conspired together to commit the offences. The second accused had only recommended to make correction of his date of birth to Christian Era, subject to ratification of the District Collector. The Government ordered departmental enquiry against the second respondent, but subsequently it was dropped as per order dated 28-1-1997. Accused No. 2 was held not guilty by the Government.
5. The Court below did not accord sanction to withdraw the petition. The only question to be looked into is whether the Court is bound to accept the report of the legal adviser.
6. The Supreme Court in Sheon and an Paswan v. State of Bihar AIR 1987 SC 877 : 1987 Cri LJ 793 held, that-
in the judgments rendered by various High Courts, public policy, interests of the administration, in expediency to proceed with the prosecution for reasons of State and paucity of evidence were considered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other cases depending upon the peculiar facts and circumstances of the case in those decisions.
In Ram Naresh Pandey case AIR 1957 SC 389 : 1957 Cri LJ 567 the Supreme Court has outlined the functions of the Court and the public prosecutor. The Supreme Court observed (at page 571 of Cri LJ) :
His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this relating to inquiries and trials by Court.
The above proposition was approved in Sankaranarayanan Nair v. Balakrishnan (1972) 1 SCC 318 : 1972 Cri LJ 301. The Court held as follows (at page 306 of Cri LJ):
In the State of Bihar v. Ram Naresh Pandey AIR 1957 SC 389 : 1957 Cri LJ 567 it was pointed out by this Court that though the section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasonsor purposes.
Chinnappa Reddy, J., has summarised the true legal positions 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, we add political purposes sans Tammary Hall enterprises.
(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 reappreciate 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.
Bhagawathi and Oza JJ., observed, that the paramount consideration must always be the interest of administration of justice.
7. Here, the Public Prosecutor has filed the application on the ground that the prosecution may not be able to produce sufficient evidence to sustain the charge. Here, the question is whether the accused corrected the date of birth. The legal adviser has reported that the accused has not derived any pecuniary advantage by the action alleged against him. To prove criminal conspiracy between accused Nos. 1 and 2, there is no evidence. The Forensic Science Department has reported that the writings do not contain any significant identifying characteristics to arrive at any conclusion regarding the authorship. Thus, there is nothing to show that the correction was made by the first accused. According to the legal adviser, there is no scope for prosecution against the first accused. There is no other evidence to convict the first accused with the alleged correction in the SSLC Book and in the Service Book. The date of birth of the first accused is seen corrected in the admission register of the schools in which the first accused studied. Investigation could not disclose who made the correction. The legal adviser concludes his report with the following statement:
Thus from the facts emerged in the investigation and considering the nature of the evidence in this case, it is not possible to convict the accused. So precious time of the Court need not be wasted for such a trial and also need not waste the economy of the State. It is just and proper to accord sanction to withdraw from the prosecution of the accused to meet the ends of justice and to prompt administration of justice.
In the light of the decision of the Apex Court mentioned above, I feel that this is a fit case in which permission can be given to withdraw from the prosecution. The Court below went wrong in not giving permission to withdraw from prosecution.
In the result, this Crl. M.C. is allowed, setting aside Annexure-V order on Crl. M. P. No. 619 of 1997 in C.C. No. 20 of 1996 of the Enquiry Commissioner and Special Judge's Court, Thiruvananthapuram, giving permission to withdraw from the prosecution of both the petitioners in respect of all the charges against them.