Supreme Court - Daily Orders
Name Dasarath vs State Of Andhra Pradesh on 31 January, 2014
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.299 OF 2014
(Arising out of SLP(CRL.)No.5615 OF 2013)
NAME DASARATH .......APPELLANT
VERSUS
STATE OF ANDHRA PRADESH ......RESPONDENT
O R D E R
Delay condoned.
Leave granted.
The appellant worked as an Assistant Excise Superintendent,
Excise Superintendent, Assistant Commissioner of Prohibition and Excise and
Deputy Commissioner of Prohibition and Excise, Government of Andhra
Pradesh. After the investigation, a chargesheet was filed against him
under Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, 1988. Thereafter, by an order dated 04.02.2009, the
Government of Andhra Pradesh passed an order for withdrawal of the
prosecution against the appellant and accordingly instructed the Public
Prosecutor to file a petition before the Court of the Principal Special
Judge for SPE and ACB cases, Hyderabad under Section 321 Crl.P.C. for
withdrawal of the prosecution. Pursuant to the said order, the Public
Prosecutor filed a petition for withdrawal under Section 321 Crl.P.C. but
the Principal Special Judge for SPE and ACB cases, Hyderabad dismissed the
petition for withdrawal by a lengthy order dated 10.01.2011. Aggrieved by
the order of the Special Judge, the appellant filed Criminal Revision Case
No.178/2011 before the High Court but by the impugned order, the High Court
has dismissed the Criminal Revision. Aggrieved by the impugned order, the
appellant has filed this appeal by way of special leave under Article 136
of the Constitution.
We have gone through the order of the Trial Court and the
impugned order of the High Court and find that the Trial Court and the High
Court have not correctly appreciated the law laid down by this Court in
various decisions particularly in paragraphs 69, 70 and 71 of the majority
judgment delivered by Khalid, J. in Sheo Nandan Paswan vs. State of Bihar
and others as reported in AIR 1987 SC 877 at pages 914, 915 and 916 of the
AIR, the relevant portions of which are quoted hereinbelow:
"Section 321 reads as follows:
"321. Withdrawal from prosecution--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; 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." (Proviso omitted)
This Section enables the Public prosecutor, in charge of the case to
withdraw from the prosecution of any person at any time before the
Judgment is pronounced, but this application for withdrawal has to get
the consent of the Court and if the Court gives consent for such
withdrawal the accused will be discharged if no charge has been framed
or acquitted if charge has been
framed or where no such charge is required to be framed. It clothes
the public prosecutor to withdraw from the prosecution of any person,
accused of an offence both when no evidence is taken or even if entire
evidence has been taken. The outer limit for the exercise of this
power is "at any time before the Judgment is pronounced".
70. The Section gives no indication as to the grounds on which the
Public Prosecutor may make the application, or the considerations on
which the Court is to grant its consent. The initiative is that of the
Public Prosecutor and what the Court has to do is only to give its
consent and not to determine any matter judicially. The judicial
function implicit in the exercise of the judicial discretion for
granting the consent would normally mean that the Court has to satisfy
itself that the executive function of the Public Prosecutor has not
been improperly exercised, or that it is not an attempt to interfere
with the normal course of justice for illegitimate reasons or
purposes.
71. The Court’s function is to give consent. This section does not
obligate the Court to record reasons before consent is given. However,
I should not be taken to hold that consent of the Court is a matter of
course. When the Public Prosecutor makes the application for
withdrawal after taking into consideration all the materials before
him, the Court exercises its judicial discretion by considering such
materials and on such consideration, either gives consent or declines
consent. The section should not be construed to mean that the Court
has to give a detailed reasoned order when it gives consent. If on a
reading of the order giving consent, a higher Court is satisfied that
such consent was given on an overall consideration of the materials
available, the order giving consent has necessarily to be upheld."
We accordingly allow the appeal, set aside the order of the
Trial Court and the impugned order of the High Court and remand the matter
to the Trial Court for fresh consideration of the petition for withdrawal
of prosecution against the appellant under Section 321 Crl.P.C. in the
light of the judgments of this Court and in particular the majority
judgment of the Constitution Bench of this Court in Sheo Nandan Paswan vs.
State of Bihar and others quoted above.
...............................J.
(A.K. PATNAIK)
...............................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
JANUARY 31, 2014.
ITEM NO.43 COURT NO.5 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).5615/2013
(From the judgement and order dated 24/01/2012 in CRLRC No.178/2011 of The
HIGH COURT OF A.P AT HYDERABAD)
NAME DASARATH Petitioner(s)
VERSUS
STATE OF ANDHRA PRADESH Respondent(s)
(With appln(s) for c/delay in filing SLP and stay and office report )
Date: 31/01/2014 This Petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE A.K. PATNAIK
HON’BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
For Petitioner(s) Mr.B.Venkata Ratnam, Adv.
Mr. B. Ramana Murthy, Adv.
For Respondent(s) Mr.Mayur R.Shah, Adv.
Mr. D. Mahesh Babu, Adv.
Mr.Amit K.Nair, Adv.
Mr.Amjid Maqbool, Adv.
Mr.Aditya Jain, Adv.
Ms.Suchitra H., Adv.
UPON hearing counsel the Court made the following
O R D E R
Delay condoned.
Leave granted.
The appeal is allowed in terms of the signed order. (Satish K.Yadav) (Sharda Kapoor) Court Master Court Master ( Signed order is placed on the file )