Telangana High Court
Sri Sabavath Shivalal vs State Of A.P., on 16 June, 2023
1 RRN,J
Crl. RC No.971 of 2014
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
CRIMINAL REVISION CASE No. 971 OF 2014
ORDER:
This Criminal Revision Case is filed under Sections 397 and 401 of Code of the Criminal Procedure (for short, 'Cr.P.C'), aggrieved by the order dated 17.002.2014 passed in Crl.M.P No. 406 of 2013 in C.C No.38 of 2013 on the file of the I Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Courts , Hyderabad (hereinafter referred to as 'the Court below'), wherein and whereunder, the learned Judge refused to grant permission to the prosecution to withdraw the case of prosecution pending against the revision petitioner/Accused Officer in the exercise of the power under Section 321 of Cr.P.C.
2. The brief facts of the case are as follows:
The revision petitioner/accused officer who worked as the Assitant Engineer and the Deputy Executive Engineer of the Panchayat Raj Department was charged for the offences punishable under sections 13(1)(e) r/w. sec. 13(2) of the Prevention of Corruption Act, 1988 with the allegation that he 2 RRN,J Crl. RC No.971 of 2014 owned and possessed assets worth Rs.48,74,516/- as against the likely savings of Rs.20,19,680/- being the difference between his income and different sources and the probable expenditure incurred by him and that he amassed huge assets and by deducting the likely savings from the total worth of his assets, an amount of Rs.28,54,836/- was found disproportionate to income from the known sources. After obtaining due permission from the Government vide G.O.Ms.No.278 dt.17.09.2009, a charge sheet was laid against the revision petitioner/accused officer and during the pendency of the case, the prosecution received a Memo No. 28736/Vig.I/2007-3, dt.24.08.2010 issued by the Government of Andhra Pradesh, Panchayat Raj and Rural Development (VIG.II) Department, stating that the Government reconsidered its decision and decided to entrust the case of the revision petitioner for a departmental enquiry instead of criminal prosecution. Based on such memo, the Special Public Prosecutor inter alia filed a petition under section 321 of Cr.P.C before the Court below, seeking permission to withdraw from prosecuting the revision petitioner/accused officer.
3 RRN,J Crl. RC No.971 of 2014 Upon hearing the Special Public Prosecutor and the revision petitioner has no objection to such petition, the Court below dismissed the petition with an observation that the Court cannot mechanically accord permission to the prosecution to withdraw from prosecution and that the Special Public Prosecutor failed to show any reason or cause to satisfy the Court to accord such permission. Challenging the same, the present revision is preferred.
3. Heard learned Counsel for the revision petitioner/accused officer and learned Special Public Prosecutor for ACB Cases appearing for the respondent/complaint.
4. Learned Counsel for the revision petitioner/accused officer had contended that the Court below erred in dismissing the petition filed by the Special Public Prosecutor without considering the plain and true sense of section 321 of Cr.P.C. He further contended that the Court below failed to consider the fact that the Government issued a Memo, having inclined to initiate departmental proceedings against the revision petitioner/accused officer instead of criminal prosecution and based on such memo and other aspects, the Special Public 4 RRN,J Crl. RC No.971 of 2014 Prosecutor applied his independent mind and filed the petition for withdrawal from prosecution. He also contended that the discretion of the Courts while deciding a petition under section 321 of Cr.P.C is very minimal and the petition ought to have been allowed. Accordingly, prayed to allow the present criminal revision case by setting aside the impugned order.
5. On the other hand, the learned Special Public Prosecutor for ACB cases, appearing for the respondent/complainant had contended that the amount involved is a huge amount i.e about Rs.28,00,000/- and the Special Public Prosecutor before the Court below cannot be permitted to withdraw from prosecution. He further contended that the Court below was justified in dismissing the petition as there were no sufficient reasons assigned in filing the petition for withdrawal from the prosecution. Accordingly, prayed to dismiss the present criminal revision case.
6. After hearing the both sides, perusing the record, it is essential to refer to Section 321 of Cr.P.C, and the same is extracted and reproduced hereunder:
5 RRN,J Crl. RC No.971 of 2014 "Section 321 of Cr.P.C.: 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: Provided that where such offence--
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."
7. As seen from the above, Section 321 of Cr.P.C enables the Public Prosecutor who is in charge of the case, to withdraw from the prosecution at any stage of the case before the judgment, with the consent of the Court for such withdrawal. It 6 RRN,J Crl. RC No.971 of 2014 would mean that the Public Prosecutor can be permitted to withdraw from the prosecution in either the presence or absence of the evidence against any person accused of an offence.
8. However, a cautious approach is to be taken by the Courts while giving or refusing consent, to the Public Prosecutor, to withdraw from prosecution. The Court shall satisfy itself that the Public Prosecutor has filed the petition seeking withdrawal from prosecution, bonafide, and not to serve any ulterior or illegitimate purpose.
9. Learned Counsel for the revision petitioner/accused officer relied upon the following decisions:
i. Sheonandan Paswan V. State of Bihar and ors.
(1987) 1 SCC 288.
ii. Rajender Kumar Jain V. State through Special Police Establishment and ors. (1980) 3 SCC 435. iii. Anees Mohiuddin Vs. State of A.P (Crl.R.C Nos. 1296 and 1297 of 2009 decided on 17.11.2021 - TSHC) On perusing the above cases, it is seen that the common question involved in the matters was under what circumstances the Public Prosecutor could withdraw from the prosecution. It is observed from the ratio of the Hon'ble Supreme Court that the 7 RRN,J Crl. RC No.971 of 2014 withdrawal from prosecution is an executive function of the Public Prosecutor and the Court performs a supervisory function in granting its consent to the withdrawal. Further, the government may suggest to the Public Prosecutor that he may withdraw from the prosecution by none can compel him to do so. The most important ingredient for such withdrawal is that the Public Prosecutor shall apply his independent mind and assess whether a case is fit for withdrawal or not.
10. Learned Counsel for the respondent/State relied on the following decisions:
i. Sheonandan Paswan V. State of Bihar and Ors.
(1983) 1 SCC 438.
ii. Balwant Singh and Ors. V. State of Bihar (AIR 1977 SC 2265).
iii. V.L.S Finance Limited V. S.P Gupta and anr.
(2016) 3 SCC 736.
The first decision relied upon by the respondent, was decided by a Full bench of the Hon'ble Apex Court, deciding 2-1 by upholding the validity of withdrawal from prosecution on the petition filed under section 321 of Cr.P.C wherein the matter involved serious political issues viz. a Chief Minister being accused of an offence. In the present case, there is no political motive or any material; and no such observation is made by the 8 RRN,J Crl. RC No.971 of 2014 Court below that the Public Prosecutor is influenced by the Government in moving the petition for withdrawal from prosecution and thus, the 1st decision relied by the Counsel for the respondent is of no avail.
The second decision relied upon by him is, on the face of it, not applicable to the case at hand as it is seen that the Public Prosecutor had filed a petition for withdrawal from prosecution under section 321 of Cr.P.C upon the order of the Magistrate to do so. Admittedly, there is no such exercise in the case at hand.
The third decision relied upon by him is a peculiar case wherein the petition filed by the Public Prosecutor for withdrawal under section 321 of Cr.P.C was itself withdrawn by the Public Prosecutor, meaning, the prosecution was interested in pursuing the case against the accused. The accused challenged such withdrawal of the petition filed for withdrawal from prosecution and the same was dismissed. As the facts of this case do not in any way relate to that of the present case, even this decision relied on by the Counsel for the respondent is of no avail.
9 RRN,J Crl. RC No.971 of 2014
11. It is observed from the impugned order that the Court below stated that the Special Public Prosecutor did not assign special reasons or justify the purpose of the Memo issued by the Government in considering to initiating departmental proceedings. Though the Court below referred to various decisions, it did not properly apply the ratio of the Hon'ble Supreme Court viz. that it is sufficient if the Public Prosecutor applies his own mind and there is no ulterior motive. The Court below did not assign any apprehension that there was possibly an ulterior motive but has casually stated that the reasons were not satisfying.
12. In the case at hand, the charges were framed and while the subsequent proceedings were going on, the Special Public Prosecutor filed the petition under Section 321 of Cr.P.C. It is appropriate to refer to the contents of the petition and the relevant portion is extracted and produced hereunder:
"..The Prosecution further humbly submitted that as the matter stood thus, the Government has reviewed the case and decided to entrust the case to TDP (Tribunal for disciplinary Proceedings, AP, Hyderbad). As per the orders in Memo NO 28736/Vig.I/2007-03 of Govt. Of Andhra Pradesh, Panchayathiraj and Rural Development (VIG.I) dt.28.08.2010 The govt. Memo is filed along with petition for consideration.
10 RRN,J Crl. RC No.971 of 2014 Further it is humbly submitted that on perusal the Govt order and material evidence available on record and on application of my mind independently and further reasons recorded by the Govt., I am satisfied that it is a fit case for withdrawn from the procession in accordance with the settled principles of law as laid down by the Hon'ble Supreme Court.."
13. It is to be kept in mind that the action of the government in issuing the Memo intending to withdraw from prosecution and initiating Tribunal for Disciplinary Proceedings and the action of the Special Public Prosecutor in filing a petition under section 321 of Cr.P.C for withdrawal from prosecution, in no way attracts any illegality or infirmity as they have not decided to leave the revision petitioner/accused officer to the open but have still kept in mind their responsibility in conducting the enquiry. The Court below ought to have considered all the above discussed aspects and consented to withdrawal from prosecution. Hence, the criminal revision case deserves to be allowed and the impugned order is not sustainable in law and is liable to be set aside.
14. Accordingly, the Criminal Revision Case is allowed. The order dated 17.02.2014 passed in Crl.M.P No. 406 of 2013 in C.C No.38 of 2013 on the file of the I Additional Special Judge for 11 RRN,J Crl. RC No.971 of 2014 SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Courts, Hyderabad is hereby set aside and the Special Public Prosecutor is permitted to withdraw the case of the prosecution against the revision petitioner/accused officer in the aforesaid case.
As a sequel thereto, miscellaneous applications, if any, pending in this appeal, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 16th day of June 2023 BDR