Madras High Court
R.Kanniappan vs Perumal on 8 January, 2016
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.01.2016
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl.R.C.No. 777 of 2011
R.Kanniappan .. Petitioner
vs.
1. Perumal
2. State represented by
Inspector of Police,
C.C.I.W/C.I.D. Tiruvannamalai P.S
Tiruvannamalai. .. Respondents
Prayer: Criminal Revision filed under section 397 and 401 Cr.P.C. to call for the records against the judgment of learned Additional District and Sessions Judge (Fast Track Court), Vellore, in C.R.P.No.30 of 2007, passed on 22.08.2007 and to set aside the same.
For Petitioner : Mr.P.Mani
For Respondents : Mr.J.C.Durai Raj for R1
Mr.C.Iyyapparaj
Government Advocate [Crl.side]
*****
O R D E R
This revision arises against the judgment of learned Additional District and Sessions Judge (Fast Track Court), Vellore, passed in C.R.P.No.30 of 2007, on 22.08.2007.
2. The case of the prosecution is that the accused worked in Kilkodungalur Handloom Co-operative Society during the period 1996 to 2001. The allegation is that the accused caused deficit of yarn for Rs.14,22,371.30, misappropriated sums of Rs.1,99,201.60/- and Rs.4,00,000/- allotted to the members under Welfare scheme and thereby committed offences under Section 409 r/w 109 IPC. Case was registered against the petitioner and others and on completion of investigation and filing of charge sheet, were to be tried as separate Calendar Year Cases. First accused in the case has filed C.R.P.No.30 of 2007 in C.M.P.No.1466 of 2004 in C.C.No.3 of 2004 seeking discharge and the same came to be allowed under orders dated 22.08.2007. There against, petitioner/third party has filed the present revision.
3. Heard learned counsel for petitioner, learned counsel for first respondent and learned Government Advocate [Crl.side] for second respondent.
4. Though learned counsel for petitioner seeks to argue the present revision, the same is to be dismissed as not maintainable. This is a revision moved by a third party against the allowance of a discharge petition moved by the first accused. Learned counsel placed before this court a decision of the Apex Court in V.S.Achuthanandan vs. R.Balakrishna Pillai and Others, 2011 AIR SCW 1400. Paragraphs 45 and 46 therein reads as follows:
45. In our case, certain special features exist. Though we discussed earlier, it is apt to quote once again. During the pendency of the trial before the special Judge, an application for withdrawal of the prosecution only against G.Gopalakrishna Pillai-accused No.5 was made by the Special Public Prosecutor on 24.08.1992 under Section 321 Cr.P.C. which was registered as Criminal Appeal No. 79 of 1992 in CC No. 1 of 1991. The main ground for such withdrawal was that with the available material successful prosecution against G.Gopalakrishna Pillai - accused No.5 cannot be launched, hence, the trial against him will be unnecessary and the State also is of that opinion that the prosecution of A-5 may not be sustainable. With this information, the Special Public Prosecutor requested that by virtue of provisions contained in Section 321 of the CrP.C, necessary consent may be granted to withdraw the prosecution against the 5th accused - G.Gopalkrishna Pillai and the said accused may be discharged. The Special Judge considered the issue at length and after analyzing the entire material and finding that there are enough materials to proceed against A-5 refused to give consent for withdrawal. This was taken up by way of revision before the High Court. The High Court set aside the aforesaid order passed by the Special Judge in the revision filed by the State of Kerala represented by the Superintendent of Police. The said order of the High Court was challenged by the present appellant namely, V.S. Achuthanandan, to this Court by way of special leave petition. After granting leave, the said special leave petition was converted into Criminal Appeal No. 122 of 1994. After adverting to the elaborate reasonings of the special Judge and the conclusion of the High Court, this Court concluded that "there was no ground available to the High Court to set aside the well reasoned and justified order of the learned Special Judge rejecting the application of the Special Public Prosecutor and declining to give consent for withdrawal of prosecution. We may also add that there is nothing in the impugned order of the High Court which provides any legal basis for interfering with the aforesaid order made by the Special Judge. The High Court's order must obviously be set aside." By setting aside the order of the High Court, this Court restored the order of the Special Judge and declined to give consent for withdrawal of the prosecution and permitted the Special Judge to proceed further. It is not in dispute that when the very same appellant, namely, V.S. Achuthanandan filed special leave petition and later leave was granted, the very same respondent-accused parties in the said appeal did not raise any objection as to the maintainability of the appeal at the instance of V.S. Achuthanandan. Further though the State has not filed any appeal against the impugned order of acquittal by the High Court being arrayed as one of the respondents reported by a senior counsel to highlight its stand, in fact, Mr. R.S. Sodhi, learned senior counsel for the State highlighted and supported the ultimate conviction and sentence imposed by the Special Judge and informed this Court that if this Court permits, they are ready to file an appeal with an application for condonation of delay. While appreciating the prayer made by Mr. R.S. Sodhi, we are not inclined to entertain such request at this stage. However, the fact remains that taking note of the importance of the issue, allegations against the Minister and higher officials of the Board in respect of award of contract with the ulterior motive, the appellant approached this Court on earlier occasion when the State wanted to close the prosecution against all the accused including the Minister based on the order of the High Court in respect of G. Gopalakrishna Pillai, A-5. Further when the very same appellant filed special leave petition before this Court and later leave was granted by this Court neither of these respondents raised any objection as to the maintainability of the petition. On the other hand, a Bench of three Judges accepted the appellant's claim and set aside the order of the High Court based on which the Special Judge proceeded further and ultimately convicted and sentenced A-1, A-3 and A-6. In view of these factual details, learned senior counsel for the respondents-accused were not serious in projecting the issue relating to maintainability as their first objection. We hold that the decision in NCW's case (supra) which was disposed of at the special leave petition stage is not applicable to the case on hand.
46. For the same reasons, the decision of this Court in Lalu Prasad Yadav & Anr. Vs. State of Bihar & Anr., (2010) 5 SCC 1 is also not applicable to the case on hand since in the said decision, the question was whether the State Government (of Bihar) has competence to file an appeal from the judgment dated 18.12.2006 passed by the Special Judge, CBI (AHD), Patna, acquitting the accused persons when the case has been investigated by the Delhi Special Police Establishment (CBI) and this Court held that the appeal at the instance of the State Government is not maintainable. In view of the special circumstances highlighted in the case on hand, we reiterate that the present appeal by the appellant - V.S.Achuthanandan against the order of acquittal by the High Court is maintainable. Our view has been strengthened by a decision of this Court in K. Anbazhagan vs. Superintendent of Police and Others (2004) 3 SCC 767. Accordingly we reject the contention raised by the learned senior counsel for the respondents. It is apparent that the order cited before this Court came to be passed in the special circumstances of the particular case. As explained in the decision of this Court in S.Jayapal v. I.Periyasamy and others [Crl.R.C.(MD) No.325 of 2008 and batch], the Supreme Court time and again has informed that the powers of revision at the instance of private parties sparingly is to be exercised. This Court does not find the present case one where this Court would exercise powers of revision at the instance of a third party.
This Criminal Revision is dismissed as not maintainable. Consequently, connected miscellaneous petitions are closed.
08.01.2016 Index:yes/no Internet:yes To
1.The Additional District and Sessions Judge (Fast Track Court), Vellore
2. The Inspector of Police, C.C.I.W/C.I.D. Tiruvannamalai P.S Tiruvannamalai.
3.The Public Prosecutor, High Court, Madras.
C.T.SELVAM, J gm/kpr Crl.R.C.No.777 of 2011 08.01.2016