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Monday, August 4, 2014

Sec.321 of Cr.P.C. - withdrawal of prosecution - Permission rejected - offence under Section 7 & 13 (1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 - G.O. issued to withdraw - basing on G.O. - prosecutor filed the petition for withdraw - Trial court rejected the same - High court confirmed the same - Apex court held that we are of the considered opinion that view expressed by the learned trial Judge as well as the High Court cannot be found fault with. We say so as we are inclined to think that there is no ground to show that such withdrawal would advance the cause of justice and serve the public interest. That apart, there was no independent application of mind on the part of the learned public prosecutor, possibly thinking that the Court would pass an order on a mere asking. The view expressed in Name Dasarath’s case (supra) is not applicable to the case at hand as the two- Judge Bench therein has opined that the law laid down in Sheo Nandan Paswan’s case has not been correctly appreciated by the learned trial Judge and the High Court. We have referred to the said authority and the later decisions which are on the basis of Sheo Nandan Paswan’s case have laid down the principles pertaining to the duty of the public prosecutor and the role of the Court and we find the view expressed by the trial Court and the High Court is absolutely impregnable and, therefore, the decision in Name Dasarath (supra) is distinguishable on facts. In the result, the criminal appeal, being sans substratum, is dismissed. = CRIMINAL APPEAL NO. 1587 OF 2014 (Arising out of S.L.P. (Crl.) 1487 of 2012) Bairam Muralidhar … Appellant Versus State of Andhra Pradesh …Respondent = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41797

     Sec.321 of Cr.P.C. - withdrawal of prosecution - Permission rejected - offence under Section 7 & 13 (1) (d) r/w Section 13 (2) of  Prevention of Corruption Act, 1988 - G.O. issued to withdraw - basing on G.O. - prosecutor filed the petition for withdraw - Trial court rejected the same - High court confirmed the same - Apex court held that we are of the considered opinion  that  view  expressed  by  the learned trial Judge as well as the High Court cannot be  found  fault  with.
We say so as we are inclined to think that there is no ground to  show  that such withdrawal would advance the cause of  justice  and  serve  the  public interest. That apart, there was no independent application of mind  on  the part of the learned public prosecutor,  possibly  thinking  that  the  Court would pass  an  order  on  a  mere  asking.   The  view  expressed  in  Name Dasarath’s case (supra) is not applicable to the case at hand  as  the  two- Judge Bench therein has opined  that  the  law  laid  down  in  Sheo  Nandan Paswan’s case has not been correctly appreciated by the learned trial  Judge and the High Court. We have referred to the said authority  and  the  later decisions which are on the basis of Sheo  Nandan  Paswan’s  case  have  laid down the principles pertaining to the duty of the public prosecutor and  the role of the Court and we find the view expressed by the trial Court and  the High Court is absolutely impregnable and, therefore, the  decision  in  Name Dasarath (supra) is distinguishable on facts. In the result, the criminal appeal, being sans substratum, is dismissed. =

 learned Single Judge has concurred with the view expressed by the  Principal
 Special Judge for SPE and ACB Cases, City Civil Court, Hyderbad in  Crl.  P
No. 994 of 2009 in C.C. No. 24 of 2007, whereunder the learned   trial  Judge
had declined to grant permission to withdraw the case  pending  against  the
accused-appellant in exercise of the power under Section 321 of the Code  of
Criminal Procedure (for short “the Code”). =
      Ranga Dharma Goud who  was
working as a Driver in Dubai came to India and he was asked to come  to  the
Police Station on 22.04.2006 and again on  26.04.2006  on  which  dates  the
investigating officer demanded a  sum  of  Rs.6000/-  to  be  paid  for  not
implicating him in the said kidnapping case and also  to  file  the  charge-
sheet against his son by reducing the  gravity  of  the  charge.
 As  Ranga
Dharma Gaud expressed his inability to  pay  the  amount  the  investigating
officer reduced the demand to Rs.5000/-.
Expressing  his  unwillingness  to
pay,  he  approached  the  DSP,  ADB,  Nizamabad  Range,   who   after   due
verifications, registered a case  in  Cr.  No.  4/ACB/NZB/2006  on  4.5.2006
under Section 7 & 13 (1) (d) r/w Section 13 (2) of the Act.
On  the  basis
of the registration of the FIR the trap  was  laid  and  eventually  charge-
sheet was placed against the accused officer before the competent Court.
   When the case came up for hearing  on  charge  the  public  prosecutor
filed a petition on 22.06.2009 to withdraw  the  case  against  the  accused
officer on the ground that the Government of A.P. had issued  G.P.  Ms.  No.
268  of  Home  (SC.A)  Department,  dated  23.05.2009,   to   withdraw   the
prosecution against the accused officer.
copy of the G.O. Ms. No. 268 that was annexed to the petition of  the
Special  Public  Prosecutor  wherein  it  was  mentioned  that  on  the  due
examination
the Government had found regard being had to the  good  work  of
the accused in the anti-extremist field and other  meritorious  service
his
case  be  placed  before  the  Administrative  Tribunal   for   disciplinary
proceedings after withdrawal of the prosecution  pending  in  the  court  of
Special Judge.
The learned trial Judge  referred  to  various  authorities,
adverted to the role and duty of the public prosecutor and the role  of  the
Court under Section 321 of the Code, and further taking note of  the  nature
of the case and grant of sanction by the State Government to  prosecute  the
case  opined  that  the  public  prosecutor  really  had  not  applied   his
independent mind except filing the petition with copy of G.O. Ms. issued  by
State Government;
that there were no sufficient ground or circumstances  for
the Court to accept the withdrawal  of  the  prosecution  case  against  the
officer; and that there was no justification to allow  such  an  application
regard  being  had  to  the  offences  against  the  accused  persons,   and
accordingly, dismissed the petition.

Conclusion
whether  in  the
obtaining factual score the Court was justified to decline permission  under
Section 321 of the Code for withdrawal  of  the  case.

we are of the considered opinion  that  view  expressed  by  the
learned trial Judge as well as the High Court cannot be  found  fault  with.
We say so as we are inclined to think that there is no ground to  show  that
such withdrawal would advance the cause of  justice  and  serve  the  public
interest.
That apart, there was no independent application of mind  on  the
part of the learned public prosecutor,  possibly  thinking  that  the  Court
would pass  an  order  on  a  mere  asking.
The  view  expressed  in  Name
Dasarath’s case (supra) is not applicable to the case at hand  as  the  two-
Judge Bench therein has opined  that  the  law  laid  down  in  Sheo  Nandan
Paswan’s case has not been correctly appreciated by the learned trial  Judge
and the High Court.
We have referred to the said authority  and  the  later
decisions which are on the basis of Sheo  Nandan  Paswan’s  case  have  laid
down the principles pertaining to the duty of the public prosecutor and  the
role of the Court and we find the view expressed by the trial Court and  the
High Court is absolutely impregnable and, therefore, the  decision  in  Name
Dasarath (supra) is distinguishable on facts.

In the result, the criminal appeal, being sans substratum, is dismissed.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41797

DIPAK MISRA, PINAKI CHANDRA GHOSE
       IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1587 OF 2014
                 (Arising out of S.L.P. (Crl.) 1487 of 2012)

Bairam Muralidhar                                  … Appellant

                                   Versus


State of Andhra Pradesh                             …Respondent




                               J U D G M E N T

Dipak Misra, J.


            Leave granted.

2.  In this appeal, by special leave, the assail is to the defensibility  of
the order dated 8.12.2011 passed by the High Court of Judicature  of  Andhra
Pradesh at Hyderabad in Criminal Petition  No.  1125  of  2010  whereby  the
learned Single Judge has concurred with the view expressed by the  Principal
 Special Judge for SPE and ACB Cases, City Civil Court, Hyderbad in  Crl.  P
No. 994 of 2009 in C.C. No. 24 of 2007, whereunder the learned  trial  Judge
had declined to grant permission to withdraw the case  pending  against  the
accused-appellant in exercise of the power under Section 321 of the Code  of
Criminal Procedure (for short “the Code”).

3.    The expose’ of facts are the appellant was arrayed as an  accused  for
offences punishable under section 7 and  13  (1)  (d)  r/w  13  (2)  of  the
Prevention of Corruption Act, 1988 (for brevity  ‘the  Act’).   As  per  the
prosecution case the son of one Ranga Dharma Goud  fell  in  love  with  his
neighbour’s daughter and both of them eloped on 25.01.2006.  The  neighbour,
Radhakrishna Murthy, lodged an FIR at Kamareddy Town  Police  Station  which
was registered as Criminal Case No. 21/2006 under  Section-  366(A)  of  the
Indian Penal Code (IPC).  Sub-Inspector of the Police Station  took  up  the
investigation and arrested the son of the Ranga  Dharma  Goud  who  suffered
judicial custody.  When all these things happened Ranga Dharma Goud who  was
working as a Driver in Dubai came to India and he was asked to come  to  the
Police Station on 22.04.2006 and again on  26.04.2006  on  which  dates  the
investigating officer demanded a  sum  of  Rs.6000/-  to  be  paid  for  not
implicating him in the said kidnapping case and also  to  file  the  charge-
sheet against his son by reducing the  gravity  of  the  charge.   As  Ranga
Dharma Gaud expressed his inability to  pay  the  amount  the  investigating
officer reduced the demand to Rs.5000/-.  Expressing  his  unwillingness  to
pay,  he  approached  the  DSP,  ADB,  Nizamabad  Range,   who   after   due
verifications, registered a case  in  Cr.  No.  4/ACB/NZB/2006  on  4.5.2006
under Section 7 & 13 (1) (d) r/w Section 13 (2) of the Act.   On  the  basis
of the registration of the FIR the trap  was  laid  and  eventually  charge-
sheet was placed against the accused officer before the competent Court.

4.    When the case came up for hearing  on  charge  the  public  prosecutor
filed a petition on 22.06.2009 to withdraw  the  case  against  the  accused
officer on the ground that the Government of A.P. had issued  G.P.  Ms.  No.
268  of  Home  (SC.A)  Department,  dated  23.05.2009,   to   withdraw   the
prosecution against the accused officer.  The learned trial  Judge  referred
to the copy of the G.O. Ms. No. 268 that was annexed to the petition of  the
Special  Public  Prosecutor  wherein  it  was  mentioned  that  on  the  due
examination the Government had found regard being had to the  good  work  of
the accused in the anti-extremist field and other  meritorious  service  his
case  be  placed  before  the  Administrative  Tribunal   for   disciplinary
proceedings after withdrawal of the prosecution  pending  in  the  court  of
Special Judge.  The learned trial Judge  referred  to  various  authorities,
adverted to the role and duty of the public prosecutor and the role  of  the
Court under Section 321 of the Code, and further taking note of  the  nature
of the case and grant of sanction by the State Government to  prosecute  the
case  opined  that  the  public  prosecutor  really  had  not  applied   his
independent mind except filing the petition with copy of G.O. Ms. issued  by
State Government; that there were no sufficient ground or circumstances  for
the Court to accept the withdrawal  of  the  prosecution  case  against  the
officer; and that there was no justification to allow  such  an  application
regard  being  had  to  the  offences  against  the  accused  persons,   and
accordingly, dismissed the petition.

5.    As the permission was not granted  by  the  learned  trial  Judge  the
appellant invoked the jurisdiction of the High Court under  Section  482  of
the Code before the High Court and the learned Single Judge after  adverting
to the facts and the reasons ascribed by the learned  trial  Judge  came  to
hold that the order  passed  by  the  learned  trial  Judge  was  absolutely
impeccable inasmuch as the public prosecutor  had  actually  not  given  any
valid reason for withdrawal of the  case  and  further,  the  case,  in  the
obtaining factual matrix, did not warrant withdrawal under  Section  321  of
the Code.

6.    We have heard Ms. Madhurima Tatia, learned counsel for the  petitioner
and Mr. ATM Rangaramanujam, learned senior counsel for the State.

7.    The seminal question that arises for consideration is whether  in  the
obtaining factual score the Court was justified to decline permission  under
Section 321 of the Code for withdrawal  of  the  case.   To  appreciate  the
controversy in proper perspective, it is condign  to  refer  the  Government
order whereby a decision has been taken to withdraw the case.  The  relevant
part of it reads as follows:-

“2.   In the reference  third  read  above.  Sri.  Bairam  Muralidhar,  Sub-
Inspector of Police, has submitted a representation wherein  he  has  stated
that a trap was laid on him on 5.5.2006  by  the  Deputy  Superintendent  of
Police, Anti Corruption Bureau, Nizamabad Range, Nizamabad, along  with  his
staff on a false and frivolous complaint lodged by the complainant  by  name
Sri. Ranga Dharma Goud of Kamareddy, Nizamabad District.  Actually,  a  case
in  Cr No. 21/2006 u/S.366 (A) Indian Penal  Code  was  registered  in  Town
Police Station of Kamareddy on 01.02.2006 against Naresh Goud,  son  the  of
complainant.  A charge sheet was also filed by him in the Court of  Judicial
First  Class  Magistrate,  Kamareddy,  against  Naresh  Goud  on  20.03.2006
itself, and the same was numbered vide PRC No. 27/2006.  Thus, there was  no
official favour that was to be done to the complainant or his  son  in  this
case as alleged.  The  complainant  himself  persuaded  him  to  accept  the
bribe.  When he refused to accept, the complainant  forcibly  thrusted  some
currency notes into his left side shirt pocket.  When he resisted  the  said
acts of the complainant  for  the  unprecedented  act,  the  Anti-Corruption
Bureau, officials rushed to the spot and conducted trap proceedings  on  him
without  heeding  to  his  requests.   He  further  informed  that   he   is
discharging  his  legitimate  duties  and  his  case  was   considered   for
Accelerated Promotion from Sub-Inspector of Police for his  contribution  in
the anti extremist work.  His services were recognized by  way  of  awarding
Police Katina Seva Pathakam in 2005 and his name was  also  recommended  for
Prestigious Indian Police Medal for Gallantry for  the  year  2003.   Hence,
keeping in  view  his  previous  record,  he  requested  the  Government  to
consider his request for withdrawal of prosecution  and  also  to  reinstate
into service.

3.  In  the  reference  fourth  read  above,  the  Director  General,  Anti-
Corruption  Bureau,  Andhra  Pradesh,   Hyderabad,   while   rebutting   the
contentions of the Accused Officer has stated that there are  no  merits  in
the application filed by the applicant and it is  not  maintainable  and  as
such requested the Government  to  dismiss  the  application  filed  by  the
Accused Officer Sri. B. Muralidhar, Sub-Inspector of Police.

4.  Government have examined the matter in detail, keeping in  view  of  his
good work in the anti-extremist field  and  other  meritorious  service  and
order that the case of Sri.  Bairam  Muralidhar,  Sub-Inspector  of  Police,
Kamareddy Town Police Station, Nizamabad, be placed before the Tribunal  for
Disciplinary Proceedings, duly  withdrawing  the  prosecution  in  C.C.  No.
24/2007....”


8.    The application for withdrawal that was filed by  the  learned  Public
Prosecutor deserves to be referred to.  After narrating the  factual  matrix
about the case, while seeking withdrawal  the  following  grounds  were  put
forth:

“It is further submitted that as the matter stood thus, the  Government  has
reviewed the case and decided to  modify  the  orders  issued  in  G.O.  Ms.
No.06,   Home   (SC-A)   Department,   dt.   10.01.2007   and   placed   the
respondent/accused officer on his defense before Tribunal  for  disciplinary
proceedings and issued G.O. Ms.  No.  268,  home  (SC-A)  Department,  dated
23.5.2009,  the  said  G.O.  is  filed   along   with   the   petition   for
consideration.

I respectfully submit that on  perusal  of  the  Government  order  and  the
material evidences available on  record  and  on  application  of  the  mind
independently and for the reasons accorded by the Government I am  satisfied
that the case is fit for withdrawal from prosecution in accordance with  the
settled principles of law as laid down by the Honourable  Supreme  Court  of
India.

Therefore, under the  above  said  circumstances  it  is  prayed  that  this
Honourable Court may be pleased to permit me to withdraw  the  case  of  the
prosecution against the respondent/accused  officer  Sri.  Bairam  Murlidhar
and the same may be treated as withdrawn and the respondent/accused  officer
may be discharged in the interest of justice and equity.”



9.    The learned counsel for the petitioner submitted  that  in  a  similar
case in Name Dasarath v. State of Andhra Pradesh in Criminal Appeal No.  299
of 2014 decided on 30th January  2014,  this  Court  has  after  reproducing
paragraphs 69, 70 and 71 of the Constitution Bench decision in  Sheo  Nandan
Paswan v. State of Bihar and  others[1]  has  quashed  the  prosecution  and
remanded the matter.   The  operative  part  of  the  said  order  reads  as
follows:-

“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  Cr.P.C.  in  the  light  of  the
judgments of this Court and in particular  the  majority  judgments  of  the
Constitution Bench of this Court in Sheo Nandan Paswan  v.  State  of  Bihar
and others quoted above.”

10.   In the said case, as we  notice,  an  application  was  preferred  for
withdrawal of the case where  charge-sheet  had  already  been  filed  under
Section 13 (2) r/w Section 13(1)(e) of the Act  and  the  Principal  Special
Judge for SPE & ACB had declined to grant the prayer and the High Court  had
refused to entertain the criminal revision.  This Court  observed  that  the
trial Court as well as the High Court has not correctly appreciated the  law
laid down in Sheo Nandan Paswan’s case  and  accordingly  passed  the  order
which we have reproduced hereinbefore.

11.   We have already referred to the facts  of  the  case,  reproduced  the
Government order  and  the  application  filed  by  the  public  prosecutor.
Before we express our opinion with regard to  legal  sustainability  of  the
order passed by the learned trial Judge, we think it apposite  to  refer  to
certain authorities pertaining to the role of the Public Prosecutor and  the
duty of the  Court  as  envisaged  under  section  321  of  the  Code.   The
Constitution Bench in Sheo Nandan Paswan’s case referred to Section  333  of
the old Code and taking note of the language employed under Section  321  of
the present Code opined thus:-

“69. A harmonious view should, in my view, prevail in  the  reading  of  the
two sections. Section 333 does not give any  discretion  or  choice  to  the
High Court when a motion is made under it. Such being the case, Section  321
must also be construed as conferring powers within circumscribed  limits  to
the court to  refuse  to  grant  permission  to  the  Public  Prosecutor  to
withdraw the prosecution. If such a harmonious view is not  taken  it  would
then lead to the anomalous position that while under  Section  333,  a  High
Court has to yield helplessly to the representation of the  Advocate-General
and  stop  the  proceedings  and  discharge  or  acquit  the  accused,   the
subordinate courts when moved under Section 321 CrPC would have a  power  to
refuse to give consent for  withdrawal  of  the  prosecution  if  it  is  of
opinion that  the  case  did  not  suffer  from  paucity  of  evidence.  The
legislature would  not  have  intended  to  confer  greater  powers  on  the
subordinate courts than on the High Court in the exercise  of  powers  under
Section 494 of  the  old  Code  and  Section  333  respectively.  It  would,
therefore, be just and reasonable to hold that while conferring powers  upon
the subordinate courts under  Section  494  to  give  consent  to  a  Public
Prosecutor withdrawing the prosecution, the legislature  had  only  intended
that  the  courts  should  perform  a  supervisory  function  and   not   an
adjudicatory function in the legal sense of the term.

      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 [pic]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.”

12.   In the said case, the larger Bench referred  the  decisions  in  Bansi
Lal v. Chandan Lal[2], Balwant Singh v. State of Bihar[3],  Subhash  Chander
v. State[4],  Rajendra Kumar Jain v. State[5], and the principles stated  in
State of Bihar v. Ram Naresh  Pandey[6]  and  eventually  came  to  hold  as
follows:-

“All the above decisions have followed the reasoning of Ram Naresh  Pandey’s
case and the principle settled in that decision were not doubted.

It is in the light of these decisions that  the  case  on  hand  has  to  be
considered.  I find the application for withdrawal by the Public  Prosecutor
has been made in good faith after careful  consideration  of  the  materials
placed before him and the order of consent given by the Magistrate was  also
after due consideration of various details, as indicated  above.   It  would
be improper for this Court, keeping in view the scheme of S. 321, to  embark
upon a detailed enquiry into the facts  and  evidence  of  the  case  or  to
direct retrial for that would be destructive of the  object  and  intent  of
the Section. ”

13.   In R.M. Tewari, Advocate v. State (NCT of Delhi)  and  others[7]  this
Court while dealing with justifiability of withdrawal from  the  prosecution
the Court referred to the Section 321 of the Code  and  the  principle  that
has been stated in Sheonandan Paswan (Supra) and opined that:-

“7. It is, therefore, clear that the Designated Court was  right  in  taking
the  view  that  withdrawal  from  prosecution  is  not  to   be   permitted
mechanically by the court on an application for that  purpose  made  by  the
public prosecutor. It is equally clear that the public prosecutor  also  has
not to act mechanically in the discharge of  his  statutory  function  under
Section 321  CrPC  on  such  a  recommendation  being  made  by  the  Review
Committee; and that it is the duty  of  the  public  prosecutor  to  satisfy
himself that it is a fit case for  withdrawal  from  prosecution  before  he
seeks the consent of the court for that purpose.

8. It appears that in these matters, the public  prosecutor  did  not  fully
appreciate the requirements of Section 321 CrPC and  made  the  applications
for withdrawal from prosecution only on the basis of the recommendations  of
the Review Committee. It was necessary for the public prosecutor to  satisfy
himself in each case that the case is fit for  withdrawal  from  prosecution
in accordance with the settled principles  indicated  in  the  decisions  of
this Court and then to satisfy the Designated Court of the  existence  of  a
ground which permits withdrawal from prosecution under Section 321 CrPC.”

14.  A three-Judge Bench in Abdul Karim etc. etc. v. State of Karnataka  and
others etc.[8] referred to the Constitution  Bench  judgment  in  Sheonandan
Paswan case and Bharucha, J (as his Lordship then was) speaking for  himself
and D.P. Mohapatra, J. observed thus:-

“19.  The law, therefore, is that though the Government  may  have  ordered,
directed or asked a Public Prosecutor to withdraw from a prosecution, it  is
for the Public Prosecutor to apply his mind to  all  the  relevant  material
and, in good faith, to be satisfied thereon that the  public  interest  will
be served by his withdrawal from the prosecution. In turn, the court has  to
be  satisfied,  after  considering  all  that  material,  that  the   Public
Prosecutor has applied his  mind  independently  thereto,  that  the  Public
Prosecutor, acting in good faith, is of  the  opinion  that  his  withdrawal
from the prosecution is in the public interest,  and  that  such  withdrawal
will not stifle or thwart the process of law or cause manifest injustice.

20. It must follow that the application under Section  321  must  aver  that
the Public Prosecutor is, in good faith, satisfied, on consideration of  all
relevant material, that his  withdrawal  from  the  prosecution  is  in  the
public interest and it will not stifle or  thwart  the  process  of  law  or
cause injustice. The material that  the  Public  Prosecutor  has  considered
must be set out,  briefly  but  concisely,  in  the  application  or  in  an
affidavit annexed to the application or, in a given case, placed before  the
court, with its permission, in a sealed envelope. The court has to  give  an
informed consent. It must be satisfied that  this  material  can  reasonably
lead to the conclusion that the withdrawal of  the  Public  Prosecutor  from
the prosecution will serve the public interest; but it is not for the  court
to weigh  the  material.  The  court  must  be  satisfied  that  the  Public
Prosecutor has considered the material  and,  in  good  faith,  reached  the
conclusion that his withdrawal from the prosecution will  serve  the  public
interest. The court must also consider whether  the  grant  of  consent  may
thwart or stifle the course of law or  result  in  manifest  injustice.  If,
upon such consideration, the court accords consent, it must make such  order
on the application as will indicate to a higher court that it has  done  all
that the law requires it to do before granting consent.”

                                                         [Emphasis supplied]

15.   Y.K. Sabharwal, J  (as  his  Lordship  then  was)  in  his  concurring
opinion elaborating further on fundamental parameters which are  to  be  the
laser beam for exercise of power under Section 321 of the Code opined that:-


“42. The satisfaction for moving an application under Section 321  CrPC  has
to be of the Public Prosecutor which in the nature of the case in  hand  has
to be based on the material provided by the State. The nature of  the  power
to be exercised by the Court while deciding application  under  Section  321
is delineated by the decision of this Court in Sheonandan  Paswan  v.  State
of Bihar. This decision holds that grant of consent by the court  is  not  a
matter of course and when  such  an  application  is  filed  by  the  Public
Prosecutor after taking into consideration  the  material  before  him,  the
court exercises its judicial discretion by considering such material and  on
such consideration either gives consent or declines consent.  It  also  lays
down that the court has to see that the application is made in  good  faith,
in the interest of public policy and justice and not  to  thwart  or  stifle
the process of law or suffers from such improprieties or illegalities as  to
cause manifest injustice if consent is given.

43. True, the power of the court under Section 321 is supervisory  but  that
does not mean that while exercising  that  power,  the  consent  has  to  be
granted on mere asking. The court has to examine that all  relevant  aspects
have been taken into consideration by the Public Prosecutor  and/or  by  the
Government in exercise of its executive function.”

                                                       [Underlining is ours]

16.   In  Rahul Agarwal v. Rakesh Jain and another[9] the Court was  dealing
with  what  should  be  the  lawful  consideration  while  dealing  with  an
application for withdrawal  under  Section  321  of  the  Code.   The  Court
referred to the decisions in Ram Naresh Pandey (supra), State of  Orissa  v.
Chandrika Mohapatra[10], Balwant Singh v. State of  Bihar  (supra)  and  the
authority in Abdul  Karim  (supra)  wherein  the  earlier  decision  of  the
Constitution  Bench   in  Sheonandan  Paswan  was  appreciated   and   after
reproducing few passages from Abdul Karim (supra) ruled that:-

“10. From these decisions as well as other decisions on the  same  question,
the law is very clear that the withdrawal  of  prosecution  can  be  allowed
only in the interest of justice. Even if the Government directs  the  Public
Prosecutor to withdraw the prosecution and an application is filed  to  that
effect, the court must consider all  relevant  circumstances  and  find  out
whether the withdrawal of prosecution would advance the  cause  of  justice.
If the case is likely to end in an acquittal  and  the  continuance  of  the
case is only causing severe harassment to the accused, the court may  permit
withdrawal of the prosecution. If the withdrawal of  prosecution  is  likely
to bury the dispute and bring about  harmony  between  the  parties  and  it
would be  in  the  best  interest  of  justice,  the  court  may  allow  the
withdrawal of  prosecution.  The  discretion  under  Section  321,  Code  of
Criminal Procedure is to be [pic]carefully exercised  by  the  court  having
due regard to all the relevant facts and shall not be  exercised  to  stifle
the prosecution which is  being  done  at  the  instance  of  the  aggrieved
parties or the State for redressing  their  grievance.  Every  crime  is  an
offence against the  society  and  if  the  accused  committed  an  offence,
society demands that  he  should  be  punished.  Punishing  the  person  who
perpetrated the crime is an essential requirement  for  the  maintenance  of
law and order and peace in the society. Therefore,  the  withdrawal  of  the
prosecution shall be permitted only when valid reasons are made out for  the
same.”

                                                            (Emphasis added]
17.   The obtaining fact  situation  has  to  be  tested  on  the  anvil  of
aforesaid enunciation of law.  As  is  demonstrable,  the  State  Government
vide G.O. Ms. No. 268 dated 23rd May, 2009 enumerated certain aspects  which
are  reproduced  hereinbefore.   The  reproduction  part   requires   slight
clarification.  In the order passed  by  the  State  Government,  the  third
reference refers to the representation of Shri B. Muralidhar,  Sub-Inspector
of Police, Kamareddy Town P.S.  dated  5.8.2007  and  the  fourth  reference
refers to the communication  from  the  Director  General,  Anti  Corruption
Bureau, Andhra Pradesh, Hyderabad dated 12.10.2007.  Thereafter,  the  State
Government has given its opinion why the  case  required  to  be  withdrawn.
The learned public prosecutor in his  application   for  withdrawal  of  the
prosecution has referred to the Government order and  sought  permission  of
the Court.  What the public prosecutor has stated is  that  he  has  perused
the Government order, the material evidences available  on  record  and  has
applied his mind independently and satisfied that it  was  a  fit  case  for
withdrawal.

18.   The central question is  whether  the  public  prosecutor  has  really
applied his mind to all the  relevant  materials  on  record  and  satisfied
himself that the withdrawal from the prosecution would  subserve  the  cause
of public interest or not.  Be it  stated,  it  is  the  obligation  of  the
public prosecutor to state what material he has considered.  It  has  to  be
set out in brief.  The Court as has been held  in  Abdul  Karim’s  case,  is
required to give an informed consent.  It is obligatory on the part  of  the
Court to satisfy itself that from the material it  can  reasonably  be  held
that the withdrawal of the prosecution would serve the public interest.   It
is not within the domain of the Court to weigh the  material.   However,  it
is necessary on the part of the Court to see whether the  grant  of  consent
would thwart or stifle the course of law or  cause  manifest  injustice.   A
Court while giving consent under Section 321 of  the  Code  is  required  to
exercise its judicial discretion, and judicial  discretion,  as  settled  in
law, is not to be exercised in a mechanical manner.  The Court  cannot  give
such consent on a mere asking.  It is expected of the Court to consider  the
material on record to see that the application had been filed in good  faith
and it is in the interest of public interest and  justice.   Another  aspect
the Court is obliged to see whether such withdrawal would advance the  cause
of justice.  It  requires  exercise  of  careful  and  concerned  discretion
because  certain  crimes  are  against  the  State  and  the  society  as  a
collective demands justice to be done.  That maintains  the  law  and  order
situation in the society.  The public prosecutor cannot act  like  the  post
office on behalf of the State Government.  He is required  to  act  in  good
faith, peruse the materials on record and form an independent  opinion  that
the withdrawal of the case would really  subserve  the  public  interest  at
large.  An order of the Government on the public prosecutor in  this  regard
is not binding.  He cannot remain oblivious to his lawful obligations  under
the Code.  He is required to constantly remember his duty to  the  Court  as
well as  his  duty  to  the  collective.   In  the  case  at  hand,  as  the
application  filed  by  the  public  prosecutor  would  show  that  he   had
mechanically stated about the conditions-precedent.  It cannot be  construed
that he has really perused the materials and applied  his  independent  mind
solely because he has so stated. The application must  indicate  perusal  of
the materials by stating what are the materials he has perused,  may  be  in
brief, and whether such withdrawal of the  prosecution  would  serve  public
interest and how he has formed his independent  opinion.   As  we  perceive,
the learned public prosecutor has been totally guided by the  order  of  the
Government and really not applied his mind to the facts of  the  case.   The
learned trial Judge as well as the High Court has  observed  that  it  is  a
case under the Prevention of Corruption Act.  They have taken  note  of  the
fact that the State Government had already granted  sanction.   It  is  also
noticeable  that  the  Anti  Corruption  Bureau  has  found  there  was   no
justification of withdrawal of the prosecution.

19.   A case under the Prevention of Corruption Act  has  its  own  gravity.
In Niranjan Hemchandra Sashittal and another  v.  State  of  Maharashtra[11]
while declining to quash the proceeding under  the  Act  on  the  ground  of
delayed trial, the Court observed thus:
“In the case at hand,  the  appellant  has  been  charge-sheeted  under  the
Prevention of Corruption Act, 1988 for  disproportionate  assets.  The  said
Act has a purpose to serve. Parliament intended to eradicate corruption  and
provide deterrent  punishment  when  criminal  culpability  is  proven.  The
intendment of the legislature  has  an  immense  social  relevance.  In  the
present day scenario, corruption has been treated to have  the  potentiality
of corroding the marrows of the economy. There are cases  where  the  amount
is small and in certain cases, it is extremely  high.  The  gravity  of  the
offence in such a case, in our considered opinion, is not to be adjudged  on
the bedrock of the quantum of bribe.  An  attitude  to  abuse  the  official
position to extend favour  in  lieu  of  benefit  is  a  crime  against  the
collective and an anathema to the basic tenets of democracy, for  it  erodes
the faith of the people in the system. It creates an incurable concavity  in
the Rule of Law. Be it noted,  system  of  good  governance  is  founded  on
collective faith in the institutions. If corrosions are allowed to  continue
by giving allowance to quash the  proceedings  in  corruption  cases  solely
because of delay without scrutinising other relevant  factors,  a  time  may
come when the unscrupulous people would foster and garner  the  tendency  to
pave the path of anarchism.”

Recently,  in  Dr.  Subramanian  Swamy  v.  Director,  Central   Bureau   of
Investigation & Anr.[12], the Constitution Bench while declaring Section  6A
of the Delhi Special Police Establishment Act, 1946, which was  inserted  by
Act 45 of 2003 as unconstitutional has opined that:-
“It seems to us that classification which is made  in  Section  6-A  on  the
basis of status in the Government service is not permissible  under  Article
14 as it  defeats  the  purpose  of  finding  prima  faice  truth  into  the
allegations of graft, which amount to an offence under  the  PC  Act,  1988.
Can there be sound differentiation between corrupt public servants based  on
their  status?   Surely  not,  because  irrespective  of  their  status   or
position, corrupt public servants  are  corrupters  of  public  power.   The
corrupt public servants, whether high or low, are birds of the same  feather
and must be  confronted  with  the  process  of  investigation  and  inquiry
equally.  Based on the position or status in service, no distinction can  be
made between public servants against whom there  are  allegations  amounting
to an offence under the PC Act, 1988.”

And thereafter, the larger Bench further ruled:
“Corruption is an enemy of the  nation  and  tracking  down  corrupt  public
servants and punishing such persons is a necessary mandate of  the  PC  Act,
1988.  It is difficult to justify the classification which has been made  in
Section 6-A because the goal  of  law  in  the  PC  Act,  1988  is  to  meet
corruption cases with a very strong hand and all public servants are  warned
through such a legislative measure that  corrupt  public  servants  have  to
face very serious consequences.”

And again, the larger Bench observed:
“70. Office of public power cannot be the workshop of  personal  gain.   The
probity in public life is of great importance.  How can two public  servants
against whom there are allegations of corruption of graft  or  bribe  taking
or criminal misconduct under the PC Act, 1988 can  be  made  to  be  treated
differently because one happens to be a junior  officer  and  the  other,  a
senior decision maker.


Corruption is an enemy of nation and tracking down corrupt  public  servant,
howsoever high he may be, and punishing such person is a  necessary  mandate
under the PC Act, 1988.  The status or position of public servant  does  not
qualify such public  servant  from  exemption  from  equal  treatment.   The
decision making power does not segregate corrupt officers into  two  classes
as they are common crime doers and have to  be  tracked  down  by  the  same
process of inquiry and investigation.”

We have referred to these authorities only to  show  that  in  the  case  at
hand, regard being had to the gravity of  the  offence  and  the  impact  on
public life apart from  the  nature  of  application  filed  by  the  public
prosecutor, we are of the considered opinion  that  view  expressed  by  the
learned trial Judge as well as the High Court cannot be  found  fault  with.
We say so as we are inclined to think that there is no ground to  show  that
such withdrawal would advance the cause of  justice  and  serve  the  public
interest.  That apart, there was no independent application of mind  on  the
part of the learned public prosecutor,  possibly  thinking  that  the  Court
would pass  an  order  on  a  mere  asking.   The  view  expressed  in  Name
Dasarath’s case (supra) is not applicable to the case at hand  as  the  two-
Judge Bench therein has opined  that  the  law  laid  down  in  Sheo  Nandan
Paswan’s case has not been correctly appreciated by the learned trial  Judge
and the High Court.  We have referred to the said authority  and  the  later
decisions which are on the basis of Sheo  Nandan  Paswan’s  case  have  laid
down the principles pertaining to the duty of the public prosecutor and  the
role of the Court and we find the view expressed by the trial Court and  the
High Court is absolutely impregnable and, therefore, the  decision  in  Name
Dasarath (supra) is distinguishable on facts.

In the result, the criminal appeal, being sans substratum, is dismissed.


                                    ......................................J.
                                                               [Dipak Misra]



                                    ......................................J.
                                                    [Pinaki  Chandra  Ghose]

New Delhi;
July 31, 2014.




















-----------------------
[1]    AIR 1987 SC 877

[2]    AIR 1976 SC 370
[3]    (1978) 1 SCR 604
[4]    (1980) 2 SCR 44
[5]    AIR 1980 SC 1510
[6]    AIR 1957 SC 389

[7]    (1996) 2 SCC 610

[8]    AIR 2001 SC 116

[9]    (2005) 2 SCC 377

[10]   (1976) 4 SCC 250

[11]   (2013) 4 SCC 642

[12]   Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014



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