G.Satayanarayana vs State Of Andhra Pradesh

This Criminal Revision Case is filed, under Sections 397 and 401 of Cr.P.C., aggrieved by the order, dated 30.03.2011, passed in Crl.M.P.No.1534 of 2009 in C.C.No.54 of 2007 on the file of the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, wherein and whereunder the learned Judge had declined to grant permission to withdraw the case of prosecution pending against the revision petitioner/Accused Officer in exercise of the power under Section 321 Cr.P.C.

The facts in issue are as under:

The revision petitioner/AO was working as Junior Technical Officer (Work Inspector), Mehdipatnam Section, Goshamahal Division-III, Hyderabad Metropolitan Water Supply and Sewerage Board, Hyderabad. The allegation of the prosecution, as mentioned in the charge sheet, is that the revision petitioner/AO demanded an amount of Rs.800/- as bribe for processing the file for sanctioning of water tap connection to the house of the de facto complainant and expressing his unwillingness to pay, he approached the DSP, ACB, City Range-II, Hyderabad, who after due verification, registered a case in Cr.No.2/ACB-CR/2007 on 15.02.2007 under Section 7 of Prevention of Corruption Act, 1988. On the basis of the registration of the FIR, the trap was laid and eventually charge-sheet was filed against the accused officer for the offences punishable under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988, after obtaining sanction by the Government of Andhra Pradesh to prosecute him vide proceedings No.E3/L-C/07-08/2700, dated 25.07.2007, of the Managing Director, HMWS & SB, Khairatabad, Hyderabad, for the aforesaid offences. Thereafter, cognizance of the case was taken, charges were framed against the revision petitioner/AO and when the case came up for fixing up trial schedule, the Government had reviewed the case and decided to withdraw the sanction of prosecution order, vide letter No.3277/VIG.1(2)/2007-08 dated 08.12.2008, and requested the Managing Director, HMWS&SB, Hyderabad, to withdraw the sanction of prosecution and departmental action initiated against the revision petitioner/AO and impose a punishment of stoppage of three annual grade increments without cumulative effect as per Rules. Accordingly, the Managing Director, by order dated 22.06.2009, withdrawn the sanction of prosecution order and departmental action against the revision petitioner/AO and awarded punishment of withholding of three annual grade increments without cumulative effect under Rule 9 (iv) of APCS (CC&A) Rules, 1991. Thereafter, the prosecution moved the aforesaid application, on 22.10.2009, under Section 321 Cr.P.C., seeking permission to withdraw the case of the prosecution against the revision petitioner/AO and to acquit him for the aforesaid offences in the interest of justice. By an order, dated 30.03.2011, the learned Principal Special Judge, observed that there were no sufficient grounds or circumstances for the Court to accept the withdrawal of the prosecution case against the revision petitioner and accordingly dismissed the said petition. Challenging the same, the present revision has been filed.

Heard learned Counsel for the revision petitioner/AO and learned Special Public Prosecutor for ACB Cases appearing for the respondent/complainant.

Before proceeding further, it would be appropriate to refer to Section 321 of Cr.P.C., which reads as under:

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.

(Proviso omitted)”

The aforesaid 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 and 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’.

The aforesaid Section also 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.

The Court's function is to give consent. This Section does not obligate the Court to record reasons before consent is given. However, it 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.

The Apex Court in Bairam Muralidhar v. State of A.P. (2014) 10 SCC 380 while appreciating the said provision, it has been laid down that:

" ... 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 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 is 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 sub serve 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, the charges were framed and the matter was coming up for fixing up trial schedule and at that juncture the learned Special Public Prosecutor for ACB filed the aforesaid petition under Section 321 Cr.P.C. The basis for his petition, it appears, is the letter No.3277/Vig.1(2)/2007-08 dated 08.12.2008 issued by the Government, wherein it was mentioned that on due examination of the representation of the Accused Officer, the Government had decided to withdraw the sanction of prosecution order dated 25.07.2007 and departmental action initiated against him and to impose a punishment of stoppage of three annual grade increments without cumulative effect as per Rules. Accordingly, the Managing Director, Hyderabad Metropolitan Water Supply and Sewerage Board, by order dated 22.06.2009, withdrawn the sanction of prosecution order and departmental action against the revision petitioner/AO and awarded punishment of withholding of three annual grade increments without cumulative effect under Rule 9 (iv) of APCS (CC&A) Rules, 1991. No doubt, Section 321 of Cr.P.C. provides for withdrawal of prosecution. It empowers the Public Prosecutor or the Assistant Public Prosecutor, in charge of the case, to withdraw the cases from the trial with the consent of the Court. On such withdrawal, depending on the stage of the case, the accused shall be discharged or, as the case may be, acquitted. In Abdul Karim V. State of Karnataka AIR 2001 SC 116, the Supreme Court held that the decision of the Public Prosecutor to withdraw the case from the prosecution is not absolute and it should be on consideration of all the relevant material and in good faith. The Court, while granting its consent, has to ensure that the Public Prosecutor has applied his mind independently and that he is acting in good faith.

The question that remains then is whether the grounds urged by him in support of withdrawal were sufficient in law. When an application under Section 321 Cr.P.C. is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. All that the Court has to see is whether the application is made in good faith and not to thwart or stifle the process of law.

The application for withdrawal that was filed by the learned Special 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 vide letter No.3277/VIG.1(2)/2007-08 dated 08.12.2008 requesting the sanctioning authority to withdraw the sanction of prosecution and departmental action against the Accused Officer and award a punishment of stoppage of three annual grade increments without cumulative effect duly following the procedure as per Rules.

It is respectfully submitted that on perusal of the Government Order and the material 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 Hon’ble Supreme Court of India.

Therefore, under the above said circumstances, it is prayed that this Hon’ble Court may be pleased to permit me to withdraw the case of the prosecution against the Accused Officer Sri G.Satyanarayana and the same may be treated as withdrawn and the Accused Officer may be acquitted in the interest of justice.”

The learned Special 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 evidence available on record and has applied his mind independently and satisfied that it was a fit case for withdrawal.

For the aforesaid reasons and having regard to the aforesaid legal position, I find that the application for withdrawal of prosecution by the Special Public Prosecutor has been made in good faith after careful consideration of the materials placed before him. It would be improper for this Court keeping in view the scheme of Section 321 Cr.P.C. to embark upon a detailed enquiry into the facts of the case. Therefore, I hold that the order impugned is not sustainable in law and is liable to be set aside.

Accordingly, the Criminal Revision Case is allowed. The order, dated 30.03.2011, passed in Crl.M.P.No.1534 of 2009 in C.C.No.54 of 2007 on the file of the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, is hereby set aside and the learned Special Public Prosecutor is permitted to withdraw the case of prosecution against the revision petitioner/AO in the aforesaid case.

Miscellaneous petitions, if any, pending shall stand closed.