Neelam Madhusudhan Rao and another vs Government of Andhra Pradesh

The decision of the Government of Andhra Pradesh in according permission for withdrawal of prosecution in Crime No.1 of 1997 of Police Station, Draksharamam registered against Thota Trimurthulu, MLA and instructing the Public Prosecutor attached to the Court concerned for filing a fresh petition u/s 321 of the Criminal Procedure Code, 1973 is challenged in this writ petition. The petitioners pray for issuance of an appropriate writ particularly one in the nature of Mandamus declaring the said action of the respondent-Government as illegal, arbitrary and violative of principles of natural justice. The petitioners also pray for setting aside the said decision of the Government in G.O. Rt. No. 1796 Home (Policc.F) Department, dated 22-8-1998.

The Inspector of Police, Ramachandrapuram has registered a case in Crime No. 1 of 1997 under Sections 342, 324, 506 read with 34 IPC and Section 3(iii) and (x) of the Scheduled Castes and Scheduled Tribes ( Prevention and Detention) Act, 1989 against one Thota Trimurthulu, MLA, Ramachandrapuram and nine others. The Sub-Divisional Police Officer, Ramachandrapuram having investigated the case filed charge-sheet against the said accused in the Court of the learned 1st Additional District and Sessions Judge (Special Court), Rajahmundry, East Godavari District. However, the said case is stated to have been transferred to be tried by the Metropolitan Sessions Judge, Visakhapatnam. The case is still pending trial. The details of the allegations levelled against the accused and the details including the twists and turns the case appears to have undergone need not be noticed.

In this writ petition, the petitioners state that the respondent herein had taken decision in mechanical manner proposing to withdraw prosecution against the said Thota Trimurthulu, MLA basing on the recommendations of Justice K.S. Puthuswamy, Commission enquiry. It is the case of the petitioners that the respondent-Government could not have decided to withdraw the prosecution even while the Sessions case is pending trial. According to the petitioner, the Sessions Court has to decide the matter depending upon the evidence. The decision of the Government, according to the petitioners, is illegal, arbitrary and violative of principles of natural justice. It would be appropriate to have a look at the impugned order:

"Government after careful consideration of the representation second cited, hereby accord permission for withdrawal of prosecution in Crime No. 1/97 of P.S. Draksharamam against Sri Thota Trimurthulu, MLA, Ramachandrapuram, East Godavari District, consequent on the acceptance of the recommendations of Sri Justice K.S. Puthuswamy (Retd.) Commission of Inquiry.

The District Collector, East Godavari District is requested to instruct the Public Prosecutor attached, to the Court concerned for filing a fresh petition u/s 321 of Criminal Procedure Code, 1973 (Central Act No.2 of 1974) for withdrawal of prosecution in the above case. A copy of the instructions so issued may be sent to the Government for favour of information.

(By order and in the name of the Governor of Andhra Pradesh)

V.P.B. NAIR, Principal Secretary to Government."

The impugned order would disclose that the Government accorded permission for withdrawal of prosecution in Crime No. 1 of 1997 on the file of Police Station, Draksharamam and the District Collector has been requested to instruct the Public Prosecutor concerned for filing petition u/s 321 of the Criminal Procedure Code, 1973 for withdrawal of prosecution against Thota Trimurthulu, MLA. Obviously the proposal to withdraw the prosecution is only as against one accused and not the entire case. The impugned order itself is of no consequence, inasmuch as the required application u/s 321 of the Code can only be filed by the concerned Public Prosecutor. The impugned order in no manner whatsoever effects the pending prosecution on the file of the learned Sessions Judge. The initiative always rests with the Public Prosecutor concerned and it is for the Public Prosecutor concerned to decide as to whether an application u/s 321 Cr.PC may be filed proposing to withdraw from the prosecution and thereafter it is for the Court of competent jurisdiction to decide as to whether consent should be given to withdraw from the prosecution.

In the affidavit filed in support of the writ petition, nothing is stated, as to whether the concerned Public Prosecutor had already filed application u/s 321 of the Code. It is not for this Court to presume as to on what ground the concerned Public Prosecutor would seek, if at all the consent of the Court for withdrawing the prosecution.

It is settled law that the Court in granting consent to withdraw from the prosecution would undoubtedly exercise judicial discretion. The Court would be perfectly at liberty to see infurtherance of justice that the permission or consent is not sought on ground extraneous to the interest of justice. The ultimate guiding consideration always be the interest of administration of justice. The impugned G.O. at the most sets the machinery in motion enabling the Public Prosecutor concerned to file an application u/s 321 Cr.PC. It cannot be treated as a direction. Nor the impugned order itself does not put an end to the prosecution itself.

In M.N. Sankarayarayanan Nair Vs. P.V. Balakrishnan and Others, , where Jaganmohan Reddy, Justice speaking on behalf of the Court, pointed out:

"Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either mat it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they arc dependent entirely on the facts and circumstances of each case. Nonetheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency un-conneeted with its duty to prosecute offenders under the law, directs the Pubic Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at the behest"

In Rajender Kumar Jain and Others Vs. State Through Special Police Establishment and Others, , the Apex Court after reviewing the entire case law on the subject authoritatively enunciated (8) propositions.

Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.

The withdrawal from the prosecution is an executive function of the Public Prosecutor.

The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic, and we add, political purposes sans Tammany Hall enterprises.

The Public Prosecutor is an officer ofthe Court and responsible to the Court.

The Court performs a supervisory function in granting its consent to the withdrawal.

The Court''s duty is not to reappreciate the grounds which fed the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.''''

It is the Public Prosecutor who sets the Criminal law in motion in the Court is an officer of the Court and "he conducts the prosecution in the Court for the people. So it is he who is entrusted with the task of initiating the proceedings for withdrawal from the prosecution." The Apex Court in Rajendra Kumar Jain ''$ case (supra) observed "that the initiative can always come from the Government and the Government is entitled to advise the Public Prosecutor to withdraw from the prosecution in a given case and such advise cannot be equated to dictation to the Public Prosecutor commanding him to withdraw from the prosecution.

The legal position flowing from Section 321 of the Criminal Procedure Code as enunciated in Rajendra Kumar Jain''s (supra) case was reiterated by the Constitutional Bench of the Apex Court in Sheonandan Paswan Vs. State of Bihar and Others, . It is thus clear that the impugned Governmental order itself does not decide anything about withdrawal from the prosecution. The impugned order itself does not give rise to any cause as such. The writ petition is totally premature as it would not be possible for this Court to presume as to on what ground the concerned Public Prosecutor, if at all, would seek permission to withdraw from the prosecution. It would be premature on the part of this Court to decide as to on what ground the consent would be given by the Court of competent jurisdiction and whether the consent would be given at all. It is not as if the petitioner is left without any remedy as and when the case reaches such stage.

Before parting with the case, I am constrained to observe about the desirability of administrators using appropriate language while addressing the Public Prosecutors. The power to withdraw from the prosecution is conferred upon the Public Prosecutor and it is the Court mat has to give its consent to such withdrawal. Independence of the Judiciary, as it is the duty and responsibility of the Public Prosecutor and the Court, to protect the administration of Criminal Justice. Once the case has reached the Court, the Court and its Officers alone have control over the case and decide what is to be done in each case. True the elected Government in a democracy can always decide, in the first instance, whether it should be gainful or beneficial to continue prosecution and if it decides that it would be appropriate in the public interest, to withdraw the prosecution, it can always request the Public Prosecutor to withdraw from the prosecution. But the Government can only request the Public Prosecutor concerned to move in the matter. The Apex Court in Rajendra Kumar Jain''s (supra) case observed:

"... The bureaucrat too should be careful not to use peremptory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter. He must remember that in addressing the Public Prosecutor he is addressing an Officer of the Court and there should be no suspicion of unwholesome pressure on the Public Prosecutor. Any suspicion of such pressure on the Public Prosecutor may lead the Court to withhold its consent."

The Government in the instant case could have definitely conveyed its decision to withdraw from prosecution in Crime No.1 of 1997 instead, the impugned order speaks of according permission for withdrawal of prosecution. Whom does it permits to withdraw from the prosecution ? Evidently, there is no request from the Public Prosecutor to withdraw from prosecution. That apart, through the impugned order the District Collector is "requested" to "instruct" the Public Prosecutor attached to the Court for filing petition u/s 321 of the Code of Criminal Procedure for withdrawal of prosecution. It further requests the District Collector to make available a copy of "the instructions so issued". What exactly the Government intends to convey in making a request to its own Subordinate in turn to instruct the Public Prosecutor who is an Officer of the Court to withdraw from prosecution? It is hoped that the Officers of the State Government would be careful not to use such expression and peremptory language while addressing the Public Prosecutors who represent the majesty of Law.

As observed by the Apex Court there can be no quibbling over words and what is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy.

For the present, there is no cause for interfering in the matter. The writ petition fails and is accordingly dismissed. No costs.