THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No: 5551 of 2009 Date: 15 Feb, 2011 Between N. Govinda Rao … Petitioner And State of Andhra Pradesh Rep. by the DSP/Inspector of Police …Respondent HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No: 5551 of 2009 ORDER: The petitioner approaches this Court with a prayer to set aside the order dated 12.06.2009 passed by the learned trial Judge in C.C.No.23 of 2008 whereby he dismissed the application filed by the prosecution under Section 321 of Criminal Procedure Code. 2. Heard both sides. 3. The brief facts of the case are as follows. The accused officer has amassed disproportionate wealth to the tune of Rs.3,00,000 for the period from 1972 to 2000. After due investigation, the respondent filed charge sheet before the concerned court. On such filing of the charge sheet, the learned trial Judge framed charges and the trial is also proceeding. In the meanwhile, a departmental enquiry is conducted against the accused officer and the department accepted the explanation given by the accused officer and also recommended for withdrawal of the prosecution against the petitioner herein. 4. On the basis of the said recommendation, the Government has also passed G.O.Ms.No.88 dated 03.03.2008 whereby directed the prosecution to withdraw the case. In the trial Court, the Special Public Prosecutor also filed an application for withdrawal of the said case. The learned trial Judge dismissed the application on the ground that the petitioner has not taken the plea at the time of trial and the trial also started. Hence, a full fledged trial can be proceeded to find out whether the accused is innocent or guilty of the offence. Learned Counsel for the petitioner submits that after filing of the withdrawal application it is the mandatory duty of the trial Judge to accept the same and drop further action. The said contention does not merit acceptance. The trial judge has every right to apprise the Government Order and also the application filed by the Public Prosecutor. 5. This Court being fully aware of the decisions of the Apex Court in situations like this, that the trial Judge has every right to reject the application filed under Section 321 of Cr.P.C. But in the present facts and circumstances of the case, the Public Prosecutor before the trial Court has filed an application under Section 321 Cr.P.C not only based on the G.O. issued by the Government, but also he has stated reasons in the said application which reads as follows:- “In relation to the facts and circumstances of the case, it is further submits that there is no material available for prosecution and there is bleak possibility of success in the prosecution of the accused due to paucity of the evidence. The evidence actually taken is not likely to result conviction. Pendency of prosecution will be only a futile exercise in the advancement of broader cause of administration of justice.” 6. Further in the present case, the check period starts from 1972 to 2000 that itself shows that the investigation proceeded for a period of 30 years. Hence, this court is of the view that the order passed by the learned trial Judge is liable to be set aside taking into consideration the petition filed by the prosecutor and also the facts and circumstances of the case and the explanation given by the petitioner to the government regarding the disproportionate income of Rs.3,00,000/-. 8. Hence, the order passed by the learned trial Judge is hereby set aside and the C.C.No.23 of 2008 on the file of Special Judge for SPE & ACB Cases-at Vijayawada, is hereby quashed. ___________________ JUSTICE RAJA ELANGO Date: 15 Feb 2011 Ksm/Rns