HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.1857 of 2008 ORDER: This Criminal Revision Case is filed by the petitioner-accused officer, under Section 482 of Cr.P.C., seeking to set aside the order dated 15.09.2008 made in Crl.M.P.No.608 of 2008 in C.C.No.2 of 2008 on the file of the Special Judge for SPE & ACB Cases, Nellore. The brief facts of the case are that L.W.1-Dara Mallikarjuna was the President and L.W.2-G. Venkata Ramanaiah was the Treasurer of Sri Mahalaxmi Friends Recreation Club which was inaugurated by the accused officer on 10.06.2006. In the Club, games like Chess, Caroms, Shuttle, Weightlifting and other physical exercises are organized. On 01.10.2006, the accused officer and his staff raided the club and booked a case in S.T.C.No.284 of 2006 against three persons. Thereafter, on 04.10.2006 L.Ws.1 and 2 approached the accused officer for getting back the games items. Then, the accused officer demanded bribe of Rs.5,000/-. Finally, on 09.10.2006, the accused officer reduced the bribe amount to Rs.2,500/- and directed L.W.1 to pay the bribe amount and to return the photos which were taken on the date of inauguration of the club. L.W.1, who was not willing to pay the bribe amount, gave a report to Dy.S.P., A.C.B., who, in turn, registered the same as Crime No.16/RCT-NLR/2006 and laid a trap in the presence of mediators on 10.10.2006 and sent L.W.1 to the accused officer along with tainted currency notes and photos and L.W.2 was the accompanying witness. L.Ws.1 and 2 approached the accused officer at 6.00 p.m. on 10.10.2006 and requested him to give back the articles and furniture. Then, the accused officer reiterated his earlier demand of bribe and photos. On that, L.W.1 gave the cover containing tainted currency notes of Rs.2,500/- to the accused officer. The accused officer accepted the same and, in the meanwhile, L.W.2, who was outside the door, gave a pre-arranged signal to the trap party. Then, the D.S.P., A.C.B., Nellore rushed into the room of the accused officer along with his staff and mediators and asked L.Ws.1 and 2 to go outside the police station. The D.S.P. got prepared Sodium Carbonate solution in two glass tumblers for chemical test and the right hand of the accused officer yielded positive result. On the request of the D.S.P., the accused officer showed the cover containing the tainted currency notes and then the D.S.P. seized the said amount of Rs.2,500/- and seven photos taken on the date of inauguration of the club. Later, the D.S.P. arrested the accused officer and the proceedings were reduced into writing in the form of mediators’ report. Thereafter, the Government accorded sanction to prosecute the accused officer in G.O.M.S.No.11, dated 22.1.2008 of Home (SC-A) Department. After completion of investigation, the Inspector, ACB, laid charge sheet against the accused officer and the same was numbered as C.C.No.2 of 2008 and it is pending before the Special Judge for SPE & ACB Cases, Nellore. During pendency of the case, the accused officer approached the Government and submitted a representation dated 10.12.2007 for revocation of his suspension and reinstatement into service by dropping the ACB case against him, alternatively, to refer the case to departmental enquiry. The Government considered the representation of the accused officer and issued order in G.O.Rt.No.1190, dated 24.6.2008 of Home (SC-A) Department to withdraw the prosecution orders issued under G.O.Ms.No.11 dt.22.1.2008 of Home (SC-A) Department and also ordered for departmental enquiry. Based on the said G.O., the D.G., ACB, A.P., Hyderabad, issued an order in R.C.No.185/RCT-NLR/2006 dated 1.8.2008 under which the L.A.-cum- Special P.P., ACB, Nellore, is requested to file a petition under Section 321 of Cr.P.C. before the Court. In compliance of the same, the Special Public Prosecutor, ACB, Nellore filed a petition in Crl.M.P.No.608 of 2008 in C.C.No.2 of 2008 before the Special Judge for SPE & ACB Cases, Nellore with a prayer to allow him to withdraw the case against the accused officer so as to enable the Government to initiate departmental action against the accused officer. The learned Special Judge dismissed the said petition, by an order dated 15.09.2008. The same is under challenge in this revision. Heard and perused the record. The learned Special Judge passed the order impugned in this revision holding that withdrawal of prosecution is not based on public interest. The order in G.O.Rt.No.1190 dated 24.06.2008 passed by the Principal Secretary to Government runs as follows: “GOVERNMENT OF ANDHRA PRADESH ABSTRACT P.S. – Home Department – Allegations of corruption against Sri Ch. Vijaya Bhaskar Rao, Inspector of Police, formerly at Kovvur Circle, Nellore District – Trapped on 10.10.2006 – Final report submitted by ACB – Prosecution orders issued – Representation of the A.O. for dropping further action – Examined – Prosecution orders withdrawal – Initiation of Departmental action instead of prosecution – Orders – Issued. ---------------------------------------------------------------------------------------------------------- HOME (SC.A) DEPARTMENT G.O.Rt.No.1190 Date:24.06.2008 Read the following:- 1) From the DG, ACB Final report Lr.No.185/RCT-NNL/2006, dated 18.7.2007. 2) G.O.Ms.No.1 Home (SC.A) Department, dated 22.1.2008. 3) From Sri Chirithoti Vijaya Bhaskar Rao, Inspector of Police, Kovvur Circle, Nellore District, representation, dated 10.12.2007. 4) Government Memo No.1721/SC.A2/2007-4, dated 22.1.2008. 5) Government Memo No.1721/SC.A2/2007-5, dated 15.3.2008. 6) From Sri Chirithoti Vijaya Bhaskar Rao, Inspector of police, Kovvur Circle, Nellore District, representation, dated Nil. (***) ORDER:- Sri Chirithoti Vijaya Bhaskar Rao, Inspector of Police, Kovvur Circle, Nellore District was trapped for demand and acceptance of illegal gratification of Rs.2,500/- on 10.10.2006 from the complainant Sri Dara Mallikarjuna. The Director General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad in his final report vide reference 1st read above has recommended to prosecute the accused officer Sri Chirithoti Vijaya Bhaskar Rao, Inspector of Police, Kovvur Circle, Nellore District in a Court of Law for the offences punishable under Sections 7, 13(2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 and also recommended for Departmental action for violating A.P.C.S. (Conduct) Rules, 1964 and order No.94(1) of the A.P. Police Manual. Government after careful examination of the matter have decided and ordered to prosecute the accused officer in a Court of Law and accordingly orders were issued vide reference 2nd read above. Departmental Action was also initiated against him for violation of A.P.C. (Conduct) Rules, 1964, vide reference 4th read above. Sri Chirithoti Vijaya Bhaskar Rao, Inspector of Police, Kovvur Circle, Nellore District has submitted a representation to the Government requesting for revocation of his suspension and reinstatement into service, dropping of the ACB case against him, alternatively to refer the case to Departmental Enquiry vide reference third read above. Government after careful examination of the representation of the Charged Officer and keeping in view of the record of service since 1989 of Sri Chirithoti Vijaya Bhaskar Rao, Inspector of Police, Kovvur Circle, Nellore District have decided and ordered for his reinstatement into service pending finalisation of the disciplinary, vide reference 5th read above. Sri Chirithoti Vijaya Bhaskar Rao, Inspector of Police, Kovvur Circle, Nellore District has further represented in the reference 6th read above, that the complainant reported to A.C.B. officials on 9.10.2006 at 11.00 A.M. but the trap by A.C.B. officials on 10.10.2006 at 18.00 hours. There was no sufficient time left for the ACB to enquire his antecedents. The complainant is related to the accompanying witness. As per the instructions in force witness should not be relative/friend to the complainant. In this case, the complainant is the own brother-in-law of P.C.2148 B. Venkateswarlu who bore grudge against him for the disciplinary action going to be taken by him against the said P.C. As such, the complainant made the complaint with ill motive to take vengeance against him. The said P.C. is now under suspension. He has further stated that his fingers were not through positive during the trap. The right hand which was stated to be turned into light pink was for the reasons that the cover in which the tainted amount was placed thrown by him from his table. Therefore, the C.O. has requested for dropping of the ACB case against him, alternatively to refer the case to Departmental Enquiry. After careful examination of the representation of the C.O. and keeping in view of the searches conducted by the A.C.B. in the premises of the C.O. wherein no substantial proof of disproportionate assets was found, and also in view of the past record of the Charged Officer Government hereby decided and order to withdraw the said prosecution orders issued in the reference 2nd read above. Departmental action against Sri Chirithoti Vijaya Bhaskar Rao, Inspector of Police, Kovvur Circle, Nellore District on the corruption charge be initiated instead of prosecution in a Court of Law. Therefore, the Director General, Anti Corruption Bureau, A.P., Hyderabad is directed to furnish the articles of charges, statement of imputations etc. to Government in respect of the corruption charge immediately. The Director, General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad is directed to implement the above decisions of the Government and take necessary steps for withdrawal of the prosecution. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) P.V.NAIDU PRINCIPAL SECRETARY TO GOVERNMENT” Basing on the order in G.O.Rt.No.1190 dated 24.06.2008 passed by the Principal Secretary to Government, the Special Public Prosecutor, ACB, Nellore filed a detailed application under Section 321 of Cr.P.C. before the Special Judge for SPE & ACB Cases, Nellore with a prayer to permit him to withdraw the case against the accused officer, wherein he has stated reasons as follows: “In the present case as considered by the Government it appears tht the complainant and one B. Venkateswarlu who is working as P.C.2148 are no other than close relatives and the said P.C.2148 personally bore grudge against the A.O. and got trapped the A.O. through his brother-in- law on corruption allegations with a view to take vengeance against the A.O. Thus, the L.W.1/complainant was used as a tool by the said P.C.2148 and thereby abused the process of Law and caused manifest in Justice to take vengeance against the A.O. Further, it appears that the Government also considered on the point that the criminal Justice system and the fair trail procedure should not be allowed to use as a tool to take personal vengeance in the hands of individuals and with a view to prevent such personal motives in the public interest at large. Further, the Government has also ordered for Departmental action in respect of the corruption charges instead of considering his case in toto i.e., to drop action, with a view to prevent individuals having grudge against public servants to miscarry Justice and thereby to see the public interest shall not suffer.” It is true, in cases arising out of offences under the Prevention of Corruption Act, withdrawal should be based on public interest and the trial Court is also at liberty to consider the submissions made by the prosecution as to whether the withdrawal is based on any public interest and the reasons given for withdrawal are sustainable under law. The Prevention of Corruption Act was enacted only with an intention to prevent the corrupt officers from involving themselves in corruptive methods and also to curb the corruption in the Society. But, at the same time, by using the provisions of the said Act, an honest officer should not be penalized on a complaint filed with mala fide intentions. In the present case, it is apparently visible that one B. Venkateswarlu, who is working as P.C.2148, is a close relative of the complainant and also there is ample material available that the complainant was used as a tool by the said P.C. who is the subordinate of the petitioner herein. Further, the said P.C. abused the process of law by inducing the complainant to take vengeance against the accused officer. Considering the same, after a detailed enquiry, the prosecution filed Crl.M.P.No.608 of 2008 in C.C.No.2 of 1998 on the file of the Special Judge for SPE & ACB Cases, Nellore, seeking withdrawal of the case against the accused officer, basing on the G.O.Rt.No.1190 Home (SC.A) Department dated 24.06.2008. In the light of the foregoing discussion, this Court is of the view that in order to protect the accused officer, who became a victim in the hands of a police constable who is having grudge against the accused officer and also a subordinate to him, the order impugned in this revision can be set aside. Accordingly, the Criminal Revision Case is allowed and the order dated 15.09.2010 made in Crl.M.P.No.608 of 2008 in C.C.No.2 of 1998 on the file of the Special Judge for SPE & ACB Cases, Nellore, is hereby set aside and, consequently, the said petition is allowed and the Special Public Prosecutor, ACB, Nellore, is hereby permitted to withdraw the case against the accused officer. __________________ RAJA ELANGO, J 12th October, 2011 cbs HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.1857 of 2008 12th October, 2011 cbs