1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION(MAIN) NOS. 151 OF 2009 WITH CRIMINAL MISCELLANEOUS APPLICATION(MAIN) NOS. 183, 184, 185, 186 AND 187 OF 2009 CRIMINAL MISCELLANEOUS APPLICATION(MAIN) NO. 151 OF 2009 (1). Shri Dharma V. Chodankar, resident of House No.1001 Dattawadi, Mapusa-Goa. (2) Shri Ramakant D. Khalap, resident of House No.188, Alto Feirr, Mapusa-Goa. (3) Shri Milind U. Kerkar, resident of House No.102/9, Dattawadi, Mapusa-Goa. (4) Shri Eknath V. Nagvekar, resident of House No.2/122-A, Naikawado, Calangute, Bardez, Goa. ... Applicants versus (1) State, through P.I., CID/RU, Panaji-Goa. (2) State of Goa, through its Chief Secretary, having office at Secretariat, Porvorim, Bardez-Goa. ... Respondents Shri M. S. Sonak, Advocate for the Applicants. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. 2 CRIMINAL APPLICATION(MAIN) NOS. 183, 184 AND 185 OF 2009 (1) Mr. Santosh J. Karimottam, r/o 2C, Century Tower YWCA, Nagambadam, Kottayam, Kerala, and Karimottam, Kerala, and K-644, AWHO, Senavihar Kamannaballi, Bangalore, Karnataka, Presently at Muscat, Oman. (2) Smt. Juliana S. Joseph, r/o 2C, Century Tower YWCA, Nagambadam, Kottayam, Kerala, and Karimottam House, Nuttambellam Mottayam, Kerala, and K-644, AWHO, Senavihar Kamannaballi, Bangalore, Karnataka. (3) Smt. Sobha S. Joseph, r/o 2C, Century Tower YWCA, Nagambadam, Kottayam, Kerala, and Karimottam House, Nuttambellam Mottayam, Kerala, and K-644, AWHO, Senavihar Kamannaballi, Bangalore, Karnataka. (4) Mrs. Annamma K. S. Joseph, r/o 2C, Century Tower YWCA, Nagambadam, Kottayam, Kerala, and Karimottam House, Nuttambellam Mottayam, Kerala, and K-644, AWHO, Senavihar Kamannaballi, Bangalore, Karnataka. (5) M/s Cityman Estastes Pvt. Ltd. C/o Santosh J. Karimottam, Muttambalam, Kottayam, Kerala, and K-644, AWHO, Senavihar Kamannaballi, Bangalore, Karnataka. ... Applicants 3 versus (1) State, through Police Inspector CID/RU, Panaji, Goa. (2) State of Goa, through the Chief Secretary, having office at Secretariat, Porvorim, Bardez, Goa. ... Respondents Shri A. N. S. Nadkarni, Senior Advocate with Shri H. D. Naik, Advocate for the Applicants. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. CRIMINAL APPLICATION(MAIN) NO. 186 OF 2009 (1) Shri Milind U. Kerkar, resident of House No.102/9, Dattawadi, Mapusa-Goa. (2) Shri Ramakant D. Khalap, resident of House No.188, Alto Feirr, Mapusa-Goa. (3) Shri Dharma V. Chodankar, resident of House No.1001, Dattawadi, Mapusa-Goa. (4) Shri Eknath V. Nagvekar, resident of House No.2/122-A, Naikawado, Calangute, Bardez-Goa. ... Applicants versus 4 (1) State, through P.I., CID/RU, Panaji-Goa. (2) State of Goa, through its Chief Secretary, having Office at Secretariat, Porvorim, Bardez-Goa. ... Respondents Shri M. S. Sonak, Advocate for the Applicants. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. CRIMINAL APPLICATION(MAIN) NO. 187 OF 2009 (1) Shri Eknath V. Nagvekar, resident of House No.2/122-A, Naikawado, Calangute, Bardez-Goa. (2) Shri Ramakant D. Khalap, resident of House No.188, Alto Feirr, Mapusa-Goa. (3) Shri Dharma V. Chodankar, resident of House No.1001 Dattawadi, Mapusa-Goa. (4) Shri Milind U. Kerkar, resident of House No.102/9, Dattawadi, Mapusa-Goa. ... Applicants versus (1) State, through P.I., CID/RU, Panaji-Goa. (2) State of Goa, through its Chief Secretary, having office at Secretariat, Porvorim, Bardez-Goa. ... Respondents 5 Shri M. S. Sonak, Advocate for the Applicants. Ms. Winnie Coutinho, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 28TH JULY, 2009. ORAL JUDGMENT Challenge in these petitions, filed under Section 482 of the Code(Code of Criminal Procedure, 1973) is to the Order dated 26-10-2007 upholding the Order dated 26-6-2007, rejecting applications for withdrawal of cases. They are filed by accused nos.1 to 6 and 10 to 13 in C. C. Nos. 22/2004/B, 15/2004/B and 133/2004/B. The cases were filed under Sections 409, 418, 420 r/w 109 and 120-B IPC. 2. Accused Nos.1 to 6 were the Directors of Mapusa Urban Co-operative Bank Ltd. for the years 1998-1999. In their capacity as Directors they had advanced three loans on 2-8-1999 in the sum of Rs.3,50,00,000/- each in favour of Bannerghatta Farms, S. J. K. Farms and Vassantha Farms. Accused Nos. 10 to 12 were associated with the said Farms in whose favour the said loans were granted. As the loanees were irregular in repayment recovery proceedings were filed and awards dated 6-3-2003 were obtained by the said Bank in its favour. 6 3. On or about 18-7-2003, the Manager of the said Bank filed a complaint against the said firms and after investigations, cases came to be lodged against the said accused persons for the said offences. 4. However, before the cases came up for framing of charge, the learned Special Public Prosecutor filed applications dated 17-4-2007 for withdrawal of the said cases. Those applications came to be rejected by the learned Magistrate by Order dated 26-6-2007 and a revision filed therefrom also came to be dismissed, and as such some of the accused, who are the Petitioners in this petition have challenged the same. 5. The accused nos.1 to 6 who were the Directors had not contested the elections for the period from 2002 to 2005, and prior to that, the administration of the said Bank was entrusted to an Administrator who had called a General Body Meeting, and on 25-9-2004 had taken a decision that in case the said firms have deposited more than 50% of the amount due, request would be made to the Government for withdrawal of the criminal cases. It appears that by then substantial sums of money were paid on behalf of the said firms towards the loans taken by them. Subsequently, Respondent Nos.1 to 6 got re-elected for the triennium of 2005 to 2008, and it is stated that they too took a decision that in case the entire amount was paid by the loanees the cases filed against the said accused would be withdrawn. 7 6. There is no dispute now that the entire amount due by the said Farms towards the loans granted to them, after having availed of one term settlement facility granted in their favour, has been paid by them in total sum of Rs.13.12 crores. A letter dated 4-4-2007 is placed on record to show that the accounts of the said Farms were closed on 17-5-2006 and 29-1-2007, respectively. Applications came to be filed by the learned Special Public Prosecutor appearing in the said cases, as already stated, on 17-4-2007. 7. The learned Magistrate held that the letter dated 15-2-2007 of the Under Secretary did not disclose any reasons. The learned Magistrate further held that the applications of the Public Prosecutor did not disclose either that no prima facie case was made out or there was insufficient evidence not to proceed with the trial. The learned Magistrate further held that payment made could not be a ground for withdrawal. The learned Sessions Judge also found fault with letter dated 15-2-2007. Learned Sessions Judge further held that the reasons adduced by the learned Public Prosecutor were not in the interest of public policy or justice. The learned Sessions Judge further held that punishing the guilty is an essential requirement for maintenance of law and order and peace in society. 8. Admittedly, there was none to oppose the said application before the learned trial Court inasmuch as there is none before this Court to oppose the petitions as well since the said applications for withdrawal were filed by the learned Special Public Prosecutor, and was made pursuant to letter dated 8 15-2-2007 issued by Under Secretary(Home) and which was in turn conveyed by the Director of Prosecution to the learned Special Public Prosecutor by letter dated 5-3-2007. 9. Shri A. N. S. Nadkarni, learned Senior Counsel appearing on behalf of some of the Petitioners has submitted that the discretion whether the prosecution should be withdrawn or not is essentially of the Public Prosecutor and the role of the Court is only supervisory. Learned Senior Counsel has further submitted that the Courts were required only to see whether the application for withdrawal was bona fide, and he further submits that considering all the factors which were enumerated in the application, namely that the loan was repaid; that a resolution was passed during the tenure of the Administrator; that the property mortgaged, if then found to be of insufficient value it was because of market conditions then prevailing; that the share holders had reposed their faith in the very Directors who had sanctioned the loans; that in case the prosecutions were continued there was likelihood of other persons being deterred from taking loans; the Bank had made unexpected profits, that the learned Special Public Prosecutor had applied to the Court that it would be in public interest that the case should be withdrawn. Learned Senior Counsel has further submitted that in case the Bank itself is not interested in proceeding with the cases and that is because the amounts due to the Bank have been fully paid, no useful purpose would be served by continuing with the prosecutions which only will cause harassment to the accused. Learned Senior Counsel has placed reliance on the Judgment of the Constitution 9 Bench of the Apex Court in the case of Sheonandan Paswal v. State of Bihar((1987) 1 SCC 288) wherein the Apex Court has set out the legal position in relation to Section 321 of the Code, with reference to earlier cases decided by it and they are as follows:- (1). Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the executive. (2) The withdrawal from the prosecution is an executive function of the Public Prosecutor. (3) 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. (4) The government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. (5) 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 Tammary Hall enterprises. (6) The Public Officer is an officer of the Court and responsible to the Court. 10 (7) The Court performs a supervisory function in granting its consent to the withdrawal. (8) The Court's duty is not to re- appreciate the grounds which led 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 considerations. 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. 10. The Court also noted that it would be the duty of the learned Public Prosecutor to inform the Court and it would be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to the provisions of Section 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. It was also stated in the aforesaid case in para 68 that the real question which was required to be answered was whether the executive function of the Public Prosecutor in applying for, and the supervisory functions of the Court in granting consent to, the withdrawal have 11 been properly performed or not and the three requisites which are required to be looked into are that: (1) The application is filed by the Public Prosecutor or Assistant Public Prosecutor who is competent to make an application for withdrawal, (2) He must be in charge of the case, (3) The application should get the consent of the Court before which the case is pending. 11. The Apex Court, in para 78 stated that 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 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. In para 79, the Court observed that although it is the Court's function to give consent, it does not obligate the Court to record reasons before consent is given but that did not mean that the consent of the Court was a matter of course. The Section ought not be construed to mean that the Court has to give a detailed reasoned order when it gives consent, and if on a reading of the order giving the 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 12. Learned Senior Counsel has also placed reliance on Rahul Agarwal v. Rakesh Jain and another((2005) 2 SCC 377) wherein the Apex Court after relying on certain decisions of that Court has stated that the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice, and 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 of the Code is to be 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. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same. 13. Learned Senior Counsel has also placed reliance on Ghanshyam v. State of M. P. and others((2006) 10 SCC 473) wherein the Apex Court stated as follows:- 13 “The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to anyone. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations”. 14. Reliance is also placed on Nikhil Mercvhant v. Central Bureau of Investigation and another((2008) 9 SCC 677) to contend that even a case filed under Sections 420, 467, 468, 471 IPC r/w Section 5(2) and 5(1)(d) r/w Section 13(2) and Section 13(1)(d) of the Prevention of Corruption Act, 1988 could be withdrawn. That was a case where the proceedings were quashed in exercise of powers under Article 142 of the Constitution, inter alia, because the disputes between the Company and the Bank were set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank were cleared and the Bank did not appear to have any further claim against the Company. The 14 Court came to the conclusion that the dispute involved therein had overtones of a civil dispute with certain criminal facets and the Court came to the conclusion that on an overall view of the facts in the light of the said compromise between the Company and the Bank that it was a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in the view, of the Apex Court, the continuance of the same after compromise arrived at between the parties would be a futile exercise. 15. Shri M. S. Sonak, learned Counsel appearing on behalf of the other Petitioners has submitted that in the case at hand, learned Special Public Prosecutor had applied his mind to the facts of the case and this itself was stated by him in para 3 of the application and whether the Under Secretary(Home) had written a letter or not it was the request of the Public Prosecutor that the prosecution should be withdrawn. Learned Counsel further submits that the learned Public Prosecutor amongst other reasons assigned for withdrawal, had also stated that paucity of evidence was one of them. Learned Counsel further submits, referring to the letter of the Under Secretary(Home) dated 15-2-2007 that the learned Additional Sessions Judge was not to quibble with words used in the said letter and in this context learned Counsel has placed reliance on the decision of the Apex Court in the case of Sheonandan Paswan v. State of Bihar and others((1983) 1 SCC 438) wherein the Apex Court observed as follows:- “The facts have many faces. If the view of the Public Prosecutor is one, which 15 could in the circumstances be taken by any reasonable man, the court cannot substitute its own opinion for that of the Public Prosecutor. If the Public Prosecutor has applied his mind on the relevant materials and his opinion is not perverse, and which a reasonable man could have arrived at, a roving enquiry into the evidence and materials on the record for the purpose of finding out whether his conclusions were right or wrong would be incompetent. That would virtually convert this Court into an appellate court sitting on judgment. If the Public Prosecutor thought that the continuance of the prosecution in the circumstances would only end in an exercise in futility, he was fully justified in moving the application for withdrawal. The only question is whether he has applied his mind and he was not actuated by any extraneous consideration or improper motive. It was sought to be argued on behalf of the appellant that the Public Prosecutor has acted at the behest of the Government and he did not apply his own mind. Reference was made to the letter sent by the Government to the Public Prosecutor. The letter did indicate that the Government wants him not to proceed with the case but the letter gave full freedom to the Public Prosecutor to apply his own mind and to come to his own conclusion. In view of the various authorities of this Court, consultation with the Government or high officer is not improper. But the Public Prosecutor has to apply his own mind to the facts and circumstances of the case before coming to the conclusion to withdraw from the prosecution. From the materials on the record I am satisfied that the Public Prosecutor has applied his own mind and came to his own conclusions”. 16 16. Learned Counsel has further submitted that both the Courts below have substituted their own view to that of the learned Public Prosecutor and in doing so have exercised appellate powers when the jurisdiction to be exercised at the time of giving consent is only supervisory. Learned Counsel has also placed reliance on the case of Rajender Kumar Jain v. State through Special Police Establishment and others((1980) 3 SCC 435) wherein it was observed that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution. The Court had further observed that it was known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising from mass agitations, communal riots, regional disputes, industrial conflicts, student unrest, etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. An elected government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecution already launched. In such matters who but the government can and should decide, in the first instance, whether it should be baneful or beneficial to launch or 17 continue prosecutions. If the government decides that it would be in the public interest to withdraw from prosecutions, how is the government to go about this task? It was further observed that if ill informed but well meaning bureaucrats choose to use expressions like “the Public Prosecutor is directed” or “the Public Prosecutor is instructed”, the Court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy. The Court, in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. 17. Learned Public Prosecutor Ms. Coutinho has placed reliance on Vijay Kumar B. Mishra v. State of Maharashtra(2008 Cri. L.J. 1409) and has submitted that the Apex Court has reviewed all its previous decisions, and in tune with that judgment submitted that the Courts below were not right in expressing their opinion on merits of the matter. Indeed the Apex Court has also stated that bona fide on the part of the Public Prosecutor cannot automatically lead to the grant of consent. Learned Public Prosecutor Shri Ferreira has also placed reliance on Rajender Kumar Jain v. State through Special Police Establishment and others(supra). 18 18. What follows from the plethora of precedents referred to herein above is that the jurisdiction in granting consent is only supervisory or revisional and it is not appellate in that the Court, called upon to grant consent, cannot substitute its own view with that of the Public Prosecutor. If the view taken by the Public Prosecutor is reasonable and not perverse, the grant of consent should follow. The Court is required to see