* THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION NO.19422 OF 2008 %Dated 18-12-2008 # M. Srinivasa Raju, S/o. Subba Raju, R/o. Flat No. 1-E, Vijayanagar Colony, Hyderabad. ..... PETITIONER VERSUS $1 The State of Andhra Pradesh, Rep. by its Chief Secretary, Secretariat, Hyderabad. 2 The State of Andhra Pradesh, Rep. by its Chief Secretary, GAD, Secretariat, Hyderabad. 3 The Chief Secretary, Agriculture Department, Secretariat, Hyderabad. 4 The State of Andhra Pradesh, Rep. by D.I.G., ACB City Range, Hyderabad. By its Special Public Prosecutor. .....RESPONDENT(S) ! Counsel for Petitioner: SriV. Vijaya Rama Raju ^Counsel for Respondents: G.P. for Home Sri V. Ravikiran Rao Sri V. Ravindra Rao G.P. for Agriculture <GIST: > HEAD NOTE: ? Cases referred (2007) 4 Supreme Court Cases 70 2 2004 Supreme Court Criminal Rulings 616 3 2003 (1) ALD (Crl.) 457 (AP) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 19422 of 2008 Between: M. Srinivasa Raju, S/o. Subba Raju, R/o. Flat No. 1-E, Vijayanagar Colony, Hyderabad. ..... PETITIONER AND 1 The state of Andhra Pradesh, Rep. by its Chief Secretary, Secretariat, Hyderabad. 2 The state of Andhra Pradesh, Rep. by its Chief Secretary, GAD, Secretariat, Hyderabad. 3 The Chief Secretary, Agriculture Department, Secretariat, Hyderabad. 4 The State of Andhra Pradesh, Rep. by D.I.G., ACB City Range, Hyderabad. By its Special Public Prosecutor. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, order or Direction more particularly one in the nature of Writ of Certiorari call for the records relating to the CC No. 57 of 2004 on the file of the Principal Special Judge, ACB Cases, Hyderabad and to quash the same is unconstitutional violative of principles of natural justice. Counsel for the Petitioner : MR. V .VIJAYA RAMA RAJ Counsel for the Respondents : GP FOR HOME The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.19422 OF 2008 ORDER : This writ petition is filed seeking a Certiorari to call for the records relating to C.C.No.57 of 2004 pending on the file of the Court of the Principal Special Judge, ACB Cases, Hyderabad, and to quash the same. While the petitioner herein was working a s Assistant Director in the Agriculture Department of the Government of Andhra Pradesh, a crime was registered against him on 20.06.1997 under Section 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 alleging that he acquired huge assets by corrupt and dubious means. Pursuant thereto, searches were conducted and the incriminating material relating to the assets were seized and after completing the investigation the Inspector of Police, ACB, City Range-II, Hyderabad filed the charge-sheet and accordingly C.C.No.57 of 2004 has been registered in the Court of the Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, on 9.12.2004 for prosecution of the petitioner. While so, the petitioner herein made a representation dated 15.7.2006 before the State Government stating that the source of income for all the assets was submitted to the Income-tax Authorities regularly and that all the assets were legally acquired by him and his family members and therefore the criminal prosecution initiated against him may be dropped. Having considered the said representation, the Government issued G.O.Rt.No.1071, Agriculture & Co-operation (VIG.I) Department, dated 19.10.2006 deciding to revoke the prosecution against the petitioner and to drop further action against him and accordingly requesting the Director General, Anti Corruption Bureau, Hyderabad to take immediate necessary action to withdraw C.C.No.57 of 2004 on the file of the Court of the Principal Special Judge for SPE & ACB Cases, Hyderabad and furnish compliance report expeditiously. In pursuance of G.O.Rt.No.1071, dated 19.10.2006, the Special Public Prosecutor, A C B , filed Criminal Petition No.1093 of 2006 in C.C.No.57 of 2004 seeking permission of the Court of Principal Special Judge for SPE & ACB Cases, Hyderabad to withdraw the prosecution against the petitioner. However, the said application was dismissed by the learned Principal Special Judge, by order dated 10.01.2007. Thereafter, the petitioner filed Criminal Petition No.1046 of 2007 under Section 482 of Cr.P.C. to quash the C.C.NO.57 of 2004 in view of G.O.Rt.No.1071, dated 19.10.2006. This Court by order dated 24.04.2007 dismissed Criminal Petition No.1046 of 2007. Long thereafter on 5.9.2008 this writ petition has been filed seeking a Writ of Certiorari to call for the records relating to C.C.No.57 of 2004 and to quash the same. It is contended in the present Writ Petition that in view of the decision of the Government in G.O.Rt.No.1071, dated 19.10.2006 to withdraw the prosecution, it is not open to the Court t o refuse the permission as sought by the Special Public Prosecutor. It is also contended that the Court is bound to accept the application made under Section 321 of the Criminal Procedure Code since G.O.Rt.No.1071, dated 19.10.2006 is issued in the name of the Governor of the State in exercise of the powers conferred under Article 161 of the Constitution of India. In the counter-affidavit filed by the Investigating Officer on behalf of the respondent No.4, it is stated that the petitioner had earlier filed Criminal Petition No.1046 of 2007 under Section 482 of Cr.P.C. to quash the proceedings in C.C.No.57 of 2004 and the same was dismissed by this Court by order dated 24.04.2007. Subsequently, the petitioner filed Criminal Petition No.6273 of 2007 which was dismissed as withdrawn. In view of the said orders which have become final, the present writ petition is not maintainable and liable to be dismissed in limini. The allegation of the petitioner that there was no notice to him before submitting the final report to the Government has been specifically denied and it is stated that the proceedings in C.C.No.57 of 2004 are not vitiated on any ground whatsoever. I have heard the learned counsel for the petitioner, who while placing reliance upon the decisions in S.M.S. PHARMACEUTICALS LTD. v. NEETA BHALLA, STATE (GOVERNMENT OF NCT OF DELHI) v. PREM RAJ and K.V.V. KRISHNA RAO v. STATE OF A.P., vehemently contended that the continuation of the proceedings in C.C.No.57 of 2004 is arbitrary, illegal and unconstitutional and therefore the same are liable to be quashed. I have also heard the learned Standing Counsel-cum-Special Public Prosecutor for ACB Cases appearing for the 4th respondent and perused the material on record. No doubt, the Government has taken a decision in G.O.Rt.No.1071, dated 19.10.2006 to revoke the prosecution against the petitioner and to drop further action against him and accordingly the Director General, ACB, was requested to take action to withdraw the case in C.C.No.57 of 2004. However, the question is whether the Court is bound by the said decision of the Government and whether the prosecution of the petitioner is liable to be withdrawn. Section 321 of Cr.P.C. which provides for withdrawal from prosecution runs as under : 321. 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. Provided that where such offence, -- (i) was against any law relating to a matter to which the executive power of the Union extends; or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946); or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government; or (i v ) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Public Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution. A plain reading of Section 321 of Cr.P.C. shows that it is for the Public Prosecutor to withdraw from the prosecution of any person with the consent of the Court. Having considered the scope and object of Section 321 of Cr.P.C., it has been held by the Courts in a catena of decisions that the power to withdraw from prosecution is conferred on the Public Prosecutor alone and that the decision to withdraw must be of the Public Prosecutor. It was also held that the function of the Court in granting its consent is a judicial function which means that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised { vide AIR 1980 SC 1510, AIR 1983 SC 194, AIR 2001 SC 116 and (2005) 2 SCC 377 }. In the light of the above settled legal position, it is clear that the decision taken by the Government in G.O.Rt.No.1071, dated 19.10.2006, is not conclusive and not binding on the Public Prosecutor much less the Court. Hence, the withdrawal of prosecution of the petitioner is not automatic merely on the basis of G.O.Rt.No.1071, dated 19.10.2006 but the same shall be in accordance with the procedure prescribed under Section 321 of Cr.P.C. The other contention that G.O.Rt.No.1071, dated 19.10.2006, was issued by the Governor in exercise of the power conferred under Article 161 of the Constitution of India is also untenable and without any basis. Article 161 which empowers the Governor of a State to grant pardons or remissions of punishment or to suspend or remit the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends, has no application at all to the present case which is only at the stage of trial. As contended by the learned counsel for the 4th respondent, G.O.Rt.No.1071, dated 19.10.2006 is a mere executive order which was issued in the name of the Governor under Article 166 of the Constitution of India. Though there can be no dispute with regard to the competency of the Government to pass such an order, the further steps shall be only in accordance with the procedure prescribed under Section 321 of Cr.P.C. which mandates independent exercise of discretion by the Public Prosecutor in-charge of the case subject to the consent of the Court. Admittedly, the Special Public Prosecutor made an application in terms of Section 321 of Cr.P.C. on behalf of the State/Complainant seeking permission to withdraw the prosecution of the petitioner herein. The Special Court while holding that there was no indication in the application that the Public Prosecutor had applied his mind before seeking permission for withdrawal from the prosecution, declined to grant permission to withdraw the prosecution. Immediately thereafter, the petitioner moved this Court under Section 482 of the Criminal Procedure Code to quash the proceedings in C.C.No.57 of 2004. This Court by order dated 24.04.2007 dismissed the said petition filed under Section 482 of Cr.P.C. and the same has become final since the petitioner has not carried the matter in Appeal. It is relevant to note that the whole argument in Criminal Petition No.1046 of 2007 filed under Section 482 of Cr.P.C. was that the learned Special Judge for SPE & ACB Cases committed an error in concluding that the Special Public Prosecutor failed to act independently by applying his mind while seeking permission for withdrawal of the prosecution. It was contended by the petitioner that in view of the decision taken by the Government in G.O.Rt.No.1071, dated 19.10.2006 it can be inferred that the Public Prosecutor applied his mind and therefore the Court cannot go into further details except according consent for withdrawal of the prosecution. This Court after referring to various decisions of the Supreme Court with regard to the power conferred under Section 321 of Cr.P.C., rejected the contentions of the petitioner and held as under : The above decisions rendered by the Supreme Court clearly indicate that the Public Prosecutor has to apply his mind independently without allowing himself to become the government’s stooge. 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. While withdrawing the case, the Government should decide, in the first instance, whether it should be baneful or beneficial to launch or continue the prosecution. If the Government decides that it should be in the public interest to withdraw from the prosecution, the government may order withdrawal of the case. Criminal justice is not a plaything and a Criminal Court is not a play ground for politicking. The political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of rule of law will be lost. Therefore, the courts when moved for permission for withdrawal from prosecution, must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the government and thereafter apprise the Court the host of factors relevant for withdrawal from the cases. In the present case, the Public Prosecutor did not file any letter addressed by the Government to him to file an Application along with the G.O. before the Court to enable the Court to give the consent. The Public Prosecutor did not assign any reasons whether in the interest of public the prosecution has to be withdrawn. This is a case where there is an allegation of acceptance of bribe under the Prevention of Corruption Act. The Public Prosecutor did not mention in the Application that there is no likelihood of conviction of the accused from the evidence so far adduced. Neither the Government nor the Public Prosecutor assigned any reasons and there is no indication in the application whether the public prosecutor has applied his mind. There is an allegation of demanding and accepting bribe against the accused. There is no public interest involved in it. The Government deciding to refer the matter to the Tribunal for Disciplinary Proceedings by itself is not a ground for withdrawal of the case. The Public Prosecutor did not mention how the withdrawal meets the ends of justice social, economic and political. He also did not mention wither there is any public policy involved in this case and broader public interest like maintenance of law and order, maintenance of public peace and harmony. He also did not mention that the withdrawal of the case against the accused will not stifle or thwart the process of law or cause manifest injustice. There is no indication that the Public Prosecutor considered the material and in good faith reached the conclusion that the withdrawal from the prosecution will serve the public interest. By withdrawing the case, the prosecution should not reward the wrongdoer and if the withdrawal is made on irrelevant considerations, the credibility of the Rule of Law will be lost. The withdrawal can be allowed only in the interest of justice. There are no sufficient circumstances for the Court that the withdrawal of the prosecution against the accused would advance the cause of justice. In view of the above order of this Court and particularly in the absence of plea or material to show that there is a changed set of circumstances, it is not open to the petitioner to re-agitate the issue by invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. On a careful consideration of the entire material on record, I am of the opinion that no special circumstances could be made out by the petitioner in the present writ petition to seek quashing of the proceedings in C.C.No.57 of 2004. The law is well-settled that the extraordinary jurisdiction under Article 226 of the Constitution of India can be exercised by this Court to quash the criminal proceedings only in extraordinary circumstances either to prevent abuse of the process of any Court or otherwise to secure the ends of justice where the allegations made in the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or to make out a case against the accused. None of the above said circumstances are made out in the present case. The three decisions cited by the learned counsel for the petitioner are clearly distinguishable on facts and have no application to the case on hand. Hence, viewed from any angle, the writ petition is devoid of any merit and misconceived. Accordingly, the Writ Petition is hereby dismissed. No costs. ______________ G. ROHINI, J. Dt.18.12.2008 gbs