IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.5496 OF 2007 DATE:05.03.2010 Between: Kuntrapakam Muddukrishaiah …… Petitioner/Accused. And: The Inspector of Police, Anti Corruption Bureau, Tirupathi, rep. by Spl. Public Prosecutor. …..Respondent. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO5496 OF 2007 ORDER: This petition is filed by the 1st accused under Section 482 Cr.P.C for quashing order dated 27.02.2007 passed by the Special Judge for S.P.E., and A.C.B., Cases, Nellore in Criminal M.P.No.746 of 2006 in C.C.No.9 of 2006. The respondent/Inspector of Police, A.C.B, Tirupathi filed C.C.No.9 of 2006 in the lower court against A-1 who is Mandal Revenue Officer, Varadaiahpalem, A-2 who is Additional Revenue Inspector and also A-3 who is a private person alleging that when the defacto-complainant approached office of A-1 for getting house site patta in the name of his wife and submitted application to A-1 who endorsed the same to A-2 and asked the defacto-complainant that he has to meet certain expenditure. It is further alleged that when A- 2 demanded illegal gratification of Rs.5,000/- for himself and for A-1 and when the defacto-complainant pleaded his inability as the amount was huge, A-2 reduced bribe amount to Rs.4,000/- and that when the defacto-complainant met A-1 and informed him, A-1 instructed him to act as per instructions of A-2. According to the prosecution, trap was laid and when the defacto-complainant offered Rs.4,000/- to A-2, A-2 asked him to hand it over to A-3. Ultimately, the alleged bribe amount was recovered from the pant pocket of A-3 after conducting the chemical test. Admittedly, the chemical test showed negative when A-1 was subjected to the same. After obtaining necessary sanction from the Government, the respondent filed charge sheet in the lower court against A-1 to A-3. After the lower court took cognizance of the offence, the Government of Andhra Pradesh issued G.O.Ms.No.1482 dated 9.10.2006 of Revenue (Vig-II) Department canceling prosecution orders issued previously in G.O.Ms.No.2161 dated 20.12.2005 of Revenue (Vig-II) Department. It was also mentioned that the Government will be taking departmental action against A-1 for administrative lapses if any in dealing with application of the defacto- complainant’s wife and directing the Director General, A.C.B., to take further immediate action accordingly to withdraw the prosecution against A-1. Thereupon, the Special Public Prosecutor, A.C.B., Nellore filed the present petition under Section 321 Cr.P.C for withdrawing case against A-1. The said application was dismissed by the lower court. It is contended by the petitioner’s counsel that there are no merits in the case filed by the respondent in so far as A-1 is concerned, because A-1 neither demanded bribe nor received bribe from the defacto-complainant and chemical test proved negative for A-1. It is also contended by the petitioner’s counsel that the petitioner/A-1 was adjudged as the best Mandal Revenue Officer by the District Collector during that year as he implemented all programmes of the Government in his Mandal effectively. Under Section 321 Cr.P.C, it is prerogative of the Public Prosecutor to file a petition thereunder for withdrawal of the prosecution after application of his mind. The Special Public Prosecutor in the lower court in his application filed under Section 321 Cr.P.C mechanically stated facts relating to the case and Government orders issued for withdrawing the case. He did not apply his mind whether it is a fit case for withdrawal of the prosecution or not. This Court has no hesitation to observe that the Special Public Prosecutor in the lower court has failed in his duty as he failed to apply his mind and mechanically filed the petition under Section 321 Cr.P.C., as if it is his duty is to file the same when the Government issued G.O. directing the Director General, A.C.B., Hyderabad to withdraw the prosecution. This unfortunate situation in the State of A.P is existing because of the prosecution department is working through Cadre Public Prosecutors as distinguished from Tenure Public Prosecutors. Cadre Public Prosecutors of those who are Public Prosecutors in Government service and they are governed b y A.P. Civil Services (Conduct) Rules,1964 and A.P. Civil Services (Classification, Control and Appeal) Rules,1991. Bent of mind of those Cadre Public Prosecutors will never be independent as they always feel that they are subordinates to the Government. In M.Jagan Mohan Reddy v. State of A.P.,[1] this Court observed that the Public Prosecutor should not act as a tool of Government. Even though the Public Prosecutor had failed in his duty to apply his mind, it will not denude the Court from considering whether withdrawal of the prosecution was in public interest. At the same time, tenability of the case on merits may not weigh with the Court while judging whether the prosecution is liable to be permitted to be withdrawn or not. Instances to withdraw the prosecutions arise because the Government do not apply mind properly while giving sanction for prosecution in the beginning. Irrespective of merits of the case and reliability of prosecution version, it is open to the Public Prosecutor to file a petition for permission to withdraw the prosecution in case it is in public interest. Even though there are allegations against A-1 that he was also a party to the bribe demanded by his Additional Revenue Inspector from the defacto- complainant, it is evident that the Government thought it fit to withdraw the prosecution because the petitioner/A-1 as Mandal Revenue Officer had successfully implemented several programmes of the Government in his jurisdiction and because he was adjudged by the Collector as the distinguished Mandal Revenue Officer in the district. The government also did not drop entire allegations against A-1, but intended to take departmental action against him for the lapses in his office. Having regard to all the circumstances noted above, this Court is of the opinion that this is a fit case for permitting the Public Prosecutor to withdraw the prosecution as against the petitioner/A-1. In the result, the petition is allowed quashing order dated 27.02.2007 passed by the Special Judge for S.P.E., and A.C.B., Cases, Nellore in Criminal M.P.No.746 of 2006 in C.C.No.9 of 2006 and granting permission to withdraw the prosecution in so far as the petitioner/A-1 is concerned. ____________________________________ SAMUDRALA GOVINDARAJULU, J. Date:05.03.2010 Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION NO.5496 OF 2007 DATE:05.03.2010 Gk [1] 2007(1) A.L.D (Crl) 957 (AP)