* THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NO. 20389 OF 2006 % SATURDAY, 18th DAY OFAPRIL, TWO THOUSAND NINE # Dr. D.Bharathi, w/o late D.Rama Rao, R/o D.No.33, S.D.Road, Secunderabad. … Petitioner versus $ The State of Andhra Pradesh, represented by its Principal Secretary, (Legal-II) Department, Secretariat, Hyderabad and others … Respondents ! Counsel for the petitioners : Sri S.R.Sanku ^ Counsel for the respondents : GP for Home < Gist : >Head Note: ? 1 AIR 1967 SC 1214 2 AIR 1980 SC 423 3 AIR 1972 SC 496 4 AIR 1957 SC 389 5 AIR 1977 SC 2265 6 AIR 1980 SC 1510 7 2001 CRL.L.J. 148 8 AIR 1987 SC 877 9 (2005) 2 SCC 377 10 1999 (2) ALT 325 11 2007 (1) ALD (Crl) 957 (AP) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE 18th DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 20389 of 2006 Between: Dr. D. Bharathi, W/o. Late D. Rama Rao, R/o.D.No.33, S.D. Road, Secunderabad. ... PETITIONER AND 1 The State of Andhra Pradesh, represented by its Principal Secretary, (Legal-II) Department, Secretariat, Hyderabad. 2 The Director General of Police, A.P; Hyderabad. 3 The Commissioner of Police, Hyderabad. 4 The Collector and District Magistrate, Hyderabad. 5 The Senior Public Prosecutor, Court of II Additional etropolitan Magistrate, Nampally Criminal Courts, Hyderabad. 6 Smt. D. Rama Bharathi, W/o. A. Vasudeva Rao, Plot No.15-A, Road No.10-C, Jubilee Hills, Hyderabad. 7 D.S. Murthy, S/o. Late D. Rama Rao, R/o. Polt No.15-A, Road No.10-C, Jubilee Hills, Hyderabad. 8 Smt. D. Tilothamma, W/o. D.S. Murthy, Plot No.15-A, Road No.10-C, Jubilee Hills, Hyderabad. ...RESPONDENTS 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 or order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the 1st respondent in passing the G.O. Rt.No.1646 Home (Legal-II) Department dated 18.09.2006 paving the way for withdrawal of the Prosecution in C.C.No.387 of 2006 on the file of the Court of II Additional Metropolitan Magistrate, Nampally Criminal Court, Hyderabad lunched at the behest of the petitioner, as illegal arbitrary and it is further consequentially prayed that this Honourable Court may be pleased to set aside the said G.O. directing continuation of the trial in the said C.C. immediately and pass such other order/s. Counsel for the Petitioner: MR.S.R.SANKU & KAVITI MURLI KRISNA Counsel for the Respondent No.: GP FOR HOME The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 20389 OF 2006 ORDER: The sequence of relevant facts : The petitioner lodged a private complaint against the respondents 6 to 8 and others before the X Metropolitan Magistrate, Secunderabad. The complaint was forwarded to the Gopalapuram Police Station, Secunderabad, on 21.10.2001. The complaint was registered as Cr.No. 263 of 2001 u/Secs. 420, 463, 465 R/w 34 IPC and investigation taken up. The Gopalapuram P.S forwarded the final report and laid a chargesheet. The investigation revealed that the six accused (including A.1 to A.3, the respondents 6 to 8 herein) committed offences punishable u/Sections 139, 468, 471, 406 and 420 r/w 34 IPC. On the filing of the chargesheet the case was numbered as CC No. 773/03 on the file of the X Metropolitan Magistrate, Secunderabad. The case is pending trial on the file of the II Additional Metropolitan Magistrate, Criminal Courts, Nampally, as CC No. 387/06 (after transfer ordered by the Metropolitan Sessions Judge, in Crl.Tr.M.P.No. 59/06, dated 3.4.2006). Respondents 6 to 8 earlier filed Crl.M.P. No. 2092/03 as A1 to A3; while A4 and A5 filed Crl.M.P.No. 3439/03 and A6 Crl.M.P.No. 3440/03 seeking their discharge from prosecution. By a common order dated 09.12.2003, the X Metropolitan Magistrate dismissed these applications. A4 and A5 then filed Crl.R.P.No. 84/04 before the Court of VI Additional Metropolitan Sessions Judge, Secunderabad, aggrieved by the order dated 9.12.2003 in Crl.M.P.No. 3439/03. This petition was dismissed on 12.5.2004. The respondents 6 to 8 (A1 to A3) preferred Crl.R.C.No. 9/04 (against the order dated 9.12.2003 dismissing Crl.M.P.No. 2093/03), before this court. This was withdrawn and dismissed as such on 23.3.2005. Unrelenting A4 and A5 filed Crl.P.No. 1654/05 challenging the order in Crl.R.P. No. 84/04 dated 12.5.2004. Initially a stay was granted which was later vacated on 30.06.2005. Thereafter A1 (R-6 herein) filed Crl.P.No. 4462/05 (challenging the order of the X addl. Chief Metropolitan Magistrate, Secunderabad in Crl.M.P.No. 3063/05) seeking quashing of the proceedings against her claiming that she was a juvenile at the time of committing the offence. Stay of all further proceedings of trial in CC No. 387/06 was initially granted, but eventually Crl.P.No. 4462/05 was dismissed on 26.7.2006. The accused then filed Transfer Miscellaneous Petition No. 59 of 2006 before the Metropolitan Sessions Judge, Nampally attributing bias to the Presiding Officer of the Court of the X Additional Metropolitan Magistrate, Secunderabad and obtained transfer of the case to the Court of II Additional Metropolitan Magistrate, Nampally. As the petitioner (is now aged about 83 years) was at an advanced age and the trial in C.C.No. 387/06 was stalled on one pretext or the other, despite the prosecution being in relation to a complaint lodged in 2001, she filed Crl.P.No. 3025/05 for expeditious trial and recording of her evidence, during her life time. The petition was allowed by this court on 10.08.2005 and the trial court was directed to commence the trial by recording the evidence of either side and dispose of the same within a period of 3 months in view of the guidelines issued by this court in a circular dated 26.07.2005. Thereafter the 1st respondent State issued the impugned G.O. Rt. No. 1646 Home (Legal-II) Department dated 18.09.2006, which reads as under: “ Government after careful examination of the representation of Smt. D.Rama Bharathi (the 6th respondent and A1), dated 30.12.2004 and the letter of the Director General of Police, Andhra Pradesh, Hyderabad in the reference 3rd and 5th read above, have decided to withdraw the prosecution against Smt. D.Rama Bharathi, Smt. Thilothamma and Sri D.S.Murthy in Crime No. 263/2001 under sections 199, 468, 471, 406, 420 read with section 34 of the IPC 1860 of Gopalapuram Police Station of Hyderabad City in CC No. 773/2003 on the file of X MM, Secunderabad. 2. The Collector and District Magistrate of Hyderabad is requested to direct the Public Prosecutor concerned to file petitions under section 321 of Code of Criminal Procedure, 1973 (Central Act 2 of 1974), for withdrawal of prosecution against Smt. D. Rama Bharathi, Smt. Thilothamma and Sri D.S.Murthy in Crime No. 263/2001 under sections 199, 468, 471, 406, 420 read with section 34 of the IPC 1860 of Copalapuram Police Station of Hyderabad City in CC No. 773/2003 on the file of X MM, Secunderabad under intimation to Government.” As apparent from the above order, the 1st respondent (after having decided to withdraw the prosecution) requested the 4th respondent to direct the 5th respondent to file petitions u/Secs. 321 Cr.P.C. 1973 to withdraw the prosecution against the respondents 6 to 8 herein. The petitioner assails this order on several grounds: The Challenge : A) That since the 7th respondent was a senior IAS Officer of the State Cadre, the 1st respondent with an oblique motive, to help him evade prosecution and for extraneous reasons issued the impugned order; B) That respondents 6 to 8 had already made hectic efforts for withdrawal of the prosecution, but the senior Assistant Public Prosecutor of the Court of the X Metropolitan Magistrate, Secunderabad had declined to withdraw the prosecution. However, when the senior Public Prosecutor of the Court of II Additional Metropolitan Magistrate, Nampally was on leave and one Mr. M. Kishore Kumar was incharge, the respondents 6 to 8 influenced this incharge officer and contrived a proposal for withdrawal of the prosecution on the ground that the case is civil in nature; C) The impugned order (of the 1st respondent requesting the 4th respondent to direct the 5th respondent to file a petition u/Sec. 321 Cr.P.C.) amounts to usurping the statutory jurisdiction of the 5th respondent particularly since the impugned order states that the 1st respondent has decided to withdraw the prosecution, a decision which does not inhere in the 1st respondent; D) The language of the impugned order is peremptory and is calculated to overawe and coerce the 5th respondent into withdrawing the prosecution, a decision which the 5th respondent is required to independently and rationally arrive at; E) As the prosecution is pursuant to a private complaint lodged by the petitioner, principles of natural justice and fundamental principles of fair play warrant that the 1st respondent should not have passed the impugned order without notice or information to the petitioner; and F) No public interest is served and there are no reasons discernable in the impugned order of the 1st respondent. The order of the 1st respondent constitutes abuse of Executive power. G) The Senior Assistant Public Prosecutor of the Court of the X Metropolitan Magistrate, Secunderabad had declined to withdraw the prosecution. Hence it is not open to the State and in the absence of any fresh material or altered circumstances, to issue the impugned order on the basis of an artificially procured opinion. The writ petition was filed on 26.9.2006. When the writ petition was taken up for hearing on 9.7.2008 (nearly 2 years later), there was no counter affidavit by the 1st respondent-State in the matter. It is the order of the State Government in G.O.Rt. No. 1646 Home Department dated 18.09.2006 which is in challenge in this writ petition, inter alia on the ground that it constitutes arbitrary exercise of State power for extraneous reasons apart from a challenge that the peremptory language of the G.O. is calculated coerce a public functionary, the Public Prosecutor, who is required to perform his statutory and discretionary function on an independent exercise of discretion without being dictated to. In the circumstances, this court by the order dated 9.7.2008 directed the 1st respondent to be present in the court and to file a counter affidavit. A counter affidavit was filed by the 1st respondent on 27.2.2008, by the in charge Principal Secretary to the Government, Home Department. The defense :- A) On the basis of the record, it is admitted that the petitioner lodged a private complaint before the Magistrate Court, Secunderabad which was referred for investigation u/Sec.156(3) Cr.P.C. Cr.No. 263/01 u/Secs. 199, 468, 471, 405 and 420 r/w 34 IPC was registered by the Gopalapuram Police Station and investigation taken up. On collection of oral and documentary evidence during the course of investigation, the police concluded that offences were committed by the accused. Consequently a chargesheet was filed vide CC No. 773/03, dated 26.05.2003. As the 1st accused was a minor a separate chargesheet was filed against her before the V Addl. Chief Metropolitan Magistrate, Hyderabad (Juvenile) registered as CC No. 294/06. B) On 30.12.2004 the 1st accused (R-6) represented to the Government requesting withdrawal of prosecution in CC No. 263/01 of Gopalapuram PS. This representation was forwarded to the Commissioner of Police, Hyderabad for enquiry and report together with the opinion of the Public Prosecutor for a decision/recommendation for withdrawal. C) A communication was received from the Special Public Prosecutor-cum-Addl. Public Prosecutor, Court of VI Addl. Metropolitan Sessions Judge, Secunderabad (Mr. K.Kishore Kumar) who was holding charge of the O/o the Public Prosecutor. The incumbent Public Prosecutor Mr. M.Krishna Mohan was on leave at that time. on 11.02.2005 the incharge Addl. Public Prosecutor (Mr. M.Kishore Kumar) furnished an opinion that there are no merits in the case and it is a fit case to withdraw the prosecution against all the accused. This opinion was forwarded to the Commissioner of Police, Hyderabad on 24.2.2005. The Commissioner of Police by a memo dated 17.5.2005 called upon the Deputy Commissioner of Police North Zone to obtain the opinion of the concerned Public Prosecutor. D) The Public Prosecutor concerned Mr. M.Krishna Mohan, the Senior Asst. Public Prosecutor for the Court of X Addl. Chief Metropolitan Magistrate, Secunderabad forwarded an opinion on 15.7.2005 that it is not a fit case for withdrawal of prosecution and it is appropriate to pursue prosecution. This opinion was forwarded to the Commissioner of Police on 17.01.2006. E) The Commissioner of Police thereupon addressed a letter dated 12.08.2005 to the Director General of Police stating that there are no grounds for withdrawal of prosecution. The D.G.P. in turn addressed a letter dated 5.5.2006 to the State Government enclosing copies of the legal opinion, leaving it to the State Government to take a decision. F) Thereupon the State Government issued the impugned G.O.Rt.No. 1646 “requesting the Public Prosecutor to consider filing a requisition/petition for withdrawal of prosecution after perusing the entire records and opinion furnished by the Public Prosecutor”. G) The impugned G.O. was on the basis of the earlier opinion by the incharge Public Prosecutor Mr. M.Kishore Kumar who opined that it is a fit case to withdraw the prosecution against all the accused. H) Thereupon the Collector. Hyderabad District (R-4) addressed a letter dated 26.9.2006 to the Asst. Public Prosecutor, Court of II Addl. Chief Metropolitan Magistrate, Nampally, to file a petition u/Sec. 321 Cr.P.C., in the light of the G.O. I) The Public Prosecutor had not filed any petition for withdrawal of prosecution before the concerned court and the case is posted to 28.07.2008 for recording the statement of the complainant. J) It is admitted that in the impugned order (though stated to be inadvertently) the District Collector was requested to direct the Public Prosecutor to file a petition for withdrawal of prosecution. However it is not the intention of the Government to direct the Public Prosecutor. It is admitted that the Public Prosecutor ought to have been requested to consider the proposal for withdrawal of prosecution on merits. In the reply affidavit, the petitioner reiterates the criminality of the accused and that the State Government issued the impugned order directing the Public Prosecutor to withdraw the prosecution, in bad faith and arbitrarily. During the pendency of the writ petition, the petitioner by way of WPMP No. 27015/07 sought to bring on record certain documents as additional material on record for the perusal and consideration of this court; and by a subsequent application in WPMP No. 919/09 the petitioner brought on record another order of the 1st respondent in G.O. Rt. No. 2300, Home Department, dated 3.12.2008 by way of amendment to the impugned (G.O.Rt.No. 1646). By the order dated 3.12.2008 Paragraph-2 of the G.O.Rt.No.1646 was amended and the peremptory direction to be addressed by the Public Prosecutor by the District Collector is substituted to read that the Collector should “address the Public Prosecutor concerned for filing a petition u/Sec.321 Cr.P.C.” The respondents and their counsel have noted these applications of the petitioner. These applications are ordered. This court on 30.09.2008 by the order passed in WPMP No.27015/07 directed production of the note and current file relating to issuance of the impugned G.O. The record has been produced for the perusal of this court. I have carefully gone through the entire Government file relating to the issuance of the impugned G.O. Analysis of the Current File:- i) As stated in the counter affidavit of the 1st respondent, after completion of the investigation into Cr.No. 263/01, the Gopalapulam police laid a chargesheet vide CC No. 773/03, on 26.5.2003. As against the 1st accused (R-6) who is accused of certain offences during her minority, a separate chargesheet was filed against her before the Court of V Addl. Chief Metropolitan Magistrate, Hyderabad (Juvenile) as CC No. 294/06. ii) 1½ years after the chargesheet was filed, the 6th respondent submitted a representation dated 30.12.2004 to the Hon. Minister for Home, seeking withdrawal of prosecution in Cr.No. 263/01 and in CC No. 773/03 on the file of the X Metropolitan Magistrate, Secunderabad, in so far as the respondents 6 to 8 (A1 to A3). In this representation the 6th respondent stated that the chargesheet suffers from procedural defects; that since the petitioner had already filed OS No. 154/04 before the III Addl, Chief Judge, CCC, Hyderabad (a suit for cancellation of sale deeds u/Sec. 31 of the Specific Relief Act and for possession and mesne profits) the dispute between the parties is civil in nature and no criminality is involved; that the accused and her parents (A1 to A3) committed no offence; and the petitioner lodged the complaint and is unnecessarily prosecuting them out of vendetta. iii) On this representation the Hon. Minister for Home made an endorsement dated 5.1.2005 to the 1st respondent: re- examine the request and circulate for taking necessary action, early. On 20.01.2005 the 1st respondent by a memo, forwarded the 6th respondent’s representation and its enclosures to the DGP for specific remarks along with the report of the Commissioner of Police, Hyderabad and for the opinion of the Public Prosecutor concerned, directing early response. A reminder was issued to the DGP on 17.8.2005 directing urgent response. On 17.8.2005 the 1st respondent issued a memo, in reiteration of the earlier memo dated 20.01.2005, calling upon the DGP to send his report as requested in the earlier memo dated 20.01.2005. There is no reference to any legal opinion already received by the 1st respondent, in the memo dated 17.08.2005. iv) On 18.8.2005 the respondents 6 to 8 submitted another representation to the Hon. Minister for Home. In this representation respondents 6 to 8 contended that neither the police officer nor the Public Prosecutor is entitled to form an opinion as to whether the petitioner’s (de facto complainant) signature was obtained on blank stamp papers and that these documents be referred to the Government Examiner of Questioned Documents, Ramanthapur, Hyderabad (GEQD). The respondents 6 to 8 also stated that the Public Prosecutor is understood to have given an opinion in the matter (obviously referring to the opinion of Mr. H. Krishna Mohan dated 15.7.2005). Clearly the respondents 6 to 8 had information access as to this legal opinion of the Public Prosecutor, even before the legal opinion was forwarded by the DGP to the 1st respondent. v) On 22.08.2005 the DGP addressed the 1st respondent stating that the Commissioner of Police had informed that the case against the respondents 6 to 8 is pending trial and the Senior Asst. Public Prosecutor of the Court of X Addl. Chief Metropolitan Magistrate, Secunderabad had opined that there are no grounds for withdrawal of prosecution; that during the course of investigation the evidence collected by the police has established the offences; and that the Dy. Commissioner of Police North Zone and the Commissioner of Police, Hyderabad were also of the opinion that there are no grounds for withdrawal of prosecution. The DGP also opined in this letter dated 22.8.2005 that he agrees with the above opinion. The report of the Commissioner of Police in a letter dated 12.08.2005 with the recommendations of the Dy. Commissioner of Police, North Zone by a letter dated 16.7.2005, and opinion dated 15.8.2005 of the Senior Asst. Public Prosecutor, X Addl. Chief Metropolitan Magistrate, Secundderabad, were enclosed to this letter of the DGP. vi) Earlier on 26.5.2005 the Commissioner of Police had addressed the DGP intimating that the accused 1 to 3 in CC No.263/01 had approached the High Court seeking stay of all further proceedings in Crl.MP No. 2092/03 and an interim stay was granted, later they withdrew the petition; that the opinion of the Spl. Public Prosecutor of the X Addl. Metropolitan Sessions Judge, Secunderabad was also forwarded by the Commissioner of Police’s letter dated 4.4.2005; that the APP declined to offer an opinion in the case as A1 to A3 are known to her and her husband had worked under A2 when he worked in the Transport Department. This APP had also requested the Director of Prosecution that the trial of the case be entrusted to some other prosecutor. vii) The report of the Inspector of Police, Gopalapuram PS dated 15.7.2005 addressed to the Dy. Commissioner of Police, North Zone (enclosed to the DGP’s letter dated 22.08.2005 to the 1st respondent) is also clear and categorical and records that the police collected 53 vital documents and had conducted extensive investigation which leads to the opinion that the accused are responsible for the offences. The opinion dated 15.7.2005 of Mr. H.Krishna Mohan, the Senior Asst. Public Prosecutor is also clear that the accused are responsible for the offences charged and it is not a fit case for withdrawal of prosecution. viii) Curiously (though the mater was pending trial in the Judicial branch), the 1st respondent issued a memo dated 1.9.2005 to the DGP calling for a report from the GEQD regarding the genuineness of certain documents. This memo was issued pursuant to the representation dated 18.8.2005 by the respondents 6 to 8. The 1st respondent issued a further direction to the DGP on 19.10.2005. ix) The Government record contains a “confidential letter” dated 20.10.2005 addressed by the 6th respondent to the Director of Prosecution O/o DGP, complaining about Mr. Krishna Mohan, Senior Asst. Public Prosecutor, dealing with the case. The letter states that the Public Prosecutor’s behaviour is increasingly became incorrigible and cannot be tolerated any longer. By this letter the 6th respondent requested the Director of Prosecutions to instruct Mr. Krishna Mohan to behave normally and cooperate with the court and not create hurdles in the process of “unrevealing truth” and render justice and enable the police to take the affidavit filed by Dr. Bharathi to GEQD without further delay. Clearly this letter is calculated to coerce the Public Prosecutor through the executive hierarchy. x) The respondents 6 to 8 submitted yet another representation dated 21.10.2005 to the Hon. Minister for Home soliciting Government orders regarding getting the document examined by the GEQD. On this representation the Hon. Minister made an endorsement dated 25.10.2005 examine and circulate immediately. xi) On 30.11.2005 the 1st respondent directed the DGP to forward the opinion of the Public Prosecutor. The DGP thereupon addressed a communication dated 28.12.2005 to the 1st respondent stating that in view of the provisions of Sec. 321 Cr.P.C. the Public Prosecutor who may exercise the power of withdrawal of prosecution is the officer who is incharge of the case, as held in AIR 1967 SC 1214 and no other Public Prosecutor can exercise the powers u/Sec. 321 Cr.P.C. The DGP also conveyed to the 1st respondent that the opinion of Mr. H.Krishna Mohan, Senior Asst. Public Prosecutor incharge of the case has to be treated as the opinion of the Public Prosecutor and the DGP sees no reason to disagree with the proposal of the Commissioner of Police, or the opinion of the Senior APP who is the concerned Law Officer incharge of the case. xii) Undeterred, the 1st respondent addressed a memo dated 3.2.2006 to the DGP seeking the opinion of the Public Prosecutor and also calling for a report of the GEQD on the genuineness of the documents referred for opinion. By another memo dated 24.4.2006 the 1st respondent directed the DGP to send for the opinion and record (as directed in the earlier memo dt 3.2.2006), and to treat it as most immediate. On 24.4.2006 the respondents 6 to 8 again represented to the Hon. Minister for Home to pass orders for withdrawal of prosecution in CC No. 773/03 which is stated to have been transferred to the Court of the II Metropolitan Magistrate, Nampally. On this representation the Hon. Minister made an endorsement dated 25.4.2006 addressed to the 1st respondent (within 24 hours of the representation) examine and circulate along with the opinion of the Public Prosecutor. There was thus no 2nd opinion (other than that of Mr. H. Krishna Mohan) with the Government, even as on 25.04.2006. xiii) By a communication dated 5.5.2006 the DGP addressed the 1st respondent (in response