*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY W.P.No.24335 of 2001 % 25-11-2008 Between: Safi Naaz D/o Md. Khaza Moinuddin H.No.16-9-1, Old Malakpet, Hyderabad.36 ..... PETITIONER AND 1. The Principal Secretary, Government of A.P. Home Department , Hyderabad. 2 Commissioner of Police Hyderabad. 3 Mr. Farkunda Hussain Khan S/o Mir Mahmood Hussain Khan 44 years,r/o Plot No.31, Mithula Nagar, Road No.12, Banjara Hills, Hyderabad. .....RESPONDENTS ! COUNSEL FOR PETITIONER: Mr. K.SRINIVASA REDDY ^ COUNSEL FOR RESPONDENTS 1 & 2: G.P. FOR HOME ^ COUNSEL FOR RESPONDENT NO.3: SRI O.MANOHAR REDDY < Gist: > Head Note: ? CITATIONS: 1. AIR 1987 SC 877. 2. 1999 (1) ALD (Crl.) 451 (AP) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 24335 of 2001 Between: Safi Naaz D/o Md. Khaza Moinuddin H.No.16-9-1, Old Malakpet, Hyderabad.36 ..... PETITIONER AND 1 The Principal Secretary Government of A.P. Home Department , Hyderbad. 2 Commissioner of Police Hyderabad. 3 Mr. Farkunda Hussain Khan S/o Mir Mahmood Hussain Khan R/o Plot No.31, Mithula Nagar, Road No.12, Banjara Hills, Hydrabad. .....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 pass a writ, or direction more particularly one in the nature of Writ of Mandamus: declaring the action of the respondents in passing an order vide MEMO No.19795/Cts. B1/2001 dt 24-9-2001 to withdraw the Cr.A. SrNo.7330 /01 as illegal ,arbitraryand consequently set aside the memo No. 19795/Cts.B1/2001 dt 24-9-2001. Counsel for the Petitioner:MR.K.SRINIVASA REDDY Counsel for the Respondent Nos 1 & 2.: GP FOR HOME The Court made the following : SS THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY W.P.No.24335 2001 ORDER: The petitioner was married to the third respondent. Disputes arose between them and the petitioner submitted a complaint to the police alleging offences under Sections 498-A, 406 IPC and 4 and 6 of the Dowry Prohibition Act. Alleging that the Station House Officer did not take any action on the complaint, the petitioner filed a complaint under Section 200 of the Criminal Procedure Code (for short ‘the Code’) in the court of XXII Metropolitan Magistrate-cum Mahila Court, Hyderabad. The trial court directed the Police to enquire into the matter. A final report was filed stating that the complaint discloses a mistake of fact. Not being satisfied with the final report, the trial court took up the trial in C.C.No. 309 of 1995. Ultimately, through judgment, dated 19.2.2001, the trial court acquitted the third respondent. The Additional Public Prosecutor in the High Court presented an appeal against the judgment in C.C.No.309 of 1995, even while forwarding his opinion through letter dated 30.05.2001 to the Government in law department. The law department, in turn, issued Memo dated 24.9.2001 expressing the view that the Government does not consider it necessary to prefer appeal against the judgment in C.C.No.309 of 1995. Inasmuch as the appeal was already presented pending the permission from the Government, a direction was issued to the Additional Public Prosecutor to withdraw the same. The petitioner challenges the Memo dated 24.9.2001. It is urged that the impugned memo is contrary to the various provisions of the Code, including Section 321. Submissions are made touching on merits also. The third respondent filed a counter affidavit denying the allegations of the petitioner. He contends that Section 321 of the Code does not apply to the facts of the case. It is stated that on examination of the matter under Section 378 of the Code, the Government decided not to prefer the appeal. Heard Sri K.Srinivasa Reddy, the learned counsel for the petitioner, the learned Government pleader for Home for respondents 1 and 2 and Sri O.Manohar Reddy, the learned counsel for respondent No.3. On a complaint submitted by the petitioner under Section 200 of the Code, the court of XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad tried the third respondent and acquitted him, of the charges. An appeal was presented against the judgment of the trial court. The impugned Memo reads as under: “The Additional Public Prosecutor, High Court of Andhra Pradesh, Hyderabad is informed that the Government do not consider it necessary to prefer an appeal against the order of acquittal dated 19.2.2001 in C.C.No.309/95 on the file of the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad and the Additional Public Prosecutor, may take necessary steps to withdraw the appeal already filed.” This Memo is challenged by the petitioner, mainly on the ground that the independence accorded to the Public Prosecutor under the Code was interfered with, by the Government and that it is contrary to the law laid down by the Supreme Court in Sheo Nandan Paswan v. State of Bihar,[1] Section 321 of the Code grants discretion to the Public Prosecutor to withdraw from the prosecution, at any stage i.e. before or after the charges are framed. On such withdrawal an accused would be discharged if no charges have been framed and he would be acquitted if charges have been framed. This provision does not speak of any power of the Government, to issue instructions to the Public Prosecutor, in the context of withdrawal from prosecution. In Sheo Nandan Paswan’s case (supra 1), the Supreme Court interpreted Section 321 of the Code. It was held that the discretion of the Public Prosecutor is absolute and no external authority can interfere with his discretion. It was also mentioned that the Public Prosecutor is under obligation to state the reasons in support of his decision to withdraw from prosecution. The said judgment was followed by this court in Vangaara Subbaiah v. Attaluri Narasimha Rao & others. [2] There would have been an occasion to interfere with the impugned Memo, in case, it directed the public prosecutor to withdraw from prosecution. The matter has crossed the stage of trial and it ended in acquittal. Filing of an appeal against an order of acquittal, is not a matter of course, nor for that matter the opinion of the public prosecutor is final. Section 378 of the Code mandates that an appeal against the acquittal can be filed only with the permission, accorded by the State Government. A Division Bench of this court in Criminal Appeal SR No.17005 of 2003 through its judgment, dated 16.7.2004 held that an appeal against the acquittal preferred by the Public Prosecutor without the specific permission of the State Government is untenable. In the instant case there did not exist any permission, referable to Section 378 of the Code, by the time the appeal was presented against the judgment in C.C.No. 309 of 1995. The presentation of the appeal without such permission was obviously to save limitation and to avoid the necessity to file application for condonation of delay. Even while addressing letter to the Government seeking its view under Section 378 of the Code, the Additional Public Prosecutor presented the appeal. The discretion of the State Government under Section 378, whether or not to prefer an appeal against the order of acquittal, is not circumscribed by any limitation. The provision does not require the Government to record reasons in support of its conclusions. Prosecution of an accused is the obligation of the State. Once commenced, the prosecution must be permitted to continue till its logical conclusion. Interference with the same by any external agency, including State Government, is bound to be treated as an attempt to thwart an important sovereign activity. That is why the withdrawal from prosecution is viewed with a bit of stringency. With the acquittal in a criminal case, the accused stands cleared of the accusations against him. It is only State, that is vested with the power to prefer an appeal against an order of acquittal. Before an acquitted person is subjected to the ordeal of facing the proceedings once again, the State Government is required to examine the matter in detail. The opinion formed by it is almost absolute. The role of a public prosecutor in the matter of preferring appeal is substantially different from the one, of prosecuting an accused. While in the former, it is virtually controlled by the State Government, in the latter his discretion is unbridled. The record discloses that the appeal was presented awaiting the orders of the Government under Section 378 of the Code and the Government formed an opinion that it is not a fit case for preferring appeal against acquittal. Therefore, it cannot be said that the impugned Memo suffers from any illegality. The writ petition is accordingly dismissed. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J 25-11-2008 Note: L.R. copy to be marked B/o Stp ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{MSKM} [1] AIR 1987 SC 877. [2] 1999 (1) ALD (Crl.) 451 (AP)