THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.452 of 2011 JUDGMENT: The petitioner is an accused in Crime No.18/RC- ACB-VSP/2004 registered by the Anti Corruption Bureau for the alleged offence punishable under Section 7 of the Prevention of Corruption Act. After investigation, a charge sheet was filed and the same was numbered as C.C.No.10 of 2006 before the III Additional District and Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam. As the amount was not directly recovered from out of the possession of the petitioner and also taking into account various other circumstances, the Government issued G.O.Ms.No.27, Health, Medical and Family Welfare (VC-1) Department, dated 29.01.2010, directing that the case of the prosecution against the accused shall be withdrawn. Pursuant thereto, the learned Special Public Prosecutor filed an application under Section 321 Cr.P.C. before the Court below seeking permission to withdraw the prosecution case on the accused. However, the same was dismissed and it is questioned in this Criminal Revision Case. Heard learned counsel for the petitioner-accused and the learned Standing Counsel for ACB. G.O.Ms.No.27, Health, Medical and Family Welfare (VC-1) Department, dated 29.01.2010, reads as under: - “Government, having reviewed the case, are of the opinion that the prosecution launched against Dr.D.Subba Rao, Assistant Professor, Pediatric Surgery, King George Hospital, Visakhapatnam, be withdfawn for the reasons that Sodium Carbonate test proved negative and the recovery of the alleged tainted amount is from a book planted on the table of accused officer during his absence. The Sodium Carbonate solution subject to both hands of accused officer remain unchanged and the Chief, Pediatric Surgical Ward Prof. K.V.J.Rao told the Deputy Superintendent of Police, Anti Corruption Bureau before the mediators that the child patient was admitted in the Ward on 13.12.2004 under his treatment and the accused officer had nothing to do with it and the ends of justice would be met if the case of the accused officer is entrusted to Commissioner of Inquiries. Accordingly, Government hereby cancel the orders issued in G.O. read above and consequently, the prosecution of accused officer shall be withdrawn forthwith.” In fact, the learned Special Public Prosecutor while filing the said application under Section 321 Cr.P.C. had applied his mind and in the petition stated as to why the prosecution of the accused shall be withdrawn and the said reasons appear to be genuine. When once it is found that the said tainted amount is not recovered from out of the possession of the accused and the same is planted in the book on the table of the accused during his absence, the Government considering the said fact, issued the said G.O., directing that the prosecution of the accused shall be withdrawn forthwith. In pursuance of implementing the said G.O., the learned Special Public Prosecutor filed the said application under Section 321 Cr.P.C., wherein in the petition it is stated that there is bleak possibility of success in the prosecution of the accused due to paucity of evidence and to proceed further with the said prosecution case is only a futile exercise. The wording that is used in the said paragraph is categorical and clear, and it clearly shows that the Public Prosecutor had applied his mind. Further, when the Government issues a Government Order and the learned Public Prosecutor files an application, in my considered view, it is desirable that the case of the prosecution shall be withdrawn, otherwise what happens is that the witnesses will not support the case and ultimately, it will be a futile exercise for the prosecution to proceed with the case due to paucity of the evidence. For the foregoing reasons, this Criminal Revision Case is allowed and the impugned order is set aside and the proceedings in C.C.No.10 of 2006 on the file of the III Additional District and Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam, shall be withdrawn. ___________________________________ JUSTICE GOPALA KRISHNA TAMADA 28th March 2011 DR