IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.11 of 2008 1.G.S.R.Krishnamurthy 2.Indira 3.G.Adiseshagiri Rao ... Petitioners/Accused 1 - 3 vs. 1. The Income Tax Officer, Film Circle-I, Chennai-34. 2.Shri A.K.V.Vignani 3.Shri A.K.V.Sivagnai 4.Shri A.K.V.Kalaignani ... Respondents/Compalainants respondents 2 to 4 impleaded as per the order of this Court dated 22.4.2009 in M.P.No.2/09 Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 27.9.2007, passed by the Additional Chief Metropolitan Magistrate,(E.O.I), in Crl.M.P.No.3367 of 2006 in E.O.C.C.No.302 of 1984. For Petitioners : Mr.V.Krishnamurthy for Mr.P.Rameshkumar For Respondents : Mr.P.N.Radhakrishnan for R2, R3 and R4 Mr.K.Ramaswamy, Sr.Public Prosecutor for R1 O R D E R Challenging and impugning the order order dated 27.9.2007, passed by the Additional Chief Metropolitan Magistrate,(E.O.I), in Crl.M.P.No.3367 of 2006 in E.O.C.C.No.302 of 1984, this criminal revision case is focussed. 2. Compendiously and concisely the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus: The Income Tax Department filed a complaint against the accused, before the Additional Chief Judicial Magistrate, E.O.I, https://hcservices.ecourts.gov.in/hcservices/ who took it on file as E.O.C.C.No.302 of 1984, for the offence under Sections 120B read with Sections 193, 196, 420, 109, 34 and 37 of the Indian Penal Code, and Sections 276C(1), 277 and 278 of the Income Tax Act, 1961. This case is having a chequered carrier of its own and suffice to say that earlier this Court had occasion to pass order on June 30, 1991 in Crl.M.P.No.3158 of 1994; when the trial was in progress, the learned Public Prosecutor filed the M.P.No.3367 of 2006 in E.O.C.C.No.302 of 1984 under Section 321 of Cr.P.C.read with 279(2) of the Income Tax Act, 1961 seeking consent to withdraw the prosecution as against A1 to A3. After hearing all the parties concerned, the learned Magistrate passed the order dismissing the said petition; the operative portion of which is extracted hereunder for ready reference. "12. In view of the above findings that IPC offences under Sections 120B and 420 are still on record for prosecution and no permission has been granted by the Central Government to the Special Public Prosecutor to withdraw the entire case including the IPC offences against A1 to A3, the present petition to withdraw the case against A1 to A3 is not maintainable and the same is liable to be dismissed." 3. Being aggrieved by and dis-satisfied with the order of the lower Court, the accused 1 to 3 have filed this revision on various grounds, the pith and marrow of them would run thus: The lower Court should have given its consent under Section 321 of Cr.P.C. for withdrawal of the prosecution as against A1 to A3 by allowing the M.P. filed by the Public Prosecutor, who has bee appointed by the Central Government. The fact also remains that the income tax authority concerned compounded the offences relating to A1 to A3 and hence, the Magistrate's order is illegal and accordingly, suitable orders might be passed. 4. Heard the learned counsel for the parties. 5. The point for consideration is as to whether there is any perversity or non-application of mind on the part of the Magistrate in appreciating and applying the correct provisions of law while dismissing the Crl.M.P.No.3317 of 2006. 6. The learned counsel for the revision petitioner/A1 to A3 by inviting the attention of this Court to Section 321 of Cr.P.C. would develop his argument to the effect that in this case, Mr.K.Ramaswamy, the learned Senior Public Prosecutor was appointed by the Central Government and in such a case, the question of the Court expecting any permission to be obtained by such Public Prosecutor and producing the same before the Court did not arise; the learned Magistrate mis-directed himself as though the learned Public Prosecutor was duty bound to produce before the Court the permission, which he obtained from the authorities concerned; the other accused persons in this case had no locus standi to object that the Court should not give consent for withdrawal from https://hcservices.ecourts.gov.in/hcservices/ prosecution the offences as against A1 to A3. Accordingly, he prayed for setting aside the order passed in Crl.M.P.No.3367 of 2006 and for passing suitable orders. 7. The learned Senior Public Prosecutor for R1would set forth and put forth his argument to the effect that he clearly argued before the learned Magistrate concerned that he was for withdrawing from prosecution all the offences, so to say, the Income Tax offences as well as IPC offences as against A1 to A3 in view of the compounding effected between the income Tax authority and A1 to A3, as revealed by the proceedings of the Chief Commissioner of Income Tax-I, Hyderabad, dated 11.5.2006. 8. Whereas, the learned counsel for the other accused argued in support of his contention before the lower Court that no permission to withdraw the case as against A1 to A3 could be granted by the Court and that A1 to A3 have compounded the offences under Income Tax Act only and not the offences under the Indian Penal Code. 9. At this juncture, I would like to extract hereunder Section 321 of Cr.P.C: "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 judgement 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 ben 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 (iv) 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 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 https://hcservices.ecourts.gov.in/hcservices/ Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."(emphasis supplied) 10. There is a subtle distinction between the Public Prosecutor appointed by the Central Government and the Public Prosecutor, who has not been appointed by the Central Government. Here, indubitably and indisputably, unassailably and incontrovertibly Thiru K.Ramaswamy, the Senior Public Prosecutor has been appointed by the Central Government. Hence, in such a case, the question of obtaining permission by him from the Central Government does not arise at all. This important fact has not been noted by the lower Court, which went to the extent of wrongly assuming and presuming as though the Public Prosecutor should have obtained or should obtain proper permission from the authority concerned. To say the least, the Magistrate mis-directed himself in analysing the matter. 11. The petition filed by the Public Prosecutor is a brief one containing a few averments, which are extracted hereunder for ready reference:- "The complainant most respectfully submits that the Chief Commissioner of Income-tax has passed orders compounding the offences alleged in the above complaint against the accused-1, accused-2 and accused-3. The said order passed on the petition for compounding filed by the accused 1 to 3 is submitted before this Hon'ble Court. The complainant submits that in view of the above order passed under Section 279(2) of the Income-tax Act, 1961, it is most respectfully prayed that this Hobn'ble Court may be pleased to grant consent to the complainant to withdraw from prosecution against the accused 1 to 3 and pass such further or other orders as this Hon'ble Court may deem fit and necessary under the circumstances of the above case and thus render justice."(emphasis supplied) 12. In the second paragraph of the petition, in the last but 4th line, he simply stated as follows, 'to withdraw from prosecution against the accused-1 to 3' without specifying the offence or offences. However, Section 321 Cr.P.C. clearly contemplates that a Public Prosecutor has got the power to apply for getting consent to withdraw from prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. 13. No doubt, the Magistrate observed in the course of the proceedings that the learned Senior Public Prosecutor was for getting consent for withdrawing all the offences including the IPC offences in respect of A1 to A3. 14. To the risk of repetition without being tautalogous, I would observe that the learned Senior Public Prosecutor could have specified the offences also in his petition. https://hcservices.ecourts.gov.in/hcservices/ 15. The contention of the learned counsel for the other accused, in my opinion, should not have weighed much in the mind of the Magistrate, as at this stage, the other accused persons had no locus standi to object by stating that the Court should not grant consent to the Public Prosecutor for withdrawing it. 16. The learned counsel for the petitioners cited appropriately and correctly the decision of the Honourable Supreme Court reported in AIR 1987 SUPREME COURT 877-SHEO NANDAN PASWAN V.STATE OF BIHAR AND OTHERS; certain excerpts from it would run thus: "44. I respectfully agree with the legal position flowing from Section 321 of the Code of Criminal Procedure as explained by Krishna Iyer and Chinnappa Reddy, JJ. in respect of cases relating to Bansi Lal and Fernandes in Rajender Kumar Jain v. State515. In that case Chinnappa Reddy, J. has summarised the true legal position thus: (SCC p. 445, paras 14 & 15) “(1)Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the executive. (2) The withdrawal from the prosecution is an executive function of the Public Prosecutor. (3) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. (4) The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. (5) The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammary Hall enterprises. (6) The Public Prosecutor is an officer of the court and responsible to the court. (7)The court performs a supervisory function in granting its consent to the withdrawal. (8) The court’s duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution. https://hcservices.ecourts.gov.in/hcservices/ We may add it shall be the duty of the Public Prosecutor to inform the court and it shall be the duty of the court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to the provisions of Section 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the court, the court and its officers alone must have control over the case and decide what is to be done in each case.” 45. In the circumstances of this case I find it difficult to say that the Public Prosecutor had not applied his mind to the case or had conducted himself in an improper way. If in the light of the material before him the Public Prosecutor has taken the view that there was no prospect of securing a conviction of the accused it cannot be said that his view is an unreasonable one. We should bear in mind the nature of the role of a Public Prosecutor. He is not a persecutor. He is the representative not of an ordinary party to a controversy, but of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the land the twofold aim of which is that guilt shall not escape or innocent suffer. He may prosecute with earnest vigour and indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate one to bring about a just one. (See Berger v. United States17). It is a privilege of an accused that he should be prosecuted by a Public Prosecutor in all cases involving heinous charges whenever the State undertakes prosecution. The judgment of a Public Prosecutor under Section 321 of the Code of Criminal Procedure, 1973 cannot be lightly interfered with unless the court comes to the conclusion that he has not applied his mind or that his decision is not bona fide." 17. A bare perusal of the above excerpt, including the whole judgement, would demonstrate and exemplify that whenever an application is filed by the Public Prosecutor appointed by the Central Government, the duty of the Court is not to ask the Public Prosecutor, as it has been wrongly done in this case by the lower Court Magistrate, to produce the permission or authority from whom he got such instructions for withdrawal. https://hcservices.ecourts.gov.in/hcservices/ 18. On the other hand, it is the bounden duty of the Magistrate to apply his mind as to whether such a prayer for getting consent from the Court for withdrawal; is genuine or actuated by extraneous considerations and that is the sum and substance of the judgment of the Honourable Apex Court. But in this case, the learned Magistrate has not at all applied his mind in proper perspective. But, on the other hand, he wrongly assumed certain procedures as the ones governing the adjudication of the petition seeking consent for withdrawal and accordingly misdirected himself and dismissed the application, warranting interference by this Court in the revision. 19. The learned counsel for the revision petitioners even entreat and implore, pray and appeal that this Court itself being a revisional Court can very well set aside the order of the lower Court and allow the Crl.M.P. 20. I would like to disagree with such a view expressed by the learned counsel for the petitioner because here it is not an error committed by the Magistrate, but the Magistrate totally not dealt with the petition by exercising his discretion in the way contemplated as per law and as per the cited judgement. Once there is total non-exercise of discretion on the proper line by the Magistrate and that resulted in the dismissal of the petition, it is not for the revisional Court to consider for the first time the prayer in the petition and pass orders either by dismissing the petition or allowing the same. Wherefore, I would like to set aside the order of the lower Court and remit the matter back to the Magistrate for disposal as per law, more specifically as contemplated in the decision of the Honourable Apex Court, after hearing both sides. Since this is a very old matter, the Magistrate is directed to dispose of the case within a period of three weeks from the date of receipt of copy of this order and report compliance. The criminal revision case is ordered accordingly. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Chief Metropolitan Magistrate,(E.O.I), Chennai. 2. The Income-Tax Officer, Film Circle-I, Chennai - 34. 3. The Section Officer, Criminal Section, High Court, Madras. 4. The Public Prosecutor, High Court. Crl.R.C.No.11 of 2008 PKB(CO) RVL 21.07.2009 https://hcservices.ecourts.gov.in/hcservices/