1. Prosecution for corruption and conspiracy under IPC and Prevention of Corruption Act — Application to withdraw prosecution against one accused under Section 321, Cr. P. C. (Para 1 , 2 , 3 , 4 )
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1994 Supreme(SC) 566
SUPREME COURT OF INDIA
J.S. VERMA, B.P. JEEVAN REDDY AND S.P. BHARUCHA, JJ.
V. S. Achuthanandan, Appellant
Versus
R. Balakrishna Pillai and others, Respondents.
Criminal Appeal No. 122 of 1994
Decided on 13-5-1994.
Important Points
Under Section 321 Cr.P.C., the court must ensure the Public Prosecutor's decision to withdraw prosecution is a bona fide exercise of discretion, based on available material and uninfluenced by extraneous considerations. Consent cannot be granted based on external administrative files or political motives.
Subject
Criminal Law - Withdrawal of Prosecution
Act Referred
Headnote
Criminal Procedure Code, 1973 - Section 321 - Application for withdrawal of prosecution against accused No.6 - Only ground being of total absence of any material evidence against the accused - Application rejected Revision - High Court setting aside order of Special Judge declining consent - High Court considering grounds not even urged by the Public Prosecutor - Lack of proper perception of the nature and scope of High Courts power in such a matter - There being no ground available to High Court to set aside the well reasoned and justified order of the Special Judge - High Courts order must be set aside.
Held, that the High Court missed the true import of the scope of the matter before it. The High Court went into grounds which were not even urged by the Special Public Prosecutor in his application made under Section 321, Cr. P.C. or otherwise before the learned Special Judge. It delved into administrative files of the state which dia not form part of the record of the case and accepted anything which was suggested on behalf of the State Government over -looking the fact that for the purpose of Section 321, Cr. P.C. it is the opinion of the Public Prosecutor alone which is material and the ground on which he Seeks permission of the Court for withdrawal of the prosecution has alone to be examined. It is on account of this palpable error and due to the lack of proper perception of the nature and scope of the High Courts power in such a matter that the High Court not only set aside the well reasoned and justified order of the learned Special Judge but also proceeded to add that the "competent authority will consider whether... the prosecution should be continued against any or all of the accused." We are informed that encouraged by this further, needless and unwarranted observation of the High Court, steps are being taken by the State Government for withdrawal of the prosecution against other accused persons also. It is sufficient to observe that all consequential steps taken pursuant to any such observations in the impugned order of the High Court also fall automatically on the setting aside of the High Courts order. (Para 11)
Legal Category Hierarchy
Advocates:
Altaf Ahmed, E.M.S.ANAM, G.RAMASVAMY, K.Madhava Reddy, KAPIL SIBAL, M.T.George, MALINI PODVAL, N.SUDHAKARAN, P.S.POTI, R.F.NARIMAN
Altaf Ahmed, E.M.S.ANAM, G.RAMASVAMY, K.Madhava Reddy, KAPIL SIBAL, M.T.George, MALINI PODVAL, N.SUDHAKARAN, P.S.POTI, R.F.NARIMAN
Table of Contents
2. Whether the court should grant consent for withdrawal based on paucity of evidence versus whether the prosecution was motivated by political vendetta. (Para 3 , 4 , 9 , 10 )
3. The High Court erred by relying on extraneous administrative files and political motives instead of examining whether the Public Prosecutor applied his mind to the evidence. (Para 9 , 10 , 11 , 12 )
4. The court's duty under Section 321, Cr. P. C. is to ensure the Public Prosecutor exercised discretion as a free agent uninfluenced by extraneous considerations. (Para 6 , 12 )
5. Appeal allowed — High Court order set aside — Special Judge's refusal to grant consent for withdrawal of prosecution restored. (Para 15 )
6. What is the test for a court to grant consent for withdrawal of prosecution under Section 321, Cr. P. C.?
The court must oversee whether the Public Prosecutor has properly exercised his discretion as a free agent, objectively and uninfluenced by irrelevant or extraneous considerations, based on the material available. (Para 6 )
7. Can a court rely on administrative files not part of the record to allow withdrawal of prosecution?
No. The court should examine the ground on which the Public Prosecutor seeks permission for withdrawal based on the record; relying on extraneous administrative files to justify withdrawal is a palpable error. (Para 12 )
8. Does the motive of political vendetta justify the withdrawal of prosecution under Section 321, Cr. P. C. if prima facie material exists?
No. If the ground urged for withdrawal is non-existent and there is prima facie material to support the prosecution, the motive for launching the prosecution is of no avail. (Para 9 )
JUDGMENT
VERMA, J.:- The challenge in this appeal by special leave is to the legality of the order dated 3rd February, 1993 passed by Chettur Sankaran Nair, J. of the Kerala High Court allowing Criminal Revision No. 762 of 1992 filed by the State of Kerala and setting aside the order dated 16th October, 1992 passed by the Special Judge, Idamalayar, in Criminal M. P. No. 79 of 1992 in C.C. 1 of 1991 declining to give consent to the Public Prosecutor to withdraw the prosecution against the sixth accused - G. Gopalakrishnan Pillai, former Secretary, Irrigation and Power to the Government of Kerala.
2. The material facts may now be briefly stated. Idamalayar Dam as a part of the Idamalayar Project was sanctioned by the Planning Cpmmission and huge expenditure in its construction was incurred up to March, 1985. However, in the trial run itself on 15 -7-1985 a number of leaks were discovered in the tunnel exposing the inferior quality of construction work which was a matter of grave public concern giving rise to ventilation of that concern through the press and even in the State Legislative Assembly. There was public outcry for a judicial probe into the matter. Extensive repair at considerable cost had to be undertaken to remedy the defects. The Public undertaking Committee of the State Legislature inspected the site on 2-8-1985 and submitted its report recommending a judicial probe. The State Government then appointed Justice K. Sukumaran, a sitting Judge of the Kerala High Court as the Commission of Inquiry to conduct the probe. The Commission of Inquiry recorded considerable evidence and submitted its report in June, 1988. The Commission found accused No. 1 - R. Balakrishna Pillai (former Minister for Electricity, Kerala), accused No. 2 - G. Ganesa Pillai (former Chairman, Kerala State Electricity Board) and accused No. 6 - G. Gopalakrishna Pillai (former Secretary, Irrigation and Power) liable for positive acts of abuse of power. The Commission also came to the conclusion that the material placed before it disclosed the commission of certain offences punishable under Indian Penal Code as well as under Section 5 of the Prevention of Corruption Act. The Commission after indicating the above persons recommended further steps for investigation into, and trial of these offences. The State Government accepted the recommendations of the Commission and constituted a special team headed by a Superintendent of Police for investigating into the crime after obtaining sanction for prosecution from the Governor of Kerala. A report was filed on 14-12-1990 against the accused persons for offencs punishable under various provisions of the Indidan Penal Code and the Prevention of Corruption Act. This case is CC No. 1 of 1991 in the Court of Special Judge appointed for the trial of these accused.
3. During the pendency of the trial before the Sepcial Judge, an application for withdrawal of the prosecution only against accused No. 6 - G. Gopalakrishna Pillai was made by the Special Public Prosecutor on 24th August, 1992 under Section 321 , Cr. P. C. which was registered as Crl. M. P. No. 79 of 1992 in CC No. 1 of 1991. The material portion of the application is as under:
"On going through the investigation papers minutely it will appear that successful prosecution of that accused (A6) cannot be launched, for there are no materials to substantiate the charge of conspiracy or for the other offences.
In the circumstances I am of opinion that the trial against Shri Gopalakrishna Pillai will be unnecessary. The State also is of opinion that prosecution of A6 may not be sustainable.
It is therefore requested that by virtue of provisions contained in Sec. 321 of the Crl. P. C. necessary consent may be granted to withdraw the prosecution against the 6th accused Shri Gopalakrishna Pillai and the said accused may be discharged."
(Emphasis supplied)
4. It is clear that the only ground on which consent of the Court was sought by the Special Public Prosecutor to wit
