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2003 Supreme(AP) 99
Andhra Pradesh High Court
Judges : L.NARSIMHA REDDY
M.Veeraiah Chowdary - Appellant
Versus
State OF A.P. - Respondent
Decided On : 01-21-03
Headnote:
Code of Criminal Procedure – Section 321 – Prevention of Corruption Act, 1988 – Sections 7, 10, 11, 13, 15, 19 – A. P. General Clauses Act – Sections 15, 21 – Notification – Withdrawal of – Writ petition on important question of law viz. , whether it is competent for the State Government to withdraw or rescind a notification issued by it according permission under Section 19 of the Prevention of Corruption Act, 1988 – Held, If, follows that the decision to withdraw from the prosecution should emanate from the Public Prosecutor, which in turn, shall be on a dispassionate consideration of the matter – Public Prosecutor is the creature under the Cr. P. C. and he cannot be said to be subordinate to Government – In the given case, the Government being the prosecuting agency can place the necessary material before the Public Prosecutor – On a consideration of the same, the ultimate decision to withdraw from or proceed with the prosecution should rest with the Public Prosecutor. In view of the judgment of the Supreme Court in Abdul Karim s case, the decision of Public Prosecutor to withdraw the prosecution under Sec. 321, Cr. P. C. is justiciable – Impugned order does not, by itself, terminate the prosecution. It is only as and when the concerned Public Prosecutor comes forward with a Memo before the trial Court seeking permission to withdraw, the trial Court has to consider the same on the principles laid down by the Supreme Court in the said decision – It is evident that the 2nd respondent did not have the power and jurisdiction to issue the impugned order withdrawing the permission accorded under Section 19 (1) of the Act to prosecute respondent No. 5 nor there existed any basis to pass the impugned order – At any rate, the impugned order does not have the effect of terminating the proceedings against the 5th respondent and the same are required to be continued and disposed of expeditiously by the concerned Court – Writ Petition Allowed
( 1 ) THIS writ petition on important question of law viz. , whether it is competent for the State Government to withdraw or rescind a notification issued by it according permission under Section 19 of the Prevention of Corruption Act, 1988 (for short the Act ).
( 2 ) THE relevant facts may be briefly stated as under :- the petitioner is a partner in M/s. Teja Wines, a firm registered with the Registrar of Firms, having its object to do business in Indian Made Foreign Liquor. Its place of business is Ongole in Prakasam district. The firm was issued license by the competent authority under A. P. Excise Act on 31-3-1998.
( 3 ) THE 5th respondent was working as Sub-Inspector of Police, Ongole Taluq Police Station in August, 1998. It is the case of the petitioner that the 5th respondent has been constantly demanding bribe from the petitioner and used to destroy the bottles in the shops whenever his demands were not complied with. The petitioner states that he has been running three wine shops within the jurisdiction of the Ongole Taluq Police Station. It is stated that during the 2nd week of August, 1998, the 5th respondent had directed one of the workers of the petitioner to inform the petitioner to meet him. The petitioner met the 5th respondent on 17-8-1998 and it is alleged that the 5th respondent demanded Rs. 10,000/- for not booking any cases in respect of the wine shops owned by the petitioner. It is further alleged that the 5th respondent had warned the petitioner of dire consequences in case the amount is not paid. It was in this context that the petitioner claims to have complained the matter to the 3rd respondent, viz. , the Director General of Anti Corruption Bureau (ACB ). A trap was arranged by the ACB. On 28-8-1998, the petitioner went to the residence of the 5th respondent at 9. 30 a. m. and handed over the amount of Rs. 10,000/- to him. The 5th respondent received the same. In the meanwhile, the ACB officials rushed in. When the hands of the 5th respondent were washed with the SC solution, the solution turned out to be pink. The trap, therefore, proved successful.
( 4 ) SINCE the 5th respondent is a public servant, as defined under the Act, permission was necessary from the State Government to prosecute him for the offences under that Act. The 1st respondent had accorded permission through its order in G. O. Ms. No. 333 dated 23-10-1999. The 5th respondent was initially placed under suspension. The same was, however, revoked. The petitioner alleges that on having been reinstated, the 5th respondent stated giving serious threats to the petitioner and that he has brought the same to the notice of the higher authorities.
( 5 ) ON the basis of the sanction accorded by the 1st respondent G. O. Ms. No. 333, a case was registered against the 5th respondent under Sections 7, 11 and 13 (2) read with Sections 13 (1) (d) of the Act and the same was being tried by the Court of Special Judge for ACB Cases, Nellore, as C. C. No. 20 of 1999. Charge-sheet has been filed on 27-11-1999. When the case was pending trial, the 2nd respondent had issued G. O. Ms. No. 35, Home (SC. A), Department, dated 13-2-2001 (hereinafter referred to as the impugned order ), withdrawing the permission. The same is challenged in this writ petition on various grounds.
( 6 ) FIRSTLY it is contended that once the notification is issued by the 2nd respondent in exercise of power under Section 19 of the Act, it is not open to them to withdraw the permission so accorded, since the same is not provided for under the Act. It is further contended that even assuming that there is an implied power in the 2nd respondent to withdraw such a notification, there did not exist any ground of basis to exercise such power, and the action of the 2nd respondent in this regard is illegal, arbitrary and unreasonable.
( 7 ) THE respondents 1, 2, 6 and 7 have filed counter-affidavit. It is stated that the permission was accorded to prosecute the 5th re
