2009 Supreme(AP) 272
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE GODA RAGHURAM
Dr. D. Bharathi
Versus
The State of Andhra Pradesh, represented by its Principal Secretary, Hyderabad & Others
Writ Petition No.20389 of 2006
Decided on : 18-04-2009
For the Petitioner:S.R. Sanku , Advocate. For the Respondents: GP for Home.
Headnote:
Indian Penal Code – Sections 139, 468, 471, 406, 420, 463, 465, 199, 34, 405 – Code of Criminal Procedure, 1973 – Section 321, 156(3), 494 – Constitution of India – Article 14 – Arbitration – Illegal – Prosecution – Petitioner lodged private complaint against respondents 6 to 8 and others before X Metropolitan Magistrate – Complaint was forwarded to Gopalapuram Police Station – Complaint was registered as Cr. Secs. 420, 463, 465 R/w 34 IPC and investigation taken up – Gopalapuram P.S forwarded final report and laid a chargesheet – Investigation revealed that six accused committed offences punishable u/Sections 139, 468, 471, 406 and 420 r/w 34 IPC – On filing of chargesheet case was numbered as CC on file of X Metropolitan Magistrate – Case is pending trial on file of II Additional Metropolitan Magistrate, Criminal Courts as CC – Respondents 6 to 8 earlier filed Crl.M.P. as A1 to A3; while A4 and A5 filed Crl.M.P and A6 Crl.M.P seeking their discharge from prosecution – By a common order dated X Metropolitan Magistrate dismissed these application – Held, On consideration of facts and circumstances of case, pleadings on record and a careful perusal and analyses of Government record pertaining to issuance of G.O. Rt. Home Department, this court holds that G.O. Rt. is arbitrary, perverse and illegal – It records no reasons and sets out no justification for addressing Public Prosecutor to withdraw prosecution against respondents 6 to 8 – It is vitiated on account of total non-application of mind and for reliance on wholly unauthorized and incompetent opinion of Public Prosecutor Mr. M. Kishore Kumar, purportedly dated – It is vitiated since it records that State Government has decided to withdraw from prosecution, a decision which is wholly beyond jurisdiction of State Government, being vested exclusively in Public Prosecutor concerned, u/Sec. 321 Cr.P.C. G.O. Rt. Home Department is accordingly quashed – Writ Petition Allowed
The sequence of relevant facts:
The petitioner lodged a private complaint against the respondents 6 to 8 and others before the X Metropolitan Magistrate, Secunderabad. The complaint was forwarded to the Gopalapuram Police Station, Secunderabad, on 21.10.2001. The complaint was registered as Cr.No. 263 of 2001 u/Secs. 420, 463, 465 R/w 34 IPC and investigation taken up. The Gopalapuram P.S forwarded the final report and laid a chargesheet. The investigation revealed that the six accused (including A.1 to A.3, the respondents 6 to 8 herein) committed offences punishable u/Sections 139, 468, 471, 406 and 420 r/w 34 IPC. On the filing of the chargesheet the case was numbered as CC No. 773/03 on the file of the X Metropolitan Magistrate, Secunderabad. The case is pending trial on the file of the II Additional Metropolitan Magistrate, Criminal Courts, Nampally, as CC No. 387/06 (after transfer ordered by the Metropolitan Sessions Judge, in Crl.Tr.M.P.No. 59/06, dated 3.4.2006).
Respondents 6 to 8 earlier filed Crl.M.P. No. 2092/03 as A1 to A3; while A4 and A5 filed Crl.M.P.No. 3439/03 and A6 Crl.M.P.No. 3440/03 seeking their discharge from prosecution. By a common order dated 09.12.2003, the X Metropolitan Magistrate dismissed these applications.
A4 and A5 then filed Crl.R.P.No. 84/04 before the Court of VI Additional Metropolitan Sessions Judge, Secunderabad, aggrieved by the order dated 9.12.2003 in Crl.M.P.No. 3439/03. This petition was dismissed on 12.5.2004. The respondents 6 to 8 (A1 to A3) preferred Crl.R.C.No. 9/04 (against the order dated 9.12.2003 dismissing Crl.M.P.No. 2093/03), before this court. This was withdrawn and dismissed as such on 23.3.2005.
Unrelenting A4 and A5 filed Crl.P.No. 1654/05 challenging the order in Crl.R.P. No. 84/04 dated 12.5.2004. Initially a stay was granted which was later vacated on 30.06.2005. Thereafter A1 (R-6 herein) filed Crl.P.No. 4462/05 (challenging the order of the X addl. Chief Metropolitan Magistrate, Secunderabad in Crl.M.P.No. 3063/05) seeking quashing of the proceedings against her claiming that she was a juvenile at the time of committing the offence. Stay of all further proceedings of trial in CC No. 387/06 was initially granted, but eventually Crl.P.No. 4462/05 was dismissed on 26.7.2006.
The accused then filed Transfer Miscellaneous Petition No. 59 of 2006 before the Metropolitan Sessions Judge, Nampally attributing bias to the Presiding Officer of the Court of the X Additional Metropolitan Magistrate, Secunderabad and obtained transfer of the case to the Court of II Additional Metropolitan Magistrate, Nampally.
As the petitioner (is now aged about 83 years) was at an advanced age and the trial in C.C.No. 387/06 was stalled on one pretext or the other, despite the prosecution being in relation to a complaint lodged in 2001, she filed Crl.P.No. 3025/05 for expeditious trial and recording of her evidence, during her life time. The petition was allowed by this court on 10.08.2005 and the trial court was directed to commence the trial by recording the evidence of either side and dispose of the same within a period of 3 months in view of the guidelines issued by this court in a circular dated 26.07.2005.
Thereafter the 1st respondent State issued the impugned G.O. Rt. No. 1646 Home (Legal-II) Department dated 18.09.2006, which reads as under: " Government after careful examination of the representation of Smt. D.Rama Bharathi (the 6th respondent and A1), dated 30.12.2004 and the letter of the Director General of Police, Andhra Pradesh, Hyderabad in the reference 3rd and 5th read above, have decided to withdraw the prosecution against Smt. D.Rama Bharathi, Smt. Thilothamma and Sri D.S.Murthy in Crime No. 263/2001 under sections 199, 468, 471, 406, 420 read with section 34 of the IPC 1860 of Gopalapuram Police Station of Hyderabad City in CC No. 773/2003 on the file of X MM, Secunderabad.
2. The Collector and District Magistrate of Hyderabad is requested to direct the Public