The Special Public Prosecutor must apply his mind objectively uninfluenced by extraneous considerations when seeking withdrawal of the prosecution under S.321 Cr.P.C.

1. 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 Crl.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. Gopalakrishna 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 Commission and huge expenditure in its construction was incurred upto 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 of 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 report recommending a judicial probe. The State Government then appointed Justice K. Sukumaran, a sitting judge of the Kerala High Court as the Committee of Inquiry to conduct the probe. Commission of Inquiry recorded considerable evidence and submitted its report in June, 1988. The Commission found accused No. I -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 S.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 accused persons for offences punishable under various provisions of the Indian 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 Special 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 S.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 S.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 withdraw the prosecution against accused No.6-G. Gopalakrishna Pilla