Judgment:
V. Eswaraiah, J.
1. Common issues arise in these three cases, rendering them amenable to a conjoined disposal. Presently, the writ petition. The prayer in the writ petition is as hereunder:. to issue an appropriate writ, order or direction, more particularly, one in the nature of Writ of Mandamus declaring the action of the Respondents in trying to protect the 4th Respondent, who has misappropriated the public funds to the tune of Rs. 4,14,566/- by fabricated documents and cheating, from being prosecuted for the offences committed under Section 420, 463, 468 and 471, r/w. Section 120B of IPC, by issuing consecutive G.Os., i.e. G.O.Rt. No. 1617, Home (Legal.II) Department, dt.3.11.2007 and G.O.Rt. No. 407, Home (Legal.II) Department, dt.5.3.2008 and tampering with the course of justice by getting filed consecutive petitions to withdraw the prosecution and interdicting the due process of law by invoking the power conferred on them under Section 321 of the Criminal Procedure Code, 1973 as illegal, unjust, arbitrary, discriminatory, capricious, irrational, whimsical, and unconstitutional, apart from contrary to the doctrine of Rule of Law and a blatant attack on the criminal justice system of this country and is the result of favouritism and based on collateral, extraneous, political and partisan considerations and violative of Article 14 of the Constitution of India, after declaring Section 321 of the Criminal Procedure Code, 1973 as violative of Article 14 of the Constitution of India and also violative of Rule of Law and contrary to the Doctrine of Separation of Powers and has the effect of scuttling the judicial process by enabling the State Executive to interfere with the adjudicative process and a constitutional anachronism and a colonial legislation which is not in conformity with the Constitution of India and consequentially set aside G.O.Rt. No. 407, Home (Legal.II) Department, dt.5.3.2008 and pass such other order or orders as are deemed fit and proper in the circumstances of the case.
2. The first petitioner in the writ petition, a Diploma holder in Automobile Engineering and an active member of the Congress Party, claims to be deeply involved in public service. Likewise, the second petitioner, a graduate in Commerce and an active member of the Congress Party, is stated to be a public- spirited citizen interested in the public good. It is the case of the petitioners that Yerneni Raja Ramchander, MLA, Kaikalur Assembly Constituency, Krishna District, the fourth respondent in the writ petition, misappropriated public monies to the tune of Rs. 4,14,566/- by way of fabricated documents and cheating.
3. The first petitioner made a representation on 24.07.2004 to the Hon'ble Speaker of the Legislative Assembly in this regard. Thereafter he, along with one M.Surya Chander Rao, filed W.P. No. 15879 of 2004 before this Court seeking institution of an enquiry into the alleged misappropriation. The said writ petition was disposed of by a Division Bench of this Court by order dated 09.08.2005, recording the assurance given by the learned Advocate General for the State of Andhra Pradesh that the Government had decided to get a case registered against the fourth respondent. This Court expressed the hope that the investigation by the Police would be carried out strictly in accordance with law, and observing that no further orders needed to be passed, the writ petition was disposed of.
4. Thereafter, the first petitioner filed Contempt Case No. 1419 of 2005 alleging violation of the order dated 09.08.2005 in W.P. No. 15879 of 2004. This Court passed an order on 22.12.2005 in the said case, taking note of the submission that 24 more witnesses were required to be examined by the investigating officer, and granted three months time to him to complete the investigation and submit his report before the appropriate Court. It appears that the Contempt Case was closed thereafter by order dated 27.03.2006.
5. On a complaint filed by M.Surya Chander Rao before the Director General of Police, a criminal case was registered against the fourth respondent and another, in Crime No. 18 of 2005 under Sections 420, 463, 468 and 471, r/w. Section 120B of the Indian Penal Code. After completion of investigation in Crime No. 18 of 2005, a charge sheet was filed under Section 173 of the Code of Criminal Procedure, 1973 (for brevity, 'the Cr.P.C.') under Sections 420, 463, 468 and 471, r/w. Section 120B of the Indian Penal Code and the said case was taken on the file of the VI Additional Chief Metropolitan Magistrate, Nampally, Hyderabad as C.C. No. 392 of 2006. The first petitioner is L.W.2 and the second petitioner is L.W.9 in the criminal proceedings. M.Surya Chander Rao, the other petitioner in W.P. No. 15879 of 2004 and the complainant in Crime No. 18 of 2005, is arrayed as the complainant in C.C. No. 392 of 2006.
6. Thereafter, the petitioners in W.P. No. 15879 of 2004, being the first petitioner herein and M.Surya Chander Rao, filed W.P. No. 5486 of 2007 before this Court aggrieved by the inaction on the part of the authorities in initiating prompt and proper penal action against the fourth respondent. A Division Bench of this Court, presided over by the Hon'ble The Chief Justice passed an interim order dated 12.06.2007 in W.P. No. 5486 of 2007 which is extracted hereunder:
We have gone through report dated 11.06.2007 sent by VI Additional Chief Metropolitan Magistrate, Hyderabad. The adjournment of case for eight months and three days is prima facie indicative of the non-seriousness on the part of the judicial officer to expeditiously deal with the case involving the accusation of cheating, fraud etc., by a representative of the public.
Without making further comments, we direct VI Additional Chief Metropolitan Magistrate, Hyderabad to complete the trial of the case within three months commencing from 30.07.2007. If necessary, the learned trial Judge should take up the matter on day-to-day basis and conduct the proceedings. If the Public Prosecutor concerned shows slackness in assisting the Court, it will be open to the concerned Magistrate to send a written information to this effect to this Court. The judicial officer should also send weekly reports on the progress of the case and the case shall be listed on every Friday for considering whether the direction given by the Court is being complied with in its true spirit.
Put up on 07.08.2007.
7. Pursuant to the said order, progress report dated 14.09.2007 was sent by the VI Addl. Chief Metropolitan Magistrate, Hyderabad to this Court and upon perusal of the same, the writ petition was adjourned to 03.10.2007 by order dated 20.09.2007, directing the Judicial Officer to send a report on the further progress in the case, by October 1, 2007.
8. During the pendency of W.P. No. 5486 of 2007, the Government of Andhra Pradesh issued G.O.Rt. No. 1617, Home (Legal.II) Department, dated 03.11.2007, stating that it had decided to withdraw the prosecution against the fourth respondent in C.C. No. 392 of 2006 and the Collector and District Magistrate, Hyderabad, was requested to instruct the Assistant Public Prosecutor concerned to file a petition under Section 321 of the Cr.P.C. for withdrawing the prosecution against the fourth respondent, under intimation to the Government. G.O.Rt. No. 1617 dated 03.11.2007 reads as hereunder:
GOVERNMENT OF ANDHRA PRADESH ABSTRACT
Police - Withdrawal of Prosecution against Sri Y.Raja Ramchander, MLA Kaikaluru in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120B IPC of CID Police Station Hyderabad - in C.C. No. 392/06 of VIth Addl.Chief Metropolitan Magistrate, Hyderabad - Orders - Issued.
HOME (LEGAL.II) DEPARTMENT
G.O.Rt. No. 1617
Dated: 3.11.2007
Read the following:
1) Representation of Sri Y.Raja Ramchander, MLA, Kailkaluru, dt.12.10.07
2) Report of Ethics Committee of Twelfth Legislative Assembly.
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ORDER:
Sri Y.Raja Ramchander, MLA, Kaikaluru, in his representation 1st read above, has stated that he was falsely implicated by his P.A. in the case relating to claim of medical reimbursement amount from Government. He has further stated that the Ethics Committee of 12th Legislative Assembly, has recommended to drop the case against him and requested the Government for withdrawal of the case against him in C.C. No. 392/2006 at VIth Addl.Chief Magistrate, Hyderabad in Cr. No. 18/05 under Section 468, 471 and 420 r/w 120B of CID Police Station, Hyderabad
2. The Ethics Committee of 12th Legislative Assembly in its 1st report, dated:7.10.2007, observed that the Committee after obtaining the information about the good conduct and good character of the Hon'ble MLA Sri Y.Raja Ramchandar, strongly feels that a hard core cheat, can take advantage of the illiteracy and humiliate a gentlemen. It can serve as a lesson for the representatives of the people to be very careful in affixing their signatures on loose papers at busy hours.
3. The Committee after careful examination came to the conclusion that the written, oral and self critical statement of Sri Y.Raja Ramchandar, MLA, where he has tendered apology for the misconduct of his P.A.be appreciated in the interest of moral and ethical standards for Legislators. The whole case of misrepresentation, though incriminating in the eye of Law, deserves to be condoned to uphold the truth of the matter and the spirit of ethics in the public life.
4. As Sri Y.Raja Ramchandar, MLA, has submitted his written apology to the Committee and remitted to the Government an amount of Rs. 60,000/- (Rupees Sixty Thousand only) vide Challan 1234, dated:3.10.2007, towards medical reimbursement claim which was wrongfully obtained for the angioplasty operation of his wife, the Committee recommended to drop the case against Sri Y.Raja Ramchandar, MLA.
5. Now, the Government after careful examination of the representation of Sri Y.Raja Ramchander, MLA, Kaikaluru, and also taking into consideration of the report of the Ethics Committee, have decided to accept the recommendations of the Ethics Committee, and, accordingly, decided to withdraw prosecution against Sri Y.Raja Ramachander, MLA, Kaikaluru, in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120B of CID Police Station, Hyderabad in C.C. No. 392/06 of VIth Addl.Chief Metropolitan Magistrate, Hyderabad.
6. The Collector and Director Magistrate, Hyderabad, is requested to instruct the Assistant Public Prosecutor concerned to file petition under Section 321 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) for withdrawal of prosecution against Sri Y.Raja Ramachander, MLA, Kaikaluru, in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120Bof CID Police Station, Hyderabad, in C.C. No. 392/06 of VIth Addl.Chief Metropolitan Magistrate, Hyderabad, under intimation to Government.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
AJOYENDRA PYAL
PRINCIPAL SECRETARY TO GOVERNMENT
9. In pursuance of the above G.O., an application was filed in Crl.M.P. No. 5498 of 2007 in C.C. No. 392 of 2006 under Section 321 of the Cr.P.C. seeking to withdraw the case against the fourth respondent. The trial Court dismissed the application by order dated 07.11.2007 holding that there were no convincing reasons forthcoming for withdrawal from the prosecution of the fourth respondent.
10. Aggrieved thereby, the State and the fourth respondent filed Crl.R.C.Nos.1546 and 1550 of 2007 respectively before this Court. The Revision Cases were dismissed by a learned Division Bench of this Court by order dated 13.12.2007 holding that Crl.M.P. No. 5498 of 2007 in C.C. No. 392 of 2006 was moved without application of mind by the Public Prosecutor and did not constitute an application under Section 321 of the Cr.P.C. This Court observed: 'the action of the respondents shows that the Government and its functionaries had decided that the case has to be withdrawn at any cost, therefore, we do not think that the order passed by the learned Magistrate, though for different reasons, can be faulted with.' It was further observed that the application had been moved by the Public Prosecutor on behalf of the CID and not for himself. Accordingly, this Court set aside G.O.Rt. No. 1617 dated 03.11.2007 and upheld the order passed by the trial Court. The trial Court was directed to expedite the hearing of the matter.
11. After monitoring the case before the trial Court for some time, this Court by order dated 25.02.2008 disposed of W.P. No. 5486 of 2007, taking note of the directions given by this Court in Crl.R.C.Nos.1546 and 1550 of 2007 on 13.12.2007 and directed that the trial in the case should be concluded as soon as possible and preferably within three months from the date of receipt of the order.
12. These, then, are the facts that led up to the issuance of the G.O. impugned in the present writ petition. G.O.Rt. No. 407, Home (Legal.II) Department, dated 05.03.2008 was issued by the Government of Andhra Pradesh, referring to the orders of this Court in the Crl.R.Cs. and stating that the Government, after careful examination of the representation of the fourth respondent and taking into consideration the report and recommendation of the Ethics Committee of the 12th Legislative Assembly, had decided to withdraw the prosecution against the fourth respondent and another in Crime No. 18 of 2005 in C.C. No. 392 of 2006. The Collector and District Magistrate, Hyderabad, was requested to instruct the Public Prosecutor concerned to file a petition under Section 321 of the Cr.P.C. for withdrawal from the prosecution of the accused in C.C. No. 392 of 2006, under intimation to the Government. G.O.Rt. No. 407 dated 05.03.2008 is reproduced hereunder:
GOVERNMENT OF ANDHRA PRADESH ABSTRACT
Police - Withdrawal of Prosecution against Sri Y.Raja Ramchander and Sri J. Veeraswamy(A2) in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120B IPC of CID Police Station Hyderabad in C.C. No. 392/06 of VI Addl.Chief Metropolitan Magistrate, Hyderabad - Orders - Issued.
HOME (LEGAL.II) DEPARTMENT
G.O.Rt. No. 407
Dated: 05.03.2008
Read the following:
1) Representation of Sri Y.Raja Ramchander, MLA, Kailkaluru, dt.12.10.07
2) Report of Ethics Committee of Twelfth Legislative Assembly.
3) G.O.Rt. No. 1617, Home (Legal.II) Dept., dt.03.11.2007
4) Govt.MemoNo.812/Legal.II/A1/2008-1 dt.23.01.08.
5) From the Addl.DGP, CID, A.P., Hyderabad Lr.C. No. 3106/C16/2005, dt.28.01.2008.
6) Govt.Memo No. 812/Legal.II/A1/2008 dt.26.02.2008.
7) From the Addl. DGP, CID, A.P., Hyd. Lr.C. No. 3106/C16/2005, dt.01.02.2008.
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ORDER:
1. In the reference 3rd cited above, the Government have issued orders for withdrawal of prosecution against sri Y.Raja Ramchander, MLA, Kaikaluru in C.C. No. 392/2006 at VIth Addl.Chief Magistrate, Hyderabad in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120B of CID Police Station, Hyderabad
2. The Hon'ble High Court in its common order No. 1546 and 1550 of 2007 dt.13.12.2007 has set aside the above order.
3. The Government have further examined the matter carefully and decided to withdraw the prosecution against Sri Y.Raja Ramchander, MLA (A1) and Sri J.Veeraswamy (A2) in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120B of CID Police Station, Hyderabad, on the following grounds:
a). The Ethics Committee of 12th Legislative Assembly in its 1st report, dated:7.10.2007, observed that the Committee after obtaining the information about the good conduct and good character of the Hon'ble MLA Sri Y.Raja Ramchandar, strongly feels that a hard core cheat, can take advantage of the illiteracy and humiliate a gentlemen. It can serve as a lesson for the representatives of the people to be very careful in affixing their signatures on loose papers at busy hours.
b) The Committee after careful examination came to the conclusion that the written, oral and self critical statement of Sri Y.Raja Ramchandar, MLA, where he has tendered apology for the misconduct of his P.A.be appreciated in the interest of moral and ethical standards for Legislators. The whole case of misrepresentation, though incriminating in the eye of Law, deserves to be condoned to uphold the truth of the matter and the spirit of ethics in the public life.
4. Accordingly, Sri Y.Raja Ramchandar, MLA (A1) has submitted his written apology to the Committee and remitted to the Government an amount of Rs. 60,000/- (Rupees Sixty Thousand only) vide Challan 1234, dated:3.10.2007, towards medical reimbursement claim which was wrongfully obtained for the angioplasty operation of his wife, the Committee recommended to drop the case against Sri Y.Raja Ramchandar, MLA.
5. Now, the Government after careful examination of the representation of Sri Y.Raja Ramchander, MLA, (A1) Kaikaluru, and also taking into consideration of the report of the Ethics Committee, have decided to accept the recommendations of the Ethics Committee, and, accordingly, decided to withdraw prosecution against Sri Y.Raja Ramachander, MLA, Kaikaluru, in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120B of CID Police Station, Hyderabad and also decided to withdraw the prosecution against Sri J.Veeraswamy (A2) in Cr,No.18/05 under Section 468, 471 and 420 r/w.120B of CID Police station Hyderabad.
6. The Collector and Director Magistrate, Hyderabad, is requested to instruct the Public Prosecutor concerned to file petition under Section 321 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) for withdrawal of prosecution against Sri Y.Raja Ramachander, MLA (A1), Kaikaluru and Sri J.Veeraswamy (A2) in Cr. No. 18/05 under Section 468, 471 and 420 r/w.120B of CID Police Station, Hyderabad, in C.C. No. 392/06 of VIth Addl.Chief Metropolitan Magistrate, Hyderabad, under intimation to Government.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH)
P.V.NAIDU
PRINCIPAL SECRETARY TO GOVERNMENT
13. Thereupon, the Additional Public Prosecutor filed a petition in Crl.M.P. No. 1273 of 2008 in C.C. No. 392 of 2006 under Section 321 of the Cr.P.C. referring to the recommendation of the Ethics Committee, the rejection of the earlier petition filed under Section 321 Cr.P.C., the issuance of G.O.Rt. No. 407 dated 05.03.2008, and stating that he, upon going through the material on record, oral and documentary evidence, report and recommendations of the Ethics Committee and on re-appraisal of the facts independently, unhindered or uninfluenced by the dictates of the Executive Authorities, felt that it was a fit case for withdrawal. It is further stated in the petition that the Government in G.O.Rt. No. 407 had accepted the pardon (apology?) of Accused No. 1, the fourth respondent herein, and thereby pardoned the acts of the accused. It is relevant to note that in this petition prosecution was sought to be withdrawn against both the accused in C.C. No. 392 of 2006 and not the fourth respondent alone. This petition was dismissed by the trial Court by order dated 17.03.2008, taking note of the fact that a similar petition had been dismissed by it earlier and stating that no satisfactory material had been placed before it to justify withdrawal from the prosecution of the accused in C.C. No. 392 of 2006. This order of the trial Court is challenged in Crl.R.C.Nos.457 of 2008 and 458 of 2008. Crl.R.C. No. 457 of 2008 is filed by the accused in C.C. No. 392 of 2006, while Crl.R.C. No. 458 of 2008 is preferred by the State.
14. By interim order dated 26.03.2008, a learned Judge of this Court granted interim stay of all further proceedings in C.C. No. 392 of 2006 for a period of two weeks initially, which was extended thereafter.
15. As the Writ Petition and the Crl.R.Cs. pertain to the same subject matter, we were of the opinion that all the three cases required to be heard together and by order dated 31.03.2009, the matter was directed to be placed before the Hon'ble The Chief Justice for necessary orders for clubbing of the cases. Thereupon, the Crl.R.Cs. were tagged on to this writ petition and are being disposed of by way of this common order.
16. The Government of Andhra Pradesh, through the Principal Secretary, Home (Legal) Department, Secretariat, Hyderabad, second respondent herein, filed its counter stating that the records revealed that the fourth respondent submitted a representation to the effect that he was falsely implicated by his Personal Assistant in the case relating to the claim of medical reimbursement from the Government. The Ethics Committee of the 12th Legislative Assembly had also recommended dropping of the case against the fourth respondent. Accordingly, the fourth respondent had requested the Government to withdraw the case against him in C.C. No. 392 of 2006. Reference is made in the counter to the report dated 07.10.2007 of the Ethics Committee, which reads:. the Committee after obtaining the information about the good conduct and good character of the Hon'ble MLA Sri Y.Raja Ramchandar, strongly feels that a hard core cheat, can take advantage of the illiteracy and humiliate a gentlemen. It can serve as a lesson for the representatives of the people to be very careful in affixing their signatures on loose papers at busy hours. The Committee after careful examination came to the conclusion that the written, oral and self critical statement of Sri Y.Raja Ramchandar, MLA, where he has tendered apology for the misconduct of his P.A. be appreciated in the interest of moral and ethical standards for Legislators. The whole case of mis- representation, though incriminating in the eye of Law, deserves to be condoned to uphold the truth of the matter and the spirit of ethics in the public life.
17. It is stated that the fourth respondent had submitted a written apology to the Committee and had remitted Rs. 60,000/- vide Challan No. 1234 dated 03.10.2007 towards the medical reimbursement claim which was wrongfully obtained for the angioplasty operation of his wife. It is further stated that the Government upon careful examination of the representation of the fourth respondent and the report of the Ethics Committee had decided to withdraw the case against him. As the petition filed earlier in this regard was dismissed on the ground that no convincing reasons had been mentioned for withdrawal of the prosecution and this Court had confirmed the said order mainly on the ground that the Public Prosecutor had not applied his mind, the Government once again requested the Public Prosecutor to consider withdrawal from the prosecution of both the accused in C.C. No. 392 of 2006 by way of G.O.Rt. No. 407 dated 05.03.2008. The Government denied that this action was initiated on account of political pressure or with a mala fide intention and sought to justify its action by stating that the same was supported by the report of the Ethics Committee of the Legislative Assembly and the penitence shown by the fourth respondent in repaying the amount.
18. The fourth respondent filed a counter-affidavit with the following averments:
He claimed to have studied upto 8th Class only. With regard to the complaint levelled against him of misappropriating public monies, he stated that he had tendered an apology for the mistake committed by his Personal Assistant and remitted an amount of Rs. 60,000/- towards the medical reimbursement claim for his wife. He stated that he had submitted a written apology to the Ethics Committee of the Legislative Assembly. He reiterated the facts narrated herein above with regard to the sequence of events leading up to the present lis. With regard to the locus of the petitioners in the writ petition, the fourth respondent alleged that the first petitioner was motivated by sheer jealousy though he was a member of the Congress Party or in the alternative, he may be backed by some rich jealous people of Kaikalur Constituency. He asserted that the issuance of G.O.Rt. No. 407 dated 05.03.2008 was not under Section 321 of the Cr.P.C. which only vests executive power in the Public Prosecutor concerned, to withdraw a case. The fourth respondent quoted from a judgment of the Supreme Court that the State is the master of the litigation in criminal cases and an elected Government, sensitive and responsive to the feelings and emotions of the people, would be amply justified if for purpose of creating atmosphere of goodwill, it decides not to prosecute offenders or proceed further with prosecutions already lodged. It is stated that the Government, in exercise of the above discretion and power, had advised the Assistant Public Prosecutor through the Collector, Hyderabad, to withdraw the prosecution against him and that the G.O. issued in this regard could not be found fault with. He accordingly prayed for dismissal of the writ petition.
19. In their reply to the counter filed by the second respondent-Government, the petitioners stressed upon the discrepancy with regard to the amount allegedly misappropriated and the amount said to have been repaid. The amount allegedly misappropriated, the subject matter of the criminal proceedings, is Rs. 4,14,556/- as is evident from the record, while the amount said to have been repaid by the fourth respondent is only Rs. 60,000/-. The petitioners asserted that the Ethics Committee of the Legislative Assembly is not empowered to adjudicate pending criminal cases and decide the guilt or innocence of the accused. Therefore, the reliance placed by the State upon the report and the recommendations of the Ethics Committee was said to be unacceptable. It is pointed out that the executive is conferred with the power of pardon after completion of the adjudication process, but not with the power to tamper with the process while mid-way. Petitioners reiterated that the action of the Government was tainted with mala fides and was based on extraneous and oblique considerations.
20. Sri S.Ramachandra Rao, learned senior counsel appearing for the petitioners, submitted that the sequence of events leading upto the issuance of the impugned G.O. clearly demonstrates that the Government was bent upon favouring the fourth respondent by withdrawing from the prosecution initiated against him at any cost. He pointed out that notwithstanding the fact that this Court was monitoring the progress in C.C. No. 392 of 2006, the Government issued the earlier G.O., G.O.Rt. No. 1617 dated 03.11.2007, instructing the Public Prosecutor to withdraw from the prosecution in the said case. After this Court set aside the said G.O., the Government resorted to the same exercise once again and issued the impugned G.O.
21. The learned senior counsel pointed out that the impugned G.O. is, in effect, a replication of the earlier G.O. and there are no new reasons forthcoming to justify the decision of the Government to withdraw from the prosecution of the fourth respondent. He submitted that there are no changed circumstances warranting the issuance of the impugned G.O. He submitted that the petitioners were not pressing the issue as to the constitutional validity of Section 321 of the Cr.P.C. and stated that even within the parameters of the said Section, the exercise in the present case seeking to withdraw from the prosecution of the fourth respondent was not valid and tenable. The learned senior counsel asserted that Section 321 of the Cr.P.C. cast a duty upon the Public Prosecutor to evaluate the grounds for withdrawing the case independently and only upon his considered satisfaction that such grounds were legitimate, he must move an application under the said Section. Further, the Section requires the Court concerned to give its consent, which it can only do after thoroughly examining the circumstances made out warranting the invocation of Section 321. The learned senior counsel asserted that the Ethics Committee of the Legislative Assembly cannot pass Judgment upon the guilt or innocence of the fourth respondent. It can only decide as to whether grounds were made out to initiate in-house action against the fourth respondent in the capacity of a people's representative but cannot assume the role or the functions of a Criminal Court. The Committee could go into the question of conduct of the Members of the House only for disciplining them qua as Members of the House. The learned senior counsel submitted that if the contention of the Government was to be accepted that the recommendation of the Ethics Committee was sufficient justification for withdrawal from prosecution in a criminal case, the same would hold good even in the case of prosecution for a murder committed by a people's representative! He submitted that there was no rationale or tenable reason forthcoming for withdrawal from the prosecution of the fourth respondent except for the Ethics Committee's recommendation, which is no ground at all in the eyes of law. He submitted that the action of the authorities in willfully attempting to protect the fourth respondent by seeking recourse to Section 321 of the Cr.P.C. is not justifiable in the post-Constitutional dispensation.
22. The learned senior counsel further contended that it was the sovereign function of the State to prosecute criminals, a function discharged through its law enforcement machinery. Crimes and criminality are the exclusive domain of the duly constituted Courts which adjudicate each case on its special facts and circumstances in the light of the applicable law. He pointed out that in the present case the trial in C.C. No. 392 of 2006 had progressed upto an advanced stage and that the action of the Government, time and again, in attempting to thwart the process of law by seeking to withdraw from the prosecution on wholly untenable grounds was without legal justification.
23. He pointed out that the Ethics Committee's report which formed the basis for the decision of the Government to withdraw from the prosecution has no judicial moorings and the said Committee had no power or authority to absolve an undertrial of the charges that he is facing. The learned senior counsel pointed out that under Section 321 of the Cr.P.C., a special power is conferred upon the Public Prosecutor to breach his normal function of prosecuting offences, whereby the Public Prosecutor concerned is enjoined with the duty of considering the larger interest involved and seek the consent of the Court to withdraw from the prosecution in a particular case. Such power ought not to have been exercised to exonerate, without the process of law, a people's representative who, owing to his fiduciary capacity, should be above suspicion like 'Caesar's wife'. Being an elected representative, the fourth respondent is a guardian of public monies and the citizens of the country have every right to bring to book any such representative who falls short of this minimum duty. Lack of probity in public life is the cause for the prevalent degree of corruption ailing our system. On the other hand, the learned Public Prosecutor and the learned Assistant Government Pleader for Home, supporting the action in seeking to withdraw from the prosecution of the fourth respondent, be it by way of issuance of the impugned G.O. or by filing of the petition under Section 321 of the Cr.P.C., contended that once the Public Prosecutor concerned filed the application after considering the matter independently, it was inconsequential whether the Government had advised him prior thereto. It is stated that the action of the Public Prosecutor concerned was in exercise of the executive functions of the office and did not call for re-appreciation of the matter on its own merits by the trial Court.
24. Sri C.Padmanabha Reddy, learned senior counsel, appearing for the accused in C.C. No. 392 of 2006, the petitioners in Crl.R.C. No. 457 of 2008, submitted that the discretion to withdraw from the prosecution by invoking the provisions of Section 321 of the Cr.P.C. is vested in the Public Prosecutor and once valid reasons are put-forth in this regard by the Public Prosecutor, it is not open to the trial Court to dismiss such an application. He submitted that the trial Court could only see whether such an application was made in good faith and no more. He contended that the order passed by the trial Court dismissing the application filed by the Public Prosecutor for withdrawal from the prosecution is illegal, improper and incorrect. He further contended that the trial Court failed to notice that the dismissal of the previous application filed under Section 321 was mainly on the ground that the application had not been moved by the Public Prosecutor on his own behalf, but on behalf of the CID. The learned senior counsel submitted that the trial Court should have seen that the Public Prosecutor found that it was a fit case for withdrawal after going through the entire material on record, oral and documentary evidence adduced before the Court, as well as the report and recommendations of the Ethics Committee and on reappraisal of the facts independently, unhindered and uninfluenced by the Executive instructions of the Government and the Collector. He submitted that the trial Court failed to notice that the Public Prosecutor is empowered to withdraw any case at any stage before judgment and all that the Court has to see is that the application was made in good faith.
25. In Crl.R.C. No. 458 of 2008, the State reiterated the grounds urged in Crl.R.C. No. 457 of 2008.
26. Sri T.Bali Reddy, learned senior counsel appearing for the fourth respondent in the writ petition, submitted that the issuance of the impugned G.O. was not relatable to Section 321 of the Cr.P.C. He pointed out that there is no reference to the Government in the said Section and that it is only the Public Prosecutor who is conferred with the executive power to withdraw from the prosecution in a particular case. The learned senior counsel submitted that as the petitioners had linked up the impugned G.O. with the said Section and had, in fact, challenged the validity of the very Section, the writ petition should be held to be misconceived and liable to dismissal on this sole ground. He submitted that the petitioners have nothing to do with the fourth respondent and that they are prompted by political jealousy. He pointed out that by way of a public interest litigation, the validity of a statutory provision cannot be challenged.
27. With regard to exercise of power under Section 321 of the Cr.P.C., the learned senior counsel submitted that Section 321 of the Cr.P.C. of 1973 was earlier Section 494 in the Cr.P.C. of 1898 and prior thereto, it was Section 61 in the Cr.P.C. of 1872. He submitted that this provision was placed in the statute book so as to permit the Public Prosecutor concerned, being the functionary in the State machinery who was seized with the power and authority to prosecute offences, to exercise his discretion and judgment in a given case as to whether sufficient grounds prevailed warranting the withdrawal from the prosecution therein.
28. The learned senior counsel stated that as it is the Government which is the ultimate repository of the sovereign power to control criminal prosecution, it also has the power to give instructions to the Public Prosecutor concerned to exercise his discretion and judgment under Section 321 in a given case. It is pointed out that there may be any number of circumstances which could prevail upon the Public Prosecutor to take a decision to withdraw from the prosecution in a particular case, such as the possibility of failure due to paucity of evidence, situations pertaining to law and order, communal harmony, etc. The learned senior counsel therefore submitted that the writ petition deserved to be dismissed.
29. In reply, Sri S.Ramachandra Rao, learned senior counsel, submitted that the argument that the impugned G.O., not being relatable to Section 321 of the Cr.P.C., could not be subjected to review by this Court, is not tenable and valid. He submitted that exercise of power by the Government, be it under any provision of law, would be amenable to judicial review. All the more so, if it was a demonstrable abuse of such power. It is pointed out that the similar G.O., viz., G.O. Rt. No. 1617 dated 03.11.2007, had already been set aside by this Court in the earlier round of litigation. He reiterated that the Ethics Committee's report and recommendations could not form the basis for the decision by the Public Prosecutor to withdraw from the prosecution.
30. The learned senior counsel asserted that 'the consent of the Court' envisioned in Section 321 was not a mere mechanical exercise but required an examination by the Court of the legitimacy of the grounds put forth by the Public Prosecutor to withdraw the case. The learned senior counsel asserted that the petitioners have locus to agitate the present issue as the first petitioner was involved in the earlier proceedings before this Court and both the petitioners figure in the criminal proceedings before the trial Court. The learned senior counsel pointed out that the stand taken by the fourth respondent in seeking to blame his Personal Assistant for the misappropriation of public monies is a palpably farcical one inasmuch as, admittedly, no action whatsoever has been initiated against him.
31. Reliance is placed upon a News Paper Report dated 23.01.2008 published in Eenadu Telugu Daily stating to the effect that the Additional Public Prosecutor, who had unsuccessfully attempted to withdraw the prosecution in Crl.M.P. No. 5498 of 2007 in C.C. No. 392 of 2006, was subjected to transfer. This, according to the counsel, clearly demonstrated the lack of independence of such Officers in the prevailing political regime to exercise the statutory duty enjoined by Section 321 of the Cr.P.C. in a given case, free from influence and pressure.
32. Learned Counsel placed reliance on various Judgments in support of their contentions.
33. In State of Bihar v. Ram Naresh Pandey : 1957CriLJ567 , the Supreme Court held that the function of the Court in granting consent may well be taken to be a judicial function. It follows that in granting such consent, the Court must exercise its judicial discretion. But it does not follow that the discretion is to be exercised only with reference to the material gathered by the judicial method.
34. In Bansi Lal v. Chandan Lal : 1976CriLJ328 , the Supreme Court set aside the order of the Sessions Judge allowing the application of the Public Prosecutor to withdraw from the prosecution, confirmed in revision by the Allahabad High Court, on the ground that the essential consideration which is implicit in the grant of the power to seek withdrawal from the prosecution is that the same should be in the interest of the administration of justice. It was held that the Court should not grant permission on the mere asking and must satisfy itself on the material placed before it that the grant of permission would serve the administration of justice and that the permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are duty bound to further and maintain. It is appropriate to extract hereunder paragraphs-5 and 6 of the said judgment:
5. In the case before us the prosecution has only reached the stage of framing charges against the accused and no occasion for the defence to make out a case has yet arisen. It is not clear where the Additional Sessions Judge found the case made which he calls the defence case. It is not to be found in the material that was before him. Counsel for the respondent, State of U.P., drew our attention to an order dated October 18, 1973 passed by the Allahabad High Court on a revision petition filed by the State seeking to stay further proceedings of this case when it was pending before the Additional District Magistrate (Judicial) Etawah. It appears from this judgment that an application for stay of the proceedings was made before the Additional District Magistrate (Judicial) on the ground that the case required to be investigated further. The Additional District Magistrate rejected the application and the Sessions Judge, Etawah, confirmed that order. The High Court on October 18, 1973 dismissed the revision petition made against the order refusing the prayer for stay and directed the Additional District Magistrate to dispose of the proceedings before him expeditiously and in accordance with law. As stated already, the case was committed to the court of sessions on May 22, 1974. Therefore, when the Additional Sessions Judge made the impugned order, there was no material before him to warrant the conclusion that sufficient evidence would not be forthcoming to sustain the charges or that there was any reliable subsequent information falsifying the prosecution case or any other circumstance justifying withdrawal of the case against the respondents. Consenting to the withdrawal of the case on the view that the attitude displayed by the prosecution made it 'futile' to refuse permission does not certainly serve the administration of justice. If the material before the Additional Sessions Judge was considered sufficient to enable him to frame the charges against the respondents, it is not possible to say that there was no evidence in support of the prosecution case. The application for stay of the proceeding made before the committing magistrate cannot also be said to falsify the prosecution case. If the prosecuting agency brings before the court sufficient material to indicate that the prosecution was based on false evidence, the court would be justified in consenting to the withdrawal of the prosecution, but on the record of the case, as it is, we do not find any such justification. In our opinion the High Court was in error in dismissing in limine the revisional application made against the order of the Additional Sessions Judge.
6. The appeal is accordingly allowed and the order of the Additional Sessions Judge permitting the withdrawal of the case against the respondents is set aside. The Additional Sessions Judge will proceed with the trial in accordance with law.
35. In State of Orissa v. Chandrika Mohapatra : 1977CriLJ773 , it was held that the paramount consideration in these cases must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case, in the light of what is necessary, in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice.
36. In Balwant Singh v. State of Bihar : 1977CriLJ1935 , it was observed that the statutory responsibility for deciding upon withdrawal squarely rests on the Public Prosecutor. It is non-negotiable and cannot be bartered way in favour of those who may be above him on the administrative side. In the Criminal Procedure Code the only master is the Public Prosecutor and he has to guide himself with reference to the Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution.
37. In Rajender Kumar Jain v. State : 1980CriLJ1084 , the Supreme Court culled out the principles applicable to invocation of Section 321 of the Cr.P.C. They are as hereunder:
13. Thus, from the precedents of this Court; we gather
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 Tammany 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 consideration. 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.
38. 13-A. 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 appraise 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.'
39. The Supreme Court observed that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution. It may be expedient and necessary to do so, in the public interest, from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, students' unrest, etc. The Court also observed that where issues involved the emotions and there is a surcharge of violence in the atmosphere, it may be necessary to withdraw from prosecution so as to restore peace and free the atmosphere from the surcharge of violence and preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law, the Supreme Court stated, may be utterly counter-productive.
40. In the context of the Government taking the initiative, the Supreme Court stated that if the Government advises the Public Prosecutor to withdraw from the prosecution, the Court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. The Supreme Court stated that in such a situation the Court must make an effort to elicit the reasons for withdrawal and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. The Supreme Court however issued a note of warning to the bureaucracy not to use peremptory language when addressing the Public Prosecutor as it may give rise to an impression that the Public Prosecutor was being coerced in the matter. There should be no suspicion of unwholesome pressure on the Public Prosecutor and any such suspicion may lead the Court to withhold its consent. In this regard, it would be apposite to refer to the concluding observations of the Supreme Court in the above case which are extracted hereunder:
25. Before bidding farewell to these cases it may be appropriate for us to say that criminal justice is not a plaything and a Criminal Court is not a play- ground for politicking. Political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost. So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the Government and thereafter apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should he allow himself to become anyone's stooge.
41. In Sheonandan Paswan v. State of Bihar : 1983CriLJ348 (1st case), the Supreme Court said that the Public Prosecutor must apply his mind to the facts of the case independently without being subjected to any outside influence and that the Court before which the case is pending cannot give its consent to withdraw without applying its mind to the facts of the case. The Court also observed that it cannot be said that a Public Prosecutor's action would be illegal merely because he received any communication or instructions from the Government. It was pointed out that the Public Prosecutor, being an appointee of the Government and being in the relationship of a counsel to it, cannot conduct a case absolutely on his own or contrary to the instructions of his client. However, he must apply his mind to the facts of the case and if he agrees with the instructions of the Government, he can file a petition stating the grounds of withdrawal. This, according to the Court, is what is contemplated by the Section. The Court also pointed out that other than paucity of evidence, relevant grounds for withdrawal from prosecution could be the broad ends of public justice, public order and peace including social, economic and political purposes. It was also pointed out in this decision that the exercise of the power to accord or withhold consent by the Court is discretionary. However, such exercise, being judicial, must be based on an examination as to whether the grounds of withdrawal are valid and whether the application is bona fide or collusive.
42. In Sheonandan Paswan v. State of Bihar : 1987CriLJ793 (2nd case), a Constitution Bench of the Supreme Court, by a majority of 3:2, observed that there are three requisites under Section 321 of the Cr.P.C. to make an order under it valid: (1) the application should be filed by a Public Prosecutor or Assistant Public Prosecutor who is competent to make an application for withdrawal; (2) he must be in-charge of the case and (3) the application should get the consent of the Court before which the case is pending. The Court pointed out that the section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
43. In Abdul Karim v. State of Karnataka : (2000)8SCC710 , relying on the earlier decision of the Constitution Bench in Sheonandan Paswan (2nd case), the Supreme Court made the following observations regarding withdrawal of a case under Section 321 of the Cr.P.C.:
What the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration of the material available, the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper.
44. In Rahul Agarwal v. Rakesh Jain : 2005CriLJ963 , the Supreme Court observed:.withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest or justice, the court may allow the withdrawal of prosecution. The discretion under Section 321, Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the States for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.
45. In S.K. Shukla v. State of U.P. : 2005CriLJ148 , the Supreme Court, having referred to Sheonandan Paswan (1st case), stated that the Public Prosecutor cannot act like a postbox or act on the dictates of the State Government. He has to act objectively as he is an officer of the Court. However, the Court is not bound by that and is free to assess whether a prima facie case is made out or not. If satisfied, the Court can also reject the prayer for withdrawal from prosecution.
46. In Ghanshyam v. State of M.P. : (2006)10SCC473 , the Supreme Court observed that the discretion to withdraw from the prosecution is that of the Public Prosecutor and none else and that being so, he cannot surrender the discretion to anyone. The Court pointed out that the Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors such as to further the broad ends of justice, public order, peace and tranquility.
47. In its recent Judgment in Vijaykumar Baldev Mishra @ Sharma v. State of Maharashtra 2008 AIR SCW 492, the Supreme Court reviewed the precedential law on this aspect and reiterated that the Public Prosecutor, in terms of the statutory scheme laid down under the Code of Criminal Procedure, plays an important role and is required to apply his own mind while filing an application under Section 321 and he must consider the effect thereof on the society in the event such permission is granted.
48. Though the writ petition was filed challenging the constitutional validity of Section 321 of the Cr.P.C., Sri S.Ramachandra Rao, learned senior counsel appearing for the petitioners, stated that he was not pressing the same and did not address any arguments on that aspect. We are not inclined to accept the submission of Sri T.Bali Reddy, learned senior counsel, that the petitioners should be pinned down to their prayer in the writ petition and that the case should be dismissed as misconceived as the impugned G.O. is not relatable to Section 321 of the Cr.P.C. It is always open to this Court to mould the relief and read down the prayer. In the present case the learned senior counsel appearing for the petitioners submitted that his clients were not pressing the case in so far as the constitutional validity of Section 321 of the Cr.P.C. is concerned and that the case should be examined with reference to the legality of the impugned G.O. and the actions initiated pursuant thereto in the light of the statutory provision. This submission finds favour with us. We therefore proceed to adjudicate on the validity and correctness of the impugned G.O. and the proceedings which ensued as a result thereof.
49. Section 321 of the Cr.P.C., to the extent that it is relevant for our purposes, is extracted hereunder:
Section 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 judgment 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....
50. In the light of the above statutory provision and the aforestated legal position emerging from precedents, let us now examine the exercise of power by the Additional Public Prosecutor under Section 321 of the Cr.P.C. in the present case.
51. Though the Supreme Court has, time and again, observed that it is always open to the Government to issue advice and instructions to the Public Prosecutor with regard to the withdrawal from prosecution in a particular case, the Court was also at pains to stress that the Public Prosecutor must necessarily apply his mind independent of external pressure and decide on the facts and circumstances of that case as to whether withdrawal from prosecution is warranted. In the present case, the impugned G.O. indicates that the Government, after careful examination of the representation of the fourth respondent and upon taking into consideration the report of the Ethics Committee, had decided to accept its recommendation and had accordingly decided to withdraw the prosecution against the fourth respondent. This statement, per se, clearly indicates that the Government had already taken a final decision in the matter. This is demonstrated by the sequence of events that followed. The impugned G.O. goes on to read that the Collector and District Magistrate, Hyderabad, was requested to instruct the Public Prosecutor concerned to file a petition under Section 321 of the Cr.P.C. to withdraw the prosecution against the fourth respondent and another, under intimation to the Government. Pursuant to the said instruction, the Collector, Hyderabad District, addressed the letter dated 11.03.2008 to the Assistant Public Prosecutor seized of the case in C.C. No. 392 of 2006. The contents of the said letter indicate that 'the Government's decision to withdraw the prosecution' was conveyed to the Assistant Public Prosecutor and reference was made to the grounds which motivated the decision of the Government.
52. These grounds are that: (1) the Ethics Committee of the Legislative Assembly in its report dated 07.10.2007 had observed that after obtaining information about the good conduct and good character of the fourth respondent, it felt that a hard core cheat, meaning the fourth respondent's Personal Assistant, had taken advantage of his illiteracy and humiliated him. This instance, according to the Ethics Committee, served as a lesson for the People's Representatives to be careful while affixing their signatures on loose papers at busy hours; (2) the Committee's conclusion that the apology tendered by the fourth respondent for the misconduct of his Personal Assistant must be appreciated in the moral and ethical standards for Legislators. According to the Committee, the whole case of misrepresentation, though incriminating in the eye of law, deserved to be condoned to uphold the truth of the matter and the spirit of ethics in public life; (3) the Government also took note of the written apology submitted by the fourth respondent to the Committee and the fact that he had remitted a sum of Rs. 60,000/- vide Challan No. 1234 dated 03.10.2007 towards the medical reimbursement claim which was wrongfully obtained for the operation of his wife. Citing the above grounds, the Collector, Hyderabad District, requested the Assistant Public Prosecutor to file a fresh petition under Section 321 of the Cr.P.C. for withdrawal from prosecution of the accused in C.C. No. 392 of 2000 and also requested him to send the compliance report to his office to intimate the same to the Government. It is relevant to note that this letter does not even indicate that a copy of the Ethics Committee's report dated 07.10.2007 was forwarded to the Assistant Public Prosecutor for his perusal and verification.
53. Be that as it may, the application filed by the Additional Public Prosecutor in Crl.M.P.1273 of 2008 in C.C. No. 392 of 2006 clearly shows that the said officer was completely influenced by the contents of the impugned G.O., to which he made reference at length, and sought withdrawal from the prosecution. Though the Additional Public Prosecutor paid lip service to the mandatory requirement of independently examining the matter by stating that he had gone through the entire material on record, oral and documentary evidence adduced before the Court as well as the report and recommendations of the Ethics Committee and upon re-appraisal of the facts independently, unhindered or uninfluenced by the dictates of the Executive Authorities, no reason is stated as to what prompted the officer to hold that it was a fit case for withdrawal. The mere recommendation of the Ethics Committee could not have formed the basis for such a decision on the part of the Additional Public Prosecutor. It is relevant to note that the fourth respondent, being a people's representative, was charged with misappropriation of public monies through wrongful medical reimbursement. This was a serious charge and required examination on merits so as to set an example to others. The observation of the Ethics Committee that the whole case, though incriminating in the eye of law, deserved to be condoned to uphold the truth of the matter and the spirit of ethics in public life, is neither here nor there. The said observation is a contradiction in terms and in any event, could not be a justifiable reason for the Additional Public Prosecutor to have moved the petition without anything further. No material was placed before the Court to indicate that the Personal Assistant of the fourth respondent was solely responsible for the alleged misappropriation and the inescapable fact that remains is that the fourth respondent alone was the beneficiary of the alleged misappropriation. Further, it is not denied by the respondents that the Personal Assistant of the fourth respondent was not subjected to prosecution or disciplinary proceedings. It is also to be noted that the criminal proceedings pertained to misappropriation of public monies to the tune of over Rs. 4 lakhs while the Government's decision to withdraw from the prosecution appears to have been instigated by repayment of a mere Rs. 60,000/-. There is no mention in the proceedings as to the status of the rest of the amount alleged to have been misappropriated by the fourth respondent. None of the grounds, identified by the Supreme Court in the various decisions aforestated, which warrant invocation of Section 321 of the Cr.P.C. find place in the present case. The case involving the fourth respondent was a simple one of misappropriation of public monies by a representative of the people and the same does not fall within the instances that constitute reasonable justification for withdrawal from prosecution in the larger public interest. In fact, prosecution of the present case to its logical end would be in public interest to set an example and cleanse the political arena; instilling discipline and high moral and ethical standards amongst the representatives of the people. Such exercise necessitated that the fourth respondent's case culminated in an adjudication on its own merits instead of being disrupted by the intervention of the Public Prosecutor under Section 321 of the Cr.P.C., acting upon the dictates of the Government.
54. It is relevant to note that even in the earlier round of litigation, this Court had observed that the Government and its functionaries had decided that the case against the fourth respondent be withdrawn at any cost. The issuance of the impugned G.O. thereafter, and the subsequent application filed by the Public Prosecutor, are a further manifestation of this desire of the Government. A reading of the impugned G.O. and the earlier G.O., G.O.Rt. No. 1617 dated 03.11.2007 which was set aside by this Court earlier, clearly shows that the impugned G.O. is a replication of the earlier G.O. and is practically identical therewith. The action of the Government in issuing the impugned G.O. reproducing the import and verbatim language of the G.O. which was set aside, clearly indicates lack of bona fides on its part.
55. It is pertinent to remember that this Court had, in fact, monitored the progress of the case in C.C. No. 392 of 2006 and had directed the trial court to conclude the trial within three months. The action of the Government in once again seeking to interfere with the judicial process by issuing the impugned G.O. is squarely in the teeth of the orders passed by this Court in the earlier rounds of litigation.
56. Further, the application under Section 321 of the Cr.P.C. is not reflective of a free and uninfluenced application of mind by the Additional Public Prosecutor. There was no room left for the Public Prosecutor to independently exercise his mind in view of the peremptory instructions given to him, reflective of the final decision of the Government in the matter. The so-called 'request to report compliance' clearly indicates that the Public Prosecutor had no further discretion in the matter. Even on merits, the application filed by the Additional Public Prosecutor clearly shows that there was no independent exercise on his part and no reasons are forthcoming except the irrelevant ones stated by the Government in the impugned G.O. Relevant to note, it is not the case of the Additional Public Prosecutor that the prosecution of the accused in C.C. No. 392 of 2006 would be a futile exercise for want of evidence or that continuing such prosecution may amount to an abuse of the process of law or is not in the larger public interest. The Additional Public Prosecutor merely acted as a 'post box' in the matter. The same cannot constitute a valid exercise of the executive function enjoined on him by Section 321 of the Cr.P.C.
57. The action initiated to withdraw from the prosecution in C.C. No. 392 of 2006, by way of issuance of the impugned G.O. and filing of the application under Section 321 of the Cr.P.C., is therefore found to be lacking in bona fides and amounts to an illegal and unsustainable exercise of power in the eyes of law. The impugned G.O. Rt. No. 407 dated 05.03.2008 is therefore set aside. The order dated 17.03.2008 passed by the VI Additional Chief Metropolitan Magistrate, Hyderabad, in Cr.M.P. No. 1273 of 2008 in C.C. No. 392 of 2006 does not call for any interference by this Court under Sections 397 and 401 of the Cr.P.C and is accordingly upheld.
58. The Writ Petition is allowed in part with costs of Rs. 20,000/- (Rupees Twenty Thousand only), setting aside G.O.Rt. No. 407 dated 05.03.2008. The costs shall be payable by the State and the fourth respondent jointly and severally.
59. Crl.R.C.Nos.457 and 458 of 2008 are dismissed. The interim order granted therein staying further proceedings in C.C. No. 392 of 2006 shall stand vacated. The trial Court is directed to expedite the proceedings in C.C. No. 392 of 2006.