Heard Dr. Salil Kumar Srivastava, learned counsel for the petitioner and Mr. M.P. Singh, learned Government Advocate.
The petitioner has challenged the proceedings of case no. 17 of 1999 arising out of Case Crime No. 581 of 1997 pending before the court of Special Judge ( Prevention and Corruption Act), Lucknow as also the order dated 3rd of March 2005 passed therein, rejecting the application, being application no. A-15, dated 6th of July, 2004 presented on behalf of the State Government under Section 321 of the Code of Criminal Procedure for withdrawal of the case pursuant to the First Information Report registered against the petitioner under Section 13(1) (E), 13 (1) (D) and 13(2) of the Anti Corruption Act, the matter is investigated and charge-sheet was filed against the petitioner. The State Government on the basis of the investigation report also sanctioned the prosecution against the petitioner by means of order dated 12th of January, 1999 on the strength of charge-sheet. Thereafter, the learned Magistrate took cognizance and proceeded with the case for trial.
Upon perusal of the record, it appears that the Vigilance Department re-examined the matter and recommended to the State Government to review its decision. The Government reviewed the same and found that though the agricultural income of Smt. Geeta Singh wife of the petitioner was indicated in the description of income and expenses, but the same was not added in the income of the petitioner. Had it been added in the petitioner's income, definitely, the petitioner's income would have more than his expenses as shown in the chart. The said agricultural income is shown as Rs. 47,40,200/-.
Considering the material facts, the Government reviewed its decision on 10th of June, 2004 and decided to move an application before the court concerned for consent of the court to withdraw the prosecution. Thereafter, application under Section 321 of the Code of Criminal Procedure was moved for seeking consent of the court for withdrawal of the prosecution on 6th of July, 2004 before the court concerned. The learned Special Judge by means of order dated 3rd of March, 2005 rejected the same on the ground that during the course of investigation whatever materials have been calculated by the Vigilance Department, those reveal that the income of the petitioner as well as his other family members including his wife have been taken into consideration and only thereafter report has been submitted, which establish that the petitioner has spent Rs. 36,62,380/- more than his income from the legal sources, for which the petitioner has failed to give any reasonable explanation.
Upon perusal of the order impugned, I find that the learned Magistrate has again tried to analyse the merit of the case after taking into account the statistics produced by the Vigilance Officer, but he failed to consider the particular ground for withdrawal of the prosecution that the agricultural income of the petitioner's wife amounting to Rs. 47,40,200/-, was not added in his income. It is not in dispute that the total agricultural income of the petitioner and his wife has been noted as Rs. 47,40,200/-, but the same has not been included in income for the purpose of assessment of his income during the course of investigation that may be said to be apparent error of the Investigation Officer. The chart of petitioner's income and expenses shows that the income and expenses of his sons and daughter amounting to Rs. 23,40,739/- have been deducted from his expenses and thereafter the total expenses done by the petitioner have been calculated as Rs. 59,32,732/-.
On the other hand, after adding the total agricultural income as discussed above in the petitioner's income, it comes out Rs. 86,51,290/-, which establishes that the expenses done by the petitioner are much less than his income.
In light of the aforesaid facts, it is obvious that the Government has rightly reviewed its decision as the aforesaid figures establishes that in any manner the petitioner's assets cannot be said to be disproportionate to his income.
Though the opinion of the State Government is always under the judicial review, but the Hon'ble Supreme Court in the case of Mahmadhusen Abdulrahim Kalota Shaikh (2) Vs. Union of India and Others (2009)2 Supreme Court Cases 1 has held that once the Review Committee expresses the opinion that there is no prima facie case for proceeding against the accused, the cases shall be deemed to have been withdrawn.
The relevant paragraph 51 is extracted below:-
" We, therefore, hold that once the Review Committee on review under Section 2(3) of the repealing Act, expresses the opinion that there is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken by the court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in the matter is to bring to the notice of the court, the direction of the Review Committee. The court on satisfying itself as to whether such an opinion was rendered, will have to record that the case stands withdrawn by virtue of Section 2(3) of repealing Act. The court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such an opinion of the Review Committee. But we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the court where the proceedings were pending, will continue with the case as if there had been no such opinion."
The scope of section 321 of the Code of Criminal Procedure has been discussed by the Hon'ble Supreme Court in several Cases, some of them are referred hereinunder:-
(1) Rajender Kumar Jain Vs. State through Special Police Establishment & others (1980) 3 SCC 435.
The relevant para 14 is extracted below:-
"14. 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 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.................
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 Persecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or with holding its consent to withdrawal from the prosecution.
(2) Sheonandan Paswan Vs. State of Bihar and others (1987) 1 SCC 288 The relevant paras 77, 78 and 79 are extracted below:-
77. "Section 321 reads as follows:
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,-
This Section enables the Public prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced, but this application for withdrawal has to get the consent of the court and if the court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. It clothes the Public Prosecutor to withdraw from the prosecution of any person, accused of an offence both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is "at any time before the judgment is pronounced".
78- "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 initiative is that of the Public Prosecutor and what the court has to do is only to give its consent and not to determine any matter judicially. 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".
79- "The court's function is to give consent. This section does not obligate the court to record reasons before consent is given. However, I should not be taken to hold that consent of the court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines 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 materials available, the order giving consent has necessarily to be upheld".
In the case of State of Bihar Vs. Ram Naresh Pandey AIR 1957 Supreme Court 389, the functions of the court and the Public Prosecutor have been correctly outlined. While discussing the role of the court the Hon'ble Supreme Court has held in paragraph 92 as under:-
" His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by court. It cannot be taken to place on the court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of "no prima facie case" under Sections 209(1) and 253(1) or of 'groundlessness' under Section 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made".
(3)Mohd. Mumtaz Vs. Nandini Satpathy and Others (I) (1987)1 Supreme Court Cases 269.
Hon'ble Supreme Court in the Case of State of Orissa Vs. Chandrika Mohapatra and Others (1976) 4 Supreme Court Cases 250 again considered the principles laid down in Ram Naresh Pandey Case (Supra) and held that "in understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the court has to do is only to give its consent and not determine any matter judicially.
..........the judicial function, therefore, implicit in the exercise of 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 of legitimate reasons or purposes.
............the magistrate's function in these matters are not only supplementary, at a higher level, to those of the executive but ae intended to prevent abuse.
..............there is, however, a general concurrence - at least in the latter case - that the application for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecution".
In conclusion the Hon'ble Supreme Court also held that the ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.
Hon'ble Supreme Court held that " We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution".
After examining the facts of the present case in light of the opinion and guidelines of the Hon'ble Supreme Court referred as above I find that the Investigating Agency has presented the case against the petitioner as it is a case of disproportionate assets gained by the petitioner, whereas after looking into the statistics of income and expenses as has been figured by the Investigating Agency, it is apparent that the Investigating Agency has failed to appreciate the agricultural income of the petitioner and his wife in adding it with the total income, whereas after adding it the petitioner's income comes out much more than the expenses incurred by him. No doubt the income and expenses incurred by his sons and daughter have rightly been excluded from adding in his income, but had the agricultural income, as discussed above, been added in his income, it would have more than that.
While reanalysing the matter the State Government realised its mistake and, therefore, reviewed its decision. After observing overall the facts and circumstances, I find that once after reviewing the matter the petitioner's income have been found more than the expenses incurred by him, it cannot be said to be a case of disproportionate assets to his income gained by the petitioner, therefore, the continuance of the criminal proceeding against him would be only a futile exercise.
Thus, in light of the aforesaid facts, I am of the considered view that the administration of justice demands to drop the proceedings initiated against the petitioner as I do not find error in the decision of the State Government, therefore, I hereby quash the proceedings of case no. 17 of 1999 arising out of Case Crime No. 581 of 1997 pending before the court of Special Judge (Prevention and Corruption Act), Lucknow as well as the order dated 3rd of March 2005 passed therein by the Special Judge (Prevention and Corruption Act), Lucknow.
The petition is allowed.
Order Date :- 18.02.2011 Amit