IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH THURSDAY THE TWENTYFOURTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL REVISION CASE NO. 368 OF 2011
Between:
Talasila Ranga Rao … Petitioner/Accused V/s.
The State of Andhra Pradesh Represented by Special Public Prosecutor for SPE & ACB Cases, High Court of AP Hyderabad. … Respondent/complainant Counsel for Petitioner : Sri Mavidi Rama Rao Counsel for Respondent : Sri Gania Musa Spl. Public Prosecutor for SPE & ACB Cases The court made the following : [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR
CRIMINAL REVISION CASE NO. 368 OF 2011
O R D E R:
This Criminal Revision is preferred challenging orders dated 11/06/2009 of Special Judge for SPE and ACB Cases, Vijayawada, in Crl.MP.No. 453 of 2008 in CC.No.31 of 2007.
2. Brief facts leading to this criminal revision are as follows:
Inspector of Anti-Corruption Bureau, Vijayawada Range filed charge sheet against petitioner herein alleging that he has acquired dis-proportionate assets to his known legal source of income to a tune of Rs.8,79,115=00 and subsequently on the representation of petitioner, Government issued G.O.Ms.No.379, M.A. & U.D. dated 30/05/2008 withdrawing prosecution. Basing on which Special Public Prosecutor of Special Court filed a petition under section 321 Cr.P.C. seeking permission of the court to withdraw the case against revision petitioner and the learned trial Judge dismissed the said application on the ground that the income pleaded by petitioner before the Government has to be decided only during trial and as the case is already part-heard, he refused to accord permission. Aggrieved by the same, present criminal revision is preferred.
3. Heard both sides.
4. Sri Mavidi Rama Rao, Advocate for petitioner submitted that Government after thorough examination of material placed before it passed G.O.Ms.No. 379, M.A. & U.D. dated 30/05/2008. He submitted that Investigating Agency has not taken into consideration the income of wife of the petitioner, who is doing business when the same was brought to the notice of Government, after careful examination, Government considered the representation of petitioner and issued the said G.O. withdrawing prosecution. He submitted that departmental action was also initiated and departmental enquiry is concluded and orders are yet to be passed. He submitted that when the Government examined the issue carefully after considering the judgment of Apex Court, refusing permission to withdraw prosecution was not correct and the trial court committed error in dismissing Crl.MP.No. 453 of 2008 in CC.No.31 of 2007, therefore, the said order has to be set aside.
5. I have perused the material papers filed along with this criminal revision.
6. The main ground on which learned trial Judge refused to accord permission to withdraw the case is that petitioner has not stated these aspects during investigation and no reasons are given for not bringing this aspect to the notice of Investigating Agency. It is further observed that since the case is part heard and the income pleaded by the petitioner whether genuine or not has to be decided only during trial. On these two grounds, learned trial Judge refused to accord permission to withdraw the case.
7. Here it will be useful to refer section 321 Cr.P.C., which deals withdrawal from prosecution.
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, --
(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) If it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
Provided that where such offence ---
i) was against any law relating to a matter to which the executive power of the Union extends, or
ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 [ 25 of 1946 ], or
iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.
8. On a plain reading of the above provision, it is clear that petition for withdrawal of prosecution can be filed at any time before pronouncement of judgment. Admittedly, judgment is not pronounced in CC.No.31 of 2007 and the case is still pending. Government of Andhra Pradesh issued G.O.Ms.No. 379, M.A. & U.D. dated 30/5/2008 after examining each and every aspect with reference to the income pleaded by the petitioner. It is also observed in the said G.O. that Government employee has openly disclosed about business being carried out by his wife under the name and style, M/s. Laxmi Anjana Tube Well Works, Vijayawada and that she derived an amountof Rs.19,87,240/- as per the said business and that all the payments were made through cheques. It is also observed in the said G.O. that she is an income-tax assesse and after considering all these aspects, the Government issued the said G.O. The trial court can refuse withdrawal of prosecution only if there is no application of mind while issuing such G.O. Here the Government has not only applied its mind to the facts of the case but considered legal position and relied on a ruling of Apex Court in support of its conclusion to give permission to withdraw prosecution. The reason assigned by the trial Judge that the correctness of income pleaded by the petitioner has to be decided only during trial is not a correct-view ,because it is for the prosecuting agency and the Government to first satisfy as to the correctness of the income pleaded by the petitioner. It is not as though that the Government employee has not informed the authority about his wife’s business and on the other hand, as seen from the said G.O. he was fair enough to disclose about the business being carried out by his wife and also income derived thereon, and that she is an income-tax assessee.
9. As rightly pointed out by the learned counsel for petitioner the learned trial Judge grossly erred in exercising the power under section 321 Cr.P.C., therefore, the same has to be rectified by allowing this criminal revision.
10. For the above reasons, this Criminal Revision is allowed and the impugned order dated 11/6/2009 passed by the Special Judge for SPE & ACB Cases, Vijayawada in Crl.MP.No. 453 of 2008 in CC.No. 31 of 2007 is set aside and same is allowed by permitting prosecution to withdraw the case as prayed for.
11. As a sequel, miscellaneous petition, if any, pending shall stand closed.
JUSTICE S. RAVI KUMAR .
24/07/2014
I s L
HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE NO. 368 OF 2011 Circulation No. 8 7 Date: 24/07/2014 Court Master : I s L Computer No. 43