HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Case :- CRIMINAL REVISION No. - 3970 of 2015 Revisionist :- Shyam Nath Ram Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Shashi Prakash Singh,Indra Raj Singh Counsel for Opposite Party :- G.A. Hon'ble Harsh Kumar,J.
The criminal revision has been filed by accused-revisionist against order dated 7.10.2015 passed by Special Judge, Anti-Corruption, Court No.4, Varanasi in Special Trial No.4 of 2004, rejecting applications 57B & 60B of Public Prosecutor under Section 321 Cr.P.C. for permission to withdraw from prosecution as well as for discharging the accused-revisionist.
The brief facts relating to prosecution case as well as relevant for the purpose of revision brought before me during arguments advanced by learned counsel for the revisionist are as under:-
(i) Prosecution Case:-
"that on 17.1.2002 the complainant Ashok Kumar's Truck No.USM-9361 was going from Mijipur to Shakti Nagar for getting the coal loaded of which papers were allegedly valid up-to-date, but the revisionist, who was posted as A.R.T.O., Sonbhadra falsely Challaned his vehicle and imposed a fine of Rs.3050/- which were deposited by him on 2.2.2002 vide receipt no.433062; that despite deposit of fine accused-revisionist made a demand of Rs.1,500/- as illegal gratification (Suvidha shulk) and a further sum of Rs.500/- per month, per vehicle towards his entry fee (Suvidha shulk) without which the release order will not be handed over by him; that the complainant Ashok Kumar is alleged to have given written complaint to Superintendent of Police (Vigilance), Varanasi on 4.2.2002 and in due course trap was conducted on 8.2.2002 in which the revisionist was caught red handed at the time of accepting Rs.1,500/- as illegal gratification."
(ii) Brief Facts:-
"that in Case Crime No.93 of 2002, charge-sheet was submitted on 10.4.2004, but the charges have not yet been framed against the revisionist; that an application for discharge was moved by the revisionist on the ground that (i) the original memo of recovery of currency notes received by accused-revisionist as illegal gratification and his arrest; (ii) original F.I.R. and (iii) original prosecution sanction are not on record, which was rejected by the Special Judge vide order dated 25.11.2009 and his 2nd application for discharge was also rejected vide order dated 1.5.2010; that on 12.8.2010 an application for adjournment was moved by accused-revisionist on the ground of pendency of proceedings for grant of permission to withdraw under consideration before State Govt. which was later on granted by State Govt. on 23.8.2010; that on 5.10.2010 an application 57-B was moved by ADGC (Crl.) for permission to withdraw from prosecution and to discharge the revisionist supported by another application 60-B dated 5.1.2011 which were rejected by the Special Judge vide order dated 12.10.2012 as ADGC (Crl.) did not agree to press the application; that this Court was pleased to set-aside the above order dated 12.10.2012 on technical ground vide its order dated 5.4.2013 passed in Criminal Revision No.50 of 2013 "Shyam Narain Vs. State of U.P. And directed for its afresh disposal after hearing ADGC (Crl.), copy filed at Annexure-7; that the accused-revisionist also filed an application on 8.10.2010 supporting application 57B of ADGC for withdrawal from prosecution."
Learned counsel for the revisionist contended that the accused-revisionist has been falsely implicated in trap case of corruption and since he had prepared the release memo on 2.2.2002 there was no question of making the alleged demand of Rs.1,500/- or Rs.500/- towards illegal gratification; that since the original papers viz. F.I.R., recovery and arrest memo as well as prosecution sanction are missing from the record and in the case relating to the occurrence of the year 2002, charges have not been framed in last more than 13 years, there is no hope of success to prosecution, and in the interest of justice as well as also in order to save the valuable time of Court and money of State, the Court was ought to have given consent for withdrawal from prosecution, discharging the accused-revisionist, against whom charges have not been framed as yet; that the application under Section 321 Cr.P.C. since was moved by ADGC (Crl.) upon application of his mind to all the facts and circumstances, the Court is not required to consider the correctness of facts and possibility of its resulting in conviction or not; that the application was moved in the interests of justice, the Court ought to have granted its consent; that under Section 321 Cr.P.C. the legislature has used word "Consent" and not "Permission" and so the Court was not required to examine the merits of the case had to exercise only supervisory powers; that the learned lower court has acted wrongly in rejecting the application for permission to withdraw from prosecution and for discharging accused-revisionist.
Learned counsel for the revisionist has relied on the case law in the cases of Rajendra Kumar Jain etc. Vs. State through Special Police Establishment and others, 1980 (3) SCC 435 and Sheo Nandan Paswan vs State of Bihar & others, 1987 (1) SCC 288.
In the case of Rajendra Kumar Jain Vs. State through Special Police Establishment and others (supra), an application was moved for withdrawal from prosecution of political leaders George Fernandes, Bansi Lal, Ex-Central Minister and 24 others, including Governor of State and leading journalists under different Sections of Explosive Substance Act and Sections 121A & 121B of I.P.C. for the incident allegedly occurred during emergency period, which was allowed by Chief Metropolitan Magistrate giving consent to Special Public Prosecutor to withdraw from prosecution, and High Court dismissed revision under Section 397 Cr.P.C. for want of any illegality or manifest error in the order. In above matter the Apex Court also dismissed the criminal appeal and laid down, the principles governing disposal of application under Section 321 Cr.P.C. in para 14 of the judgment, which are as under:-
"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, political purposes Sans Tammany Hall enterprise.
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 re-appreciate 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 considerations. 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.
Laying down above legal position it held that:-
"the ultimate discretion in the matters of withdrawal from prosecution is on public prosecutor, though Government may give its suggestions, advise or guidance to him in the matters involving public policy, but none can compel him in this regard; that Courts, when moved for permission for withdrawal from prosecution, must be vigilant and inform themselves fully before granting consent. The Court performs a supervisory function and has a special duty in granting its consent to the withdrawal.
We may add that 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."
The scope of Section 321 Cr.P.C. was considered time again by the Apex Court and in the case of Sheo Nandan Paswan vs State of Bihar & others (supra), the five judges Bench of Apex Court also agreed with the legal position flowing from Section 321 as has been explained in the case of Rajendra Kumar Jain Vs. State through Special Police Establishment, and held that:-
"44. I respectfully agree with the legal position flowing from section 321 of the Code of Criminal Procedure as explained by Krishna Iyer and Chinnappa Reddy, JJ. in respect of cases relating to Bansi Lal and Fernandes in R.K. Jain Vs. State."
In para 15 of the judgment of Sheo Nandan Paswan vs State of Bihar & others (supra), the Apex Court observing that:-
"In fact, in a case like the present where the question is of purity and public administration at a time when moral and ethical values are fast deteriorating and there seems to be a crises of character in public life, the Supreme Court should regard as its bounded duty-a duty owed by it to the society-to examine carefully whenever it is alleged that a prosecution for an offence of corruption or criminal breach of trust by a person holding high public office has been wrongly withdrawn and it should not matter at all as to how many judges in the High Court or the lower court have been party to the granting of such consent for withdrawal." Held that "The revisional power exercised by the High Court under Section 397 is couched in words of widest amplitude and in exercise of this power can satisfy itself as to the correctness, legality propriety of any order passed by the Magistrate or as to the regularity of any proceedings of such Magistrate."
In para 79 of the judgment, the Apex Court held that "The Court's function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, it 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 above case there was involvement of Ex-Chief Minister of Bihar where application for withdrawal from prosecution was allowed by Magistrate granting consent and in absence of any illegality or incorrectness the order was upheld by High Court as well as the Apex Court.
Learned A.G.A. did not argue in support of the impugned order.
Upon hearing learned counsel for the parties and perusal of record and before coming to the undisputed facts of the case apart from law relied by learned counsel for the revisionist, it is pertinent to mention some more case law.
In the case of Yerneni Raja Ramchander @ Rajababu Vs. State of Andhra Pradesh & other, 2009 (15) SCC 604, where appellant an MLA was being prosecuted under Sections 420, 463, 467, 468, 471 read with 120B I.P.C. for obtaining huge amount on the basis of false and fabricated medical bills, petition for withdrawal from prosecution was moved on the ground of acceptance of apology tendered by him as well as due to refund of misappropriated amount on the recommendations of Ethics Committee. The Apex Court held that:-
"State was not acting in public interest and it showed unusual interest in appellant, which is not expected of an executive which believes in good governance."
It further held that:-
"it is really a matter of great surprise that the State independently filed revision before the High Court and did not stop at that and also filed SLP dismissing the appeals and confirming the orders of trial court, refusing to give consent for withdrawal of prosecution as well as that of High Court, the State was directed to pay Rs.1,00,000/- to the State Legal Services Authority."
In the case of S.K. Shukla Vs. State of U.P., 2006 (1) SCC 314, the Apex Court on finding, prima-facie case on facts, having been made out against accused Raghuraj Pratap @ Raja bhaiya, Udai Pratap and Akshay Pratap, quashed the application of public prosecutor and order of State Government for withdrawal of cases, hold that:-
"public prosecutor can not act like a postbox or on dictates of State Government but has to act objectively as befits an officer of the Court.
Furthermore Court is not bound by opinion of the public prosecutor and is free to access whether a prima-facie case is made out or not."
Similarly, three Judges Bench of Hon'ble Apex Court in the case of Abdul Karim Vs. State of Karnataka, 2000 (8) SCC 710, held that:-
"for withdrawal from prosecution, public prosecutor must independently apply his mind to all relevant material and reach his satisfaction in good faith and public interest, disregarding any decision, order or direction of Government. It held that though the power of Court is supervisory but consent can not be granted as a matter of course and Court has also to be satisfied that on the basis of such material the satisfaction of a public prosecutor was bona-fide in public interest and will not thwart or stifle the process of law, or cause manifest injustice. Deprecating the conduct of the State Government and public prosecutor in moving withdrawal from prosecution and consent to grant bails to hardcore criminals Veerappan, Hon'ble the Apex Court held that the order granting consent for withdrawal did not meet the requirements of Section 321 and set-aside, being bad in law."
In the case of Rahul Agarwal Vs. Rakesh Jain, (2005) 2 SCC 377 OR 2005 Criminal Law Journal 963 (mentioned by ADGC in application 57/B). Hon'ble the Apex Court, setting aside the order of High Court, allowing withdrawal from prosecution, held that:-
"withdrawal of prosecution can be allowed after necessary consideration and only when valid reasons are made out. It can be allowed only in the interest of justice after finding out whether the withdrawal of prosecution would advance the cause of justice."
In view of provisions of Section 321 as amended in Uttar Pradesh and legal position discussed above, I find that Public Prosecutor or the Assistant Public Prosecutor Incharge of the case may, on the written permission of the State Government to that effect (which shall be filed in Court), with the consent of the Court, withdraw from prosecution any person in respect of any one or more of the offences for which he is tried and before giving consent by the Court under its supervisory power the Court has to be satisfied that the application was moved by Public Prosecutor with (i) due application of mind, (ii) independently, (iii) in good faith and (iv) for valid reasons in public interest, disregard to any decision, order or direction of the Government and that it will not thwart or stifle the process of law or cause manifest injustice.
Looking to the facts relating to this revision, I find that the two applications 57B & 60B were moved by ADGC (Crl.) under Section 321 Cr.P.C. for withdrawal from prosecution and discharge of accused-revisionist on 5.10.2010 and 15.1.2011, copies filed at Annexure-4 Paras 1 & 9 of the application 57/B and para 3 of supporting application 60/B dated 15.1.2011 are being reproduced hereunder:-
^^1- ;g fd mijksDr okn esa ;g izkFkZuk i= okn okilh fo"k;d fo'ks"k lfpo mRrj izns'k 'kklu U;k; vuqHkkx&5 ¼QkStnkjh½ y[kuÅ ds i= la[;k 593 MCyw&lh&@lkr U;k;&5&2010&147 [email protected] fnukad 23 vxLr 2010 ds lanHkZ esa 'kklu us leqfpr fopkjksijkUr tufgr esa mDr okn dks okil fy;s tkus dk fu.kZ; fy;k gSA egkefge jkT;iky egksn; mijksDr okn ds vfHk;kstu ds okil ysus gsrq yksd vfHk;kstd }kjk U;k;ky; esa izkFkZuk i= izLrqr djus dh Hkh lg"kZ vuqefr iznku dh gS fo"k;d ftyk eSftLV~sV okjk.klh }kjk ftyk 'kkldh; vf/koDrk ¼QkS0½ dks izsf"kr layXu izfrosnu ij eq>dks vko';d dk;Zokgh lqfuf'pr djus ds lEcU/k esa feys funsZ'k ds ifjizs{; esa Jheku ds le{k izLrqr fd;k tk jgk gSA 9- ;g fd vkjksih vfHk;qDr vuqlwfpr tkfr dk gS vkSj 'kklu ds le{k tufgr dk fopkj.k gks pqdk gS vkSj tufgr ds fopkj.k ds i'pkr gh tufgr esa 'kklu }kjk okn okilh dk fu.kZ; fy;k tk pqdk gS ftl ij egkefge jkT;iky egksn; us Hkh viuh Lohd`fr iznku dh gSA 3- ;g fd mijksDr dkj.kksa ls U;k;ky; dk cgqewY; le; ,oa jkT; dk yxus okyk [kpZ /ku cpk;k tkuk tufgr esa vkrk gS ftlds rgr Hkh okn okilh ij vuqefr iznku dj vkjksih vfHk;qDr ';keukFk jke eqdnek mijksDr dks mUeksfpr fd;k tkuk U;k; ds fy;s vko';d gSA** With the above application, the letter dated 23.8.2010 of State Government permitting public prosecutor for moving application for withdrawal from prosecution and the letter dated 27.8.2010 of District Magistrate, Sonbhadra to District Magistrate, Varanasi have been filed at Annexures-2 & 3 and letter of U.P. Govt. Annexure-2 states that:-
^^vkids i= fnukad [email protected]@2010 ds lanHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd okn ds rF;ksa o miyc/k vk[;k i=kfn ij leqfpr fopkjksijkUr 'kklu esa tufgr esa mDr okn dks okil fy;s tkus dk fu.kZ; fy;k gSA okn ds vfHk;kstu dks okil ysus gsrq yksd vfHk;kstd }kjk U;k;ky; esa izkFkZuk i= izLrqr djus dh lg"kZ vuqefr iznku djrs gSaA** From above facts it is clear that the decision taken by Government does not disclose any reason for withdrawal from prosecution, except that the same is alleged to have been taken in the interest of justice. Similarly the applications 57/B & 60/B for withdrawal from prosecution, also do not disclose that the Additional District Government Counsel (Crl.) did apply his mind independently and bonafidely to the facts of the case, rather he has moved the application on the directions of the State Government as mentioned in paras 1 of the application 57B that "eq>dks vko';d dk;Zokgh lqfuf'pr djus ds lEcU/k esa feys funsZ'k ds ifjizs{; esa Jheku ds le{k izLrqr fd;k tk jgk gSA*^"and has not independently owed his duty. The allegations of having no hope of success in the trial due to missing of records viz. the original memo of recovery of currency notes and arrest of accused-revisionist in the trap case, the F.I.R. as well as original prosecution sanction are not only vague and irresponsible but misleading also. It need not be considered as to at whose behest these papers may be made to disappear from Court file, and if the culprit may be given benefit of such situation, instead of getting the record traced or reconstructed in accordance with rules, the interests of justice may not be protected.
It is surprising that in this case of corruption where the accused-revisionist was caught red handed with the money received as illegal gratification and prosecution sanction was accorded by the Government after considering the gravity and seriousness of matter, it subsequently taken a decision of withdrawal from prosecution for getting such a culprit discharged, and the ADGC concerned moved an application for withdrawal from prosecution as well as for discharging the accused-revisionist without applying his mind.
It may not be disputed that in corruption cases, normally except circumstantial evidence, direct evidence may hardly be available, and only the trap cases of corruption carry positive evidence. The fact that despite deposit of fine by the complainant on 2.2.2002, the release order was not handed over to him till 8.2.2002 is not disputed and at this stage neither the trap proceedings may not be doubted or considered to be wrong or malafide, by the accused-revisionist the merits of case or chances of conviction are required to be considered within the scope of this revision. By mere fact of managing the disappearance of certain relevant papers may the prosecution need not surrender before the accused, rather, in such cases prosecution must handle such culprits with strong and strict hand. In cases of loss of records at the behest of accused or otherwise, tracing of or reconstruction of record, as per rules is required, as well as law also provides admissibility of secondary evidence in appropriate cases.
It is also pertinent to mention that despite submission of charge-sheet on 10.4.2004, if due to obstructions created by accused in proceedings by moving repeated applications for discharge followed by application for transfer of case, and filing repeated revisions against orders rejecting applications of ADGC, if charges could not be framed during the period of 11 years since filing of charge-sheet, and during last 5 years since the rejection of two discharge applications vide orders dated 25.11.2009 and 1.5.2010, the prosecution need not be apprehended of its success against the mighty accused person.
In the facts and circumstances of the case, it is crystal clear that ADGC (Crl.)/Public Prosecutor did not apply his mind even to the fact that in such a serious case where the Government has earlier accorded prosecution sanction no public interest can be served by withdrawal from prosecution. The action taken by the ADGC (Crl.) in moving application from withdrawal from prosecution may not be held bonafide from any point of view. It is also pertinent to mention that the application given by accused-revisionist in support of the application 57 B for withdrawal from prosecution (after rejection of his two applications for discharge on the ground of missing papers), does not help the ADGC/Public Prosecutor or the revisionist to any extent.
The argument of learned counsel that legislature has used word "consent or सहमति" while learned Special Judge has refused to grant "permission or vuqefr" has no force. Since the prayer clause of applications 57/B & 60/B moved by ADGC (Crl.) contains word "vuqefr" instead of "सहमति" the same word has been used in the impugned order and the learned Special Judge has not committed any error in exercising its jurisdiction in deciding the applications u/s 321 Cr.P.C.
From the facts on record, I find that in granting permission for withdrawal from prosecution after grant of prosecution sanction the State did not act in public interest and it showed unusual interest in appellant, which is not expected of an executive which believes in good governance.
I find that (i) The application for withdrawal from prosecution was moved by public prosecutor/ADGC (Crl.) without applying his mind to the facts and circumstances of the case independently and correctly, application was moved on mere direction of State Government, as mentioned above in para 9 of the application. (ii) The learned ADGC (Crl.) failed to consider independently that withdrawal from prosecution in a corruption case, based on evidence of culprit having been caught read-handed, will neither be in the interests of justice nor would advance the cause of justice, and that the lost of record, if any, at the behest of accused/culprit or otherwise, may be reconstructed and prosecution need not be disheartened by such events. (iii) The Special Judge has correctly exercised its judicial discretion in refusing to give consent within the scope of provisions of Section 321 Cr.P.C. and has not committed any mistake in rejecting the applications 57B & 60B for withdrawal from prosecution as well as discharge of accused-revisionist and (iv) The application for discharge of accused-revisionist and for withdrawal from prosecution is neither bonafide, nor has been moved in good faith or in the interest of justice.
Upon hearing the learned counsel, perusal of records and the discussions made above, I have come to the conclusion that the learned counsel for revisionist has failed to show as to in which manner the interest of justice are likely to be served by withdrawal from prosecution against a person who was allegedly caught red handed, during trap in corruption case and against whom after considering entire evidence on record as well as the seriousness of matter the State Government had earlier accorded prosecution sanction. The learned counsel for the revisionist has failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order and there is no sufficient ground for interfering with or setting it aside the impugned order. The revision has got no force and is liable to be dismissed.
The revision is dismissed, accordingly.
Interim order, if any, stands discharged.
Let a copy of order be remitted to court below for expeditious disposal of special trial in accordance with law without letting the revisionist make misuse of liberty of bail. The revisionist shall appear before the Court for hearing on charge on 11.01.2016.
Order Date :- 18.12.2015 Kpy