Yogesh Agrawal vs State Of U.P. And 6 Others
2015 Latest Caselaw 2180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 36
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 12899 of 2014
 
Petitioner :- Yogesh Agrawal
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Ritvik Upadhya
 
Counsel for Respondent :- Govt. Advocate,Anil Kumar Srivastava,Shivam Yadav
 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

This petition is again a reminder about what can be perceived, if established, as a failure of constitutional obligations by the State and its authorities in exercise of its discretion while flexing statutory executive powers and its consequential impact resulting in failure in the administration of justice.

The issue in short is the correctness, legality, rationality and validity of the Government Order dated 7th July, 2014 whereby the State Government of Uttar Pradesh has decided to withdraw the prosecution in exercise of its statutory powers under Section 321 Cr.P.C. pending against the 7th respondent, Kamlesh Kumar Yadav, the then Regional Manager, Uttar Pradesh State Industrial Development Corporation Ltd., Kanpur in an offence in Case Crime No. 3 of 2009 under Section 7/13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, Police Station- Kalyanpur, District - Kanpur, pending trial before the learned Special Magistrate (Prevention of Corruption Act), Lucknow.

On a presentation of the present writ petition a division bench of this court on 1.8.2014 passed an interim order staying the operation of the order dated 7.7.2014 which order was subsequently continued till further orders by another division bench vide order dated 30.10.2014.

The allegation against the 7th respondent is that in a matter of land allotment to the petitioner by the State Industrial Development Corporation, the 7th respondent created impediments motivatedly with a view to seek illegal gratification which culminated in the alleged demand and acceptance of a bribe of Rs. 10 Lacs in lieu of such allotment, with a further allegation that unless the demand was fulfilled the allotment would not be made. The primary and foundational evidence on such allegations was supplemented by a trap laid by the Superintendent of Police, Vigilance and the report whereof alleges that the aforesaid sum of money in a briefcase was to be delivered to the 7th respondent and on positive information and after completing formalities the Police Team succeeded in having trapped the 7th respondent red-handed accepting the said bribe.

Thus, this was not a voluntary tendering of a bribe but was an undue demand under a veiled threat of denying allotment of land, and was that form of bribery where compulsion was the underlying theme of the intention of the recipient, namely the 7th respondent. The petitioner, therefore, decided to fight a battle against a prevalent practice namely, "they will best succeed, who best can pay" and against the belief of what Massinger said "petitions not sweetened with gold are but unsavoury, and often refused; or if received, are pocketed, not read". The crusade of the petitioner is against the age old immoral practice of bribery, that has seethed into our social fabric at all levels of human relations including sovereign functions and values, the proportion whereof has grown commensurate to the growth and development of human civilization. An in-depth study of this massive problem has found its way in various authorities, one of which expounds its various dimensions by John T. Noonan, Jr. in his exhaustive and globally famous exposition titled as "Bribes", The intellectual history of a moral idea. The petitioner appears to have felt strongly about the injustice being meted out to him who was being driven to the wall to believe what Joseph Addison said, as follows:-

"A man who is furnished with arguments from the mint, will convince his antagonist much sooner than one who draws them from reason and philosophy. - Gold is a wonderful clearer of the understanding; it dissipates every doubt and scruple in an instant; accommodates itself to the meanest capacities; silences the loud and clamorous, and cringes over the most obstinate and inflexible. - Philip of Macedon was a man of most invincible reason this way. He refuted by it all the wisdom of Athens; confounded their statesmen; struck their orators dumb; and at length argued them out of all their liberties."

The sad part of the story of this petition is, that the petitioner pursued this petition and after the State filed its counter and the 7th respondent also put in appearance and filed his affidavits, he also filed his response thereto, but it appears that inspite of the fact that the court immediately came to his rescue and passed an interim order on 1st of August, 2014 staying the operation of the impugned order of withdrawal of prosecution that was continued by successive benches of this Court, when the matter has reached the stage of final hearing, he has not responded through his counsel and nobody has appeared on behalf of the petitioner on the day when we finally heard the matter and reserved judgment.

Neither the State nor the Court can absolve itself of its duty to uphold the rule of law and secure the administration of justice. A petition involving issues of such dimension, even if unattended by the counsel for the petitioner, cannot be allowed to be left unheeded by default. It is the greatest of concerns of this Court to observe about principles to be followed by the State authorities while dealing with issues of State administration particularly involving law, order and administration of public justice.

We may put on record that the State in its counter affidavit filed on behalf of the respondent no. 2 sworn by Sri Jai Prakash Singh, Special Secretary, Department of Law dated 13th October, 2014 in Paragraph 17 & 18 has alleged that the petitioner has not specifically stated the prejudice caused to him as he is not the first informant of the FIR and in Paragraph 18 it has been alleged that the petitioner without having any locus or any of his rights being infringed at this stage is not entitled to maintain this petition.

The aforesaid stand taken by the State in its affidavit has to be rejected outright, inasmuch as, this is a matter of criminal prosecution arising out of an incident where the petitioner claims that he was the applicant for allotment of the land in relation whereto he was conveyed a message of the demand of bribe which forms the basis of the prosecution of the 7th respondent. The FIR was lodged by an Inspector who was part of the exercise relating to the trap laid against the 7th respondent. The chargesheet clearly recites the name of the petitioner in the narration of events who was the applicant for allotment of the plot in favour of M/s Rimjhim Ispat Ltd. Fazalganj, Kanpur. The petitioner, therefore, is not a stranger or a busy body and is directly connected with the cause presently involved. The documents also on record indicate the same. Thus, the State cannot question the credibility of the petitioner and the petitioner has not moved any affidavit praying for withdrawal of his cause even though the conspicuous absence of his counsel may be for reasons best known to him. However, the facts of this case are so glaring that the petition cannot be thrown out as it involves a very serious issue raised in relation to the exercise of powers by the State Government under Section 321 Cr.P.C. It may equally involve the right of the petitioner who appears to be a victim of circumstances, and like in a criminal prosecution if a police report adverse to the victim is submitted he has a right to protest as per the legal position explained earlier in the case of Bhagwant Singh Vs. Commissioner of Police and another, AIR 1985 SC 1285, and now also acknowledged under Section 2(wa) of the Cr.P.C. with amendments in other sections where such right is involved, the petitioner herein is entitled to seek an appropriate remedy including a petition before this Court if permissible under law in the facts and circumstances of the case.

We have heard Sri Vijay Bahadur Singh, learned Advocate General on behalf of the State alongwith Sri Imran Ullah, learned Additional Advocate General and Sri Ali Murtaza, the learned Additional Government Advocate. Affidavits have been filed on behalf of the State respondents separately that are on record to which rejoinders have also been filed by the petitioner. Counter affidavit and supplementary counter affidavits have been filed by the 7th respondent who is represented by Sri T.P. Singh, learned Senior Counsel assisted by Sri Anil Kumar Srivastava who has advanced his submissions on behalf of the said private respondent. We have also perused the original records that were directed by the court to be produced at the time of hearing relating to the withdrawal of sanction under the impugned order.

The facts in a nutshell are that the petitioner being the Executive Director of M/s Rimjhim Ispat Ltd, submitted an application form on 5th October, 2006 for allotment of an industrial plot in Sumerpur District Hamirpur before the 7th respondent who was the then Regional Manager of the area of the U.P. State Industrial Development Corporation with its office at Kanpur. This application form was in pursuance of an advertisement dated 24.9.2006 and the petitioner also tendered an earnest money of Rs. 26,80,688/- in form of a pay order. The petitioner alleges that he was interviewed on 16.3.2007 but inspite of that the allotment was being delayed by the 7th respondent who was avoiding the processing of the same. The petitioner also alleges that there was no other candidate so as to compete against the petitioner's tender and in that event the delay was absolutely unjustified. Ultimately the petitioner alleges that a message was conveyed to him through Mr. Santosh Kumar Singh, who looked after the financial affairs of the petitioner's company and was indicated as a Finance Manager, that the 7th respondent has demanded a bribe of Rs. 10 Lacs for the said allotment, and unless the said demand is met no allotment would be made. The petitioner has gone to state that he being a law abiding citizen and averse to any such claim of illegal gratification, he moved a written complaint on 18th April, 2007 with the Superintendent of Police, Vigilance Department - Respondent No. 5, praying for a suitable action in the matter. The said complaint is Annexure 2 to the writ petition.

The fact of the said complaint being filed has not been denied by the 5th respondent - S.P. Vigilance in Paragraph 15 of his counter affidavit. Further the fact that the matter was to be discreetly carried out after setting a trap has also not been denied in Paragraph 16 of the counter affidavit of the 5th respondent. Accordingly, an Inspector Mr. Vijay Singh was authorised to set up a trap against the 7th respondent as per allegations contained in the complaint of the petitioner and a trap team was constituted consisting of many police officers. The said constitution of the team is also not denied in the counter affidavit of the 5th respondent as per Paragraph 16 thereof.

The petitioner then alleges that at about 2 pm on 19th April, 2007 which was the schedule time fixed with the 7th respondent by the trap team, the team caught the 7th respondent red handed accepting the said bribe of Rs. 10 Lacs in cash from Sri Santosh Kumar Singh at the residence of the 7th respondent.

This was followed by an FIR dated 19th April, 2007 under the sections already referred to hereinabove at the Police Station concerned. The 7th respondent was arrested on the spot and thereafter a requisite sanction under Section 197 of the Criminal Procedure Code read with Section 19 of the Prevention of Corruption Act, 1988 for prosecuting the 7th respondent was referred to the State Government.

At this stage a reference is necessary about an important fact regarding the bail applied for by the 7th respondent after his arrest. From the original records that have been produced we find that a bail application appears to have been moved by the 7th respondent before the Lucknow Bench of this Court in respect whereof Bail Notice No. 2542 of 2007 was registered in the office of the learned Government Advocate at the Lucknow Bench of this Court and in response to such bail notice a detailed reply was tendered by the Inspector of the Vigilance Department at Kanpur, Sri J.B. Tiwari dated 7th June, 2007. The said reply is on record and it categorically narrates the entire incident and the action taken as well as the evidence collected including the trap exercise in detail. The bail appears to have been opposed supporting the prosecution version.

It appears that a departmental enquiry was also carried out and one Umesh Kumar, H.J.S., General Manager, Law, submitted a report on 6.12.2007 where he indicated that the 7th respondent was guilty of the charge of absence of administrative control but at the same time the allegation against him of withholding the file of allotment deliberately does not appear to have been proved. The inquiry is however limited to that extent only and the said document is also part of the original records.

His Excellency the Governor vide order dated 9th February, 2009 was pleased to grant sanction for the prosecution of the 7th respondent after recording a satisfaction about the alleged acceptance of bribe that was caught in a trap as mentioned above. The said sanction order is on record as Annexure 4 to the writ petition.

This was followed by the filing of a chargesheet on 21st February, 2009 that was submitted before the court and is on record as Annexure 5 to the writ petition clearly implicating the 7th respondent in commission of the said offence.

From the original records that have been produced before us we find that the wife of the 7th respondent on 2nd April, 2012 prepared an application and approached one Sri Satish Kumar Nigam, the M.L.A. from Kalyanpur Vidhan Sabha Constituency, Kanpur Nagar, for a fresh investigation contending that the story of demand of a bribe and the entire exercise of the trap was something like a fake encounter and also relied on affidavit of one Vimlesh Kumar Shukla who was a hardware shopkeeper in Kanpur and has died. He had allegedly given an affidavit before the Principal Secretary, Vigilance, Government of U.P., where he had stated that he had signed certain documents only on the asking of the petitioner and Sri Ajay Kumar Agrawal who are good friends but he denied having witnessed any incident on 19.4.2007 which is the date of the trap. Several other allegations were also made by the wife of the 7th respondent and ultimately the said M.L.A., Mr. Nigam, wrote a letter to the then Chief Minister on 16th June, 2012 recommending a fresh and further investigation into the allegations made on the strength of such information as tendered by the wife of the respondent no. 7.

The said application appears to have been processed and a reference of another letter of the wife of the 7th respondent has been mentioned as 15th May, 2012 apart from the letter of 2nd April, 2012 that was to the same effect. It appears that some direction was issued by the Vigilance Department on 25th September, 2012 upon which the Investigating Officer of the Vigilance Department, moved an application under Section 173(8) Cr.P.C. before the learned Special Judge, seeking permission for further investigation. The permission sought from the then learned Special Judge, appears to have been granted by an order "Permitted as prayed" endorsed on the application on 8.2.2013.

Consequently, when a further investigation was carried out, affidavits were filed by the petitioner and Ajay Kumar Agrawal. Sri Ajay Kumar Agrawal, however stated in his affidavit that the proceedings of preparing the recovery memo and trap were not carried out in his presence but he had gone there and had signed on the FIR. So far as the petitioner's affidavit dated 13.5.2013 is concerned, he has categorically stated in Paragraph 2 that a demand of Rs. 10 Lacs had been made from him, even though in Paragraph 3 of his affidavit he stated that he never visited the office of the 7th respondent nor any demand of bribe was made there. In Paragraph 4 of his affidavit he has stated that he believed whatever was stated by Sri Santosh Kumar Singh who had informed him about the demand of bribe and it is on such information that he had given his affidavit complaining about the said demand also expressing his doubt about the involvement of Mr. Santosh Kumar Singh himself. He has however in his affidavit categorically stated of having arranged a sum of Rs. 10 Lacs and handed it over to Mr. S.K. Singh for the purpose of the said trap. The petitioner however was not part of the trap team and he has stated that after the said trap was led and the FIR lodged the said process was carried out by the trap team of which he was not a part. Other evidence is alleged to have been collected in this fresh investigation.

After the story took the aforesaid turn, the 7th respondent appears to have approached another M.L.A. of the present ruling party Mr. Rakesh Singh, MLA from Chharra, District Aligarh who appears to have written a letter directly to the Chief Minister and on receipt of the said letter the Special Secretary to the Chief Minister, Mr. Pandhari Yadav on 24.8.2013 directed the Principal Secretary, Law to examine the file and submit comments.

It appears that the application dated 15th May, 2012 tendered by the wife of the 7th respondent was sent to the Principal Secretary, Law on which also a letter had emanated from the office of the then Special Secretary, Law, Mr. Rangnath Pandey dated 13.8.2013 entailing 13 points seeking information and comments pertaining to the request made for withdrawing the prosecution under Section 321 Cr.P.C. The said letter was sent to the Vigilance Department for its report, to the District Magistrate, Kanpur Nagar as also to the other police authorities in this regard.

Thus began the exercise of consideration of the material for the proposed withdrawal of the case against the 7th respondent. The Vigilance Department examined the matter and Sri Sanjay Kumar, the Superintendent of Police (Vigilance) agreed with the comments of the Senior Prosecuting Officer and gave his own comments on the 13 points that were raised in the letter dated 13th August, 2013. The said report categorically indicates that the evidence was collected and the trap was carried out but in the subsequent further investigation the entire prosecution story has not been supported by Yogesh Agrawal and Santosh Kumar Singh, but in view of the material on record and the evidence that exists including the oral testimonies and documentary evidence there was sufficient material on record on the basis whereof there is a strong possibility of the success of the prosecution before the court. This report was followed by the report of the District Magistrate, Kanpur Nagar dated 23.11.2013 and in the letter indicating 13 points, the District Magistrate at Issue No. 13 in relation to withdrawal of the prosecution has clearly opined that he agrees with the report of the Vigilance Department. The District Magistrate has referred to the same report of the Superintendent of Police (Vigilance) referred to hereinabove where at Point No. 11 the Superintendent of Police (Vigilance) has clearly indicated that it is not in the interest of justice to withdraw the prosecution. Thus the opinion of the Vigilance Department and the District Magistrate was unanimous against withdrawal but the District Magistrate appears to have written a further line that inspite of this if the State Government so chooses to withdraw the prosecution he will have no objection. It is with all these reports that the matter again reached the bureaucratic tables of the State Government.

The then Under Secretary of the Vigilance Department, Mr. Swami Nath Pandey, in his note dated 25.10.2013 on behalf of the Vigilance Department has reiterated the report of the Superintendent of Police indicating his opinion but a turn took place when the said Under Secretary indicated some contrary evidence coming forward, and indicating to the two affidavits that have been referred to hereinabove, ultimately stated in his note that no further action is necessary at the end of the Vigilance Department and the file may be forwarded for opinion to the Law Department.

The Law Department then started its exercise and Mr. Rang Nath Pandey, Special Secretary and Additional L.R. Law, Government of U.P. forwarded the file on which a report was prepared by Mr. Chandra Mauli Shukla, Special Secretary and Additional L.R. on 2nd September, 2013. This note gave another turn when it was placed on 10th September, 2013 before Sri S.K. Pandey, Principal Secretary, Law and Legal Remembrancer as well as Sri R.M. Srivastava, Principal Secretary, Home (Confidential and Vigilance) Government of Uttar Pradesh who simply countersigned the same on 25.9.2013. The said note refers to the reports indicated above and in Paragraph 5 of the note dated 2.9.2013 submitted by Sri Chandra Mauli Shukla a reference has been made to the facts of further investigation being contrary to the prosecution version. However, in Paragraph 6 a fresh diplomatic opinion has been given that in such a situation no opinion can be given about the success or failure of the prosecution.

Then a detailed note was prepared on 3.12.2013 by Sri S.K. Raghuvanshi, Special Secretary and Mr. Swami Nath Pandey, Under Secretary of the Vigilance Department, where again the same additional facts which were collected in further investigation and the entire prosecution story were repeated, and referring to the earlier approval given by the Chief Minister suggestions were made for taking appropriate action in the matter.

Further a note appears on the record dated 10.12.2013 about the objections taken by the district authorities and expressing an opinion indicating success of the prosecution story.

This entire material was placed before a Committee comprising of Principal Secretary, Home and Principal Secretary, Law, who recommended the withdrawal of the prosecution on their opinion that the motive of demand of a bribe does not appear to be established which weakens the prosecution case. A reference was also made to the decision of the Apex Court in the case of Rahul Agarwal Vs. Rakesh Jain and another reported in AIR 2005 SC Pg. 910 to indicate that if a dispute is resolved between the private parties to a dispute then the prosecution can be withdrawn as the same is likely to end in acquittal. Such a process should be adopted in order to avoid any agony to the litigants. They also recommended for withdrawal of the case on the ground that if the complaint is found to be unsubstantiated in relation to the integrity or the allegation of corruption against the officer then such prosecution should not be allowed to go on.

When the said report of the Committee was placed before the Chief Minister, the Secretary to the Chief Minister endorsed that it may be placed at the appropriate time. This endorsement is dated 26.5.2014.

It appears that the 7th respondent directly moved an application dated 4.6.2014 before the Chief Minister on having come to know of these developments which letter is also on record. This letter was received and the Secretary to the Chief Minister, Mr. Shambhu Singh Yadav on 5.6.2014 directed the Principal Secretary, Law to place the entire file with his comments immediately. The bureaucracy appears to have swung into action and the Law Secretary cum Legal Remembrancer, Sri S.K. Pandey moved the file with a noting of the previous developments.

It appears that the file was placed before the Chief Minister and his Secretary, Sri Shambhu Singh Yadav on 24.6.2014 put up a note seeking an opinion from the learned Advocate General as desired.

It is here that it is necessary to indicate that the learned Advocate General expressed his opinion in just two words that are not even handwritten but appear to be a rubber stamp endorsement on the record in bold "NO OBJECTION". The same has been signed by Sri V.C. Misra, the then Advocate General on 28.6.2014. The file was then placed before the Chief Minister who only put his signatures on 30th June, 2014. The same was taken to be an approval whereafter the impugned government order dated 7.7.2014 was issued.

This bureaucratic mechanism coupled with the exercise of the statutory executive powers as narrated above was followed by the moving of an application before the Court by the Public Prosecutor who abided by the directions given under the impugned order devotedly but pronounced his intention in no uncertain terms in the application dated 14.8.2014 to permit withdrawal of the prosecution as he was satisfied that it was in public interest and in the interest of justice not to allow the prosecution to proceed further as he did not find prima facie any evidence on the strength whereof the case could be proceeded with, for which various reasons have been entailed in the said application that is pending consideration before the Court.

It would not be out of place to mention that it is admitted on record that the 7th respondent had already filed an application for discharge much prior to the issuance of the impugned order which is also pending consideration before the learned Special Judge.

It is also important to mention the contents of a supplementary counter affidavit dated 14th November, 2014 filed by the 7th respondent bringing on record documents to ultimately contend therein that the briefcase alleged to have been carried containing the notes was not actually stated to have been accepted by the said respondent and that the witness of recovery has indicated that the said notes were neither touched by the said respondent and the same has been indicated in the subsequent further investigation report dated 17.3.2013.

At this stage it would also be important to refer to the recovery memo dated 19th April, 2007 that has been filed as an Annexure to the counter affidavit of the 7th respondent himself. This recovery memo clearly recites that the sum of Rs. 10 Lacs was handed over by Sri Santosh Kumar Singh in the gallery of the house of the 7th respondent. Four bundle of notes of the denomination of Rs.100/- were in the left hand of the respondent and in his right hand a sum of Rs. 1000/- of the denomination of Rs. 100/- notes were caught.

The recovery memo recites that Santosh Kumar Singh handed over the notes to the 7th respondent and upon being caught as described in the recovery memo their hands were immersed in clear glasses containing water/solution of sodium carbonate. The solutions turned pink and the same were preserved in separate bottles and the recovery memo was prepared.

Sri Vijay Bahadur Singh, learned Advocate General, advanced his submissions on the merits of the petition contending that this is an absolutely premature stage of challenge to the impugned government order, inasmuch as, the validity of the opinion of the public prosecutor is always amenable and subject to the consent of the court where the case is pending, and therefore, the trial court would apply its mind to the application moved under Section 321 Cr.P.C. where it can also examine the opinion expressed by the public prosecutor and there is no embargo or compulsion on the court to allow such an application. He has invited the attention of the court to the compilation of decisions to support his submissions which shall be indicated hereinafter at an appropriate place.

He therefore submits that neither the cause of the prosecution would be prejudiced nor is it occasioning any failure of justice, inasmuch as, mere grant of permission by the State Government is an opinion that is subject to judicial scrutiny by the trial court. He therefore submits that the exercise of power under Article 226 of the Constitution of India at this stage on the issues of facts which forms the basis of the application moved by the public prosecutor would not be permissible and not justified as it would amount to assuming the role of the trial court itself and not allowing it to perform its function which exclusively falls within the jurisdiction of the trial court.

He also submits that a judicial review in the writ jurisdiction of this Court would not be permissible and the cause complained of would not be justiciable at this stage even if there is a ground raised of an alleged unreasonableness or arbitrariness. He submits that in view of the various legal pronouncements even an issue of violation of fundamental rights under Article 14 can be looked into by the trial court itself if any such case is made out. His contention is that if the writ court entertains petitions at this stage then this would be rendering the provisions of Section 321 Cr.P.C. redundant.

To substantiate his submissions, the learned Advocate General has also submitted written notes reciting the decisions on which reliance has been placed and has framed four issues as follows:-

"Issue involved in the present case

1. Whether the request/proposal of the State Government to the public prosecutor to withdraw a particular case under Section 321 Cr.P.C. as well as the subsequent application of public prosecutor to the Court for giving consent for withdrawal of prosecution is open to judicial scrutiny in writ jurisdiction under Article 226 of the Constitution of India or not.

2. Whether the proposal/request/instruction of the State Government to the public prosecutor to withdraw any prosecution is binding on the public prosecutor or not.

3. Whether the present case is an appropriate case in which the State Government ought to have initiated the withdrawal for prosecution and while issuing the Government order dated 07.07.2014 Government acted without jurisdiction, arbitrary, irrational and totally against the interest of public at large.

4. Whether the Government can direct for withdrawal of a pending case in which earlier the Government has given sanction for prosecution."

Six questions have also been framed on the aforesaid issues which are as follows:

"1. Whether mere request/proposal of State Government to Public Prosecutor (PP)/ADGC(Crl) to move an application for withdrawal of prosecution can be subject matter of judicial scrutiny under Article 226 of the Constitution?

2. Whether request or proposal of State Government to PP/ADGC(Crl) to withdraw the prosecution is binding on PP?

3. Whether by issuing order/letter dated 07.07.2014 in the matter of withdrawal can be subject matter of writ petition or this is an appropriate stage and not a premature to challenge such executive decision under Article 226 of the Constitution?

4. Whether communication between the State Government and its client to PP, who is its counsel be a subject matter of judicial scrutiny, whereas it is a professional communication and cannot be disclosed without notice and permission of the client/State Government and what is the impact of Section 126 of Indian Evidence Act of professional communication?

5. Whether the decision of the Government for withdrawal of the prosecution without awaiting the action of PP and also without awaiting the ultimate order which is to be passed under Section 321 Cr.P.C. by the competent court. The matter can be made subject matter of writ petition and will it not be a premature stage?

6. Whether on the facts and circumstances of the case the present writ petition is maintainable at this stage?"

He has invited the attention of the arguments on each issue supported by the judgements therein. On the strength of the said submissions contained in his written notes, Sri Singh submits that the two stages of granting the written permission by the State Government and the moving of the application by the public prosecutor has been carried out in accordance with law after processing the entire material and recording a satisfaction independently at each stage. He submits that the impugned government order should not be construed to be a compulsive direction to the public prosecutor but is rather in the shape of the opinion of the State Government recommending withdrawal which is still subject to the independent opinion of the public prosecutor. He therefore submits that if the application moved by the public prosecutor dated 14.8.2014 is read as a whole the same would clearly reflect an independent application of mind on the facts of the case and the own honest opinion of the public prosecutor on the material placed before him without being adversely affected by any of the proposals made by the State Government. The submission in short is that the public prosecutor has moved the application with an unbiased mind. He also contends that not only the public prosecutor but the State Government also has made detailed deliberations as noted hereinabove and it then came to the conclusion that the prosecution may ultimately fail hence the same deserves to be withdrawn. This entire exercise is still subject to scrutiny by the court while granting consent or otherwise.

It is at this stage that the judgements which have been referred to on behalf of the State may be compiled at one place and the ratio thereof shall be dealt with in our judgment hereinafter:-

"1. Bawa Faquir Singh Vs. Emperor, AIR 1938 Privy Council 266;

2. State of Orrisa Vs. Chandrika Mohapatra, 1976 SCC (Cri) 584.

3. Balwant Singh and others Vs. State of Bihar, 1977 (4) SCC 448;

4. Subhash Chander Vs. State (Chandigarh Administration) and others, 1980 SCC (Cri) 376;

5. Rajender Kumar Jain Vs. State Through Special Police Establishment and others, 1980 SCC (Cri) 757;

6. Sheonandan Paswan Vs. State of Bihar and others, (1983) 1 SCC 224;

7. Sheonandan Paswan Vs. State of Bihar and others, (1987) 1 SCC 288;

8. Abdul Karim Vs. State of Karnataka, AIR 2001 SC 116;

9. State of Gujarat Vs. K.V. Joseph, 2001 (2) SCC 156;

10. Rahul Agarwal Vs. Rakesh Jain and another, 2005 SCC (Cri) 506;

11. S.K. Shukla Vs. State of U.P. and others, 2006 (1) SCC (Crl.) 366;

12. Nityanand Chaubey Vs. State, Criminal PIL 16488 of 2012;

13. Satya Prakash Vs. State, Crl. Writ - PIL No. 10362 of 2013;

14. Anand Kumar Verma Vs. State, C.M.W.P. No. 14303 of 2014

15. Ranjana Angihotri and others Vs. Union of India and others, 2014 (1) PULBEC 289;

16. Bairam Mualidhar Vs. State of Andhra Pradesh, 2014 (86) ACC 859"

At this stage it would be appropriate to just point out that on the basis of Internet information downloaded by us the State of U.P. has already filed a Special Leave to Appeal and private individuals have also approached the Apex Court against the full bench pronouncement in the case of Ranjana Agnihotri being Special Leave to Appeal No. 3776 of 2014, State of U.P. Vs. Ranjana Agnihotri and Special Leave to Appeal No. 33417 of 2014. There is no indication of any interim order staying the operation of the judgment having been passed except for directions to take steps for service of notice when the matter was listed last on 19th August, 2015 before the Registrar for compliance of formalities. The questions that have been raised herein also touch upon the reference in this regard by a division bench in the case of Ram Narain Yadav Vs. State, W.P. No. 10816 of 2015 vide order dated 26.5.2015 that is pending consideration before a larger bench.

The first question is as to whether we are justified in proceeding to hear this petition, even though the counsel for the petitioner has not chosen to appear and address the court, as no further instructions were available with him. The cause in our opinion, cannot be left in the lurch on such a presumption, particularly in a case of this dimension. We have already indicated our mind hereinabove to that effect, and we would not be presumptuous in assuming that behind the curtain the petitioner may either have been influenced by some afterthought about his own future or might have been won over by such factors that may have resulted in no further instructions to his counsel or he may not have been able to muster enough courage to further fight against the might of the State. There is no material to presume that the petitioner has withdrawn his cause and as already indicated above neither any application nor any affidavit for withdrawing the petition has been filed.

This is a case wherein a matter involving serious corruption charges, the State Government is proceeding to exercise a statutory power which clearly falls within the realm of administration of public justice. It may be the case of an individual government servant and a private complainant but the genesis of this debate extends upto securing the foundations of good governance and the constitutional machinery proceeding in the right direction in the executive decision making process. The case involves an allegation of breakdown of an executive statutory exercise of power on allegations of not only malice in fact but also malice in law and the alleged colourable exercise of power by the State Government to put a heavy curtain to screen out a due adjudicatory process and pre-empt the law of the land from taking its own course. The overlapping function of the State Government to entirely do away with a public prosecution in the case of corruption is a matter of public justice and cannot be fettered by the narrow and pedantic definitions of locus standi and absence of aggrieved person once it is brought to the notice of this court by filing a proper petition under Article 226 of the Constitution of India. We are aware of hostile witnesses and petitioners seeking to withdraw petitions for penultimate reasons. We are also not surprised at litigants being dissuaded from pursuing their participation in a genuinely instituted judicial process as delay and unwanted depressing factors do contribute towards such an attitude.

In this case we cannot conclude either that the petitioner has been won over nor is there any material for us to assume as indicated above that the petitioner has expressly given up his cause. Consequently, we are proceeding to hear and decide the matter on merits as it concerns a matter of public justice in a criminal prosecution. We are also of the opinion that it is equally the duty of the State not to resist such scrutiny where the allegations are directly against the State in trying to allow an accused to escape prosecution in an offence relating to a serious charge of corruption. The State in the instant case should itself assume the role of whistle blower instead of making an attempt to silence the due process of law resulting in the premature death of the prosecution. Disinclination on the part of the victim does not absolve the entire constitutional machinery included within the definition of State from discharging its duty in matters of criminal prosecution which is one of the foremost duties of the State. Criminal prosecution in this country is the obligation of the State under the Constitution and the Laws.

A just, reasonable and an essential cause of public justice should not be allowed to become a victim of failure of justice. We think that if the aforesaid principles can be pressed into service to maintain this petition then the absence of the counsel or the moral weakness of the petitioner should not be a cause for any failure of justice. We would be failing in our constitutional duty to uphold the rule of law if we do not render our opinion in such a case. The obligation of this Court is also to settle the law and declare it to the knowledge of the citizens of the State that the highest seat of judiciary is not precluded from taking notice of a cause in the realm of public justice merely because the petitioner has not chosen to appear through counsel even after filing of the petition particularly when the cause clearly survives, and there is no prayer to withdraw the case. The counsel can withdraw if not instructed but the cause cannot on this ground remain unattended.

Consequently, the petition in our opinion, deserves to be decided on merits.

Coming to the issue of entertaining of this petition at this stage being premature, we will have to examine the nature and scope of the powers exercised by the State Government under Section 321 Cr.P.C. To begin with, the provisions of Section 321 Cr.P.C. as amended in the State of U.P. are extracted hereinunder:-

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 hot 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.

STATE AMENDMENT

Uttar Pradesh:

In section 321, after the words "in charge of a case may", insert the words "on the written permission of the State Government to that effect (which shall be filed in Court).

[Vide Uttar Pradesh Act 18 of 1991, sec. 3 (w.e.f. 16-2-1991)]"

To our mind, it appears that after the decision in the case of Sheonandan Paswan (supra), the State Government might have felt that it was necessary to empower the State Government to take policy decisions in the light of the observations made by the Supreme Court for withdrawal of prosecution. It is quite possible that the State Amendment was brought about for this reason and consequently it clothed itself with the power of having a statutory role to play in the formation of an opinion in withdrawal cases of prosecution. According to the learned Advocate General, this was necessary to bring in a system of check and balance so that a public prosecutor also may not waiver in taking such decisions which may involve larger public interest of discontinuing public prosecutions. Thus the words "written permission" obliges the public prosecutor to bring any such move of withdrawal to the notice of the State and which according to the learned Advocate General may be necessary for examining as to whether the said decision is in aid of public justice or not. This may also involve policy decisions of the State Government to end prosecutions in a particular class of cases or relating to particular offences and whether they would be in the interest of the public at large and in the interest of maintaining law and order in the State.

This written permission, in our opinion, is a function assumed by the State to assert its sovereign authority in matters of public prosecution which is undoubtedly a State obligation under the Constitution. The question as to what role the State has to play has been clearly dealt with in the cases that have been cited at the bar including the case of Sheonandan Paswan (supra) and more particularly that has been elaborately dealt with by the full bench of this Court in the case of Ranjana Agnihotri (supra).

The leading cases which have been cited by the learned Advocate General himself indicate the broad parameters within which the purpose of Section 321 is to be achieved. Prior to the coming into force of the 1973 Criminal Procedure Code, the Code of Criminal Procedure 1988 was in existence where Section 494 thereof permitted withdrawal from prosecution. Section 321 corresponds to the said provision. Prior to the State Amendment in Uttar Pradesh in 1991 the law as it then stood was considered by the Apex Court in the case of Balwant Singh (supra) decided in 1977 in the context of larger realm of the administration of justice, individual cases standing apart on a different footing. That was a case where the prosecution story was sought to be altered through a second investigation which is quite similar to the procedure adopted in the present case. The court concluded that the executive authorities adopted a second investigatory course and came to the conclusion that the second investigation was truer than the first and further indicated that the police which had brought forth the case before the court was a false one and accordingly directed the public prosecutor to withdraw the case. It is in this background that the public prosecutor in obedience to the said conclusions drawn by the executive authority moved a motion for withdrawal that was found to be invalid and further observations were made to the effect that the public prosecutor has to apply his individual mind and exercise his discretion. It was also observed therein that the District Magistrate could not have commanded the public prosecutor where his power only was to make a recommendation. The case and investigation ought not to have been interrupted in between and the public prosecutor should not have surrendered his jurisdiction and succumbed to any executive suggestion.

In this context the sole consideration for the public prosecutor was described in the opening sentence of paragraph 2 of the said judgment and instances of communal feuds, labour disputes and the like instances of interest of public justice in that connotation were indicated to be subject matters of withdrawal from prosecution. This observation in Balwant Singh's case was further expanded to explain the purpose of Section 321 Cr.P.C. by the Apex Court in the case of Rajendra Kumar Jain Vs. State (supra) where after discussing all previous judgments the ratio that was gathered from the precedents was enumerated in Paragraph 14 of the said judgment reported in 1980 SCC (Cri) 757. The instances of withdrawal and their purpose were mentioned.

The same position with its further connotations came to be explained by the Apex Court in the case of Sheonandan Paswan (supra).

These judgments and the aforesaid principles coupled with the impact of the U.P. State Amendment in 1991 and the subsequent decisions of the Apex Court including that of Abdul Karim (supra), the full bench of our court in the case of Ranjana Agnihotri (supra) has explained the purpose to be achieved through Section 321 Cr.P.C. it may be mentioned that the vires of the said provision which was challenged, was upheld.

The State Government also, therefore, while passing orders either granting permission or refusing the same has to keep the aforesaid parameters in mind that have been legally settled through judicial pronouncements and cannot be ignored. The state machinery on principles should not come to the aid of corruption rather its attempt should be to eradicate corruption. Promotion of a cause that destroys public faith is contrary to the concept of public justice that is the paramount consideration to be kept in mind as laid down by various decisions as pointed out by the learned Advocate General himself.

Then comes the question, as to whether the Government can issue directions for withdrawal of a pending cases in which the government had earlier given a sanction for prosecution. This has been raised as Issue No. 4 noted above. The said issue has been dealt with in Ranjana Agnihotri's case (supra) to an extent while answering Question No. 1 in Paragraph 250 that the Government can issue an order or instruction for withdrawal from prosecution but more specifically has been answered in its conclusion while answering Question No. 4 to the effect that the State Government has got power to issue instructions or pass orders even after sanction for prosecution has been given in a pending criminal case subject to the condition that the prosecuting officer has to take an independent decision with due satisfaction in accordance with law on his own before moving the application for withdrawal from prosecution in the trial court. There is no dispute that the said proposition and the decision of the full bench is binding on us but we would like to add further the observations made by the Apex Court in the case of Balwant Singh (supra) where it has been held:-

"Moreover, the State should not stultify the court by first stating that there is a true case to be tried and then make a volte face to the effect that on a second investigation the case has been discovered to be false".

In the present case it is correct that further investigation was permitted by the court yet it was at the instance of the State itself that had entertained a couple of affidavits and a request was made to the highest authorities of the State including the Chief Minister whereafter indications were given about the witnesses slightly altering their stand taken earlier. At this stage, it would be relevant to mention that there was no change in the stand taken by the Vigilance Department inspite of this further investigation to continue the prosecution which was supported by the District Magistrate as noted in the facts indicated above. It was at the level of the Secretaries of the Home and the Law Department, and then higher up, that the decision was altered, even though the District Magistrate and the S.P. Vigilance had clearly declined to drop the proceedings.

Thus the Government can direct for withdrawal of a pending case in which earlier sanction for prosecution has been given but such action or decision should not be vitiated keeping in view the aforesaid law as stated by the Apex Court in the case of Balwant Singh (supra) and which in the present case does not appear to have been observed. It is this fault in the decision making process that is being scrutinised by us.

Then is the question as to what is the nature of the power that is exercised by the State Government while granting permission to withdraw the prosecution. It is by now settled and has been clearly explained in the full bench decision of Ranjana Agnihotri's case (supra) that the power of the State Government is statutory, executive and administrative in nature. The reason for this is that the adjudicatory power on such an issue under Section 321 Cr.P.C. is clearly saved for the courts and therefore the nature of the power exercised by the State Government is an administrative opinion formation function based on some policy of public justice or in public interest or under the parameters as explained above. The State Government does not have the power to ultimately decide the issue of withdrawal which according to Section 321 Cr.P.C. itself is subject to the twin conditions of the independent opinion of the public prosecutor and the consent of the State. Nonetheless it is a statutory power which is being exercised and therefore any executive power controlled by statute has to be reasonably exercised, and not arbitrarily, as per the mandate of Article 14 of the Constitution of India. It need not be re-emphasised that non-arbitrariness in executive functions can be tested on the anvil of Article 14 of the Constitution of India and this aspect also has been clearly indicated to be available even to the trial court in Ranjana Agnihotri's case (supra).

The State is however is not discharging an insignificant or ordinary function, even though such an exercise was described of having no significance in the case of Nityanand (supra) and Satya Prakash (supra) in the context of the public prosecutor and subject to judicial scrutiny. While permitting the withdrawal, as observed in Ranjana Agnihotri's case, the State is discharging a sovereign function. It is therefore loaded with responsibility and not a casual exercise of a mere opinion. It involves the expression of State policy in matters of public justice even though it is subject to independent assessment by the public prosecutor and further subject to judicial control through adjudication. It is an important chain in the decision making process to assist judicial scrutiny in order to arrive at the correct conclusion. Ignoring its importance would be diluting the responsible role that the State is obliged to play in this process.

The recording of reasons has been emphasised and special reasons in more sensitive cases has been found to be the obligation of the State. Paragraphs 221, 223 to 226, 228, 229, 231 and 250 of Ranjana Agnihotri's case clearly explain the said position. The full bench however did not render any opinion further but clearly held that such executive action should be informed with reasons and was subject to the principles of non-arbitrariness as contained in Article 14 of the Constitution of India.

If the nature of the order is statutory and is an executive function subject to what has been indicated above then the next question is as to whether it is subject to judicial review and which are the main issues framed by the learned Advocate General to contend that the judicial scrutiny of such an opinion of the State Government is not amenable to the writ jurisdiction under Article 226 of the Constitution of India.

To answer this question, the nature of the order under scrutiny has to be first examined on facts, inasmuch as, it is by now well settled that any administrative action controlled by a statute can be subjected to judicial review on the anvil of Article 14 provided the principles of illegality, irrationality and procedural impropriety coupled with outright perversity can be made the basis of such judicial review. Thus principles have been culled out in a large number of decisions and have been reiterated time an again that if even a policy or an act of government fails to satisfy the reasonableness then such an act or decision can be rendered unconstitutional. It has also been held that rule of law is the heart of a parliamentary democracy and the basic requirement of fairness as contained in Article 14 can be made the basis of judicial review for a discernible reason. There are further restraints prescribed by the Apex Court, namely, that in a matter of judicial review it is the infirmity in the decision making process that can be observed but the court may not sit in appeal over the decision itself. It has also been held that errors of law being jurisdictional errors can be tested on the aforesaid reasoning. There is yet another principle which has been added as a dimension where the Supreme Court has gone one step further by bringing errors of facts within the scope of judicial review as held in Cholan Roadways Ltd. Vs. G. Thirugnana Sambandam, AIR 2005 SC 570. Thus a judicial review of an executive action through an administrative order controlled by statute can be judicially reviewed and the merits of the decision making process being fundamental the same can be examined in the light of what has been said above. The permission to grant sanction under Section 321 Cr.P.C. was brought by way of an amendment in the statute and according to the learned Advocate General as well as according to the full bench decision in Ranjana Agnihotri's case, the said power was included to exercise control over and guide the public prosecutor who was to discharge the essential function of recording an independent satisfaction before moving an application to withdraw a prosecution that is part of a sovereign function.

On the aforesaid broad principles, we may now proceed to examine the contents of the impugned order to find out as to whether such judicial review is permissible on the facts of the present case or not in relation to the decision making process.

It is here that is necessary to extract two orders, the first that sanctioned the prosecution under Section 19 of the Prevention of Corruption Act read with Section 197 Cr.P.C. dated 9th February, 2009 quoted hereinunder:-

"mRrj izns'k 'kklu

HkwrRo ,oa [kfudeZ vuqHkkx

la[;k& [email protected]&08&[email protected]

y[kuÅ% fnuakd 9 Qjojh] 2009

vkns'k

pwafd ;g vfHkdfFkr gS fd Jh deys'k dqekj ;kno] rRdkyhu {ks=h; izcU/kd] m0iz0 jkT; vkS|ksfxd fodkl fuxe fy0 dkuiqj dks lrdZrk vf/k"Bku }kjk :i;k 10][email protected]& nl yk[k :i;s mRdksp xzg.k djrs gq, fnukad 19&4&07 dks fxjQ~rkj fd;k x;k gSA

2& Fkkuk dY;kuiqj] dkuiqj uxj esa eq0 v0 la0 249&07 /kkjk [email protected]¼1½Mh lifBr /kkjk 13¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e&1988 ds :i esa ntZ mDr izdj.k dh foospuk ds nkSjku ekSf[kd ,oa nLrkosth; lk{;ksa ls ;g izdV gksrk gS fd Jh ;ksxs'k dqekj vxzoky esllZ fjef>e bLikr fy0 Qtyxat dkuiqj dks gehjiqj esa vkS|ksfxd IykV ds vkoUVu esa Jh deys'k dqekj ;kno] rRdkyhu {ks+=h; izcU/kd] dkuiqj }kjk Vky&eVksy fd;k x;k] tcfd QeZ }kjk vius vkosnu ds lkFk fu/kkZfjr vusZLV euh ds :i esa :i;k 16]80][email protected]& lksyg yk[k vLlh gtkj N% lkS vBBklh :i;s ek= dk is vkMZj Hkh tek fd;k FkkA Jh deys'k dqekj }kjk IykV vko.Vu ds ,ot esa QeZ ds QkbusUl eSustj ls :i;k 10&00 Ykk[k dh ekax fd;s tkus ij Vs~zi Vhe }kjk fnukad 19&4&07 dks vijkgu 2&00 cts Jh dqekj dks f'kdk;rdrkZ QeZ }kjk fn;s x;s :i;s 10&00 yk[k dh fj'or ds lkFk jaxs gkFk fxjQ~rkj dj eqdnek dk;e fd;k x;kA

3& vkSj pwafd mDr ?kVuk ds lEcU/k esa izLrqr dh x;h lkexzh vkSj ekeys dh ifjfLFkfr;ksa dk iw.kZ:is.k vkSj lko/kkuhiwoZd ijh{k.k djus ds i'pkr~ jkt; ljdkj dks ;g lek/kku gks x;k gS fd mDr Jh deys'k dqekj ;kno ds mDr vijk/kksa ds fy, fdlh U;k;ky; esa vfHk;ksftr fd;k tk;sA

vr,o vc Jh jkT;iky egksn; ,r}kjk n.M izfdz;k lafgrk 1973 ds v/khu Jh deys'k dqekj ;kno ds fo:) /kkjk [email protected]¼1½Mh lifBr /kkjk 13¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e 1988 ds vUrxZr l{ke U;k;ky; esa vfHk;kstu pyk;s tkus rFkk mDr /kkjkvksa dk fdlh vf/kdkfjrk ;qDr l{ke U;k;ky; }kjk laKku ysus dh lglZ Lohd`fr iznku djrs gSA

Jh jkT;iky ds vkns'k ls]

j.kthr flaag iadt]

lfpo

la[;k& 2978 ¼1½@86&08 rnfnukad

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf'kr&

1& vuq lfpo] lrdZrk vuqHkkx&4] m0iz0 'kkluA

2& izcU/k funs'kd] mRrj izns'k LVsV bf.MfLV~;y MscyiesUV dkiksZjs'ku fyfeVsM] dkuiqjA

3& fo'ks'k funs'kd] lrdZrk vf/k"Bku dks v)Z 'kk0 i0 la0 & [email protected]&2 VS~zi&[email protected] fnukad 18 tqykbZ 07 ,oa lela[;d i= fnukad 13 flrEcj] 2007 ds lUnHkZ esa iszf'krA

vkKk ls

g0 viBuh;

vuok:y gd

fo'ks'k lfpoA^^

It may be reiterated that the chargesheet contained the recovery memo and the entire evidence collected that has been indicated hereinabove, whereafter the 7th respondent admittedly moved a discharge application that is still pending. It is after further investigation and the facts collected that the prosecution has decided to withdraw the case which facts need not be repeated as they have already been extracted hereinabove. It is in the said background that the impugned order was passed on 7th July, 2014 which is extracted hereinunder:-

 "la[;k & 3793 	                [email protected]&U;k;&5&2013&3530 [email protected]
 
izs"kd]
 
fo'ks"k lfpo]
 
mRrj izns'k 'kkluA
 
lsok esa]
 
	ftyk eftLV~szzV] 
 
	dkuiqj uxjA
 
U;k; vuqHkkx&5 ¼QkStnkjh½              y[kuÅ fnukad 07 tqykbZ 2014
 

 
fo"k; & eq0v0 la0 ¼okn la[;k [email protected]½] /kkjk &[email protected]¼1½Mh lifBr /kkjk 13¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e&1988] fopkjk/khu le{k ek0 fo'ks"k U;k;k/kh'k ¼ihlh,DV½] y[kuÅ Fkkuk dY;kuiqj] tuin dkuiqj uxj] jkT; cuke deys'k dqekj ;kno rRdkyhu {ks=h; izcU/kd] m0iz0 jkT; vkS|ksfxd fodkl fuxe fy0 dkuiqj ds vfHk;ksx okilh ds lEcU/k esaA
 

 
egksn;]
 
	mi;qZDr fo"k;d vkids i= la[;k [email protected],0ts0,0&[email protected] [email protected] fnukad 26&11&2013 ds lUnHkZ esa eq>s ;g dgus dk funsZ'k gqvk gS fd okn ds rF;ksa o miyC/k vk[;[email protected]=kfn ij leqfpr fopkjksijkUr 'kklu us tufgr o U;k;fgr esa mDr okn dks okil fy, tkus dk fu.kZ; fy;k gSA
 
	2& eq>s ;g Hkh dgus dk funsZ'k gqvk gS fd egkefge jkT;iky egksn; mi;qZDr 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 gSA
 
	3& d`i;k rn~uqlkj visf{kr] dk;Zokgh lqfuf'pr djsa rFkk d`r dk;Zokgh ls 'kklu dks Hkh voxr djkus dk d"V djsaA
 
							Hkonh;]
 
					     ts0 ih0 flag f}rh;
 
						   fo'ks"k lfpoA
 
la[;k & 3793 			     [email protected]&U;k;&5&2013&3530
 
[email protected]				rn~fnukad
 
	izfrfyfi iqfyl v/kh{kd] lrdZrk] [email protected]@04] ppZ jksM] XokyVksyh] dkuiqj uxj dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf'krA
 
							vkKk ls]
 
						 ts0 ih0 flag f}rh;
 
						     fo'ks"k lfpoA^^
 
	
 

A perusal of the language contained in the impugned government order would leave no room for doubt that it is not a recommendation but a clear peremptory command as it states that the Special Secretary, Government of Uttar Pradesh, has been directed to inform the District Magistrate, Kanpur Nagar and the Superintendent of Police, Vigilance, to inform the public prosecutor that a decision has been taken to withdraw the case and that the public prosecutor should act accordingly in the light of the said government order and inform the State Government about such action having been taken. The learned Advocate General contends that the said letter is only the opinion of the State Government and is not binding on the public prosecutor who after having received the same himself has formed his independent opinion and has then moved the application for withdrawal the facts whereof have already been noted by us hereinabove.

We are unable to agree with the aforesaid submission of Sri Singh, inasmuch as, the said letter does not "commend" but is a "command", inasmuch as, it clearly recites in Paragraph 3 that the desired action as per the decision of the State Government should be carried out and the State Government should be informed accordingly. In paragraph 1 of the order it has also been stated that the said decision has been taken in public interest and in the interest of justice and, therefore, a direction was being issued to bring into effect the decision of the State Government. The letter does not leave any room for the public prosecutor to either take a different opinion or form any other opinion except to carry out the desire of the State Government and which in fact has been done by the public prosecutor who has immediately moved an application for withdrawal in compliance of the aforesaid government order. The tenor and content of this impugned government order, therefore, is clearly contrary to the legal position where the independence of the public prosecutor appears to have been marred. We may just fruitfully extract Paragraph 18 of the judgment in the case of Rajendra Kumar Jain (supra) where the Apex Court has observed as follows:-

"We, however, issue a note of warning. The bureaucrat too should be careful not to use peremptory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter. He must remember that in addressing the Public Prosecutor he is addressing an Officer of the Court and there should be no suspicion of unwholesome pressure on the Public Prosecutor. Any suspicion of such pressure on the Public Prosecutor may lead the Court to withhold its consent."

Sri Singh contends that the court may not go by the exact words used but by the letter and spirit of the government order which states that the Governor has been pleased to grant permission. The letter no doubt conforms to the doctrine of pleasure but it is not a request to the public prosecutor but a clear command to act in conformity with the same. The public prosecutor does not appear to have been able to resist this command and has succumbed to the executive jurisdiction as has been noted in the case of Balwant Singh (supra). Such an order, therefore, does not pass the test of the exercise of power that has been conferred on the State which is only to the extent of granting permission on the request of the prosecution through the public prosecutor. This fails the test of a valid decision in the process of recommendation that has been deprecated as noted above. The learned Advocate General also through his submissions could not justify the deployment of such peremptory language commanding immediate obedience.

The impugned Government Order does not indicate that a request was made by the public prosecutor to which a permission is being granted by the State Government. It is true that the full bench in the case of Ranjana Agnihotri (supra) has held that the State Government can issue instructions for withdrawal of a prosecution but here is a case of an individual accused involved in a case of corruption where the public prosecutor did not initiate the process of seeking permission, and rather under the shield of a further investigation ordered by the court, the State Government itself came up with the material indicating contradictions in the evidence that was likely to end up in a failure of the prosecution even though the District Magistrate and the Superintendent of Police, Vigilance had given an opinion otherwise. In individual cases other than governed by general policy, the legitimacy of the material collected as evidence has to be assessed by the public prosecutor and then by the Court. The State Government while granting permission cannot trench upon the probative value of evidence to issue directions on such grounds to the public prosecutor. It cannot clothe itself with the adjudicatory process and ask the public prosecutor to act accordingly. This virtually reverse the process that should emanate from the public prosecutor and then to the State Government and not vice versa. The process cannot be hijacked by the government and in such a situation the court cannot be criticised for having entertained a premature cause.

But this would not be the case where a baneful and beneficial initiative step is taken on sensitive issues like unrest and agitations. The government can make recommendations to the public prosecutor in larger public interest as pointed out in Ranjana Agnihotri's case.

The impugned government order now deserves to be tested on the anvil of Article 14 to the extent of considering the factors involving the decision making process. Whether the decision is not based on adequate material or is based on legally unsustainable grounds or suffers from oblique motives is for the competent court to decide, but the process should be fair, transparent and bereft of irrationality and legal errors. In the instant case the original records have been perused by us and the manner in which the decision has been arrived at on a peripheral level does indicate that the formalities were sought to be observed but in our opinion only to achieve a desired result and ignoring what was relevant and taking into account that was irrelevant. It is this fault in the decision making process which is apparent on the record. We are not prejudging the merits of withdrawal that can be examined by the court on a valid and proper application nor the legitimacy of the evidence are being examined by us. We rest our decision on the maintainability of the petition to allow a judicial review of State executive action on the ground of a faulty decision making process. The full bench judgment in the case of Ranjana Agnihotri proceeds to emphasise on the recording of reasons. The order itself may not contain any elaborate reasons but the record at least should indicate an application of mind to the facts and also to the legal position. If there are serious legal errors in the decision making process then such executive action can be in our opinion interfered with in the exercise of jurisdiction under Article 226 of the Constitution of India.

The State Government was a party to the decision in the case of Ranjana Agnihotri (supra) which is a full bench decision entailing the entire law that has to be observed by the State Government and the public prosecutor before attempting to withdraw a prosecution. From the records of the deliberations, particularly the deliberations of the committee of the Principal Secretary, Law, Sri S.K. Pandey and the Principal Secretary, Home, Mr. Anil Kumar Gupta are worth noting, as this was the ultimate committee at the level of the State Government which made the proposal to be placed before the Chief Minister. The said committee discussed the case of Rahul Agrawal (supra) but it is not understood as to why the Law Secretary and the Home Secretary completely missed out from even mentioning the aforesaid full bench decision in the case of Ranjana Agnihotri which has considered all other Supreme Court decisions and has rendered an opinion on the subject directly and exhaustively. As noted above, the State itself has filed a Special Leave Petition against the said full bench judgment being SLP No. 3776 of 2014. The judgment in the case of Ranjana Agnihotri was rendered on 12.12.2013 and was therefore very much in existence on the date when the said committee met to consider the proposal of withdrawal. Their deliberations also indicate that the District Magistrate and the Superintendent of Police were not in favour of the withdrawal but taking a clue from the letter of the District Magistrate that even if the State Government decides otherwise he will have no objection, proceeded to discuss the legal issue on the strength of the case of Rahul Agrawal (supra) and have doubted the very motive of demand of bribe of the accused to arrive at such a conclusion. It is at this stage that the State Government and its officers deserve to be reminded that they should take into account the law of the land which is binding on them and not pick out one judgment of the Supreme Court to form an opinion of their liking in relation to withdrawal. The dispute presently is not a dispute of private parties as in the case of Rahul Agarwal (supra). The opinion of the committee appears to rest on an incorrect understanding of the ratio which has been culled out in Para 10 of the reported decision. It is to be noted that paucity of evidence or collection of a contrary evidence by itself may not be a reason to withdraw prosecution. This has been indicated in the case of Balwant Singh (supra) as noted above and also in Paragraph 16 of the judgment in the case of Rajendra Kumar Jain (supra) where the Apex Court has gone to the extent of saying that paucity of evidence is not the only ground on which the public prosecutor may withdraw from the prosecution.

Thus legal errors in not taking into account the correct position of law have vitiated this decision making process. How was public interest and interest of justice at variance with the reports of the S.P. Vigilance and D.M. is not understood.

Not only this, the learned Advocate General has urged that this was an exercise in order to observe the system of checks and balances in order to ensure that no frivolous or vexatious litigation is allowed to proceed and even otherwise this is a mere recommendation at this stage and therefore it will be premature to proceed in the matter leaving it to the court concerned to render its opinion finally which stage has not yet arrived.

We may point out that the decisions which have been cited by the learned Advocate General do indicate that most of them that reached the Apex Court were through orders having been passed by the trial court, through revisional courts and the High Court, and having assessed the correctness or otherwise of such applications having been moved before the trial court. They reflect that the adjudicatory process had intervened through the Court whereas the present writ petition is directly raising a challenge to the government order permitting prosecution. We are aware of such limitations but as discussed above, this statutory power being exercised by the State Government and by its authorities and their decision making process noted above does not commend to law. On record to add to this state of affairs is something much more disturbing and troubling that confirms our suspicion about a serious flaw in the decision making process and that is the next stage of the legal opinion of the highest constitutional officer of the State namely the Advocate General.

Article 165 of the Constitution reads as follows:-

165. Advocate General for the State

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for the State.

(2) It shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine."

This constitutional status of the Advocate General is pivotal and extremely important keeping in view the fact that law and order is a State subject under List 2 and List 3 of the 7th Schedule to the Constitution of India. The executive power of the State under Article 162 of the Constitution extends to matters with respect to which the legislature has the power to make laws. The executive business has to be conducted under Article 166 of the Constitution of India in the name of the Governor. The learned Advocate General is therefore under a constitutional obligation to advise the government on all legal matters as per the duty cast on him under Article 165 of the Constitution of India. The fact to be examined in the present case relating to the decision making process culminating in the passing of the impugned government order therefore deserves a reference to the role of the Advocate General in the aforesaid constitutional background.

As noted above the manner in which the Law Secretary and the Home Secretary proceeded to approve the proposal, appears to have been placed before the Chief Minister, and who appears to have desired an opinion from the learned Advocate General. The then Advocate General vide his endorsement dated 28.6.2014 simply wrote two words "NO OBJECTION" which fact we have already noticed hereinabove on perusal of the record. There is no doubt that there cannot be a presumption in relation to the wisdom of the high office of the Advocate General and no ordinary inference can be drawn merely on the brevity of the words utilised for expressing an opinion. However, at the same time, where intricate issues of law are involved a mere rubber stamp emanating from the office of the learned Advocate General without even discussing preliminary facts or even expressing satisfaction to the opinion collected by the executive authorities is something alarming and clearly hints at the manner of the decision making process. It is here also that the rationality, legality and propriety of such decision making process deserves to be commented upon.

Having noted the facts hereinabove, we do not find any express opinion of the then learned Advocate General as to why he found the proposal to be a valid proposal and to be in conformity with law when he was proceeding to advice the Chief Minister. This constitutional obligation of rendering an advice was discharged by just two words as noted above and without any reference either to the law or the legal position emerging in the matter. Such a process by the highest officer of the State reaffirms the apprehensions that were expressed by the Apex Court in the case of Balwant Singh (supra) and Rajendra Kumar Jain (supra) that has been reiterated in the case of Ranjana Agnihotri (supra). The endorsement leaves us bewildered whether to believe Shakespeare who in Hamlet Act II Sc(ii) said:

Since brevity is the soul of wit,

And tediousness the limbs and outward flourishes,

I will be brief.

Or

Homer in Iliad Bk(iii)1 said:

Few were his words, but wonderfully clear.

Or

Horace in Ars Poetica said:

In laboring to be brief, I become obscure.

We hardly appear to have any options or choice in the matter.

The expression of the rubber stamp endorsement reflects subservience to a sovereign command unmindful and completely insensitive to the rule of law and sense of justice. In this background we also have serious doubts about the genuineness of the decision taken by the public prosecutor who has equally participated and abetted the whole episode as if he was waiting for a quick green signal with the application drafted and prepared to answer the call of his employers whose wish he could not dare to defy. The public prosecutor is the repository of public faith and if he succumbs in this fashion or is made to bend himself for gains that question his credibility and integrity, then the system deserves a message, at least, by maintaining this petition and issuance of a writ loud and clear that the pillar of judiciary cannot be silenced on technicalities even if the law officers of the State and its bureaucracy turn out to be remorsefully repulsive and reprehensible in their professional conduct and official duties.

This being the position emerging out of judicial scrutiny, it does not lie in the mouth of the State to resist the maintainability of a writ petition in such a background. The decision making process was irrational and reflects a state of affairs where the public prosecutor has also succumbed to the said process. After all, the public prosecutor on the opinion of the learned Advocate General and the might of the State may not have been in a position to resist the same as the public prosecutor at least in this case appears to be owning his existence to his superiors.

This petition therefore, cannot be described to be a premature exercise, inasmuch as, it is only a decision ending in a permission free from arbitrariness and based on a rational scrutiny with due application of mind in a fair manner which should be made available to the public prosecutor who in turn has to independently apply his mind and not succumb to the State dictates for filing an application for prosecution.

We are surprised that neither the Law Secretary nor the learned Advocate General found it necessary to even notice the legal position explained hereinabove and therefore this being a clear legal error, the decision making process is clearly vitiated. The records therefore, speak for themselves and accordingly, we on the above facts that emerge, are of the opinion that if this is the state of decision making process in an executive action through an administrative order where the Chief Minister has also simply put his signatures, the same has to be taken care of and a writ petition to preserve the rule on law and prevent any violation of fundamental rights guaranteed under the Constitution has to be undertaken for maintain a writ petition under Article 226 of the Constitution of India.

There is yet another argument advanced by Sri Singh in his written notes claiming privy of the communication and the deliberations made by the State Government while processing the file. Needless to mention that the 7th respondent was fully aware of every such document pertaining to the deliberations which he has mentioned in his last letter directly addressed to the Chief Minister to take action on the deliberations so concluded. We are surprised that the Court is being asked to maintain a privy to the said records whereas the affected accused namely the 7th respondent had access to every such privy communication. We may put on record that the decision making process being part of a statutory exercise of power is subject to judicial scrutiny and such privy cannot be claimed as against the court particularly in the above circumstances.

The last step taken is the application moved by the public prosecutor. We do not know, as to whether the public prosecutor was aware of the legal position or not but he was certainly aware of the basic facts of the trap having been led against the 7th respondent and the recovery made. He does not appear to have addressed himself to the legal issues indicated hereinabove and also to the presumption in matters of corruption that has been statutorily raised in Section 20 of the Prevention of Corruption Act. We are mentioning this fact as the 7th respondent in his supplementary counter affidavit dated 14th November, 2014 has made a mention of this issue. Such would have been a matter to be considered by the trial court provided the State Government, the learned Advocate General and the public prosecutor had also noticed the relevant provisions for arriving at a conclusion in the matter. The importance of this legal provision has been discussed in the latest decision of the Apex court in the case of State of Andhra Pradesh Vs. Venketaswarlu, 2015 (7) SCC Pg. 283, that may be kept in mind for taking any decision in future. This also therefore was a legal flaw in the decision making process, inasmuch as, this needs to be remembered that such a presumption under Section 20 of 1988 Act is available even before discharge at the stage of Section 227 and 228 Cr.P.C. Once the Superintendent of Police, Vigilance and the District Magistrate had on the assessment made on further investigation indicated their opinion and had not adversely commented upon the recovery in the trap led, then without assessing the same all legal advisers upto the learned Advocate General do not appear to have even applied their mind remotely to this aspect. It is the allegation of the 7th respondent that he has been framed up in a trap. This allegation is only a defence subject to evidence which can be assessed by the trial court and the 7th respondent himself has moved an application for discharge which is still pending. Neither the Law Secretary nor the public prosecutor or the learned Advocate General have glanced at this aspect as to why such haste was being made to withdraw the prosecution when such issues could have been taken care of by the trial court while deciding the discharge application.

We therefore cannot approve of the said decision making process adopted by the State Government that suffers from serious short falls as observed hereinabove.

The norms that were to be observed and the law that was required to be considered and discussed hereinabove was also the obligation of the State more particularly when such issues involving the decision making process had been thrashed out in Ranjana Agnihotri's case (supra). In our considered opinion, the said decision making process does not appear to be a decision to avoid an unnecessary or untenable litigation on sound principles of public policy and public justice, but the entire exercise resulting in the impugned order for all the reasons given above appears to have been an effort to save the 7th respondent by clearly preparing the foundation in a designed manner to avoid the due process of law and create enough compulsion to allow a premature discharge of the accused, thereby facilitating his smooth departure from facing the trial in accordance with law. Such an attempt should not be permitted as it sends a very wrong message to the society that a government official involved in a charge of corruption in a criminal case can stage manage a procedure of law to avoid the judicial process and thereby defy a constitutional mandate which the State is obliged to perform in larger public interest and to secure public justice. The State does not appear to have acted fairly and the recital contained in the impugned order that this was being done in public interest and in the interest of justice is clearly belied for the reasons given hereinabove. The entire exercise of the respondents was to ensure failure of justice and not upholding the rule of law, to which the State executive authorities and the law officers were a party.

Sri T.P. Singh, learned Senior counsel for the 7th respondent has urged that the entire material was there before the authorities who have carefully applied their mind whereupon the withdrawal application was filed. He has also advanced the same submissions as Sri V.B. Singh, learned Advocate General on the legal plane. He has however attempted to take us through the material which was collected during further investigation to urge that it was sufficient to arrive at the conclusion that the prosecution would fail. He urged that the said material clearly indicated that the 7th respondent was made a victim of a framed up concoction in the shape of a trap which is absolutely fake and it is in this background that the State has rendered its opinion followed by the moving of the application by the public prosecutor independently that is yet to be assessed by the trial court. We have already made it clear that we have proceeded to evaluate the decision making process of the State Government and we have found this petition to be maintainable and the impugned order to be subject to the scrutiny of judicial review by this Court to the extent permitted by law. We are therefore not inclined to examine the evidentiary value of the material in order to judge the validity of the action under challenge and therefore the inquiry being confined within the parameters indicated above the submissions of Sri T.P. Singh have to be rejected for the same reasons on which the arguments advanced by the learned Advocate General have been held to unacceptable.

The entire discussion hereinabove leaves us in no doubt that the legal process of issuing a mandatory permission was concluded by the State without appreciating the correct legal position or applying mind to the vital legal issues either by the committee of the Law Secretary and Home Secretary or by the then learned Advocate General as pointed out above. The mandate of closure of the case by the State is founded on an unreasonable, whimsical and arbitrary exercise where the State and its officers have utterly failed to discharge their duties vested in them under law. Their conduct in advising the Chief Minister appears to be prompted by considerations clearly falling short of what ought to have been done by them and therefore on the basis of material placed before us we cannot accept the same to be an act in good faith.

Now comes the relief as sought and the power of this Court to mould it in its endeavour to uphold the rule of law. For this we are clear that a petition under Article 226 of the Constitution is not barred at this stage that has been described as premature by the learned Advocate General. The word mature means developed or ripened to full growth. It also means well considered. The opposite whereof is immature, raw, undeveloped, unripe or not well balanced. On the other hand the word premature means before the appointed time, or untimely, early or an act that is anticipatory and untimely precipitated. The opposite whereof is delayed or belated. In the present context the learned Advocate General appears to be contending that the stage of consideration before the trial court for adjudication is yet to arrive and in view of the settled legal position the trial court is at full liberty to form its independent opinion even if the recommendations of the State and that of the public prosecutor are at fault. The stage of rectification if any before the appropriate forum therefore should not be eclipsed by an interference through an extraordinary remedy that is inadequate for assessing the real worth of the material collected.

There is no doubt that the trial court is the place where the material has to be assessed but the scope of judicial review is not narrowed down when instances of this nature are brought before the court. Here the trial court by a single word "permitted" catalysed the initiation of further investigation ignited at the instance of the 7th respondent's wife and all those who were behind her. These facts coupled with the manner in which the file was processed in quick succession inspite of that it was kept waiting on 26.5.2014 and started moving on letter of the 7th respondent on 4.6.2014 also has to be noted inasmuch as the office of the Chief Minister sought advice on 24.6.2014 and the rubber stamp of the Advocate General was endorsed on 28.6.2014 with the approval of the Chief Minister on 30.6.2014. This hasty conclusion of the processing in the above manner also does speak of how effective the 7th respondent was in getting his file cleared.

It is in this background that we have come to the conclusion that the exercise of writ jurisdiction at the stage of such decision making process may not be a compulsion in every case and ordinarily at such intermediary stage the matter can be left for scrutiny by the trial court while proceeding to assess the material for arriving at a conclusion permitting withdrawal of a prosecution but in cases like the present one where facts are glaring and shock the conscience of the court this court would be failing in its duty by keeping silent as the entire decision making process is clearly vitiated in view of the facts of this particular case and the reasons given hereinabove.

Before we pronounce the final verdict we would like to request the State authorities and our law officers to delve into problems arising out of corruption in the present context to be dealt with at the time of withdrawal of prosecution in the light of the law as declared by the Supreme Court and relied upon by the learned Advocate General as also a thesis submitted for the award of Ph.D. By V. Radha Krishna Krupa Sagar entitled The Role of Public Prosecutor in Criminal Justice System before the Post Graduate Department of Legal Studies & Research Acharya Nagarjuna University, Nagarjunanagar, Andhra Pradesh which very lucidly deals with the research topic of renouncing prosecution, particularly withdrawal from prosecution under Section 321 Cr.P.C. The said thesis is available on the website "Shodh Ganga" on the Google. Another article to that effect can be usefully referred to that is reported at Pg. J-15 of the Journal Section of 2015 (6) SCC.

We therefore, for all the reasons hereinabove, find this writ to be maintainable at this stage and in view of the conclusions drawn hereinabove, there is no option left for us to avoid the exercise of discretion under Article 226 but to invoke our extraordinary powers to uphold the rule of law and accordingly we quash the impugned Government Order dated 7th July, 2014. As a result thereof it shall be open to the trial court to proceed to consider the application for discharge filed by the respondent no. 7 in accordance with law or any other fresh application that may be moved under Section 321 Cr.P.C. in the light of what has been said above. The trial court in either case shall be at liberty to arrive at its own conclusions on the basis of the material that is placed before it. The petition is accordingly allowed.

In the background aforesaid and there being a complete failure to discharge constitutional obligations fairly, we also impose an exemplary cost of Rs. One Lac on the State Government which shall be deposited with the State Legal Services Aid Authority Unit of the Allahabad High Court for being made available to helpless litigants to whom justice is not accessible as compared to the ordinary citizen of this State.

The original records that were retained by us may be handed over to the learned counsel for the State today.

Order Date :- 7.9.2015

Sahu