Sri G Chinna Reddy vs The State Of Telangana
2024 Latest Caselaw 1369 Tel

Telangana High Court

Sri G Chinna Reddy vs The State Of Telangana on 2 April, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

       THE HONOURABLE DR.JUSTICE G. RADHA RANI

             CRIMINAL REVISION CASE No.617 of 2022


O R D E R:

This Criminal Revision Case is filed by the petitioner - accused aggrieved by

the order dated 24.08.2022 of the learned Principal Special Judge for Trial of SPE

& ACB Cases at Hyderabad in Crl.M.P.No.616 of 2022 in C.C.No.18 of 2014 in

dismissing the petition filed under Section 321 of Cr.P.C.

2. The petitioner - Accused Officer worked as Executive Engineer, Division -

VI, Greater Hyderabad Municipal Corporation (for short "GHMC"), Hyderabad

from 05.01.2009 to 01.06.2011.

3. As per the case of the prosecution on 31.05.2011 at 16:00 hours, the de facto

complainant i.e. the Manager (Finance & Marketing) of Ashok Engineering Works,

MIG-72, KPHB Colony, Hyderabad visited the Office of ACB City Range - I,

Hyderabad and lodged a report stating that on 16.11.2010 and 27.12.2010, the

GHMC invited for tenders for supply of Hot Mix plant and its accessories at

GHMC Stores, Chudi Bazaar, Hyderabad. They applied for all the tenders and got

all the tenders and completed all the formalities and paid an amount of Rs.54,894/-

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towards Earnest Money Deposit (for short "EMD") @ 2.5 % of the tender value

and signed all the documents. On 19.03.2011, they supplied complete machinery

to GHMC Stores, Chudi Bazaar, Hyderabad and also completed the erection and

commissioning. After few days, they approached the concerned Executive

Engineer Mr.Chinna Reddy (the petitioner herein - Accused Officer) for the bill

payment. He demanded an amount of Rs.4,00,000/- as bribe for passing the bills.

The complainant requested to reduce the amount. But, he did not accept his

request. After few days, again he approached the Accused Officer for bill payment

and requested to pass the bills. The Accused Officer Mr.Chinna Reddy reduced

the bribe amount to Rs.3,00,000/-. On 27.05.2011, they received an amount of

Rs.17,37,756/- as part payment. On 28.05.2011, Mr.Chinna Reddy called him and

demanded to pay bribe of Rs.3,00,000/- as gift for the bills already passed and for

release of the balance bill of Rs.4,58,215/-. The Accused Officer again called him

on 31.05.2011 and demanded for the bribe amount and asked him to bring the

bribe amount to his home located at MLA, MP Colony, Jubilee Hills, Hyderabad.

As the complainant was not willing to pay the bribe amount to the Accused Officer,

he lodged the complaint with DSP, ACB, City Range - I, Hyderabad.

4. Basing on the said report, confidential enquiries were made by the ACB with

regard to the genuineness of the complaint, registered a case in Crime No.11/ACB-

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CR-1/2011 under Section 7 of Prevention of Corruption Act, 1988. After

obtaining prior permission from the competent authority, they conducted a trap on

01.06.2011 at 09:00 PM at the house of the Accused Officer. As per the charge

sheet filed by the Inspector of Police, ACB, City Range - I, Hyderabad, the trap

was successful and both the hand fingers of the Accused Officer yielded positive

results when subjected to phenolphthalein test and the tainted bribe amount was

seized under the cover of mediators report - II. The Accused Officer was arrested

on 02.06.2011 and subsequently enlarged on bail. The Director, ACB, Telangana

State, Hyderabad issued orders to file charge sheet against the AO and since the

AO retired from service on 31.01.2014, no sanction for prosecution was obtained

from the Government, as the same was not required.

5. Cognizance was taken for the offences under Sections 7, 13(1)(d) read with

Section 13(2) of Prevention of Corruption Act, 1988 and the case was numbered as

C.C.No.18 of 2014. Charges were also framed for the alleged offences and the

matter was posted for trial. At that stage, the Government issued a memo vide

G.O.Ms.No.118 dated 06.07.2022 of Municipal Administration and Urban

Development (Vigilance - I), Department ordering to withdraw the prosecution

against the petitioner - AO.

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6. The Special Public Prosecutor, ACB, Hyderabad along with memorandum

of the Office of the Director General, ACB, Telangana State, Hyderabad vide

Rc.No.126/RCT-Cr.1/2011 dated 27.07.2022 filed a petition under Section 321 of

Cr.P.C. seeking permission of the Court to withdraw the prosecution against the

Accused Officer.

7. The learned Principal Sessions Judge for Trial of SPE & ACB Cases,

Hyderabad vide impugned order in Crl.M.P.No.616 of 2022 dated 24.08.2022

dismissed the said petition observing that no valid reasons were made out by the

Special Public Prosecutor that he applied his mind to the material on record and

formed an independent opinion for withdrawal. Moreover, no public interest was

involved in the case for withdrawal of the prosecution against the AO, who was

involved in a socio-economic offence, granting permission to withdraw would give

a wrong signal at large and dismissed the petition.

8. Aggrieved by the said dismissal, the petitioner - Accused Officer filed this

revision contending that it was he who was aggrieved by the said order of

dismissal. The learned Judge failed to see that the application was made in good

faith. The reasons for the Government giving a direction to withdraw from

prosecution was mentioned in the Government Order and the Prosecutor after

examining the same, filed the application under Section 321 of Cr.P.C. The

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learned Judge failed to see that the discretion to withdraw from prosecution by

invoking the provisions of Section 321 of Cr.P.C. was vested in the Public

Prosecutor and the trial court was not vested with competence to adjudicate upon

the issue delving upon an enquiry into the merits of the case. The learned Judge

failed to appreciate the principles laid down by the Hon'ble Apex Court in correct

perspective and prayed to allow the Criminal Revision Case by setting aside the

order dated 24.08.2022 passed in Crl.M.P.No.616 of 2022 in C.C.No.18 of 2014 on

the file of the Principal Special Judge for Trial of SPE & ACB Cases at Hyderabad.

9. Heard Sri T.Pradyumna Kumar Reddy, learned Senior Counsel representing

Sri V.Seetharama Avadhani, learned counsel for the petitioner on record and

Sri C.Vidhya Sagar Rao, the learned Standing Counsel - cum - Special Public

Prosecutor for ACB, Hyderabad representing the respondent - de facto complainant.

10. Learned Senior Counsel for the petitioner - AO contended that there was no

official favor pending with the petitioner - AO as on the date of the alleged demand.

The bills for tender payments were supposed to be scrutinized by the Deputy

Executive Engineer, which would go for onward submission to Zonal

Commissioner, GHMC. The petitioner did not have any official duty pending with

him. The complaint as well as the charge sheet also would not disclose any

specific date of the initial alleged demand of bribe payment. The initial payment

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of Rs.17,37,756/- was also made on 17.05.2011. As per the report given by the de

facto complainant, the petitioner called him on 28.05.2011 i.e. after the initial

payment and asked a gift of Rs.3,00,000/- for the already paid amount of

Rs.17,37,756/- and for clearing pending bill payment of Rs.4,58,250/-. However,

as per the terms of the agreement, the amount of Rs.4,58,250/- was to be retained

by GHMC towards new machinery deduction and for FMD/RMD and EMD. The

said payments could be cleared only after a period of one and half years.

Accordingly, the payments were finally cleared on 27.05.2013. The petitioner -

AO had no official favor pending to clear the payment of the entire / part of the

amount payable towards the tender and relied upon the judgment of the High Court

of Andhra Pradesh in State, represented by Inspector of Police v.

E.Venkateswara Rao 1, wherein it was held that in case of failure to establish any

official favor, the prosecution fails to prove the case against the accused. He

further submitted that the learned Special Public Prosecutor after applying his mind

independently filed the application for withdrawal of the prosecution case and

relied upon the Constitutional Bench judgment of the Hon'ble Apex Court in

Sheonandan Paswan v. State of Bihar and Others 2 and of this Court in

Criminal Appeal No.622 of 2007, dated 14.12.2023

(1987) 1 SCC 288

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Crl.R.C.No.832 of 2019 dated 01.11.2019 and in Crl.R.C.Nos.1296 and 1297 of

2009 dated 17.11.2021 and in Crl.R.C.No.1264 of 2013 dated 01.07.2013.

11. Learned Standing Counsel - cum - Special Public Prosecutor for ACB on the

other hand contended that though the Government ordered to withdraw from

prosecution, it was for the Public Prosecutor to apply his mind to all the relevant

material and in good faith and on his satisfaction thereon, that the public interest

would be served by his withdrawal from the prosecution had to file an application

under Section 321 of Cr.P.C. and the trial court on considering all the material and

that the Public Prosecutor acted in good faith and if it was of opinion that the

withdrawal from the prosecution was in the public interest and such withdrawal

would not stifle or thwart the process of law should give his consent and relied

upon the judgments of the Hon'ble Apex Court in Dr.Subramanian Swamy v.

Dr.Manmohan Singh and Another 3, Abdul Wahab K. v. State of Kerala and

Others 4 , The State of Kerala v. K.Ajith and Others 5 and in Bairam

Muralidhar v. State of Andhra Pradesh 6 and of the Division Bench judgment of

(2012) Supreme (SC) 78

2018 Supreme (SC) 883

Criminal Appeal No.697 of 2021 dated 28.07.2021

Criminal Appeal No.1587 of 2014 dated 31.07.2014

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this Court in K.Srinivasulu v. Government of Andhra Pradesh and Others 7 and

prayed to dismiss the Criminal Revision Case.

12. Perused the record.

13. As the application was filed by the Public Prosecutor under Section 321 of

Cr.P.C., which was dismissed by the trial court, it is considered necessary to

extract the said Section.

14. Section 321 of Cr.P.C. deals with withdrawal of prosecution. It reads as

follows:

"Section 321 of Cr.P.C.:

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

2010 (3) ALD 452 (DB)

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be acquitted in respect of such offence or offences:

Provided that where such offence-

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."

15. Section 321 of Cr.P.C. gives powers to the Public Prosecutor for withdrawal

of any case at any stage before the judgment is pronounced. Section 321 of Cr.P.C.

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does not give any guidelines regarding the grounds on which a withdrawal

application can be made. Such guidelines need to be ascertained with reference to

the decided cases under the said Section.

16. The Hon'ble Apex Court in State of Bihar v. Ram Naresh Pandey 8 laid

down the law on the point with precision and certainty outlining the functions of

the Court and the Public Prosecutor and held that:

"The discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse."

17. In M.N.Sankarayarayanan Nair v. P.V.Balakrishnan 9, the Hon'ble Apex

Court held that:

"In the State of Bihar v. Ram Naresh Pandey (cited supra), it was pointed out by this Court that though the Section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes."

AIR 1957 SC 389

(1972) 1 SCC 318

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18. In State of Odisha v. Chandrika Mahapatra 10 , the application for

withdrawal was made on two grounds: (i) that it was considered inexpedient to

proceed with the case; (ii) that the evidence collected during investigation was

meager and no useful purpose would be served by proceeding with the case against

the accused. The Magistrate gave consent holding that compelling the State to go

on with the prosecution would involve unnecessary expenditure and waste of

public time. The Hon'ble Apex Court upheld the consent and held that meager

evidence was a legitimate ground for withdrawal. The Court summed up its

finding that:

"It is difficult for us to understand how the High Court could possibly observe in its order that the Magistrate had not perused the case diary when in terms the learned Magistrate has stated in his order that he had read the case diary and it was after reading it that he was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill-founded. Then again it is difficult to comprehend how the High Court could possibly say that the learned Magistrate accorded consent to the withdrawal of the prosecution on the ground that it was inexpedient to proceed with the case, when, in so many terms, the learned Magistrate rejected that ground and granted consent only on the second ground based on inadequacy of evidence."

"When the Magistrate states in his order that he has considered the materials, it is not proper for this Court not to accept that statement. The proper thing to do is to hold that the Magistrate gave consent on objective consideration of the relevant aspects of

(1976) 4 SCC 250

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the case. It would be acting against the mandate of Section 321 to find fault with the Magistrate in such cases, unless the order discloses that the Magistrate has failed to consider whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law."

19. The Constitutional Bench of the Hon'ble Apex Court in Sheonandan

Paswan v. State of Bihar and Others (cited supra) on considering all the above

judgments observed that:

"Under Section 321 of Cr.P.C., the Magistrate performs a totally different judicial exercise by granting consent for withdrawal of the prosecution. Therefore, when the High Court sets aside the order of the Magistrate granting consent to withdrawal of the prosecution, it does not really set aside an order of discharge made by the Magistrate. The High Court only holds that the withdrawal of the prosecution was incorrect and improper and that the prosecution should proceed against the accused and ultimately if there is not sufficient evidence or the charges are groundless, the accused may still be discharged."

20. The judgment relied by the learned Special Public Prosecutor in

Dr.Subramanian Swamy v. Dr.Manmohan Singh and Another (cited supra) is

not pertaining to the application under Section 321 of Cr.P.C. for withdrawal of

prosecution. But however, the same was relied by the learned Special Public

Prosecutor, wherein after extracting a 3-Judge Bench judgment in [(1998) 1 SC

226] it was held that:

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"These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinizing the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law."

21. In Adbul Wahab.K v. State of Kerala (cited supra) relied by the learned

Special Public Prosecutor, it was held that:

"The Public Prosecutor or an Assistant Public Prosecutor has an important role under the statutory scheme and is expected to act as an independent person. He/she has to apply his/her own mind and consider the effect of withdrawal on the society in the event such permission is granted."

"In the case at hand, as is evincible, the learned Chief Judicial Magistrate has dwelt upon the merits and expressed an opinion that the case is not likely to end in conviction. It is clearly manifest that the Public Prosecutor had not applied his mind but had only placed the Government notification on record. The High Court has unsuited the petitioners on the ground that they are third parties who are unconnected with the case. They had filed revisions and the High Court (2016) 3 SCC 736 has been conferred power to entertain the revisions and rectify the errors which are apparent or totally uncalled for. This is the power of superintendence

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of the High Court. Thus viewed, the petitioners could not have been treated as strangers, for they had brought it to the notice of the High Court and hence, it should have applied its mind with regard to the correctness of the order. It may be said with certitude that the revision petitions filed before the High Court were not frivolous ones. They were of serious nature. It is a case where the Public Prosecutor had acted like a post office and the learned Chief Judicial Magistrate had passed an order not within the parameters of Section 321 Cr.P.C. He should have applied the real test stipulated under Section 321 Cr.P.C and the decisions of this Court but that has not been done."

"Certain criminal offences destroy the social fabric. Every citizen gets involved in a way to respond to it; and that is why the power is conferred on the Public Prosecutor and the real duty is cast on him/her. He/she has to act with responsibility. He/she is not to be totally guided by the instructions of the Government but is required to assist the Court; and the Court is duty bound to see the precedents and pass appropriate orders."

22. In The State of Kerala v. K.Ajith (cited supra), it was held that:

"In M.N.Sankarayaraynan Nair vs. P.V Balakrishnan (cited supra), this Court held that the powers conferred on the Prosecutor under Section 494 of the Code of Criminal Procedure 1898 are to be exercised in "furtherance of the object of law". On the power of the court to grant consent, Justice P. Jaganmohan Reddy observed that:

"8. [...] The Court also while considering the request to grant permission under the said section should not do so as a necessary formality. The grant of it for the mere asking. It may do so only if it is satisfied on the materials placed before it that the grant of it sub-serves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the

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vindication of the law which the executive organs are in duty bound to further and maintain."

23. In Balram Muralidhar v. State of Andhra Pradesh (cited supra), the

Hon'ble Apex Court while referring to the 3-Judge Bench judgment in Abdul

Karim etc. v. State of Karnataka and others, held that:

"From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 of the Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."

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24. Keeping in view the guidelines enunciated by the Hon'ble Apex Court in the

above cases, when the facts of the case are seen, the de facto complainant applied

for tenders for supply of Hot Mix plant and its accessories to GHMC Stores, Chudi

Bazaar, Hyderabad. He was awarded the same and he paid an amount of

Rs.54,894/- towards EMD @ 2.5 % of the tender value and signed all the

agreements and supplied the entire machinery and completed the erection and

commissioning by 19.03.2011. He also received an amount of Rs17,37,756/-

towards the bill amount by 17.05.2011. It was the contention of the de facto

complainant that the petitioner - AO demanded to pay bribe of Rs.3,00,000/- as

gift for the bills already passed and to release the balance amount of Rs.4,58,250/-

on 28.05.2011 i.e. after the receipt of the amount of Rs.17,37,756/-. But, however,

as per the terms of the agreement, the amount of Rs.4,58,250/- was to be retained

by GHMC for new machinery deduction i.e.Rs.3,27,865/- for a period of six

months and the amount of Rs.1,30,350/- for FMD / RMD and EMD to be retained

for a period of two years. As such, the petitioner - AO could not release the said

amounts since it was a deposit and has to be retained for a fixed period. There was

no official favor pending with the petitioner to clear the payment of the entire or

part of the amounts payable towards the tender. The said payments were to be

made to the complainant after the fixed period on 27.05.2013. On considering all

these aspects only, the Government had issued the G.O. and decided to withdraw

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the prosecution orders against him. The Special Public Prosecutor also filed a

petition seeking permission of the Court to withdraw the case due to the paucity of

evidence in proving the official favor pending with the petitioner - Accused

Officer. As such, even if the case was permitted to continue, there is a very little

chance of proving the case against the petitioner - AO.

25. The continuation of the case would be waste of public money and public

time of the Court. As such, the trial court ought to have granted permission to

withdraw the case. When the evidence collected during the investigation was

meager and no useful purpose would be served for proceeding with the case

against the accused, it was a legitimate ground for withdrawal as observed by the

Hon'ble Apex Court in Chandrika Mahapatra's Case. As such, it is considered

fit to allow the revision setting aside the orders of the learned Principal Special

Judge for Trial of SPE & ACB Cases at Hyderabad in Crl.M.P.No.616 of 2022 in

C.C.No.18 of 2014 dated 24.08.2022 and the petition is allowed permitting the

prosecution to withdraw the case against the petitioner - AO under Section 321 of

Cr.P.C. and the petitioner - AO is acquitted for the offences with which he was

charged.

26. In the result, the Criminal Revision Case is allowed setting aside the orders

of the learned Principal Special Judge for Trial of SPE & ACB Cases at Hyderabad

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in Crl.M.P.No.616 of 2022 in C.C.No.18 of 2014 dated 24.08.2022 and the petition

is allowed permitting the prosecution to withdraw the case against the petitioner -

AO under Section 321 of Cr.P.C. and the petitioner - AO is acquitted for the

offences with which he was charged.

As a sequel, miscellaneous applications pending in this Revision, if any shall

stand closed.

____________________ Dr. G.RADHA RANI, J Date: 02nd April, 2024 Nsk.