Dr. Mohammed Haneef v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** **Crl.MC.No.7173 of 2018** **AGAINST THE ORDER IN CRMP 926/2018 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM DATED 09-10-2018** ## **PETITIONER/RESPONDENT/ACCUSED:** **DR. MOHAMMED HANEEF AGED 64 YEARS SON OF HYDER MUSALIAR, FORMERLY PROFESSOR AND HEAD OF THE DEPARTMENT OF OPHTHALMOLOGY, GOVERNMENT MEDICAL COLLEGE, ALAPPUZHA, KAKKANATT HOUSE, EVANJELICAL CHURCH ROAD, VALIYAMARAM WARD, ALAPPUZHA MUNICIPALITY, NOW RESIDING AT HALEEMA BHAVAN, PADA NORTH, KARUNAGAPPALLY -690518. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.R.S.ASWINI SANKAR SRI.G.RENJITH SRI.S.M.PRASANTH SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI** ## **RESPONDENT/PETITIONER/COMPLAINANT & STATE:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682031** **2 THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI-CORRUPTION BUREAU, ALAPPUZHA -688001. 3.Addl SRI.AJAYAKUMAR S/O. KRISHNA KUNJAN, RESIDING AT CHANDRA NIVAS, AVALOOKKUNNU WARD, ALAPPUZHA, PIN - 688006 (IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 30.10.2018 IN CRL.M.A 02/2018] BY ADVS.** **SRI.B.RAGUNATHAN SRI.M.SALIM SRI A RAJESH -SPL PP VACB SRI K RAMAKUMAR-SR ADV** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.7173 of 2018** **2** ## **JUDGMENT** The petitioner herein is the sole accused in C.C No.2 of 2010 of the Special Court, Vigilance, Kottayam brought under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (“the P.C Act” for short) on the allegation of acceptance of 500/- as bribe from a patient at his₹ residence. The petitioner is a Medical Practitioner. On the complaint of a relative of the patient, the Doctor was trapped by the Deputy Superintendent of Police of the Vigilance and Anti- Corruption Bureau, Kottayam. Pending the proceedings, the learned Public Prosecutor in charge of the case filed Crl.M.P. 926/2018 for permission to withdraw from prosecution on the basis of a Government direction requiring him to apply for withdrawal in view of the report submitted by a committee appointed by the Government to enquire into the allegations against the Doctor. 2. After hearing both sides, the learned trial ## **Crl.MC.No.7173 of 2018** ## **3** Judge, by order dated 9.10.2018 disallowed the request to withdraw from prosecution. The said order is sought to be set aside under Section 482 Cr.P.C. 3. It appears that the ground on which the Public Prosecutor would seek permission to withdraw from prosecution is the Annexure-D report submitted by a committee constituted by the Government. The said committee consisted of the then District Panchayat President, the then Principal of the Government TDM Medical College, Alappuzha, the then District Superintendent of Police, and an Associate Professor of Ophthalmology. After enquiry, the Committee concluded that the private practice conducted by the accused was within the ambit of the Government Order on the subject, and that the Doctor has not violated the guidelines laid down in the Government Order dated 25.10.2005. The Committee also made recommendation to stop all actions initiated against the Doctor. On the basis of this report, the Government passed orders and **Crl.MC.No.7173 of 2018** **4** decided to withdraw from prosecution, and the learned Public prosecutor was accordingly instructed. 4. In _Abdul Wahab.K. v. State of Kerala and others [2018(4) KHC 715= AIR (2018) SC 4265]_ , the Hon'ble Supreme Court has stressed the role of the Public Prosecutor in making application to withdraw from prosecution. Citing from para 10 of the judgment in an earlier case of the Supreme Court, it was held thus by the Hon'ble Supreme Court as regards the functions of the Public Prosecutor and also the responsibility of the Government in the matter of seeking withdrawal: “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 **Crl.MC.No.7173 of 2018** ## **5** 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......” Whatever be the direction or the instruction given by the Government, the Public Prosecutor will have to examine the case, apply his mind to the facts of the case, and then take a decision to apply or not to apply for withdrawal. ## **Crl.MC.No.7173 of 2018** ## **6** 5. In _Bairam Muralidhar v. State of Andra Pradesh [2014 KHC 4490 = AIR 2014 SC 3437],_ the Hon'ble Supreme Court held thus in paragraph 18 of the judgment. “18. The central question is whether the Public Prosecutor has really applied his mind to all the relevant materials on record and satisfied himself that the withdrawal from the prosecution would subserve the cause of public interest or not. Be it stated, it is the obligation of the public prosecutor to state what material he has considered. It has to be set out in brief. The Court, as has been held in Abdul Karim's case, is required to give an informed consent. It is obligatory on the part of the Court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the court to weigh the material. However, it is necessary on the part of the court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A court while giving **Crl.MC.No.7173 of 2018** **7** consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The court cannot give such consent on a mere asking. It is expected of the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the court is obliged to see is whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State, and the Society as a collective demands justice to be done. That maintains the law and order situation in the society. The public prosecutor cannot act like a post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding. He cannot remain **Crl.MC.No.7173 of 2018** **8** oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the Court as well as his duty to the collective. In the case at hand, as the application filed by the public prosecutor would show that he had mechanically stated about the conditions - precedent. It cannot be construed that he has really perused the materials and applied his independent mind solely because he has so stated. This application must indicate perusal of the materials by stating what are the materials he has perused, may be in brief, and whether such withdrawal of the prosecution would serve public interest and how he has formed his independent opinion. As we perceive, the learned Public Prosecutor has been totally guided by the order of the Government and really not applied his mind to the facts of the case. The learned trial Judge as well as the High Court has observed that it is a case under the Prevention of Corruption Act. They have taken note of the fact that the State Government had already granted sanction. It is also noticeable that the Anti-Corruption Bureau has found there was no justification of withdrawal of the **Crl.MC.No.7173 of 2018** **9** prosecution. “ 6. As regards quashing prosecution in cases under the Prevention of Corruption Act, the Hon'ble Supreme Court in _Niranjan Hemchandra Sashittal and Another v. State of Maharashtra [(2013) 4 SCC 642]_ held thus in paragraph 25 of the judgment. “25. In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. This intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective **Crl.MC.No.7173 of 2018** ## **10** and an anathema to the basic tenets of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinisiing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism.” 7. An examination of the various decisions of the Hon'ble Supreme Court on the point makes it is very clear that a Prosecutor cannot casually withdraw from prosecution just because he is so advised or instructed by the Government. In this case, it appears that the Government decided to withdraw from prosecution just because a committee constituted by the Government to make an enquiry into the allegations against the Doctor came to a finding in his favour, and accordingly recommended **Crl.MC.No.7173 of 2018** **11** to stop all actions initiated against the Doctor. The Annexure-D report of the Committee and also the Annexure-E Government order by which decision was taken by the Government to withdraw from prosecution would clearly indicate that the matter referred by the Government to the committee was only as regards the private practice alleged against the Doctor. The committee has not made any enquiry regarding the allegation of acceptance of bribe by the Doctor. Of course, such a thing cannot in fact be probed into by the Committee. The Committee constituted by the Government cannot enquire whether the Doctor had accepted any bribe or not. That will have to be examined by the prosecuting agency as part of investigation. Anyway, in this case, the committee has not made any enquiry into those aspects and the committee's finding is only regarding the private practice alleged against the Doctor. I fail to understand why the Government decided to withdraw from prosecution on the basis of such a finding **Crl.MC.No.7173 of 2018** ## **12** regarding the private practice. The specific allegation of the prosecution is acceptance of bribe by the Doctor from the relative of a patient admitted at the Government Hospital. Of course, it is true that the amount was admittedly accepted by him during his private practice. It will have to be examined whether the money was received by the Doctor from a patient admitted at the hospital or from a patient who came for private consultation. That can be examined only during trial. 8. The object of the Prevention of Corruption Act is eradication of the cancerous evil of corruption and refinement of public service. Acceptance of bribe; whatever be the amount accepted, will always be reckoned as a crime against the whole society. Such instances of acceptance of bribe will definitely malign the public service, and any public servant accepting bribe for the discharge of official functions must be appropriately dealt with. Of course, that is a matter for examination during trial. The issue **Crl.MC.No.7173 of 2018** ## **13** here is whether such a prosecution can be allowed to be withdrawn. On an examination of the materials including the Government Order on the basis of which the Public Prosecutor applied for withdrawal, I do not find any public interest in the matter, compelling the Government to withdraw from prosecution. In _Niranjan Hemchandra_ _Sashittal's case_ referred to supra, the Hon'ble Supreme Court has cautioned against casual termination of cases involving offences under the Prevention of Corruption Act. 9. It was submitted by the learned Senior Counsel that the learned trial Judge has in fact made some findings. I do not agree. The learned trial Judge has only observed that there are materials in support of the allegations under the P.C Act. Those materials can be examined only during trial and the learned trial Judge has not come to any finding on the basis of such materials. The relevant finding made by the learned trial Judge is that withdrawal from prosecution in this **Crl.MC.No.7173 of 2018** ## **14** case will not serve any public interest and it will not be in the interest of criminal administration of justice. The learned trial Judge has also found that the Public Prosecutor has not applied his mind properly and independently. On the said finding, permission was disallowed by the trial court. 10. It appears that pending the proceedings, the petitioner settled the dispute with the complainant, and an affidavit accordingly was filed before this Court. For obtaining such an affidavit, he was impleaded as additional 3[rd] respondent. Such an affidavit cannot be accepted at this stage and such practice cannot be encouraged. Of course, it is true that when an application for withdrawal comes before the court, the court cannot act as an appellate authority. However, the court is bound to examine whether such withdrawal from prosecution would serve any public interest or public cause. In this case, I find that withdrawal from prosecution would only help the accused and it would not serve any public interest. The spirit of **Crl.MC.No.7173 of 2018** **==> picture [15 x 9] intentionally omitted <==** the judgment of the Hon'ble Supreme Court in _Niranjan Hemchandra Sashittal'_ s case cited supra, will have to be properly and judiciously imbibed and applied when an application for premature termination comes before the court in a prosecution under the P.C Act. In this case, I find no reason or ground for allowing the withdrawal sought by the Government. In the result, this application is dismissed. ma **P.UBAID JUDGE** **Crl.MC.No.7173 of 2018** **16** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF G.O.(MS)NO.270/2005 DT.25.10.2005 ISSUED BY R2.** **ANNEXURE B TRUE COPY OF REPRESENTATION DT. 20.12.2010 SUBMITTED BY THE PETITIONER.** **ANNEXURE C** - **TRUE COPY OF GOVT.ORDER NO.6378/C2/2010/VIG.21.2.2011 ISSUED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT.** **ANNEXURE D TRUE COPY OF REPORT OF ENQUIRY COMMITTEE CONSTITUTED AS PER G.O.(MS) 270/2005 DATED 25.10.2005.** **ANNEXURE E TRUE COPY OF G.O.(MS) NO.61/2012/VIG.DT.28.12.2012 ISSUED BY THE GOVT. OF KERALA.** **ANNEXURE F TRUE COPY OF JUDGMENT DT.10.8.2018 IN CRL.MC. NO.264 OF 2013** **ANNEXURE G TRUE COPY OF ORDER IN CRL.M.P.NO.926/2018 IN C.C.NO.2 FO 2010 THE AND ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM.** /True copy/ P.S to Judge