V.V.VASANTHI v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934** ## **Crl.MC.No. 662 of 2012 ( )** **-------------------------AGAINST THE ORDER/JUDGMENT IN WPC.21165/2006 DATED 15-03-2011 CMP.NO.790/2011 IN CC.43/2002 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR** ## **PETITIONER(S)/ACCUSED NO.1:** **---------------------** **V.V.VASANTHI** **W/O.VIJAYAKUMAR, CHIRAKKAL HOUSE, ANNIKKAD EAST KOTTAYAM.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENTS/COMPLAINANTS:** **----------------------------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. PIN. 695 001.** **2. DIRECTOR OF VIGILANCE, VIGILANCE AND ANTI CORRUPTION BUREAU GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 695 002** **BY PUBLIC PROSECUTOR SRI.R.RANJITH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A-1: COPY OF THE CHARGE SHEET DATED 30.09.2002 FILED BY the DEPUTY SUPERINTENDENT OF VIGILANCE AND ANTI-CORRUPTION BUREAU, ERNAKULAM, BEFORE THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.** **ANNEXURE A-2: COPY OF THE LETTER BEARING NO.10668/D1/2004/VIG. DATED 15.03.2006 ISSUED BY THE GOVERNMENT OF KERALA ISSUED TO THE 2ND RESPONDENT.** **ANNEXURE A-3: COPY OF THE REPRESENTATION DATED 24-07-2006 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** **ANNEXURE A-4: COPY OF THE JUDGMENT DATED 15-03-2011 PASSED BYTHIS HONOURABLE COURT.** **ANNEXURE A-5: COPY OF THE C.M.P.NO.790 OF 2011 IN C.C.NO.43 OF 2002 FILED BY THE PUBLIC PROSECUTOR BEFORE THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR.** **ANNEXURE A-6: COPY OF THE ORDER DATED 3.9.2011 PASSED BY THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR IN C.M.P.NO.790 OF 2011.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.M.C.NO.662 OF 2012 ----------------------------------Dated this the 5[th] day of July, 2012** ## **O R D E R** Petitioner is the 1[st] accused (A1) in C.C.No.43 of 2002 on the file of the Enquiry Commissioner and Special Judge, Thrissur. She is being prosecuted with another for the offences punishable under Sections 7 and 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 {for short "the Act"} in the above case. At the stage when the trial of the case was almost completed, with prosecution and defence evidence over and the case posted for arguments, the Additional Legal Adviser moved Annexure A-5 petition for permission to withdraw the case under Section 321 of the Code of Criminal Procedure, for short, the 'Code'. That application was dismissed by the learned Special Judge vide Annexure A-6 order. Challenge in the petition invoking the inherent jurisdiction of this Court under Section 482 of the Code is against Annexure A-6 order. **Crl.M.C.No.662/2012** **2** 2. Petitioner (A1) was working as a Health Inspector, and the other accused (A2) as a Junior Health Inspector in Cochin Corporation. While so, pursuant to criminal conspiracy hatched they demanded a sum of Rs.2,000/- as illegal gratification from one Sasidharan for issuing a licence for his business concern and, later, the petitioner, on the basis of the demand already made, collected a sum of Rs.500/-, and the other accused two pant pieces from an employee of the complainant, and, thereby, both of them committed the offences under Section 120B of the IPC and Sections 7 and 13(1)(d) read with Section 13(2) of the Act, is the prosecution case. On the basis of the complaint received over the demand for bribe, a trap was arranged which, it is stated, turned out to be successful. In such trap the bribe money and also the pant pieces collected is alleged to have been recovered from the possession of the accused and the phenolphthalein test conducted over both hands of the accused (both of them) also were positive. Crime registered after investigation led to filing of final report for the offences against the accused stated supra, with sanction accorded by the **Crl.M.C.No.662/2012** **3** competent authority for such prosecution. The accused, pleading not guilty, the trial proceeded, and while so, the petitioner/1[st] accused moved the Government for withdrawal of the case against her alleging that the case has been foisted on false allegations. Imputing that there was delay on the part of the Director of Vigilance to take appropriate action over such petition moved before the Government, she filed a writ petition before this Court, in which, Annexure A-4 judgment was rendered directing the Director, Vigilance and Anti-Corruption Bureau to pass appropriate orders within one month from the date of receipt of a copy of the judgment. Pursuant to Annexure A-4 judgment, the Additional Legal Adviser moved Annexure A-5 petition under Section 321 of the Code seeking permission to withdraw the case. The learned Special Judge, not being satisfied of the grounds set forth for withdrawal of the case, declined permission passing Annexure A-6 order. 3. The learned counsel for the petitioner assailed Annexure A-6 order contending that it is unsustainable and illegal. The State Government decided to withdraw from the prosecution for **Crl.M.C.No.662/2012** **4** cogent and convincing grounds, according to the counsel, since the imputations made against the accused over the demand of bribe and its acceptance were doubtful and even the application of the complainant for license was shown to be defective and forged. Additional Legal adviser, after being fully convinced, on close scrutiny of the materials of the case, has formed the conclusion that the prosecution case is not well-founded and the circumstances presented clearly indicated that the administration of justice could not be advanced by continuing with the prosecution of the case, submits the counsel. Application moved by the Additional Legal Adviser (Annexure A-5) gave cogent and convincing reasons for withdrawal of the prosecution, but, without taking note that when consent of the court for withdrawal is sought for it cannot weigh and appreciate the evidence of the case it has been improperly rejected. All that the court has to look into is to ensure that the application for withdrawal has been properly made, after independent consideration by the Public prosecutor and in furtherance of public interest, submits the counsel. Reliance is placed in **State of Kerala v. Varkala Radhakrishnan and others (2009 (1)** **Crl.M.C.No.662/2012** **5** **ILR (Kerala) 721)** to contend that it is absolutely within the province of the Public prosecutor to act in good faith and exercise the discretion vested with him to decide whether the prosecution has to be withdrawn or not. Adverting to Annexure A-2 communication addressed by the Government to the Director of Vigilance and Anti-Corruption Bureau and Annexure A-5 application moved by the Additional Legal Adviser seeking permission to withdraw the case, it is contended that Annexure A-6 order passed by the Enquiry Commissioner and Special Judge declining permission to withdraw the case with reference to the materials produced in the case is patently unsustainable and Annexure A-6 is liable to be set aside. Request made under Annexure A-5 application by the Additional Legal Adviser to grant permission to withdraw the case has to be grunted invoking the inherent jurisdiction of this Court under Section 482 of the Code, is the submission of the counsel. 4. Annexure A-6 order would show that the Special Judge has found that the reason set out for withdrawal under Annexure A-5 application of the Additional Legal Adviser was no reason at **Crl.M.C.No.662/2012** **6** all, and at any rate, that will not satisfy public interest. After the closing of the evidence, Annexure A-5 application had been moved by the Additional Legal Adviser expressing a view that he is convinced that the prosecution of the case “may not be successful because the prosecution case does not appear to be well-founded.” Another reason stated was that there are circumstances which would show that the object of administration of justice would not be advanced by continuing with the prosecution. What were such circumstances are not spelt out in his application. He then refers to Annexure A-1 communication given by the Government to the Director of Vigilance and Anti-Corruption Bureau for withdrawing the case and also the instructions later on passed by the aforesaid Director to him to seek such withdrawal. Petitioner, while the trial was going on, had moved an application before the Government for withdrawal of the case. Complaining non-consideration of that application, she filed a writ petition before this Court. On the submissions made in that writ petition that her petition had been forwarded to the Director, Vigilance and Anti-Corruption Bureau, this Court vide Annexure A-4 **Crl.M.C.No.662/2012** **7** judgment directed the respondent to pass appropriate orders within one month from the date of receipt of a copy of the judgment. What could be seen from Annexure A-2 communication of the Government addressed to the Vigilance and Anti-Corruption Bureau is that expressing an opinion that there is 'no locus standi to continue the case', a direction was issued for withdrawal of the case. Annexure A-5 petition moved by the Additional Legal Adviser show that the Director of Vigilance on the basis of direction given in Annexure A-1 by the Government has instructed him to move for withdrawal of the case. No doubt, it is open to the Government to form an opinion with respect to the merit of the case and also advise for withdrawal of a case even after cognizance of the offence thereunder has been taken by the court and so long as such case is pending to be disposed by the court. However, it is for the Public prosecutor or the Additional legal adviser concerned, as the case may be, to apply his mind to all relevant materials and reach his own conclusion whether the withdrawal is called for. The Apex Court in **Abdul Karim and others v. State of Karnataka and others ((2000) 8 SCC 710)** has held that **Crl.M.C.No.662/2012** **8** though the Government may have ordered, directed or asked a Public prosecutor to withdraw from a prosecution, it is for the Public prosecutor to apply his mind to all the relevant materials and, in good faith, to be satisfied thereon that the public interest will be served by withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that materials, that the Public prosecutor has applied his mind independently thereto, that the Public prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. I do not find any merit in the submission made by the learned counsel that the learned Special Judge has gone wrong in examining the materials of the case and expressing some views thereof in Annexxre A-6 order in considering the request made for withdrawal by the Additional Legal adviser moving Annexure A-5 application. True that he is not expected to weigh the evidence to determine whether withdrawal is allowable, but, he is expected to and has to be satisfied, after considering all materials produced, that the application has been moved in good **Crl.M.C.No.662/2012** **9** faith to serve public interest by the Public prosecutor. Other than setting forth a ground that prosecution may not be successful and also of doubting the merit of the prosecution case in which, the recording of the evidence has already been completed, no public interest whatsoever has been shown in Annexure A-5 application by the Additional Legal adviser as to why permission for withdrawal of the case has to be ordered. Annexure A-5 application would clearly show that the Additional Legal adviser has not applied his mind to the materials of the case and he has not taken any independent decision over the withdrawal applied for but has only followed the instructions passed on to him by the Director of Vigilance and AntiCorruption Bureau in continuation of the direction given by the Government. The Additional Legal adviser has not only not shown any worth mentioning justifiable reason to have permission for withdrawal of the case but has also failed to show in what way public interest is to be served by the withdrawal of the case. The decision referred to by the counsel in **Varkala Radhakrishnan's case** , cited supra, will not in any way assist the petitioner to assail Annexure A-6 order. Observing that the **Crl.M.C.No.662/2012** **10** Government is competent and empowered to suggest for withdrawal of the prosecution, it has been reiterated in that decision that the Public prosecutor has to act in good faith and exercise the discretion vested with him that such withdrawal from prosecution is for public interest. The court has necessarily to examine whether the application for withdrawal has been moved by the Public prosecutor in good faith and such withdrawal will serve public interest. Consent for withdrawal cannot be granted by the court where it is shown that no independent assessment over the materials produced has been made by the Public prosecutor in what way the public interest is to be served by such withdrawal applied for. There is no merit in the challenge against Annexure A-6 order passed by the learned Special Judge, and the Crl.M.C. is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp