in the high court of karnataka at bangalore dated this the 7th day of

in the high court of karnataka at bangalore dated this the 7th day of

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7 T H DAY OF DECEMBER 2009 BEFORE THE HON’BLE MR.JUSTICE JAWAD RAHIM Crl.R.P. NO. 938/20...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE

7 T H

DAY OF DECEMBER 2009

BEFORE THE HON’BLE MR.JUSTICE JAWAD RAHIM Crl.R.P. NO. 938/2009 BETWEEN:

1.

SPECIAL PUBLIC PROSECUTOR IN SPECIAL C C NO.208/2004 ON THE FILE OF THE XXXVI ADDL SESSIONS JUDGE, (C H NO.37) BAN GALO RE

2.

STATE BYS.P, SPECIAL INVESTIGATION CELL, VIGILANCE AND ANTI-CORRUPTION, CH EN N AT PETITIONERS

[By Sri B V Acharya, Sr Counsel & Special SPP for P-i; Sri Sandesh J Chouta, Adv. for P2] AND:

I.

S

SELVI JAYALALITHA FORMER CHIEF MINISTER OF TAMIL NADU RESIDING AT NO.36 POES GARDEN CHENNAI-600 086.

7.

SMT SASIKALA NATARAJAN W/O M NATARAJAN RD NO.18, 3 STREET ABHIRAMAPURAM (EAST) CHENNAI-600 004

3.

THIRU V N SUDHAKARAN Sb T T VIVEKANAN DAN NO.68, HABIBULLAH ROAD CHENNAI-600 017

4.

SMT. J. ELAVARASI W/O LATE V JAYARAMAN NO.31, MANNAI NAGAR MANNARGUDI A.T PANNERSELVAM DIST

5.

THIRU T.T.V DINAKARAN TH NO.2, 4 STREET VENKATESHWARA NAGAR AVENUE ADYAR, CHENNAI-600 020. RESPONDENTS

[Sri A Navaneetha Krishnan, Adv for R-1; Sri A Kandasamy, Adv for R-2; Sri L.P Shanmugam Sundaram, Adv for R-3 & 4; Sri A Jenasenan for M/s Guha Associates, Adv for R-5j CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) R/W SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED 10-09-2009 PASSED ON IA No 260 IN SPL CC NO 208 OF 2004, ON THE FILE OF XXXVI ADDL SESSIONS JUDGE (SPECIAL JUDGE), BANGALORE. THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

3

ORDER The Special Public Prosecutor appointed for conduct of Special C.C.208/04 on the file of Sessions Judge,

Bangalore,

as

th 36

also

Addl.City Civil and the

‘State’

have

assailed the order dated 10.9.2009 passed on I.A.260 rejecting permission for withdrawal from prosecution the 1 s t

respondent-Selvi Jayalalitha

and the

5 t h

respondent

Thiru T.T.V.Dinakaran, under Section 321, Cr.P.C. 2.

The petition is posted for admission after notice to

the respondents and as each of them are represented by learned counsel, it is admitted and taken up for final disposal by this order.

3.

Sri

himself

B.V.Acharya, and

on

behalf

Special of

the

Public State

Prosecutor, has

for

advanced

arguments, while Sri A.Navaneetha Krishnan appears for the ls respondent-Smt.Jayalalitha, and Sri A.Jenasenan appears for the

5 t h

respondent-Thiru T.T.V.Dinakaran.

4 4.

Contextual facts are: a) Investigation relating to allegation of amassment

of wealth disproportionate to known sources of income by the

1 s t

respondent

was

initiated.

After

thorough

investigation, final report was filed in the jurisdictional court accusing

1 S t

respondent, then Chief Minister of Tamil

Nadu, a public servant, of having committed offences punishable 13(1)(e)

under of the

Sections Prevention

13(2) of

read

with

Corruption

Act,

(hereinafter referred to as the Act, for brevity).

Section 1988 On the

basis of final report under Section 173, Cr.P.C., a case was registered in Spl.C.C.7/97 on the file of designated court at Chennai. b) Cognizance was taken;

1 s t

respondent-accused

was summoned along with respondents 2, 3 and 4 to answer the charges. Charges were framed for the offences indicated above in the said case.

To sustain the charge,

the investigating officer had relied on the statement of 259 witnesses and a plethora of documents numbering 2,000. Respondents were put to trial during which the witnesses

S

cited in the charge sheet were examined and documents were received in evidence.

Prosecution closed its evidence

on 21.1.2003 and the case was listed for examination of the accused as envisaged under Section 313, Cr.P.C. c)

At the

stage when the

accused

had

to

be

questioned under Section 313, Cr.P.C., another report was received

by

the

investigating

officer

revealing

1 S t

respondent-accused had in connivance with respondent no.5

and

properties

some

more

abroad.

investigation.

persons,

That

acquired

report

was

immovable

taken

up

for

The investigating officer embarked on the

investigation, registering it separately and having found that the allegations, prima fade make out a case of illegal amassment

of

wealth

as

also

contravention

of

the

provisions of Foreign Exchange Regulations Act, prepared a fresh

report

accomplice-the

indicting 5 t h

the

1 S t

respondent

respondent as

money illegally from India to London and

also

of

acquiring

having ,

immovable

and

her

transferred

a country abroad, properties

and

investments in hotel business. He thus filed a fresh charge

6 sheet against the

respondent and

5 t h

respondent for the

offences under Section 13(2) of the Act. d) Since it was a fresh charge sheet, it was received and registered in SpLCC.2/O1. The learned judge of the designated

court took cognizance and

against the l and they

( s 1 t

and

5 t h

5 t h

issued

process

accused. As a sequel to such action,

respondents-accused) were summoned.

e) At this stage, a petition was filed before the Hon’ble Supreme Court questioning the legality of the proceedings in the earlier case, Spl.C.C.7/97.

The apex

court accepting the petiton filed before it, transferred Spl.C.C.7/97 as also the fresh case in Spl.C.C.2/O1 from the jurisdictional designated court at Chennai to be tried by a special court to be constituted in the State of Karnataka. In pursuance to the order of the Hon’ble Supreme Court, a special court is constituted in the State of Karnataka designating it as

th 36

Additional City Civil and Sessions

Judge and Special Court for trial of the said case.

7 f) The states of Tamil Nadu and Karnataka though took steps to comply with the direction of the apex court, but it is seen there was sufficient loss of time.

Ultimately,

Spl. C.C. Nos.7/97 and 2/01 were re-registered by the transferee court in Bangalore, Karnataka, as SpI. C.C. No.208/04 and 209/04 respectively.

g) It is further noticed in about the year 2002, respondents 1 and 5 who were accused in SpI. C.C.7/97 and 2/01 filed an application seeking to club the cases on the plea the offences alleged were similar in both the cases and joint trial was essential.

The application was not

considered by the designated court at Chennai and it was pending

consideration

when

both

the

cases

were

transferred to Karnataka and re-registered in the year 2004.

h) It is not in dispute that the transferee court at Bangalore has issued fresh process to secure the presence of the

respondents and on their appearance,

learned

special judge of the designated court found pendency of

8 the application

filed

referred to above.

by them for clubbing the cases

He allowed the application and clubbed

the cases. At this stage, the said respondents-ac cused filed an application for discharge in subsequently regis tered SpI. C.C.2/O1 which was re-numbered by the transferee court as Spi. C.C.209/04.

It is made clear that the plea of

discharge was sought only in the fresh case since charges had not yet been framed in it. That application had to be considered.

I) At this juncture, parties who had petitione d to the

Hon’ble Supreme Court for transfer of the case from Chennai to Karnataka, again approached the apex court in S.L.P.3828/05

questioning

the

order

passed

by

the

transferee designated court at Bangalore, club bing the cases for trial.

That petition was admitted and the apex

court stayed further proceedings in both the case s referred to above, by its order dated 5.8.2005.

Consequently,

further proceedings in Spi. C.C.208/04 (arising out of SpI. C.C.7/97)

and

Spl.

C.C.2/O1) were stayed.

C.C.209/04

(arising

out

of

Spl.

9

j)

Sri

B.V.Acharya,

learned

Special

Prosecutor

appointed by the State, on assuming charge notic ed that already a period of four years had elapsed in the trial. On examining the nature of accusations in the char ge sheet filed against the accused in Spl.C.C.208/04 and the charge sheet

filed

in

the

Spl.C.C.209/04,

subsequently

prosecution

registered

agency

had

case,

i.e.

filed

an

application through the investigating officer for further investigation as is permissible under sub-section (8) of Section 173, Cr.P.C. k) The new incumbent investigating officer havi ng obtained the order of the court for further inve stigation, has investigated the case and found that the material collected earlier to filing of charge sheet in Spl.C .C.2/O1 (re-numbered

as

Spl.C.C.209/04)

was

based

on

the

testimony of several witnesses out of whom som e were not available to be produced for evidence during trial, and the others had shown open adverse animus,

declining to

support their earlier statements. In the circumsta nces, the

10 learned State Prosecutor has examined the earli er material compiled in the charge sheet in Spl.C.C.7/97 (re-n umbered as Cpl.C.C.208/04) and the supplementary report filed by the Prosecutor.

On such examination, he found that the

material now compiled in the form of charge shee t consists mostly of ocular testimony and some documents collected which supported the charge. Therefore, in his wisd om, he thought of approaching the trial court to permit the State to withdraw prosecution of the and the

5 t h

respondent

( t 5 h

accused-Smt.Jayalalitha

accused).

Thus, he filed an

application under Section 321, Cr.P.C. seeking perm ission of the designated

court (Special Judge)

to withdraw

prosecution launched against respondents 1 and 5 in SpI. C.C.2/01

(re-numbered

as Spi.

C.C.209/04)

and

that

application could not be pursued in view of the stay order granted by the apex court in SLP.3828/04 vide order dated 5 .8.2005.

I) In these circumstances, the learned SPP and the ‘State’ approached the apex court seeking perm ission to move the designated court to consider the said appl ication.

11 The Hon’ble apex court by order dated 24.4.2009, accepted the request by its order which reads thus: ‘Heard parties.

the

learned

counsel

for

the

it is submitted by the learned counsel for the State that the SPP would like to move an application to withdraw Spi. C.C.2/01 (re-numbered as Spl .209/04) before the Additional Sessions Judge, Ban galore. We make it clear that the interim stay granted by this court on 5.8.2005 will not stand in the way of the additional sessions judge while considering the above application. Crl.M.P. stands disposed of.’ Armed

with the order,

the

SPP

has

approached the

designated court with the application under Section 321, Cr.P.C.

The application was contested but the accused

namely, Jayalalitha

( s 1 t

accused) and T.T.V.Dinakaran

( t 5 h

accused) did not oppose it. Despite such fact situation, the learned trial judge by order dated 10.9.2009 impugned in this revision rejected it.

m) Assailing it, this revision is filed.

12

5.

During hearing of this petition, Sri A.Navaneetha

Krishnan, learned counsel for the

1 s t

respondent has raised

the following objections regarding maintainability of this petition: i)

The petition is not maintainable as the ‘State’ is id the 2 petitioner. The application seeking withdrawal from prosecution can only be moved by the Special Public Prosecutor and any order passed thereon could be challenged by him and not the ‘State.’

ii)

The

scope

of revision

under Section

397,

Cr.P.C. is very limited and unless it is pointed out that the impugned order suffers from legal infirmity,

this

court

has

no jurisdiction

to

examine facts. iii)

The doctrine of ‘malice’ should be taken note of in considering this petition as it is not the SPP who is in legal pursuit.

It is virtually by the

‘State’ which has no competence to question the order passed on the application under Section 321, Cr.P.C. iv)

Proceedings before the trial court would show it is not the SPP who is venting his grievance. It is the ‘State’ and hence, the petition is liable to be rejected.

v)

13 When the ‘S tate’ knew it has a weak case, it should not h ave put resp ondents 1 an d 5 to unnecessary ordeal of co urt proceedin gs till now. Therefo re, seeking w ithdrawal can not be granted as it has generate d sufficient c ause of actin to them to proceed ag ainst the Sta te for malicious pro secution.

6.

Learned Spl. Public Prose cutor, Sri B.V .Acharya has countered all the contentio ns urged. 7.

In supplemen tati

on to the re spective con tentions of the parties, I have examin ed the record s. 8.

Regarding th e first conte ntion that th e power of revision unde r Section 39 7, Cr.P.C. is limited, there could be no two opinions. Certainly the power of re vision conferred on the sessions court is not unfettered. But when the qu estion is ab out failure o f the trial c ourt to exercise juri sdiction, re vision unde r Section 397 is admissible. This court c ertainly has the power u nder Section 401, Cr.P.C. if no t under Secti on 397, Cr.P .C., to exercise the power of revis ion.

14 9.

The second

contention that the

petition

is not

maintainable because the ‘State’ is the petitioner, I am satisfied, has to be discounted for the simple reason, the 1 S t

petitioner is the Spl.Public Prosecutor who is authorized

to seek withdrawal of prosecution under Section 321, Cr.P.C. 2 n d

10.

Merely because the ‘State’ is also arrayed as the

petitioner, will not render the petition incompetent. With this prelude to the preliminary objections, we

shall now consider whether the application filed under Section 321, Cr.P.C.

by the Spl.

Public Prosecutor is

supported with sufficient material to permit withdrawal of prosecution in SpI. C.C.2/01 (re-numbered as Spl.209/04), and also as to whether the impugned order is a result of erroneous

exercise

of jurisdiction

or

non-exercise

of

jurisdiction, calling for interference. 11.

The factual matrix indicates much earlier to 1997,

there were serious allegations against the

1 S t

respondent

Jayalalitha, the then Chief Minister of Tamil Nadu having indulged in amassing wealth disproportionate to known

sources of inco me.

15

The ‘State’ ha d initiated inve stigation through com petent police officers who ultimately filed charge sheet against her fo r offences pu nishable under Sections 13(2) read with Sec tion 13(1)(e) of the Act. It was registered in Spi. C.C.7/9 7 and she alon g with other accused were put to trial. 12.

It is also not in dispute that du ring trial, reco rding of evidence of 25 9 witnesses w as complete an d about 2,000 documents are received in evid ence. The tria l had virtually reached the la st lap of trial and the accuse d had to be questioned un der Section 31 3, Cr.P.C. It is during this period further inform ation was received by the investigating officer concerne d regarding acquisition of several movab le and imm ovable assets St by the 1 respondent-Jay alalitha in Lon don, a country abroad, using ill-gotten wealt h and she w as also accuse d of having indulged in co ntravention of the provisions of the Foreign Exchange Reg ulations and o ther economic offences. Tha t information tr anslated into a report and further investigation w as taken up by the investigating agency. It

16 is not known why the investigating officer in his wisdom filed a separate fresh charge sheet which is regis tered in Spi. C.C.2/01 (re-numbered as Spl.209/04) instead of filing supplementary report. 13.

In the second case i.e., SpI.C.C. 209/04, befo re

charges could be framed, accused had sought disch arge. Therefore,

the

application

undoubtedly

had

to

be

considered by the designated judge under the prov ision of Section 239, Cr.P.C. It must be observed that the request made by respondents 1 and 5 is to discharge them on the plea there is no sufficient material to make out prim a fade case to frame charges against them for the offences indicated above.

In other words, accused themselves had

sought for discharge, thereby seeking dropping of the prosecution initiated against them in the second case i.e., Spl.C.C.2/01 (Spl. C.C 209/04).

The learned SPP has

examined this situation with reference to what transpired in Spl. C.C.7/97.

17 14.

The learned SPP has mentioned in his application

filed under Section 321, Cr.PC. that after filing fresh charge sheet in Spl. investigating

officer

had

permission

to

conduct

application

was

allowed

22.7.2001.

(Spl.C.C.209/04), the

2/01

C.C.

an

filed

investigation

further by

the

seeking

application

designated

which

court

on

In pursuance to the permission so granted,

one Sri S.Subramanian, IRS, working as Deputy Director in the

Enforcement

Directorate,

had

embarked

on

the

investigation to unearth illegal transfer of money abroad by respondents 1 and 5 (second report).

He has carried out

thorough investigation and it appears on the basis of his investigation, he found material available is not enough to put the accused to trial. witnesses

became

part

Initially what was spoken to by of the

charge

sheet

in

Spl.

C.C.2/01, but during further investigation undertaken by the investigating officer, three of the main witnesses

rescued from their earlier statements and did not support the prosecution.

18 15.

From the report submitted by Sri Subramanian, IRS,

it is noticed he has recorded in unequivocal terms that the witnesses on whose testimony prosecution was initiated had retracted from their statement and no worthy purpose would be served by subjecting them to evidence during trial. The learned SPP has referred to the report of Sri S.Subramanian, IRS, in which narration of facts reveals he had investigated the allegations against the Jayalalitha

( s 1 t

in

accused

respondent-T.T.V.Dinakaran having

acquired

the

th 5 (

said

immovable assets in

have

to

been

respondent

case)

and

th 5

accused in the case) of

transferring money from India to abroad. alleged

st 1

committed

London

illegally

The offence is

during

the

period

1.7.1991 to 30.4.1996. The first check period pertains to acquisition of assets in India while the second check period pertaining

to

the

period

from

30.4.1996

refers

to

acquisition of properties abroad.

16. assets

It is pertinent to note regarding acquisition of illegal from

1.7.1991,

already

charge

sheet

in

SpI.

C.C.7/97 is filed and the accused have already faced trial.

19 It is only acquisition of assets during the second check period from 30.4.1996, ch arge sheet in Spi. C.C.2/O1 was filed. It must also be notice d that Sri S.Subramanian, IRS, is not the investigating office r who had filed the final report to register Spl. C.C.2/01. He is the new incumbent, i.e. successor-in-office. Having assumed charge he soug ht permission of the desig nated court to carry on further investigation (under sectio n 173(8) Cr.P.C) and in ter ms of the order dated 22.7.2001 , further investigation ha s been carried out. He, therefore , opined that filing of ch arge sheet was on insufficient material and there was no chance of success to the prosecuti on in establishing the ch arges against the accused. 17.

Referring to this fact sit uation, the learned SPP enumerated the following grounds in the applicatio n under Section 321, Cr.P.C. to withdraw prosecution ini tiated against respondents 1 and 5 in Spi. C.C.2/01 (re-numb ered as SpI. C.C.209/04): When the trial in the firs t case was in progress at Chennai, there was a change in Government in Tamil Nadu during May 2001. “*

20 After the new government ass umed office on 06-06-2001, a new investigatio n Officer by name Mr.Subburam Additional Superintendent of Police took over further investigation in the second cas e on 22-072001. The new Investigation Of ficer, obtained permission from the Special Judge, Chennal under Section 173 (8) Cr.P.C to conduct further investigation in the second case and such further invest igation was conducted. During such further investigation, the statement of Mr.Subramanaian (Dy.Director I.R.S) was rec orded and as already stated his statement rules out involvement of Al in the sec ond case. In the second case she is the only public servant involved and without her it is not possible to pursue the charge against the other accused who is not a pub lic servant. *

The investigation Officer has also examined some other witnes ses, whose statements have further weake ned the case of the prosecution. Thus in eff ect the further investigation conducted under section 173(8) of the Cr.PC has weake ned the case of prosecution to such an ext ent that it may not be worthwhile to pursue the second case. *

In the second case there are as many as 9 witnesses who are residing abroad. The following is the list of these 9 witnesses, who are from United Kingdom, Malaysia, Singapore and Australia. 1. Naynesh Desai, Sohcitor, No.97, Park street, London, United Kin gdom;

21 2. Paresh Kotecha, street, Wey Bridge, Kingdom;

11-15, Surry,

baker United

3. Malcharak Mario Jan, 71, Longclaft, Meadow, ASTLEY Village, Lanchashire, United Kingdom; 4. Rajoo S. Sb Sandiran, No.10, Jalan Taman, Ria Dkua Quyeritam, Post Code No.11500, Penang, Malaysia; 5. Ramachandran K. Sb Kakruppiah, No.37, Jalan taliti, Singapore 537 334; —

6. David Booker, Financial Investigator, Mutual Legal Assistant Unit, Serious Fraud office, 10-16, Elm Street, London, United Kingdom; 7. Clyde Marklew, Financial Investigator, Mutual Legal assistant Unit, Fraud Office, 10-16, Elm Street, London, United Kingdom; 8. Anantha Krishnan Dr.9, Marita Road, Medlands, State of Western Australia, Australia, 9. Brown J.A., Federal Agentoperation, Australian Federal Police, P.O.Box NO.920, Spring hall, Brisbane 4004, Australia.

It may not be possible to secure the presence of these witnesses and examine them. Even though there is evidence regarding acquisition of property in London and its subsequent disposal, it will be difficult to prove connection between the sources illegally acquired in India by a public Servant and the payment of consideration for the sale abroad, as according to the prosecution *

case, the money available in India has been utilized for purchase of property abroad by adopting Hawala means. It is thus difficult to prove this aspect of the case. The evidence regarding Sri T.T.V Dinakaran, acquiring properties abroad, cannot be of much assistance unless it is shown that the source to acquire the property belonged to Al Selvi Jayalalitha, who alone is a public servant in the case.”

18.

Sri B.V.Acharya, learned Special Prosecutor wou ld

contend, he had, by virtue of the power conf erred by Section

321,

Cr.P.C.,

honestly

and

dispassionately

examined the material on the basis of which prosecution wanted to put respondents 1 and 5 to trial, and in his opinion the material fell short of legal proof that is required to hold them guilty of the charges and thus sought withdrawal of the prosecution to save public time and money.

He would contend none of the grounds urged in

the application are considered by the trial cour t.

The

learned judge has misapplied the doctrine ‘jus tice must

not only be done but seem to be done’ to rejec t the application.

He asserted that the opinion is formed by him

on an independent assessment of the entir e material

23 without any suggestive act of the ‘State’.

He, therefore,

seeks to set aside the impugned order. 19.

In negation of all contentions of Sri B.V.Acha rya,

learned SPP, it is urged for and on beha lf of the

1 S t

respondent-Jayalalitha that the filing of the application may, at the first look, appear to be an honest attempt on the part of the Spl. Public Prosecutor, but actua lly it is at the

instance

of

the

‘State.’

Learned

counsel

for

respondents 1 and 5 would submit filing of charge sheet during the pendency of the earlier trial itself is indicative of the fact that the ‘State’ has been indulging in malice against a person of high esteem, and a constitutional functionary.

He would submit that the accusation in the

first charge sheet registered in Spl. C.C.7/97 (re-numbered as Spi. C.C.208/04) and the accusation in the second charge sheet are virtually the same.

The material on the

basis of which such accusation is sought to be proved is also similar.

He submits respondents 1 and 5 are entitled

to seek quashing of the charge sheet which fact the ‘State’ has realised.

Therefore, granting them permission to

24 withdraw from the permissible.

prosecution would

not be

legally

It would amount to colourable and mala fide

exercise by the ‘State’ which is being shielded through the application filed under Section 321, Cr.P.C.

However,

learned counsel was highly appreciative of the wisdom of the

learned

Spl.Public Prosecutor,

Sri

B.V.Acharya,

in

seeking withdrawal from prosecution. 20.

As regards

5 t h

respondent is concerned, he would

submit he has been unnecessarily dragged into litigation as an accomplice of the

1 s t

respondent. The accusation itself

is untenable. The material collected is virtually no material to arraign him as accused. He is not a public servant to be put to trial along with the 21.

1 s t

accused.

Learned counsel for respondents 1 and 5 has gained

citational

support

to

his

contentions

relying

on

the

decisions in the case of YERNENI RAJA RAMACHANDRA

.v. STATE OF ANDHRA PRADESH (2009 AIR SCW 6526) and also in the case of SHEONANDAN PASWAN

.v. STATE OF BIHAR ([1987] 1 SCC 288). In the former

25 decision, the apex court taking note of the fact that the State had issued a direction to the district magistrate to instruct the public prosecutor to withdraw the prosecuti on initiated against one of the sitting members of legislativ e assembly on the basis of certain developments before the Ethics Committee of the Legislature, had disapproved the State action not only in approaching the trial court for withdrawal of the prosecution, but also in pursuing the matter in revision before the High Court and in seek ing special leave before the Apex Court.

Learned counsel for

the respondents would submit what is ‘public interest’ has been defined by the apex court in the said judgment and it applies to the facts of this case also. 22.

Relying

on

the

decision

in

the

case

of

SHEONANDAN PASWAN [supra], they would contend

that the request under Section 321 CrPC when filed needs to be examined not only from the point of view of publ ic interest but in the circumstances under which it is filed. They would contend the apex court has disapproved the prosecution being permitted to withdraw the charge unde r

26 Section 321 CrPC at the instance of the State and the action of the state against adverse order under Sect ion 397 CrPC.

According to him, the right course of action

for the investigating officer was to have, in all fairn ess, filed a supplementary report after obtaining permissio n for further investigation under Section 173(8) CrPC before the court of first instance i.e. the court which had taken the cognizance. 23. st 41

Learned counsel would also rely on a portion of the Law Commission of India report, wherein it was

observed as under: The relief under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section

27 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused. On the basis of above observation of the Law Commission, it is urged the right course for the investigating officer was to have submitted his finding on the further investigation to the court of first instance and

not to the public

prosecutor to enable him to file an application under Section 321 Cr.P.C. 24.

The contentions of both sides have received my

serious concern.

25.

In the first instance, it is necessary to refer to the

provision of Section 321 which reads thus: 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, -

28 (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 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 accorqing consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

29 From the phraseology of the provision, it adm its of no doubt

it

is the public prosecutor or assistant public

prosecutor ‘incharge of the case’

who may, with the

consent of the court, at any time before the judg ment is pronounced, withdraw from the prosecution of any person either generally or in respect of one or more offen ces for which he is being tried.

The ‘State’ has no role to play.

The investigating officer has also no role to play.

Neither

the State nor the investigating officer can seek with drawal from prosecution of any person either gene rally or in respect of any one or more offences for which he is tried. The power to withdraw from prosecution of any person is conferred only on the public prosecutor or assistant public prosecutor, as the case may be, and in this case the Special Public Prosecutor. 26.

What is permissible under Section 321, Cr.P.C. is no

longer in doubt. PASWA

As held in the case of SHEONANDAN

(supra), the apex court has spelled out the

powers of the public prosecutor.

He cannot, at the

30 instance

of

the

‘State’

or

investigating

officer

seek

withdrawal of prosecution. Though he is the prosecutor for conduct of the case, he is primarily the offi cer of the court. He is not bound by any recommendations or suggestions or directions

by

prosecution.

the

‘State’

to

seek

withdrawal

from

The apex court has also spelled out that

though such power is conferred on the publ ic prosecutor, yet is not bound to act merely on his reques t.

The court

shall assess as to whether prima fade cas is e made out or not. If the court is satisfied that the relief is grantable, it may do so and not otherwise.

In the said decision, the

apex court has referred to its earlier decisio n in the case of RA3ENDRA KUMAR JAIN v. STATE (AI R 1980 SC 1510).

27.

Great emphasis is laid by the apex cou rt to bring

home the point that it is the public prosec utor and none else who could make such request. cannot

surrender

prosecution

to

his

anyone

The public prosecutor

discretion

to

else,

can

nor

withdraw he

seek

from such

withdrawal on the basis of a request by the investigating

31 officer or the ‘State.’ He can withdraw prosecution not only on the ground of paucity of evidence but other relevant factors as well. The aim is to ensure it is done to further the broad ends of public justice, public order and tranquility.

28.

The observation of the apex court in the case of SHEONAN DAN PASWAN is rel evant. It reads as follows:

‘A bare perusal of Section 321 shows that it does not prescribe any ground nor does it put any embargo or fetter on the power of the public prosecutor to withdraw from prosecuting a particular criminal case pending in any court. All that it requires is that he can do so only with the consen t of the court, where the case is pending. Th e function of the court in this respect is a lim ited one and intended only to prevent the abuse. The function of the court is accord ing its consent to withdraw is, however, judicia l function. It, therefore, becomes necessary for the court before whom the application for withdrawal is filed by the public prosecuto r to apply the mind so that the appellate court may examine and be satisfied that the cou rt has not accorded its consent as a matter of course but has applied its mind to the gro unds taken in the application for withdraw al by public prosecutor.’ 29.

From the observation of the apex court, it is noticed

while describing the power of the public prosecutor, caution

32 is also held against abuse of such power. against its use, but its misuse or abuse.

Caution is not The ‘consent’ of

the court referred to in the section is to safeguard against such improper exercise.

The court would undoubtedly

examine the material to consider the request of the prosecution.

At the same time the court is bound to

examine whether the application is at the instance of the State, politically motivated or guided with malice, or is partisan to sub-serve any individual interest.

If it is so,

then legitimately permission has to be declined.

The

normal rule is to consider ‘grant of sanction’ and not to embark upon the exercise of examining the merits of the case. Marshalling of the case is a harbinger for assessment as to whether such facts, if proved, would establish the charge.

But when the Spl.Public Prosecutor urges grounds

referring to the material on record that such material will not stand the test of legal scrutiny as proof for sustaining the

charge,

then

whatever

may

be

the

nature

of

accusation, the court would not decline the request but

33 would allow the request to withdraw from prosecution in the ends of justice. 30.

What surfaces from the legal proposition is, there

should be an objective assessment of the entire material compiled in the form of charge sheet on which the charge is sought to be proved.

The Spl.Public Prosecutor is thus

required to objectively assess the material for opinion as to whether it is sufficient to prove the charge or will be shor t of making out a prima facie case. The ground of paucity of evidence is one such ground on which prosecution could be withdrawn.

Subsequent events like non-availability of

witnesses or death of witnesses on whose testimon y basically the charge is raised can be considered as grounds justifying withdrawal of prosecution. 31.

Keeping in mind these aspects, when we examine

the report submitted by the investigating officer, it is evident he has submitted the second report based on further investigation carried out after seeking permission of the court in which the First Information

Report was

34 registered.

In the instant case, the Spi. Public Prosecutor

referred to the material on record compiled in the charge sheet in Spi. C.C.2/O1 which, in his opinion, was not sufficient to put the

st 1

respondent-Jayalalitha to face trial.

Extracts of the report of the investigating officer have been made one of the grounds to show the material which it was earlier thought would translate into legal sustain the charge, had witnesses

on

whose

evidence to

been virtually diluted by the

testimony

such

charges

were

investigated.

32.

I have referred to all grounds urged by the learned

Spl. Public Prosecutor in support of the application in paragraph 16 supra.

It needs no repetition.

It suffices to

record that further investigation undertaken by the new incumbent investigating officer with the permission of the court, he has examined Sri S.Subramanian, IRS, Deputy Director of Enforcement Directorate, who has testified that no material was available against the Jayalalitha

t ( s 1

st 1

respondent

accused in the case) to indict her.

Besides,

she As the only public servant involved and it was not

35 possible to prove the charge against the accused in the case).

5 t h

respondent

( t 5 h

His report also testifies that the

further statement of witnesses has tota lly weakened the prosecution case.

It is immaterial whether they have

tendered such statement at the instance of the accused. What matters is, they have shown adverse animus to the prosecution and thus their evidence before court would the have been a futile exercise. It is further noticed, out of the total number of witnesses cited in the cha rge sheet, 9 of them are residing abroad in countries like United Kingdom, Malaysia, Singapore and Australia.

The list of these

witnesses indicates prosecution was not sure of securing their

presence

during

trial.

Further

accusation

of

immovable property in London and its sub sequent disposal was difficult to prove.

Further, the investigation report

shows it was difficult to prove the nex us between the alleged illegally acquired wealth in India and acquisition of property in London as was initially alleged . 33.

Applying the provision of Section 321 , Cr.P.C., it

may be said that all those grounds wer e tenable to seek

36 withdrawal from prosecution of resp ondents 1 and 5. That is exactly what the Spl. Public Prosecuto r has done. 34.

When these aspects were canvassed before the

learned special judge seeking withdrawa l of prosecution, he has rejected the application citing the following reasons, found at paragraphs 18, 19 and 20: 18. Herein, in the instant case on hand, among the reasons mentioned for grant of consent for withdrawal, the mai n reason is, when the trial in the 1 st case was in progress at Chennai, there was a change in the government Th Tamil Nad u during May, 2001. After the new government assumed the office on 6.6.2001, a new Investigating Officer by name Subburam, AddI. Superintend ent of Police took over further investigati on nd in the 2 case on 22.7.2001. After obtaining permission from the Spi. Judge, Chennai under Sec. 173 (8) of Cr. P. C., he conducted further investigation. During such further investigation, he recorded the statements of witnesses and they hav e weaken the case of the prosecution. The photo copies of the statements of the witnesses viz., CWs 45, 11, 6, 19, 3, 5, 4, 23, 46, 26, 24 and other two witnesses have been filed along with the memo on 27.8.2009. I have perused the statements of these witnesses. ConsIdering the dates mentioned belo w the statements of the said witnes ses,

37 they show that further Investigating Officer recorded the said statements during the months of July to October, 2001. It could be seen from the records that the 2’’ charge-sheet is filed on 23.3.2001 in the same Cr.No. 2 (AC) 2000 HQ. Further, it could be seen from the records that the proceedings of the Director, Vigilance and Anti Corruption, Chennal in Cr. No. 2/AC/2000 HQ (RC 97/2000/ PUB/HQ) held on 8.6.2001 with regard to issuance of authorization under Sec. 18 of the Prevention of Corruption Act for further investigation to the said Superintendent of Subburam, Add!. Police, Vigilance and Anti Corruption. Then the above said further Investigating Officer took permission of the court of Chennal on Spi. Judge, the Pr!. 12.6.2001. 19.

Because, it is well established principles of !aw that the Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence, but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and political purposes.

20.

Here, in the instant case on hand, in view of the facts and circumstances discussed above, I am of the opinion that Such no public interest is involved. that reason 2’ being the case, even the some of the witnesses are in abroad and it may not be possible to secure their

38 mine presence from abroad and exa on. them, is also not a valid reas es of Beca use, it is one of the principl ice just , administration of justice that be should not only be done, but it should the In view of seen [sic] to be done. ed facts and circumstances, as discuss the above, I am of the opinion that tion lica reasons shown in the present app t are not the valid reasons to give consen to withdraw from the prosecution. 35.

tention of Sri I am persuaded to accept the con

B.V.Acharya,

learned

SpI.

Public

Prosecutor,

that the

court has erred in learned special judge of the designated unds urged in the failing to consider the principal gro evidence to establish application that there was paucity of the charge.

rence In the impugned order, there is no refe

secutor had to the material on which the pro

sought

ressed no opinion as discharge. The learned judge has exp SPP were the result of to whether the grounds urged by the there is any opinion his individual assessment or not, nor the grounds urged in expressed by the learned judge that l on record. the application were against the materia

The

rejected is, it may only ground on which the application is not serve any worthy purpose.

The learned judge has

39 virtually substituted his opinion to that of the prosecutor on the worth of the material on record. 36.

It is further noticed the learned designated judge

has failed to notice respondents 1 and 5 (accused nos.1 and 5 in the case) had themselves sought for discharge on the main ground of insufficiency of incriminating material. Therefore, their objections for grant of such permission was contrary to the stand taken. The accused had virtually put a volte face when such application was moved which in fact would have been an answer to the relief sought by them

seeking

discharge.

It

is further

noticed

that

respondents 1 and 5 had also made a statement manifest from the records that they had consented and granted no objection to withdrawal of the charge.

The only ground

urged by them was, the charge in both the cases shall be withdrawn and not in the subsequent case. Such ground was certainly not enough to reject the application filed by the prosecution under Section 321, Cr.P.C.

40 37.

The circumstances in which prosecution could be

withdrawn and by whom, and what is the role of the court are spelled out in the case of RAJENDRA KUMAR JAIN .v. STATE (AIR 1980 SC 1510) at paragraph 13. “13.

Thus, from the precedents of this Court; we

gather 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor

that

he

may

withdraw

from

the

prosecution but none can compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social,

41 economic and, we add, political purposes Sans Tammany Hall enterprise. 6. The Public Prosecutor is an officer of the Court and responsible to the Court. 7. The Court performs a supervisory function in granting its consent to the withdrawal. 8. The Court’s duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free

agent,

uninfluenced

irrelevant

by

and

extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.

1.3-A. We may add, it shall be the duty of the

Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect the

administration

of

justice

criminal

against

possible abuse or misuse by the Executive by resort

to

the

provisions

of

S.

321

Criminal

42 Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. We have referred to the precedents of this Court where it has been said that paucity of evidence is not the only ground on which the Public 14.

Prosecutor may withdraw from the prosecution. In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has been found necessary to withdraw from prosecutions in order to restore peace, to free the

often

atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. An elected Government,

sensitive

and

responsive

to

the

feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides

43 not to prosecute the offenders involved or not to already prosecutions with further proceed such

In

launched.

the

but

who

matters

Government, can and should decide in the first instance, whether it should be baneful or beneficial to

or

launch

continue

prosecutions.

the

If

Government decides that it would be in the public interest to withdraw from prosecutions, how is the Government to go about this task

?“

38.

Applying the case laws on the subject and taking

into

consideration

the

totality

of

the

facts

and

circumstances of this case, I am satisfied the learned special judge of the designated court has failed to exercise the jurisdiction conferred on it for grant of ‘consent’ for withdrawal from prosecution as sought by the learned Spl.Public Prosecutor through his application under Section 321, Cr.P.C.

Thus, the order impugned dated 1O9.2OO9

in Spi. C.C.2/O1 (re-registered as Spl. C.C/209/04) passed on I.A.260 is unsustainable.

39.

For the

following order:

reasons

discussed

above,

I

pass

the

44

The

petition

is

allowed

and

the

order

dated

10.9.2009, made in Special Case No. C.C. No 208 of 2004,

rejecting the application [IA-260] filed by the learned Special Public Prosecutor under Section 321, Cr.P.C is hereby set aside. Prosecution

The said application is hereby allowed.

launched

against the

first

and

the

fifth

respondents in Special CC No 2 of 2001 [renumbered as Special CC No 209 of 2004], on the file of the XXXVI Additional City Civil Judge and Special Court, Bangalore shall stand withdrawn.

The trial court shall proceed

independently with the trial in Special CC No 7 of 1997 [re numbered as Special CC No 208 of 2004], on the file of same court.

The fifth respondent, who has been arrayed

as fifth respondent in the said case, shall be deleted. Proceedings in the said case is subject to the order of the Apex Court that may be passed in the pending SLP No 3828 of 2005. Registry is directed to send a copy of the operative portion of this order to the trial court and furnish copies of tvz

45 the same to the learned Special Public Prosecutor and the contesting respondents 1 and 5 herein.

vg h *