V S ACHUTHANANDAN Vs. R BALAKRISHNA PILLAI

JUDGEMENT

(1.) THE challenge in this appeal by special leave is to the legality of the order dated 3rd February, 1993 passed by Chetur Shankaran Nair, J. of the Kerala High Court allowing Criminal Revision No. 762 of 1992 filed by the State of Kerala and setting aside the order dated 16th October, 1992 passed by the Special Judge, Idamalayar, in Criminal M.P. No. 79 of 1992 in C.C. 1 of 1991 declining to give consent to the Public Prosecutor to withdraw the prosecution against the sixth accused G. Gopalakrishnan Pillai, former Secretary, Irrigation and Power to the Government of Kerala.

(2.) THE material facts may now be briefly stated. Idamalayar Dam as a part of the Idamalayar Project was sanctioned by the Planning Commission and huge expenditure in its construction was incurred upto March, 1985. However, in the trial run itself on 15.7.1985 a number of leaks were discovered in the tunnel exposing the inferior quality of construction work which was a matter of grave public concern giving rise to ventilation of that concern through the press and even in the State Legislative Assembly. THEre was public outcry of a judicial probe into the matter. Extensive repair at considerable cost had to be undertaken to remedy the defects. THE Public Undertaking Committee of the State Legislature inspected the site on 2.8.1985 and submitted its report recommending a judicial probe. THE State Government then appointed Justice K. Sukumaran, a sitting Judge of the Kerala High Court as the Commission of Inquiry to conduct the probe. THE Commission of Inquiry recorded considerable evidence and submitted its report in June, 1988. THE Commission found accused No. 1 R. Balakrishna Pillai (former Minister for Electricity, Kerala), accused No. 2- G. Ganesa Pillai (former Chairman, Kerala State Electricity Board) and accused No. 6G. Gopalakrishna Pillai (former Secretary, Irrigation and Power) liable for positive acts of abuse of power. THE Commission also came to the conclusion that the material placed before it disclosed the commission of certain offences punishable under Indian Penal Code as well as under Section 5 of the Prevention of Corruption Act. THE Commission after indicting the above persons recommended further steps for investigation into, and trial of these offences. THE State Government accepted the recommendations of the Commission and constituted a special team headed by a Superintendent of Police for investigating into the crime after obtaining sanction for prosecution from the Governor of Kerala. A report was filed on 14.12.1990 against accused persons for offences punishable under various provisions of the Indian Penal Code and the Prevention of Corruption Act. This case is CC No. 1 of 1991 in the Court of Special Judge appointed for the trial of these accused.

(3.) THE learned Special Judge considered at length the only aforesaid ground on which consent for withdrawal of prosecution was sought, in paras 14 to 18 of his order, material portions of which read as under :