N APPUKUTTAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are accused Nos. 1 and 2 in C. C. No. 20 of 1996 on the file of the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The Deputy Superintendent of Police, Vigilance, Kollam, had registered Crime No. 1 of 1995 of the Vigilance Police Station, Kollam on 14-3-1995, under S.468, 471 and 120B of the Indian Penal Code and also under S.13(1)(d) read with S.15 of the Prevention of Corruption Act, 1988, against the petitioners, alleging that the first accused, who was the Village Officer of Palliman Village committed forgery and changed his date of birth in his SSLC. Book and School Records as 7-11-1115 M.E., while his correct date of birth is 7-1-1115 M.E. and entered into criminal conspiracy with the second accused, who changed the date of birth of the first accused in his Service Book as 20-6-1940 instead of 23-8-1939, on the basis of the certificate issued from the State Librarian and allowed the first accused to continue in service after his due date of retirement on 31-8-1994 for the purpose of obtaining pecuniary advantage. Annexure 1 is the first information report in Crime No. 1 of 1995. Thereafter a charge sheet was also filed by the Dy. S. P., Vigilance, against the petitioners under S.468, 471 and 120B IPC. and also under S.15 of the Prevention of Corruption Act, 1988 under Annexure II. The Enquiry Commissioner and Special Judge has taken cognizance of the charge as C. C. No. 20 of 1996. The same is pending trial.

(2.) The prosecution case is that the date of birth of the first accused in Malayalam era is 7-1-1115 ME., corresponding to 23-8-1989 of the Christian Era. While the first accused was working as Village Assistant in Palliman Village, he altered his date of birth in Malayalam Era as 7-11-1115, in page No. 2 of his SSLC. Book. The first accused had to retire from service on superannuation on 31-8-1994 as his date of birth is 23-8-1939. According to the prosecution, the first accused corrected his date of birth for deriving undue pecuniary gain by continuing in service after his due date of retirement. It is also alleged that the first accused obtained a certificate from the Deputy Librarian, Public Library, Thiruvananthapuram to the effect that Christian era corresponding to Malayalam Era 7-11-1115 is 20-6-1940. The first accused produced the above certificate to the second accused, who was working as Tahsildar and requested to correct his date of birth in Christian Era as 20-6-1940. It is also alleged that the first accused entered into a criminal conspiracy with the second accused to correct the date of birth. According to the petitioner first accused, he is not guilty of Annexure II charge. He states that he has not committed forgery or tampered the date of birth originally entered into in any of the records and there was no conspiracy between accused 1 and 2. While the matter was pending in court, the Legal Adviser, Vigilance and Anti corruption Bureau filed an application under S.321 CrPC., for permission to withdraw from the prosecution under Annexure IV. But the court below did not accord sanction to withdraw from the prosecution. Annexure IV was dismissed by the court under Annexure V.

(3.) According to the learned counsel for the petitioners, the Legal Adviser has acted in good faith after taking into consideration all the materials before him and if those materials are considered by the court, it could have been seen that the Public Prosecutor has exercised his discretion properly and therefore the dismissal of the application by the court below is not justified. So the question to be looked into in this case is whether the Public Prosecutor has exercised his discretion in filing the application for withdrawal after taking all the materials before the court.