J VASANTHAKUMARI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the 1st accused in C.C.No.32/2008 of the Special Court (Vigilance), Thiruvananthapuram. It is a prosecution brought under Section 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the P.C.Act') and also under Sections 419, 471 and 120B IPC. She is the former President of the Thodiyoor Grama Panchayat. The issue is concerning misappropriation of some amount from public funds by the then President and the then Secretary. The Vigilance and Anti Corruption Bureau (for short, 'the VACB') submitted final report in court after thorough investigation into the various aspects of the alleged misappropriation. Pending trial, the learned Legal Advisor in charge of the case filed an application before the trial court as Crl.M.P.No.2287/2011 for withdrawal from prosecution under Section 321 Cr.P.C. The said application was opposed by the VACB. After hearing both sides, the learned trial Judge dismissed the application by order dated 7.12.2011. Instead of challenging the said order by way of revision, the 1st accused has come up before this Court under Section 482 Cr.P.C.

(2.) This application is also opposed by the VACB. The learned Special Public Prosecutor for the VACB submitted before me that the main ground on which the learned Legal Advisor sought withdrawal is that the evidence proposed by the prosecution is weak, and that there is no possibility of the witnesses supporting the prosecution. The learned counsel for the petitioner submitted that there is no prima facie material substantiating the allegations against the accused, and so, proceeding with the prosecution without materials would be an abuse of legal process.

(3.) On going through the entire materials and also on hearing both sides, I find that the application for withdrawal from prosecution was rightly rejected by the trial court. The allegation against the petitioner is under Section 13(1)(c) of the P.C.Act, that as part of a criminal design hatched by her and others, an amount of Rs. 1,50,000/- was dishonestly withdrawn from the funds of the Panchayat in the name of one Gopinatha Pillai. I do not think that this is simply a case based on oral evidence. There must definitely be documents including registers, and the Minutes Book of the Panchayat, showing the decision taken by the Panchayat Council, the amount sanctioned for the work proposed, the amount withdrawn, and also the person, who withdrew the amount, or in whose name the amount was withdrawn. These are all matters to be proved by documentary evidence. Of course, the prosecution may adduce oral evidence also. Whether the evidence is weak or not, or whether the witnesses would support the prosecution or not during trial, cannot at all be the concern of the Prosecutor. His business is only to present the case before the court as proposed by the prosecuting agency, and not to judge on the merits or demerits of the case. It is for the court to decide whether the evidence proposed and adduced by the prosecuting agency in court is acceptable or not. Simply on the ground that the witnesses may not support the prosecution, a prosecutor cannot be allowed to withdraw from prosecution under Section 321 Cr.P.C. Whether the documents are strong or acceptable to prove the alleged misappropriation, or whether the material witnesses will give oral evidence in support of the prosecution, are all matters to be examined during trial. It appears that the learned Legal Advisor was influenced by some external considerations when he made application for withdrawal from prosecution. He cannot judge a case, and he cannot have a pre-judgment whether the case would end in acquittal or conviction. It is for the court to examine the entire evidence and materials, and take decision on the merits of the case. Possibility of acquittal ultimately cannot at all be a reason to seek permission for withdrawal from prosecution under Section 321 Cr.P.C. I find that the application filed by the learned Legal Advisor before the court below was rightly dismissed. I do not find any merit in this application brought under Section 482 Cr.P.C.