STATE OF GUJARAT Vs. SAROJBEN V MEHTA

JUDGEMENT

(1.) The Revision Application by the State is directed against the order of learned Special Judge, Nadiad, refusing consent to withdrawal of prosecution under the Prevention of Corruption Act. The ground for withdraw of prosecution stated in the application is reasons of the State. The learned Sessions Judge has rejected that application on two grounds, namely, (1) that the offence being under the Central Act, the executive power of the Union extends to the subject- matter of prosecution and, therefore, it cannot be withdrawn at the instance of the State agency; and (ii) there is no reason disclosed which would enable the court to accord its sanction.

(2.) Section 321, Criminal Procedure Cod e provides for the withdrawal from prosecution and it provides that a Public Prosecutor in: charge of the case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any personTT. It is further provided that where such offence was against any law relating to a matter to which the executive power of the Union extends, permission of the Central Government to withdraw from the prosecution is necessary. Since the offence in the present case is under the Prevention of Corruption Act which is a Central Act, the learned Special Judge has held that the subject-matter of the Act is such to which the executive power of the Union extends, and, therefore, the prosecution could not be withdrawn by the State agency.

(3.) Article 73 of the Constitution reads as under (1) Subject to the provisions of this constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement; Provided that the executive power REFERRED to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend to any State to matters with respect to which the legislature of the State has also power to moke laws. It is thus clear that the matters with respect to which Parliament has power to make laws, executive power of the Union extends. However, the provision makes a departure in cases where the State has also concurrent powers to make laws. The effect of the proviso is that the executive power in regard to matters in the Concurrent list shall be ordinarily left to the States except where expressly otherwise provided in the Constitution or in any law made by the Parliament. The Prevention of Corruption Act is a criminal and penal law covered by Entry 1 of the Concurrent List. In view of the proviso to Article 73 read with Entry 1 of the Concurrent List, it is clear that it is the executive power of the State which extends to matters relating to Prevention of Corruption Act, especially in view of the fact that the accused is a public servant appointed and removable by the State authority and the prosecution is also with the sanction of the competent State authority and the executive power of the Union does not extend to appoint the accused, to remove the accused from service or to sanction the prosecution of the accused or to withdraw from such prosecution. Therefore the order of the learned Special Judge refusing consent on that ground that the application for withdrawal not having been made with the permission of the Central Government, cannot be sustained and has to be quashed.