STATE OF KERALA Vs. BATAKRISHNAN PILLAI

JUDGEMENT

(1.) THIS revision petition by the State of Kerala is directed against an order of the Special Judge (Idamalayar Investigations) Ernakulam, declining consent to withdraw from prosecution of sixth accused in C. C. No. 1 of 1991. Twentytwo persons were changed with offences punishable under Secs. l20-B, 161,409,420,430,301 and 201 read with Sec. 109 of the Indian Penal Code, and also under Sec. 5 (2) read with Sec. 5 (1) (c) & (d) of the Prevention of corruption Act. The allegation was that respondents, 1,2 and 5 to 13 entered into a conspiracy to award a contract to the remaining accused, with a view to benefit themselves and the contractors, causing loss to the State Exchequer. Accused No. 1 was the Minister for Electricity, A4 the Power Secretary, and A-2, a-5 and A-7 to A-13 other public servants, at the material time.

(2.) THE Public Prosecutor in charge of the case, moved crl. M. P. No. 79 of 1992 to withdraw from the prosecution against the sixth accused. THE Leader of Opposition in the Kerala Legislative Assembly, Shri. V. S. Achuthanandan sought impleadment in that petition, claiming an interest in the matter. THE court below neither allowed, nor refused impleadment. Yet, accepting the contentions of the non party, consent was refused. Shri. V. S. Achuthanandan filed Crl. M. P. No. 2449 of 1992 before this Court, seeking impleadment in these proceedings.

(3.) THE Public Prosecutor exercises a power in the nature of a prerogative. In Criminal Law, the State and its instrumentalities enjoy prerogatives, akin to crown prerogatives in England. THE power exercised by the public Prosecutor under Sec. 321 of the Code of Criminal Procedure is in the nature of such a prerogative. THE State may advise him in this regard, but he must exercise his mind independently, and he ought not to act under dictation. If he acts honestly, his act cannot be questioned. THE limited role of the court is only supervisory, and not adjudicatory or appellate in character.