NEELAM MADHUSUDHAN RAO Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The decision of the Government of Andhra Pradesh in according permission for withdrawal of prosecution in Crime No.1 of 1997 of Police Station, Draksharamam registered against Thota Trimurthulu, MLA and instructing the Public Prosecutor attached to the Court concerned for filing a fresh petition under Section 321 of the Criminal Procedure Code, 1973 is challenged in this writ petition. The petitioners pray for issuance of an appropriate writ particularly one in the nature of Mandamus declaring the said action of the respondent-Government as illegal, arbitrary and violative of principles of natural justice. The petitioners also pray for setting aside the said decision of the Government in G.O. Rt. No. 1796 Home (Policc.F) Department, dated 22-8-1998.

(2.) The Inspector of Police, Ramachandrapuram has registered a case in Crime No. 1 of 1997 under Sections 342, 324, 506 read with 34 IPC and Section 3(iii) and (x) of the Scheduled Castes and Scheduled Tribes ( Prevention and Detention) Act, 1989 against one Thota Trimurthulu, MLA, Ramachandrapuram and nine others. The Sub-Divisional Police Officer, Ramachandrapuram having investigated the case filed charge-sheet against the said accused in the Court of the learned 1st Additional District and Sessions Judge (Special Court), Rajahmundry, East Godavari District. However, the said case is stated to have been transferred to be tried by the Metropolitan Sessions Judge, Visakhapatnam. The case is still pending trial. The details of the allegations levelled against the accused and the details including the twists and turns the case appears to have undergone need not be noticed.

(3.) In this writ petition, the petitioners state that the respondent herein had taken decision in mechanical manner proposing to withdraw prosecution against the said Thota Trimurthulu, MLA basing on the recommendations of Justice K.S. Puthuswamy, Commission enquiry. It is the case of the petitioners that the respondent-Government could not have decided to withdraw the prosecution even while the Sessions case is pending trial. According to the petitioner, the Sessions Court has to decide the matter depending upon the evidence. The decision of the Government, according to the petitioners, is illegal, arbitrary and violative of principles of natural justice. It would be appropriate to have a look at the impugned order: "Government after careful consideration of the representation second cited, hereby accord permission for withdrawal of prosecution in Crime No. 1/97 of P.S. Draksharamam against Sri Thota Trimurthulu, MLA, Ramachandrapuram, East Godavari District, consequent on the acceptance of the recommendations of Sri Justice K.S. Puthuswamy (Retd.) Commission of Inquiry. The District Collector, East Godavari District is requested to instruct the Public Prosecutor attached, to the Court concerned for filing a fresh petition under Section 321 of Criminal Procedure Code, 1973 (Central Act No.2 of 1974) for withdrawal of prosecution in the above case. A copy of the instructions so issued may be sent to the Government for favour of information. (By order and in the name of the Governor of Andhra Pradesh) V.P.B. NAIR, Principal Secretary to Government."The impugned order would disclose that the Government accorded permission for withdrawal of prosecution in Crime No. 1 of 1997 on the file of Police Station, Draksharamam and the District Collector has been requested to instruct the Public Prosecutor concerned for filing petition under Section 321 of the Criminal Procedure Code, 1973 for withdrawal of prosecution against Thota Trimurthulu, MLA. Obviously the proposal to withdraw the prosecution is only as against one accused and not the entire case. The impugned order itself is of no consequence, inasmuch as the required application under Section 321 of the Code can only be filed by the concerned Public Prosecutor. The impugned order in no manner whatsoever effects the pending prosecution on the file of the learned Sessions Judge. The initiative always rests with the Public Prosecutor concerned and it is for the Public Prosecutor concerned to decide as to whether an application under Section 321 Cr.PC may be filed proposing to withdraw from the prosecution and thereafter it is for the Court of competent jurisdiction to decide as to whether consent should be given to withdraw from the prosecution.