I. JAYALALITHA SELVI FORMER CHIEF MINISTER OF TAMIL NADU v. Sri A Navaneetha Krishnan

this stage, a petition was filed before the Hon’ble Supreme Court questioning the legality of proceedings in the earlier case, Spl.C.C.7/97. The apex court accepting the petiton filed before it, transferred Spl.C.C.7/97 as also the fresh case in Spl.C.C.2/O1 from the jurisdictional designated court at Chennai to be tried by a special court to be constituted in the State of Karnataka. In pursuance to the order of the Hon’ble Supreme Court, a special court is constituted in the State of Karnataka designating it as 36th Additional City Civil and Sessions Judge and Special Court for trial of the said case. 7 f) The states of Tamil Nadu and Karnataka though took steps to comply with the direction of the apex court, but it is seen there was sufficient loss of time. Ultimately, Spl. C.C. Nos.7/97 and 2/01 were re-registered by the transferee court in Bangalore, Karnataka, as SpI. C.C. No.208/04 and 209/04 respectively. g) It further noticed in about the year 2002, respondents 1 and 5 who were accused in SpI. C.C.7/97 and 2/01 filed an application seeking to club the cases on the plea the offences alleged were similar in both the cases and joint trial was essential. The application was not considered by the designated court at Chennai and it was pending consideration when cases were transferred to Karnataka and re-registered in the year

2004. h) It is not in dispute that the transferee court at Bangalore has issued fresh process to secure the presence the respondents and on their appearance, learned special judge of the designated court found pendency of 8 the application filed by them for clubbing the cases referred to above. He allowed the application and clubbed the cases. At this stage, the said respondents-accused filed an application for discharge in subsequently registered SpI. C.C.2/O1 which was re-numbered by the transferee court as Spi. C.C.209/04. It is made clear that the plea of discharge was sought only in the fresh case since charges had not yet been framed in it. That application had to be considered. I) At this juncture, parties who had petitioned to the Hon’ble Supreme Court transfer of the case from Chennai to Karnataka, again approached the apex court in S.L.P.3828/05 questioning the order passed by transferee designated court at Bangalore, clubbing the cases for trial. That petition was admitted and the apex court stayed further proceedings in both the cases referred to above, by its order dated 5.8.2005. Consequently, further proceedings in Spi. C.C.208/04 (arising out of SpI. C.C.7/97) and Spl. C.C.209/04 (arising out of Spl. C.C.2/O1) were stayed. 9 j) Sri B.V.Acharya, learned Special Prosecutor appointed by the State, on assuming charge noticed that already a period of four years had elapsed in the trial. On examining the nature of accusations in the charge sheet filed against the accused in Spl.C.C.208/04 and the charge the subsequently registered case, i.e. Spl.C.C.209/04, prosecution agency application through the investigating officer for further investigation as is permissible under sub-section (8) of Section 173, Cr.P.C. k) The new incumbent investigating officer having obtained the order of the court for further investigation, has investigated the case and found that the material collected earlier to filing of charge sheet in Spl.C.C.2/O1 (re-numbered as Spl.C.C.209/04) was based on the testimony of several witnesses out of whom some were not available to be produced for evidence during trial, and the others had shown open adverse animus, declining to support their earlier statements. In the circumstances, the 10 learned State Prosecutor has examined the earlier material compiled in the charge sheet in Spl.C.C.7/97 (re-numbered as Cpl.C.C.208/04) and the supplementary report filed by the Prosecutor. On such examination, he found that the material now compiled in the form of charge sheet consists mostly of ocular testimony and some documents collected which supported the charge. Therefore, in his wisdom, he thought of approaching the trial court to permit the State to withdraw prosecution of the accused-Smt.Jayalalitha and the 5th respondent (5th accused). Thus, he filed an application under Section 321, Cr.P.C. seeking permission to withdraw prosecution launched against respondents 1 and 5 in SpI. C.C.2/01 (re-numbered as Spi. C.C.209/04) and that application could not be pursued in view of the stay order granted by the apex court in SLP.3828/04 vide order dated 5 .8.2005. the designated court (Special Judge) I) In these circumstances, the learned SPP and the ‘State’ approached the apex court seeking permission to move the designated court to consider the said application. 1 1 The Hon’ble apex court by order dated 24.4.2009, accepted the request by its order which reads thus: ‘Heard learned parties. counsel it is submitted by the learned counsel for the State that the SPP would like to application to withdraw Spi. C.C.2/01 (re-numbered Spl .209/04) before Judge, Ban galore. the Additional Sessions We make it clear that the interim stay granted by this court on 5.8.2005 will not stand in the way of the additional sessions considering application. Crl.M.P. stands disposed of.’ Armed with the order, the SPP has approached the designated court with the application under Section 321, Cr.P.C. The application was contested but the accused namely, Jayalalitha (1st accused) and T.T.V.Dinakaran (5th accused) did not oppose it. Despite such fact situation, the learned trial judge by order dated 10.9.2009 impugned in this revision rejected it. m) Assailing it, this revision is filed. 12

5. During hearing of this petition, Sri A.Navaneetha Krishnan, learned counsel for the 1st respondent has raised the following objections regarding maintainability of this petition: i) ii) iii) iv) The petition is not maintainable as the ‘State’ is the 2id petitioner. The application seeking withdrawal from prosecution can moved by the Special Public Prosecutor and any order passed thereon could be challenged by him and not the ‘State.’ The scope of revision under Section 397, Cr.P.C. is very limited and unless it is pointed out that the impugned order suffers from legal infirmity, this court has no jurisdiction to examine facts. The doctrine of ‘malice’ should be taken note of in considering this petition as it is not the SPP who is in legal pursuit. It is virtually by the ‘State’ which has no competence to question the order passed on the application under Section 321, Cr.P.C. Proceedings before the trial court would show it is not the SPP who is venting his grievance. It is the ‘State’ and hence, the petition is liable to be rejected. 13 v) When the ‘State’ knew it has a weak case, it should not have put respondents 1 and 5 to unnecessary ordeal of court proceedings till now. Therefore, seeking withdrawal cannot be granted as it has generated sufficient cause of actin to them to proceed against the State for malicious prosecution.

6. Learned Spl.Public Prosecutor, Sri B.V.Acharya has countered all the contentions urged.

7. In supplementation to the respective contentions of the parties, I have examined the records.

8. Regarding the first contention that the power of revision under Section 397, Cr.P.C. is limited, there could be no two opinions. Certainly the power of revision conferred on the sessions court is not unfettered. But when the question is about failure of the trial court to exercise jurisdiction, revision under Section 397 is admissible. This court certainly has the power under Section 401, Cr.P.C. if not under Section 397, Cr.P.C., to exercise the power of revision. 14

9. The second contention that the petition is not maintainable because the ‘State’ is the petitioner, I am satisfied, has to be discounted for the simple reason, the 1St petitioner is the Spl.Public Prosecutor who is authorized to seek withdrawal of prosecution under Section 321, Cr.P.C. Merely because the ‘State’ is also arrayed as the 2nd petitioner, will not render the petition incompetent.

10. With this prelude to the preliminary objections, we shall now consider whether the application filed under Section 321, Cr.P.C. by the Spl. Public Prosecutor supported with sufficient material to permit withdrawal of prosecution in SpI. C.C.2/01 (re-numbered as Spl.209/04), and also as to whether the impugned order is a result of erroneous exercise of jurisdiction or non-exercise of jurisdiction, calling for interference.

11. The factual matrix indicates much earlier to 1997, there were serious allegations against the 1St respondent Jayalalitha, the then Chief Minister of Tamil Nadu having indulged in amassing wealth disproportionate to known 15 sources of income. The ‘State’ had initiated investigation through competent police officers who ultimately filed charge sheet against her for offences punishable under Sections 13(2) read with Section 13(1)(e) of the Act. was registered in Spi. C.C.7/97 and she along with other accused were put to trial. It

12. It is also not in dispute that during trial, recording of evidence of 259 witnesses was complete and about 2,000 documents are received in evidence. The trial had virtually reached the last lap of trial and the accused had to be questioned under Section 313, Cr.P.C. It is during this period further received information was investigating officer concerned regarding acquisition of several movable and immovable assets by the 1St respondent-Jayalalitha in London, a country abroad, using ill-gotten wealth and she was also accused of having indulged in contravention of the provisions of the Foreign Exchange Regulations and other economic offences. That information translated a report further investigation was taken up by the investigating agency. It 16 is not known why the investigating officer in his wisdom filed a separate fresh charge sheet which is registered in Spi. C.C.2/01 (re-numbered as Spl.209/04) instead of filing supplementary report.

13. application undoubtedly In the second case i.e., SpI.C.C. 209/04, before charges could be framed, accused had sought discharge. Therefore, considered by the designated judge under the provision of Section 239, Cr.P.C. It must be observed that the request made by respondents 1 and 5 is to discharge them on the plea there is no sufficient material to make out prima fade case to frame charges against them for the offences indicated above. In other words, accused themselves had sought for discharge, thereby seeking dropping of prosecution initiated against them in the second case i.e., Spl.C.C.2/01 (Spl. C.C 209/04). The learned SPP has examined this situation with reference to what transpired in Spl. C.C.7/97. 17

14. The learned SPP has mentioned in his application filed under Section 321, Cr.PC. that after filing fresh charge sheet in Spl. C.C. 2/01 (Spl.C.C.209/04), investigating officer had application seeking permission conduct further investigation which application was allowed the designated court on

22.7.2001. In pursuance to the permission so granted, one Sri S.Subramanian, IRS, working as Deputy Director in the Enforcement Directorate, embarked investigation to unearth illegal transfer of money abroad by respondents 1 and 5 (second report). He has carried out thorough investigation and it appears on the basis of his investigation, he found material available is not enough to put the accused to trial. Initially what was spoken to by witnesses became part the charge sheet in Spl. C.C.2/01, but during further investigation undertaken by the investigating officer, three of the main witnesses rescued from their earlier statements and did not support the prosecution. 18

15. From the report submitted by Sri Subramanian, IRS, it is noticed he has recorded in unequivocal terms that the witnesses on whose testimony prosecution was initiated had retracted from their statement and no worthy purpose would be served by subjecting them to evidence during trial. The learned SPP has referred to the report of Sri S.Subramanian, IRS, in which narration of facts reveals he had investigated the allegations against the 1st respondent Jayalalitha (1st accused case) and 5th respondent-T.T.V.Dinakaran (5th accused in the case) of having acquired immovable assets in London illegally transferring money from India to abroad. The offence is alleged committed during period

1.7.1991 to 30.4.1996. The first check period pertains to acquisition of assets in India while the second check period pertaining period from 30.4.1996 refers acquisition of properties abroad.

16. It is pertinent to note regarding acquisition of illegal assets from 1.7.1991, already charge in SpI. C.C.7/97 is filed and the accused have already faced trial. 19 filed. It is only acquisition of assets during the second check period from 30.4.1996, charge sheet in Spi. C.C.2/O1 was It must also be noticed that Sri S.Subramanian, IRS, is not the investigating officer who had filed the final report to register Spl. C.C.2/01. He is the new incumbent, i.e. successor-in-office. Having assumed charge he sought permission of the designated court to carry on further investigation (under section 173(8) Cr.P.C) and in terms of the order dated 22.7.2001, further investigation has been carried out. He, therefore, opined that filing of charge sheet was on insufficient material and there was no chance of success to the prosecution in establishing the charges against the accused.

17. Referring to this fact situation, the learned SPP enumerated the following grounds in the application under Section 321, Cr.P.C. to withdraw prosecution initiated against respondents 1 and 5 in Spi. C.C.2/01 (re-numbered as SpI. C.C.209/04): “* When the trial in the first case was in progress at Chennai, there was a change in Government in Tamil Nadu during May 2001. The Mr.Subburam 20 After the new government assumed office on 06-06-2001, a new investigation Officer by Additional Superintendent of Police took over further investigation in the second case on 22-07- 2001. new Investigation Officer, obtained permission from the Special Judge, Chennal under Section 173(8) Cr.P.C to conduct further investigation in the second case and such further investigation was conducted. During such further investigation, of Mr.Subramanaian (Dy.Director recorded and as already stated his rules out involvement of Al In the second case she is the only public servant involved and without her it is not possible to pursue the charge against the other accused who is not a public servant. in the second case. I.R.S) was statement statement * The investigation Officer examined some other witnesses, whose statements have further weakened the case of the prosecution. Thus in effect the further investigation conducted section 173(8) of the Cr.PC has weakened the case of prosecution to such an extent that it may not be worthwhile to pursue the second case. * In the second case there are as many as 9 witnesses who are residing abroad. The following is the list of these 9 witnesses, who from United Kingdom, Malaysia, Singapore and Australia.

1. Naynesh Desai, Sohcitor, No.97, Park street, London, United Kingdom; 21

2. Paresh Kotecha, street, Wey Bridge, Kingdom; 11-15, Surry, United

3. Malcharak Mario Jan, 71, Longclaft, Meadow, ASTLEY Village, Lanchashire, United Kingdom;

4. Rajoo S. Sb Sandiran, No.10, Jalan Taman, Ria Dkua Quyeritam, Post Code No.11500, Penang, Malaysia;

5. Ramachandran K. Sb Kakruppiah, No.37, Jalan taliti, Singapore — 537 334;

6. David Booker, Financial Investigator, Mutual Legal Assistant Unit, Serious Fraud office, 10-16, Elm Street, London, United Kingdom; Marklew,

7. Clyde Financial Investigator, Mutual assistant Unit, Fraud Office, 10-16, Elm Street, London, United Kingdom; Legal

8. Anantha Krishnan Dr.9, Marita Road, Medlands, State of Western Australia, Australia, J.A.,

9. Brown Agent- operation, Australian Police, P.O.Box NO.920, Spring hall, Brisbane 4004, Australia. Federal Federal It may not be possible to secure the presence of these witnesses and examine them. * Even though there is evidence regarding acquisition of property in London and its subsequent disposal, sources illegally acquired in India by a public Servant and the payment of consideration for the sale abroad, as according to the prosecution it will be difficult connection between case, the money available in India has been utilized for purchase of property abroad by adopting Hawala means. It is thus difficult to prove this aspect of the case. The evidence regarding Sri T.T.V Dinakaran, acquiring properties abroad, cannot be of much assistance unless it is shown that the source to acquire the property belonged to Al Selvi Jayalalitha, who alone is a public servant in the case.”

18. Sri B.V.Acharya, honestly 321, Cr.P.C., learned Special Prosecutor would contend, he had, by virtue of the power conferred by Section dispassionately examined the material on the basis of which prosecution wanted to put respondents 1 and 5 to trial, and in his opinion the material fell short of legal proof that is required to hold them guilty of the charges and thus sought withdrawal of the prosecution to save public time and money. He would contend none of the grounds urged in the application are considered by the trial court. The learned judge has misapplied the doctrine ‘justice must not only be done but seem to be done’ to reject the application. He asserted that the opinion is formed by him on an independent assessment of the entire material 23 without any suggestive act of the ‘State’. He, therefore, seeks to set aside the impugned order.

19. In negation of all contentions of Sri B.V.Acharya, learned SPP, is urged for and on behalf of the 1St the filing of respondent-Jayalalitha that counsel Learned instance the ‘State.’ the application may, at the first look, appear to be an honest attempt on the part of the Spl. Public Prosecutor, but actually it is at respondents 1 and 5 would submit filing of charge sheet during the pendency of the earlier trial itself is indicative of the fact the ‘State’ has been indulging in malice against a person of high esteem, and a constitutional functionary. He would submit that the accusation in the first charge sheet registered in Spl. C.C.7/97 (re-numbered as Spi. C.C.208/04) and the accusation in the second charge sheet are virtually the same. The material on the basis of which such accusation is sought to be proved is also similar. He submits respondents 1 and 5 are entitled to seek quashing of the charge sheet which fact the ‘State’ has realised. Therefore, granting them permission to 24 withdraw from the prosecution would not be legally permissible. It would amount to colourable and mala fide exercise by the ‘State’ which is being shielded through the application filed under Section 321, Cr.P.C. However, learned counsel was highly appreciative of the wisdom of the learned Spl.Public Prosecutor, Sri B.V.Acharya, seeking withdrawal from prosecution.

20. As regards 5th respondent is concerned, he would submit he has been unnecessarily dragged into litigation as an accomplice of the 1st respondent. The accusation itself is untenable. The material collected is virtually no material to arraign him as accused. He is not a public servant to be put to trial along with the 1st accused.

21. Learned counsel for respondents 1 and 5 has gained citational support his contentions relying on the decisions in the case of YERNENI RAJA RAMACHANDRA .v. STATE OF ANDHRA PRADESH (2009 AIR SCW 6526) and also in the case of SHEONANDAN PASWAN .v. STATE OF BIHAR ([1987] 1 SCC 288). In the former 25 decision, the apex court taking note of the fact that the State had issued a direction to the district magistrate to instruct the public prosecutor to withdraw the prosecution initiated against one of the sitting members of legislative assembly on the basis of certain developments before the Ethics Committee of the Legislature, had disapproved the State action not only in approaching the trial court for withdrawal of the prosecution, but also in pursuing the matter in revision before the High Court and in seeking special leave before the Apex Court. Learned counsel for the respondents would submit what is ‘public interest’ has been defined by the apex court in the said judgment and it applies to the facts of this case also.

22. Relying decision SHEONANDAN PASWAN [supra], they would contend that the request under Section 321 CrPC when filed needs to be examined not only from the point of view of public interest but in the circumstances under which it is filed. They would contend the apex court has disapproved the prosecution being permitted to withdraw the charge under 26 Section 321 CrPC at the instance of the State and the action of the state against adverse order under Section 397 CrPC. According to him, the right course of action for the investigating officer was to have, in all fairness, filed a supplementary report after obtaining permission for further investigation under Section 173(8) CrPC before the court of first instance i.e. the court which had taken the cognizance.

23. Learned counsel would also rely on a portion of the 41st Law Commission of India report, wherein it was observed as under: to the Magistrate The relief under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought police officer can collect that evidence and send it It appears, however that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section concerned. 27 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused. On the basis of above observation of the Law Commission, it is urged the right course for the investigating officer was to have submitted his finding on the further investigation to the court of instance and not to the public prosecutor to enable him to file an application under Section 321 Cr.P.C.

24. The contentions of both sides have received my serious concern.

25. In the first instance, is necessary to refer to the provision of Section 321 which reads thus:

321. Withdrawal from prosecution :- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is and, upon such withdrawal, - the judgment tried; 28 (a) (b) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence - (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or (iii) involved destruction of, property Government, or the misappropriation or damage to, the Central belonging (iv) was committed by a person in the service of the Central Government while acting or purporting to act discharge of his official duty, appointed and the Prosecutor in charge of the case has Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before Prosecutor to produce before it the permission granted by withdraw from the prosecution. the Central Government accorqing consent, direct 29 From the phraseology of the provision, it admits of no the public prosecutor or assistant public prosecutor ‘incharge of the case’ who may, with the consent of the court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of one or more offences for which he is being tried. The ‘State’ has no role to play. The investigating officer has also no role to play. Neither the State nor the investigating officer can seek withdrawal from prosecution of any person either generally or respect of any one or more offences for which he is tried. The power to withdraw from prosecution of any person is conferred only on the public prosecutor or assistant public prosecutor, as the case may be, and in this case the Special Public Prosecutor.

26. What is permissible under Section 321, Cr.P.C. is no longer in doubt. As held in the case of SHEONANDAN PASWA (supra), the apex court has spelled out powers of the public prosecutor. He cannot, at 30 instance of the ‘State’ or ‘State’ investigating officer seek withdrawal withdrawal of prosecution. Though he is the prosecutor for conduct of the case, he is primarily the officer of the court. He is not bound by any recommendations or suggestions or directions prosecution. The apex court has also spelled out that though such power is conferred on the public prosecutor, yet is not bound to act merely on his request. The court shall assess as to whether prima fade case is made out or not. If the court is satisfied that the relief is grantable, it may do so and not otherwise. In the said decision, the apex court has referred to its earlier decision in the case of RA3ENDRA KUMAR JAIN v. STATE (AIR 1980 SC 1510).

27. Great emphasis is laid by the apex court to bring home the point that it is the public prosecutor and none else who could make such request. The public prosecutor cannot to withdraw from prosecution to anyone else, nor can he seek such withdrawal on the basis of a request by the investigating surrender discretion 31 officer or the ‘State.’ He can withdraw prosecution not only on the ground of paucity of evidence but other relevant factors as well. The aim is to ensure it is done to further the broad ends of public justice, public order and tranquility.

28. The observation of the apex court in the case of withdraw prosecutor SHEONAN DAN PASWAN is relevant. It reads as follows: ‘A bare perusal of Section 321 shows that it does not prescribe any ground nor does it put any embargo or fetter on the power of the public prosecuting a particular criminal case pending in any court. All that it requires is that he can do so only with the consent of the court, where the case is pending. The function of the court in this respect is a limited one and intended only to prevent the abuse. The function of the court is according its consent to withdraw is, however, judicial function. It, therefore, becomes necessary for the court before whom the application for withdrawal is filed by the public prosecutor to apply the mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as a matter of course but has applied its mind to the grounds taken in the application for withdrawal by public prosecutor.’

29. From the observation of the apex court, it is noticed while describing the power of the public prosecutor, caution 32 is also held against abuse of such power. Caution is not against its use, but its misuse or abuse. The ‘consent’ of the court referred to in the section is to safeguard against such improper exercise. The court would undoubtedly examine the material to consider the request of prosecution. At the same time the court is bound to examine whether the application is at the instance of the State, politically motivated or guided with malice, or is partisan to sub-serve any individual interest. If it is so, then legitimately permission has to be declined. The normal rule is to consider ‘grant of sanction’ and not to embark upon the exercise of examining the merits of the case. Marshalling of the case is a harbinger for assessment as to whether such facts, if proved, would establish the charge. But when the Spl.Public Prosecutor urges grounds referring to the material on record that such material will not stand the test of legal scrutiny as proof for sustaining charge, then whatever may the nature accusation, the court would not decline the request but 33 would allow the request to withdraw from prosecution in the ends of justice.

30. What surfaces from the legal proposition is, there should be an objective assessment of the entire material compiled in the form of charge sheet on which the charge is sought to be proved. The Spl.Public Prosecutor is thus required to objectively assess the material for opinion as to whether it is sufficient to prove the charge or will be short of making out a prima facie case. The ground of paucity of evidence is one such ground on which prosecution could be withdrawn. Subsequent events like non-availability of witnesses or death of witnesses on whose testimony basically the charge is raised can be considered as grounds justifying withdrawal of prosecution.

31. Keeping in mind these aspects, when we examine the report submitted by the investigating officer, evident he has submitted the second report based on further investigation carried out after seeking permission of the court in which the First Information Report was 34 registered. In the instant case, the Spi. Public Prosecutor referred to the material on record compiled in the charge in Spi. C.C.2/O1 which, in his opinion, was not sufficient to put the 1st respondent-Jayalalitha to face trial. Extracts of the report of the investigating officer have been made one of the grounds to show the material which it was earlier thought would translate into legal evidence to sustain the charge, had been virtually diluted by the witnesses on whose testimony charges were investigated.

32. I have referred to all grounds urged by the learned Spl. Public Prosecutor in support of the application in paragraph 16 supra. It needs no repetition. It suffices to record that further investigation undertaken by the new incumbent investigating officer with the permission of the court, he has examined Sri S.Subramanian, IRS, Deputy Director of Enforcement Directorate, who has testified that no material was available against the 1st respondent Jayalalitha (1st accused in the case) to indict her. Besides, she As the only public servant involved and it was not It 35 possible to prove the charge against the 5th respondent (5th accused in the case). His report also testifies that the further statement of witnesses has totally weakened the prosecution case. is immaterial whether they have tendered such statement at the instance of the accused. What matters is, they have shown adverse animus to the prosecution and thus their evidence before court would the have been a futile exercise. It is further noticed, out of the total number of witnesses cited in the charge sheet, 9 of them are residing abroad in countries like United Kingdom, Malaysia, Singapore and Australia. witnesses indicates prosecution was not sure of securing their presence during accusation of immovable property in London and its subsequent disposal was difficult The list of Further trial. to prove. the investigation report Further, shows it was difficult to prove the nexus between the alleged illegally acquired wealth in India and acquisition of property in London as was initially alleged.

33. Applying the provision of Section 321, Cr.P.C., may be said that all those grounds were tenable to seek 36 withdrawal from prosecution of respondents 1 and 5. That is exactly what the Spl. Public Prosecutor has done.

34. When these aspects were canvassed before the learned special judge seeking withdrawal of prosecution, he has rejected the application citing the following reasons, found at paragraphs 18, 19 and 20: office

18. Herein, the instant case on hand, among the reasons mentioned for grant of consent for withdrawal, the main reason is, when the trial in the 1st case was in progress at Chennai, there was a change in the government Th Tamil Nadu during May, 2001. After government assumed the 6.6.2001, a new Investigating Officer by name Subburam, AddI. Superintendent of Police took over further investigation in the 2nd case on 22.7.2001. After obtaining permission Spi. Judge, Chennai under Sec. 173 (8) of Cr. P. C., further investigation. During further investigation, statements of witnesses and they have weaken the case of the prosecution. The photo copies of the statements of the witnesses viz., CWs 45, 11, 6, 19, 3, 5, 4, 23, witnesses have been filed along with the memo on 27.8.2009. I have perused the statements witnesses. ConsIdering the dates mentioned below the statements of the said witnesses, 26, 24 and other recorded from the conducted 46, 37 further the 2’’ charge-sheet Investigating they show that recorded the said statements Officer during the months of July to October, 2001. It could be seen from the records filed on 23.3.2001 in the same Cr.No. 2 (AC) it could be seen from 2000 HQ. Further, the records that the proceedings of the Director, Vigilance and Anti Corruption, in Cr. No. 2/AC/2000 HQ (RC Chennal 97/2000/ PUB/HQ) held on 8.6.2001 with regard to issuance of authorization under Sec. 18 of the Prevention of Corruption Act for further investigation to the said Subburam, Police, Vigilance and Anti Corruption. Then the above said further Investigating Officer took permission of the court of Judge, 12.6.2001. Superintendent Chennal Add!. Spi. Pr!. Because, evidence, is well established Public !aw that principles Prosecutor may withdraw from the prosecution not merely on the ground of paucity relevant grounds as well further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and political purposes. in order

20. Here, in the instant case on hand, the facts and circumstances view of discussed above, I am of the opinion that Such no public interest being the case, even the 2’ reason that some of the witnesses are in abroad and it may not be possible to secure their is involved. 38 a from abroad and examine presence reason. them, is one of the principles of Beca use, justice administration of justice that, should not only be done, but it should be In view of the seen [sic] to be done. facts and circumstances, as discussed above, reasons shown in the present application are not the valid reasons to give consent to withdraw from the prosecution. the opinion that I am of

35. I am persuaded to accept the contention of Sri the charge. learned SpI. Public Prosecutor, B.V.Acharya, learned special judge of the designated court has erred in the principal grounds urged in failing to consider application that there was paucity of evidence to establish In the impugned order, there is no reference on which the prosecutor had sought to the material discharge. The learned judge has expressed no opinion as to whether the grounds urged by the SPP were the result of his individual assessment or not, nor there is any opinion expressed by the learned judge that the grounds urged in the application were against the material on record. The it may only ground on which the application is rejected is, not serve any worthy purpose. The learned judge has 39 virtually substituted his opinion to that of the prosecutor on the worth of the material on record.

36. It is further noticed the learned designated judge has failed to notice respondents 1 and 5 (accused nos.1 and 5 in the case) had themselves sought for discharge on the main ground of insufficiency of incriminating material. Therefore, their objections for grant of such permission was contrary to the stand taken. The accused had virtually put a volte face when such application was moved which in fact would have been an answer to the relief sought by them seeking discharge. It further noticed that respondents 1 and 5 had also made a statement manifest from the records that they had consented and granted no objection to withdrawal of the charge. The only ground urged by them was, the charge in both the cases shall be withdrawn and not in the subsequent case. Such ground was certainly not enough to reject the application filed by the prosecution under Section 321, Cr.P.C. 40

37. The circumstances in which prosecution could be withdrawn and by whom, and what is the role of the court are spelled out in the case of RAJENDRA KUMAR JAIN .v. STATE (AIR 1980 SC 1510) at paragraph 13. “13. Thus, from the precedents of this Court; we gather

1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.

2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.

3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

4. The Government may suggest to the Public Prosecutor he may withdraw from the prosecution but none can compel him to do so.

5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, 41 economic and, we add, political purposes Sans Tammany Hall enterprise.

6. The Public Prosecutor is an officer of the Court and responsible to the Court.

7. The Court performs a supervisory function in granting its consent to the withdrawal.

8. The Court’s duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a agent, uninfluenced irrelevant extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.

1.3-A. We may add, it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of reasons which prompt the Public Prosecutor withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect administration criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S. 321 Criminal 42 Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. We have referred to the precedents of this 14. Court where it has been said that paucity of evidence is not the only ground on which the Public In Prosecutor may withdraw from the prosecution. the past we have often known how expedient and is in the public interest for the Public necessary it Prosecutor to withdraw from prosecutions arising regional out of mass agitations, communal riots, industrial conflicts, student unrest etc. disputes, Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. An elected to the Government, feelings and emotions of the people, will be amply justified atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides responsive sensitive creating purpose 43 not to prosecute the offenders involved or not to already proceed prosecutions further In such matters who launched. Government, can and should decide in the first instance, whether it should be baneful or beneficial Government decides that it would be in the public interest to withdraw from prosecutions, how is the Government to go about this task ?“ prosecutions. continue launch If

38. Applying the case laws on the subject and taking consideration totality circumstances of this case, I am satisfied the learned special judge of the designated court has failed to exercise the jurisdiction conferred on it for grant of ‘consent’ for withdrawal from prosecution as sought by the learned Spl.Public Prosecutor through his application under Section 321, Cr.P.C. Thus, the order impugned dated 1O9.2OO9 in Spi. C.C.2/O1 (re-registered as Spl. C.C/209/04) passed on I.A.260 is unsustainable.

39. For reasons discussed above, I pass following order: 44 The petition allowed

10.9.2009, made in Special Case No. C.C. No 208 of 2004, rejecting the application [IA-260] filed by the learned Special Public Prosecutor under Section 321, Cr.P.C is hereby set aside. The said application is hereby allowed. Prosecution launched against the first respondents in Special CC No 2 of 2001 [renumbered as Special CC No 209 of 2004], on the file of the XXXVI Additional City Civil Judge and Special Court, Bangalore shall stand withdrawn. The trial court shall proceed independently with the trial in Special CC No 7 of 1997 [re numbered as Special CC No 208 of 2004], on the file of same court. The fifth respondent, who has been arrayed as fifth respondent in the said case, shall be deleted. Proceedings in the said case is subject to the order of the Apex Court that may be passed in the pending SLP No 3828 of 2005. Registry is directed to send a copy of the operative portion of this order to the trial court and furnish copies of 45 the same to the learned Special Public Prosecutor and the contesting respondents 1 and 5 herein. vg h *