REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.                       OF 2009 (Arising out of SLP (Crl.) Nos.4478-4479 of 2009)

Sri Yerneni Raja Ramchander @ Rajababu … Apellants

Versus

State of A.P. & Ors. … Respondent

WITH

CRIMINAL APPEAL NOS.                                 OF 2009 (Arising out of SLP (Crl) Nos.   5402-5404 of 2009)

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. These appeals involving common question of law and fact were taken  

up for hearing together and are being disposed of by this common judgment.

3. Appellants  are  before  us  aggrieved  by  and  dissatisfied  with  a  

judgment and order dated 20.4.2009 passed by a Division Bench of the High  

Court of Judicature of Andhra Pradesh at Hyderabad dismissing their writ  

petitions; the prayer made wherein reads as under:

“… to issue an appropriate writ, order or direction,  more  particularly,  one  in  the  nature  of  Writ  of  Mandamus declaring the action of the Respondents  in  trying to  protect  the  4th Respondent,  who has  misappropriated  the  public  funds  to  the  tune  of  Rs.4,14,566/-  by  fabricated  documents  and  cheating  from being  prosecuted  for  the  offences  committed under Section 420,  463,  468 and 471  read  with  Section  120B  of  IPC,  by  issuing  consecutive G.Os., i.e.,  G.O. Rt.  No.1617, Home  (Legal.II)  Department,  dt.3.11.2007  and  G.O.  Rt.No.407,  Home  (Legal.II)  Department,  dt.  5.3.208 and tampering with the course of justice by  getting filed consecutive petitions to withdraw the  prosecution and interdicting the due process of law  by invoking the  power  conferred on them under  Section 321 of the Criminal Procedure Code, 1973  as  illegal,  unjust,  arbitrary,  discriminatory,  capricious,  irrational  whimsical  and  unconstitutional,  apart  from  contrary  to  the  doctrine of Rule of Law and a blatant attack on the  criminal justice system of this country and is the  result  of  favoritism  and  based  on  collateral  extraneous,  political  and  partisan  considerations  and violative of Article 14 of the Constitution of  India, after declaring Section 321 of the Criminal  Procedure Code, 1973 as violative of Article 14 of  the onstitution of India and also violative of Rule  of Law and contrary to the Doctrine of Separation  of  Powers  and  has  the  effect  of  scuttling  the  judicial process by enabling the State Executive to  

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interfere  with  the  adjudicative  process  and  a  constitutional anachronism and colonial legislation  which is not in conformity with the Constitution of  India  and  consequentially  set  aside  G.O.  Rt.  No.407,  Home  (Legal.II)  Department  dated  5.3.2008 and pass such other order or orders as are  deemed fit and proper in the circumstances of the  case.”

4. The basic fact of the matter is not in dispute.  

The  appellant  was  a  member  of  the  Legislative  Assembly  from  

Kaikalur Assembly Constituency in Krishna District (Andhra Pradesh). In  

the year 1998, he underwent a heart operation.  It is alleged that in the year  

2000, he along with one Sri Veera Swamy, who is said to be an employee of  

the  Medical  Hosptal,  Secretariat  Hyderabad,  fabricated  bogus  hospital  

records.   Claiming  that  he  underwent  Cardiac  Surgery  in  the  Medicity  

Hospital, medical reimbursement for a sum of Rs.2,89,489 was submitted to  

the  Government  which  was  sanctioned  vide  G.O.  Rt.No.569  dated  

10.5.2002.

Again  on  21.03.2002  he  claimed  reimbursement  of  an  amount  of  

Rs.1,33,939.80  towards  medical  expenses  stating  that  his  wife  had  

undergone Angiogram operation at  the Medical  Hospital.   An amount of  

Rs.60,000/- was sanctioned vide G.O. Rt.No.833 dated 18.7.2002

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Yet again on 3.7.2002,  the  appellant  claimed reimbursement  of  an  

amount of Rs.1,22,825.80/- stating that he was hospitalized at the Medicity  

Hospital during the month of April 2002 on account of generalized Scissors  

Disorder CAD and Hypertension under emergency circumstances.  Again an  

amount  of  Rs.60,000/-  was  sanctioned  vide  G.O.Rt.  No.1339  dated  

21.11.2002.

5. On or about 18/19.8.2005, Respondent Nos.3 and 4 herein levelled  

charges of misappropriation against the appellant on the premise that he had  

obtained a huge amount on the basis of false and fabricated medical bills.

6. The  appellant  being  a  Member  of  the  Legislative  Assembly,  the  

matter was referred to the Ethics Committee.  Before the Ethics Committee,  

the  appellant,  inter  alia,  contended that  he has  withdrawn the  amount  in  

question, relying on or on the basis of the documents produced before him  

by  his  Personal  Assistant.   He  tendered  an  apology  before  the  Ethics  

Committee.  He refunded a sum of Rs.60,000/- to the Government.

7. The Ethics Committee accepted the said apology and having regard to  

the  fact  that  the  said  amount  had  been  refunded,  recommended  for  

withdrawal of the criminal case pending against the appellant.  Pursuant to  

the said recommendations, the State Government issued the aforementioned  

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GO  directing  the  District  Collector  to  direct  the  Public  Prosecutor  to  

withdraw  the  case.   Thereafter  only,  the  Public  Prosecutor  filed  the  

aforementioned  application  under  Section  321  of  the  Code  of  Criminal  

Procedure before the learned Trial Judge for withdrawal of the case.  We  

may, however, place that an earlier attempt was made to the same effect but  

the application for withdrawal of the prosecution was dismissed.

8. Section 321 of the Code of Criminal Procedure reads as under :

“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  the  judgment  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 tried; and upon such  withdrawal,-

(a) If  it  is  made  before  a  charge  has  been  framed, the accused shall be discharged in  respect of such offence or offences;

(b) 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  

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Police  Establishment  Act,  1946  (25  of  1946), or

(iii) involved the misappropriation or destruction  of, or damage to, any property belonging to  the Central Government, or

(iv) was committed by a person in the service of  the  Central  Government  while  acting  or  purporting  to  act  in  the  discharge  of  hi  s  official duty,

and the prosecutor  in charge of  the case has not  been  appointed  by  the  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  according  consent,  direct  the Prosecutor to produce before it the permission  granted  by  the  Central  Government  to  withdraw  from the prosecution.”

9. The learned Additional Public Prosecutor, in his application, stated as  

under :

“3. That the petition filed by the Addl.  Public  Prosecutor  under  Section  321  Cr.P.C.  for  withdrawal  of  case  was  not  accepted  by  this  Hon’ble Court vide Judgemnt dated 7.11.2007 as  well  as  the  Hon’ble  High  Court  vide  judgment  dated 13.12.2007, obviously for not assigning the  reasons thereof.

Subsequently, on reconsideration of the facts and  circumstances the Government is pleased to issue  G.O.Rt.  No.407  dated  5.3.2008  requesting  the  Additional  Public  Prosecutor  to  file  the  Petition  under  Section 321 Cr.P.C.   The petitioner,  upon  

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going through the entire  material  on record,  oral  and  documentary  evidence  adduced  before  this  Hon’ble  Court,  as  well  as  the  Report  and  Recommendations of the Ethics Committee and on  re-appraisal of facts independently, unhindered or  uninfluenced  by  the  dictate  of  the  Executive  Authorities,  it  is  felt  that  it  is  a  fit  case  for  withdrawal.  It is observed in the GO Rt.No.407,  the  Government  has  accepted  the  Pardon  of  the  Accused No.1 and thereby pardoned the acts of the  Accused.”

10. The learned VI Additional Chief Metropolitan Magistrate, Hyderabad  

in her order dated 17.3.2008 refused to grant sanction for withdrawal of the  

case as the Court was not satisfied that any case for passing such order has  

been made out on the basis of the material  placed before it.   It  was also  

stated :

“In  the present  case also  there  is  no satisfactory  material  placed before the  court  to withdraw the  prosecution against A1 and A2.  Moreover when  once  orders  passed  by  the  court  on  the  same  subject  matter,  for  the  same relief,  filing similar  petition for the same relief is not maintainable.”

11. Both the State as also the appellant filed Criminal Revision Petitions  

before the High Court of Andhra Pradesh thereagainst.  During the pendency  

of the above Criminal Revision Petitions, Respondent Nos.3 and 4 filed a  

writ  petition  as  stated  hereinbefore.   The  High  Court  by  way  of  the  

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impugned judgment,  allowed the writ  petition filed by Respondent  Nos.3  

and 4 and dismissed the Criminal Revision Petitions filed by the State as  

also the appellant.

12. Mr. R. Sundaravaradhan, learned senior counsel appearing on behalf  

of  the  State  of  Andhra  Pradesh  and  Mr.  Rama  Krishna  Reddy,  learned  

counsel appearing on behalf of the Appellant, urged :

(1) The High Court committed a serious error in passing the impugned  

judgment insofar as it entered into the merit of the matter which is  

impermissible in law having regard to the decision of this Court in  

Vijaykumar Baldev Mishra @ Sharma v. State of Maharashtra [(2007)  

12 SCC 687]

(2) In  view  of  the  Constitution  Bench  decision  of  this  Court  in  

Sheonandan Paswan v. State of Bihar & Ors. [(1987) 1 SCC 288], the  

High Court  ought to have held that  the  action taken by the Public  

Prosecutor being an independent one, the scope of judicial review was  

limited.   

13. The State of Andhra Pradesh passed an executive order contained in  

G.O.  No.407  requesting  the  District  Collector  to  instruct  the  Public  

Prosecutor to withdraw the prosecution.  The High Court, in its judgment,  

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relied on a number of decisions including  Sheonandan Paswan (supra) to  

opine:

(i) The Public Prosecutor could not have filed an application for  

withdrawal of the prosecution case relying on or on the basis of  

the impugned Government Order.

(ii) The  recommendations  of  the  Ethics  Committee  of  the  

Legislative Assembly and its report dated 7.10.2007 could not  

have formed the basis for filing the application for withdrawal  

by the learned Public Prosecutor.

(iii) The records of the case show that the mandatory requirements  

of independent examination of the matter were merely by way  

of  lip service as he had acted only upon the said Government  

Order.  

(iv) No material  was placed before the Court to indicate that  the  

Personal Assistant of the appellant was solely responsible for  

the  alleged misappropriation.    The petitioner  being the  sole  

beneficiary of the alleged misappropriated amount, the learned  

Trial Judge was correct in refusing to grant sanction.

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(v) The  fact  that  all  earlier  applications  filed  by  the  appellants  

herein had been dismissed by the High Court and it having been  

monitoring over the investigation and having directed the Trial  

Court to conclude the trial within three months, the action of  

the  Government  in  issuing  the  impugned Government  Order  

amounted to interference with the judicial process.

14. In view of the decision of this Court in Sheonandan Paswan (supra),  

the High Court’s power of judicial review is limited.  We may, however, at  

the outset, notice that in that case, the learned Trial Court was satisfied that  

the application for withdrawal filed by the Public Prosecutor was not based  

on  his  own  independent  application  of  mind.   The  scope  of  limited  

jurisdiction on the part of the High Court was stated in the aforementioned  

situation.   In the instant case, the learned trial court also rejected the said  

prayer made on the part of the learned Public Prosecutor. The High Court,  

therefore, could interfere therewith only if an error of law was found to have  

been committed.  Furthermore,  an earlier  attempt made on the part  of the  

learned Public Prosecutor failed to yield any result.

15. The  Ethics  Committee  of  the  Legislature  of  the  State  of  Andhra  

Pradesh was empowered to deal with the disciplinary action or otherwise  

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which may be taken against the Members of the Legislative Assembly.  A  

criminal  case  against  a  Member  of  the  Legislative  Assembly,  ordinarily,  

should be allowed to be continued on its own merit, particularly, in the light  

of the facts of the present  matter  wherein the High Court had refused to  

interfere  at  the  earlier  stages  of  the  proceedings.   We have  also  noticed  

hereinbefore that the High Court, in fact, had not only been monitoring the  

investigation, but also directed the learned Trial Judge to complete the trial  

within a period of three months. The action on the part of the State to issue  

the said G.O. despite the earlier orders of the High Court must be considered  

keeping in view the said factual matrix.  

16. It is on the aforementioned premise, we may notice the GO No.407  

dated 5.3.2008 issued by the State of Andhra Pradesh.  The GO mentions  

representation of Y. Raja Ramchandar, MLA dated 12.10.2007, report of the  

Ethics  Committee  of  12th Legislative  Assembly,  GO Rt.  No.1617,  Home  

(Legal.II)  Department  dated  3.11.2007,  Government  Memo  

No.812/Legal.II/A1/2008 dated 23.1.2008 from the Addl. DGP, CID, AP,  

Hyderabad Lr.C.  No.3106/C16/2005 dated 28.1.2008, Government  Memo  

No.812/Legal.II/A1/2008  dated  26.2.2008  and  from the  Additional  DGP,  

CID, AP, Hyderabad, Lr.C. No.3106/C16/2005 dated 1.2.2008.

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Despite  noticing  that  earlier  attempts  on  the  part  of  the  State  to  

withdraw the prosecution resulted in futility, the Government proceeded to  

examine the matter carefully purported to be on the ground specified therein.  

Grounds A and B referred to the report of the Ethics Committee and the fact  

that  the  Members  of  Legislative  Assembly  had tendered  apology for  the  

misconduct of his Personal Assistant.  The GO was issued even according to  

the State in terms of the recommendations made by the Ethics Committee  

alone.  It was stated :

“4. Accordingly, Sri Y. Raja Ramchandar, MLA  (A1)  has  submitted  his  written  apology  to  the  Committee  and  remitted  to  the  Government  an  amount  of  Rs.60,000/-  (Rupees  Sixty  Thousand  only)  vide  Cghallan  1234,  dated  3.10.2007,  towards medical reimbursement claim which was  wrongly obtained for the angioplasty operation of  his wife, and the Committee further recommended  to the case against Sri Y. Raja Ramchandar, MLA.

5. Now,  the  Government  after  careful  examination of the representation of Sri Y.  Raja  Ramchandar,  MLA  (A1)  Kaikaluru,  and  also  taking  into  consideration  of  the  report  of  the  Ethics  Committee,  have  decided  to  accept  the  recommendations  of  the  Ethics  Committee,  and  accordingly,  decided to withdraw prosecution against Sri  Y.  Raja  Ramchander,  MLA,  Kaikaluru  in  Cr.No.18/2005 under Section 468, 471 and  420 read with 120-B of CID Police Station,  Hyderabad and also decided to withdraw the  prosecution against Sri J. Veeraswamy (A2)  

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in  Cr.No.18/2005  under  Section  468,  471  and  420  read  with  120-B  of  CID  Police  Station, Hyderabad.”

17. The  Ethics  Committee  had  no  jurisdiction  to  make  such  

recommendations.  If the State had acted on the basis of recommendations  

made by a body who had no role to play, its action would be vitiated in law,  

Recommendations of the Ethics Committee being unauthorized, the action  

of the State would attract the doctrine of malice in law.  [(See The Manager,  

Govt.  Branch Press & Anr. v.  D.B. Belliappa [AIR 1979 SC 429];  M.P.  

State  Co-operative  Dairy  Federation  Ltd.  &  Anr. v.  Rajnesh  Kumar  

Jamindar & Ors. [2009 (6) SCALE 17]; and Swaran Singh Chand v. Punjab  

State Electricity Board & Ors. [2009 (7) SCALE 622].

18. Even otherwise, the action on the part of the State, in our opinion,  

suffers from malice on fact as well.  The State is the protector of law.  When  

it deals with a public fund, it must act in terms of the procedure established  

by law.  In respect of public fund, the doctrine of public trust would also be  

applicable so far as the State and its officers are concerned. It could not save  

and except very strong and cogent reasons have issued the said G.O. despite  

the orders of the High  Court.  

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19. The State was not acting in public interest but in private interest.  The  

State has shown unusual interest in the appellant which is not expected of an  

executive which believes in good governance.  It is really a matter of great  

surprise that the State independently filed a revision application before the  

High Court.  It did not stop at that.  It has also filed a Special Leave Petition  

before us against the judgment of the High Court.  This Court has times  

without  number  noticed  the  unusual  interest  shown  and  unusual  orders  

passed by the State Governments to protect its own ministers and Members  

of Legislative Assembly.  We may in this regard notice  Epru Sadhakar &  

Anr. v.  Govt. of AP & Ors. [(2006) 8 SCC 161] and  M.P. Special Police  

Establishment  v. State of M.P.,[ (2004) 8 SCC 788 ],  

20. We,  therefore,  are  of  the  opinion  that  the  impugned  judgment  is  

unassailable.  However, there cannot be any doubt whatsoever that the High  

Court  committed  an  error  in  entering  into  the  merit  of  the  matter.   In  

Vijaykumar Baldev Mishra (supra), this Court held :

“17. While  refusing  to  grant  permission,  the  Designated Court, in our opinion, was not correct  in  expressing  its  opinion  on  the  merits  of  the  matter and the effect of confessions made in terms  of the provisions of TADA.  It was, however, also  not necessary to consider as to whether the action  

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of the Public Prosecutor as also the State was bona  fide or not.  Moreover, bona fide on the part of the  Public Prosecutor itself cannot automatically lead  to grant of consent.  There are other circumstances  also  which  are  required  to  be  taken  into  consideration.”

21. In view of the aforementioned decision of this Court, it is directed that  

the learned Magistrate shall proceed to deal with the matter independently  

and without in any way being influenced by any observations or findings  

made therein as if they do not exist.   

22. These appeals are dismissed.

23. We, however, in the peculiar facts and circumstances of this case, also  

direct that the State shall pay a sum of Rs.1,00,000/- to the Andhra Pradesh  

State Legal Services Authority within four weeks from date.

.……………………….J. [S.B. Sinha]

……………………..…J.     [Deepak Verma]

New Delhi; August 4, 2009

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