G.s.r.krishnamurthy 2.Indira 3.G.adiseshagiri Rao v. The Income Tax Officer, Film Circle-I, Chennai-34

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.11 of 2008 1.G.S.R.Krishnamurthy2.Indira3.G.Adiseshagiri Rao... Petitioners/Accused 1 - 3 vs. 1. The Income Tax Officer, Film Circle-I, Chennai-34. 2.Shri A.K.V.Vignani3.Shri A.K.V.Sivagnai4.Shri A.K.V.Kalaignani... Respondents/Compalainantsrespondents 2 to 4 impleaded as per the order of this Court dated 22.4.2009 in M.P.No.2/09 Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 27.9.2007, passed by the Additional Chief MetropolitanMagistrate,(E.O.I), in Crl.M.P.No.3367 of 2006 in E.O.C.C.No.302 of1984. For Petitioners : Mr.V.Krishnamurthy for Mr.P.Rameshkumar Challenging and impugning the order order dated 27.9.2007,passed by the Additional Chief Metropolitan Magistrate,(E.O.I), inCrl.M.P.No.3367 of 2006 in E.O.C.C.No.302 of 1984, this criminalrevision case is focussed. 2. Compendiously and concisely the relevant facts, which areabsolutely necessary and germane for the disposal of this criminalrevision case would run thus: The Income Tax Department filed a complaint against thehttps://hcservices.ecourts.gov.in/hcservices/accused, before the Additional Chief Judicial Magistrate, E.O.I, who took it on file as E.O.C.C.No.302 of 1984, for the offenceunder Sections 120B read with Sections 193, 196, 420, 109, 34 and37 of the Indian Penal Code, and Sections 276C(1), 277 and 278 ofthe Income Tax Act, 1961. This case is having a chequered carrierof its own and suffice to say that earlier this Court had occasionto pass order on June 30, 1991 in Crl.M.P.No.3158 of 1994; whenthe trial was in progress, the learned Public Prosecutor filed theM.P.No.3367 of 2006 in E.O.C.C.No.302 of 1984 under Section 321 ofCr.P.C.read with 279(2) of the Income Tax Act, 1961 seeking consentto withdraw the prosecution as against A1 to A3. After hearing allthe parties concerned, the learned Magistrate passed the orderdismissing the said petition; the operative portion of which isextracted hereunder for ready reference. "12. In view of the above findings that IPC offencesunder Sections 120B and 420 are still on record forprosecution and no permission has been granted by theCentral Government to the Special Public Prosecutor towithdraw the entire case including the IPC offences againstA1 to A3, the present petition to withdraw the case againstA1 to A3 is not maintainable and the same is liable to bedismissed." 3. Being aggrieved by and dis-satisfied with the order of thelower Court, the accused 1 to 3 have filed this revision on variousgrounds, the pith and marrow of them would run thus: The lower Court should have given its consent under Section321 of Cr.P.C. for withdrawal of the prosecution as against A1 toA3 by allowing the M.P. filed by the Public Prosecutor, who has beeappointed by the Central Government. The fact also remains thatthe income tax authority concerned compounded the offences relatingto A1 to A3 and hence, the Magistrate's order is illegal andaccordingly, suitable orders might be passed. 4. Heard the learned counsel for the parties. 5. The point for consideration is as to whether there is anyperversity or non-application of mind on the part of the Magistratein appreciating and applying the correct provisions of law whiledismissing the Crl.M.P.No.3317 of 2006. The lower Court should have given its consent under Section321 of Cr.P.C. for withdrawal of the prosecution as against A1 toA3 by allowing the M.P. filed by the Public Prosecutor, who has beeappointed by the Central Government. The fact also remains thatthe income tax authority concerned compounded the offences relatingto A1 to A3 and hence, the Magistrate's order is illegal andaccordingly, suitable orders might be passed. 4. Heard the learned counsel for the parties. 5. The point for consideration is as to whether there is anyperversity or non-application of mind on the part of the Magistratein appreciating and applying the correct provisions of law whiledismissing the Crl.M.P.No.3317 of 2006. 6. The learned counsel for the revision petitioner/A1 to A3 byinviting the attention of this Court to Section 321 of Cr.P.C.would develop his argument to the effect that in this case,Mr.K.Ramaswamy, the learned Senior Public Prosecutor was appointedby the Central Government and in such a case, the question of theCourt expecting any permission to be obtained by such PublicProsecutor and producing the same before the Court did not arise;the learned Magistrate mis-directed himself as though the learnedPublic Prosecutor was duty bound to produce before the Court thepermission, which he obtained from the authorities concerned; theother accused persons in this case had no locus standi to objecthttps://hcservices.ecourts.gov.in/hcservices/that the Court should not give consent for withdrawal from prosecution the offences as against A1 to A3. Accordingly, heprayed for setting aside the order passed in Crl.M.P.No.3367 of2006 and for passing suitable orders. 7. The learned Senior Public Prosecutor for R1would set forthand put forth his argument to the effect that he clearly arguedbefore the learned Magistrate concerned that he was for withdrawingfrom prosecution all the offences, so to say, the Income Taxoffences as well as IPC offences as against A1 to A3 in view of thecompounding effected between the income Tax authority and A1 to A3,as revealed by the proceedings of the Chief Commissioner of IncomeTax-I, Hyderabad, dated 11.5.2006. 8. Whereas, the learned counsel for the other accused arguedin support of his contention before the lower Court that nopermission to withdraw the case as against A1 to A3 could begranted by the Court and that A1 to A3 have compounded the offencesunder Income Tax Act only and not the offences under the IndianPenal Code. 9. At this juncture, I would like to extract hereunder Section321 of Cr.P.C: "321.Withdrawal from prosecution – The Public Prosecutor orAssistant Public Prosecutor in charge of a case may, withthe consent of the Court, at any time before the judgementis pronounced, withdraw from the prosecution of any personeither generally or in respect of any one or more of theoffences for which he is tried; and, upon such withdrawal,- (a) if it is made before a charge has ben framed, theaccused shall be discharged in respect of such offence oroffences; (b) if it is made after a charge has been framed, orwhen under this Code no charge is required, he shall beacquitted in respect of such offence or offences:Provided that where such offence- (i) was against any law relating to a matter to whichthe executive power of the union extends, or (ii) was investigated by the Delhi Special PoliceEstablishment under the Delhi Special Police EstablishmentAct, 1946(25 of 1946), or (iii) involved the misappropriation or destruction of,or damage to, any property belonging to the CentralGovernment, or (iv) was committed by a person in the service of theCentral Government while acting or purporting to act in thedischarge of his official duty, (b) if it is made after a charge has been framed, orwhen under this Code no charge is required, he shall beacquitted in respect of such offence or offences:Provided that where such offence- (i) was against any law relating to a matter to whichthe executive power of the union extends, or (ii) was investigated by the Delhi Special PoliceEstablishment under the Delhi Special Police EstablishmentAct, 1946(25 of 1946), or (iii) involved the misappropriation or destruction of,or damage to, any property belonging to the CentralGovernment, or (iv) was committed by a person in the service of theCentral Government while acting or purporting to act in thedischarge of his official duty, and the Prosecutor in charge of the case has not beenappointed by the Central Government, he shall not, unless hehas been permitted by the Central Government to do so, movethe Court for its consent to withdraw from the prosecutionhttps://hcservices.ecourts.gov.in/hcservices/and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by theCentralGovernmenttowithdrawfromtheprosecution."(emphasis supplied)10. There is a subtle distinction between the PublicProsecutor appointed by the Central Government and the PublicProsecutor, who has not been appointed by the Central Government.Here,indubitablyandindisputably,unassailablyandincontrovertibly Thiru K.Ramaswamy, the Senior Public Prosecutorhas been appointed by the Central Government. Hence, in such acase, the question of obtaining permission by him from the CentralGovernment does not arise at all. This important fact has not beennoted by the lower Court, which went to the extent of wronglyassuming and presuming as though the Public Prosecutor should haveobtained or should obtain proper permission from the authorityconcerned. To say the least, the Magistrate mis-directed himselfin analysing the matter. 11. The petition filed by the Public Prosecutor is a brief onecontaining a few averments, which are extracted hereunder for readyreference:- "The complainant most respectfully submits that theChief Commissioner of Income-tax has passed orderscompounding the offences alleged in the above complaintagainst the accused-1, accused-2 and accused-3. The saidorder passed on the petition for compounding filed by theaccused 1 to 3 is submitted before this Hon'ble Court. The complainant submits that in view of the above orderpassed under Section 279(2) of the Income-tax Act, 1961, itis most respectfully prayed that this Hobn'ble Court may bepleased to grant consent to the complainant to withdraw fromprosecution against the accused 1 to 3 and pass such furtheror other orders as this Hon'ble Court may deem fit andnecessary under the circumstances of the above case and thusrender justice."(emphasis supplied) 12. In the second paragraph of the petition, in the last but4[th] line, he simply stated as follows, 'to withdraw from prosecutionagainst the accused-1 to 3' without specifying the offence oroffences. However, Section 321 Cr.P.C. clearly contemplates that aPublic Prosecutor has got the power to apply for getting consent towithdraw from prosecution of any person either generally or inrespect of any one or more of the offences for which he is tried. 13. No doubt, the Magistrate observed in the course of theproceedings that the learned Senior Public Prosecutor was forgetting consent for withdrawing all the offences including the IPCoffences in respect of A1 to A3. 14. To the risk of repetition without being tautalogous, Iwould observe that the learned Senior Public Prosecutor could havehttps://hcservices.ecourts.gov.in/hcservices/specified the offences also in his petition. 13. No doubt, the Magistrate observed in the course of theproceedings that the learned Senior Public Prosecutor was forgetting consent for withdrawing all the offences including the IPCoffences in respect of A1 to A3. 14. To the risk of repetition without being tautalogous, Iwould observe that the learned Senior Public Prosecutor could havehttps://hcservices.ecourts.gov.in/hcservices/specified the offences also in his petition. 15. The contention of the learned counsel for the otheraccused, in my opinion, should not have weighed much in the mind ofthe Magistrate, as at this stage, the other accused persons had nolocus standi to object by stating that the Court should not grantconsent to the Public Prosecutor for withdrawing it. 16. The learned counsel for the petitioners citedappropriately and correctly the decision of the Honourable SupremeCourt reported in AIR 1987 SUPREME COURT 877-SHEO NANDAN PASWANV.STATE OF BIHAR AND OTHERS; certain excerpts from it would runthus: "44. I respectfully agree with the legal positionflowing from Section 321 of the Code of Criminal Procedureas explained by Krishna Iyer and Chinnappa Reddy, JJ. inrespect of cases relating to Bansi Lal and Fernandes inRajender Kumar Jain v. State[515]. In that case ChinnappaReddy, J. has summarised the true legal position thus: (SCCp. 445, paras 14 & 15) “(1)Under the scheme of the Code prosecution of an offenderfor a serious offence is primarily the responsibility of theexecutive. (2) The withdrawal from the prosecution is an executivefunction of the Public Prosecutor. (3) The discretion to withdraw from the prosecution is thatof the Public Prosecutor and none else, and so, he cannotsurrender that discretion to someone else. (4) The Government may suggest to the Public Prosecutor thathe may withdraw from the prosecution but none can compel himto do so. (5) The Public Prosecutor may withdraw from the prosecutionnot merely on the ground of paucity of evidence but on otherrelevant grounds as well in order to further the broad ends ofpublic justice, public order and peace. The broad ends ofpublic justice will certainly include appropriate social,economic and, we add, political purposes sans Tammary Hallenterprises. (6) The Public Prosecutor is an officer of the court andresponsible to the court. (7)The court performs a supervisory function in granting itsconsent to the withdrawal. (8) The court’s duty is not to reappreciate the groundswhich led the Public Prosecutor to request withdrawal from theprosecution but to consider whether the Public Prosecutorapplied his mind as a free agent, uninfluenced by irrelevantand extraneous considerations. The court has a special duty inthis regard as it is the ultimate repository of legislativeconfidence in granting or withholding its consent tohttps://hcservices.ecourts.gov.in/hcservices/withdrawal from the prosecution. We may add it shall be the duty of the Public Prosecutor toinform the court and it shall be the duty of the court toapprise itself of the reasons which prompt the PublicProsecutor to withdraw from the prosecution. The court has aresponsibility and a stake in the administration of criminaljustice and so has the Public Prosecutor, its ‘Minister ofJustice’. Both have a duty to protect the administration ofcriminal justice against possible abuse or misuse by theexecutive by resort to the provisions of Section 321, CriminalProcedure Code. The independence of the judiciary requiresthat once the case has travelled to the court, the court andits officers alone must have control over the case and decidewhat is to be done in each case.” We may add it shall be the duty of the Public Prosecutor toinform the court and it shall be the duty of the court toapprise itself of the reasons which prompt the PublicProsecutor to withdraw from the prosecution. The court has aresponsibility and a stake in the administration of criminaljustice and so has the Public Prosecutor, its ‘Minister ofJustice’. Both have a duty to protect the administration ofcriminal justice against possible abuse or misuse by theexecutive by resort to the provisions of Section 321, CriminalProcedure Code. The independence of the judiciary requiresthat once the case has travelled to the court, the court andits officers alone must have control over the case and decidewhat is to be done in each case.” 45. In the circumstances of this case I find it difficult tosay that the Public Prosecutor had not applied his mind tothe case or had conducted himself in an improper way. If inthe light of the material before him the Public Prosecutorhas taken the view that there was no prospect of securing aconviction of the accused it cannot be said that his view isan unreasonable one. We should bear in mind the nature ofthe role of a Public Prosecutor. He is not a persecutor. Heis the representative not of an ordinary party to acontroversy, but of sovereignty whose obligation to governimpartially is as compelling as its obligation to govern atall, and whose interest, therefore, in a criminalprosecution is not that it shall win a case, but thatjustice shall be done. As such he is in a peculiar and verydefinite sense the servant of the land the twofold aim ofwhich is that guilt shall not escape or innocent suffer. Hemay prosecute with earnest vigour and indeed, he should doso. But while he may strike hard blows, he is not at libertyto strike foul ones. It is as much his duty to refrain fromimproper methods calculated to produce a wrongful convictionas it is to use every legitimate one to bring about a justone. (See Berger v. United States[17]). It is a privilege ofan accused that he should be prosecuted by a PublicProsecutor in all cases involving heinous charges wheneverthe State undertakes prosecution. The judgment of a PublicProsecutor under Section 321 of the Code of CriminalProcedure, 1973 cannot be lightly interfered with unless thecourt comes to the conclusion that he has not applied hismind or that his decision is not bona fide." 17. A bare perusal of the above excerpt, including the wholejudgement, would demonstrate and exemplify that whenever anapplication is filed by the Public Prosecutor appointed by theCentral Government, the duty of the Court is not to ask the PublicProsecutor, as it has been wrongly done in this case by the lowerCourt Magistrate, to produce the permission or authority from whomhe got such instructions for withdrawal. 18. On the other hand, it is the bounden duty of theMagistrate to apply his mind as to whether such a prayer forgetting consent from the Court for withdrawal; is genuine oractuated by extraneous considerations and that is the sum andsubstance of the judgment of the Honourable Apex Court. But inthis case, the learned Magistrate has not at all applied his mindin proper perspective. But, on the other hand, he wrongly assumedcertain procedures as the ones governing the adjudication of thepetition seeking consent for withdrawal and accordingly misdirectedhimself and dismissed the application, warranting interference bythis Court in the revision. 19. The learned counsel for the revision petitioners evenentreat and implore, pray and appeal that this Court itself being arevisional Court can very well set aside the order of the lowerCourt and allow the Crl.M.P. 19. The learned counsel for the revision petitioners evenentreat and implore, pray and appeal that this Court itself being arevisional Court can very well set aside the order of the lowerCourt and allow the Crl.M.P. 20. I would like to disagree with such a view expressed bythe learned counsel for the petitioner because here it is not anerror committed by the Magistrate, but the Magistrate totally notdealt with the petition by exercising his discretion in the waycontemplated as per law and as per the cited judgement. Once thereis total non-exercise of discretion on the proper line by theMagistrate and that resulted in the dismissal of the petition, itis not for the revisional Court to consider for the first time theprayer in the petition and pass orders either by dismissing thepetition or allowing the same. Wherefore, I would like to setaside the order of the lower Court and remit the matter back to theMagistrate for disposal as per law, more specifically ascontemplated in the decision of the Honourable Apex Court, afterhearing both sides. Since this is a very old matter, theMagistrate is directed to dispose of the case within a period ofthree weeks from the date of receipt of copy of this order andreport compliance. The criminal revision case is ordered accordingly. /true copy/ Msk Sub Asst.Registrar To 1. The Additional Chief Metropolitan Magistrate,(E.O.I), Chennai.2. The Income-Tax Officer, Film Circle-I, Chennai - 34.2. The Income-Tax Officer, Film Circle-I, Chennai - 34. 3. The Section Officer, Criminal Section, High Court, Madras. 4. The Public Prosecutor, High Court. Crl.R.C.No.11 of 2008 PKB(CO)RVL 21.07.2009