J. S. Verma, J. - (1.) THE challenge in this appeal by special leave is to the legality of the order dated 3rd February, 1993 passed by Chetur Shankaran Nair, J. of the Kerala High Court allowing Criminal Revision No. 762 of 1992 filed by the State of Kerala and setting aside the order dated 16th October, 1992 passed by the Special Judge, Idamalayar, in Criminal M.P. No. 79 of 1992 in C.C. 1 of 1991 declining to give consent to the Public Prosecutor to withdraw the prosecution against the sixth accused G. Gopalakrishnan Pillai, former Secretary, Irrigation and Power to the Government of Kerala.
(2.) THE material facts may now be briefly stated. Idamalayar Dam as a part of the Idamalayar Project was sanctioned by the Planning Commission and huge expenditure in its construction was incurred upto March, 1985. However, in the trial run itself on 15.7.1985 a number of leaks were discovered in the tunnel exposing the inferior quality of construction work which was a matter of grave public concern giving rise to ventilation of that concern through the press and even in the State Legislative Assembly. THEre was public outcry of a judicial probe into the matter. Extensive repair at considerable cost had to be undertaken to remedy the defects. THE Public Undertaking Committee of the State Legislature inspected the site on 2.8.1985 and submitted its report recommending a judicial probe. THE State Government then appointed Justice K. Sukumaran, a sitting Judge of the Kerala High Court as the Commission of Inquiry to conduct the probe. THE Commission of Inquiry recorded considerable evidence and submitted its report in June, 1988. THE Commission found accused No. 1 R. Balakrishna Pillai (former Minister for Electricity, Kerala), accused No. 2- G. Ganesa Pillai (former Chairman, Kerala State Electricity Board) and accused No. 6G. Gopalakrishna Pillai (former Secretary, Irrigation and Power) liable for positive acts of abuse of power. THE Commission also came to the conclusion that the material placed before it disclosed the commission of certain offences punishable under Indian Penal Code as well as under Section 5 of the Prevention of Corruption Act. THE Commission after indicting the above persons recommended further steps for investigation into, and trial of these offences. THE State Government accepted the recommendations of the Commission and constituted a special team headed by a Superintendent of Police for investigating into the crime after obtaining sanction for prosecution from the Governor of Kerala. A report was filed on 14.12.1990 against accused persons for offences punishable under various provisions of the Indian Penal Code and the Prevention of Corruption Act. This case is CC No. 1 of 1991 in the Court of Special Judge appointed for the trial of these accused. During the pendency of the trial before the Special Judge, an application for withdrawal of the prosecution only against accused No. 6-G. Gopalakrishna Pillai was made by the Special Public Prosecutor on 24th August, 1992 under Section 321, Cr. P.C., which was registered as Crl. M. P. No. 79 of 1992 in CC No. 1 of 1991. The material portion of the application is as under : "On going through the investigation papers minutely it will appear that successful prosecution of that accused (A-6) cannot be launched, for there are no materials to substantiate the charge of conspiracy or for the other offences. In the circumstances I am of opinion that the trial against Shri Gopalakrishna Pillai will be unnecessary. The State also is of opinion that prosecution of (A-6) may not be sustainable. It is therefore requested that by virtue of provisions contained in Section 321 of the Crl. P.C., necessary consent may be granted to withdraw the prosecution against the 6th accused Shri Gopalakrishna Pillai and the said accused may be discharged." It is clear that the only ground on which consent of the Court was sought by the Special Public Prosecutor to withdraw the prosecution against accused No. 6-G. Gopalakrishna Pillai was that "there are no materials to substantiate the charge of conspiracy or for the other offences." In other words, the only ground was of total absence of any material evidence against accused No. 6. As earlier stated the learned Special Judge rejected this application and declined to give his consent by his order dated 16th October, 1992.
(3.) THE learned Special Judge considered at length the only aforesaid ground on which consent for withdrawal of prosecution was sought, in paras 14 to 18 of his order, material portions of which read as under : "14. THE general allegations against all the accused are stated at the beginning of this order. THE very foundation of the prosecution case is that the accused entered into a criminal conspiracy to award the disputed contracts involving heavy financial implications to the 4th accused and this conspiracy and abuse of power of the officials who include the 6th accused, enabled their co-conspirators to obtain a pecuniary advantage of Rs. 2,39,64,253/- in addition, to the heavy financial loss caused to the Board. Now, the reason for withdrawal of the prosecution against the 6th accused as could be seen from the memo filed by the learned prosecutor, is paucity of evidence. But, one has to bear in mind that criminal conspiracy being an offence committed in secrecy, direct evidence may not always be available. Understandably, the prosecution is therefore relying on certain circumstances, which according to the prosecution, will speak for itself. THE award of the contracts to the 4th accused at exorbitantly high rates (upto 188% over and above the PAC rate) is one such circumstance. Admittedly, the disputed contracts were awarded to the 4th accused on 19.11.1982 by the Board consisting accused Nos.6 to 11. It would appear that the issue relating to the award of the two disputed contracts was placed before the Board meeting held on 17.11.1982. According to the prosecution, the Board which met on 17.11.1982 postponed the meeting to such a nearer dale with the ulterior motive of excluding all tenders other than the 4th accused. THE 4th accused alone attended the Board meeting on 19.11.1982 and consequently the contracts were awarded to him. THE impossibility of other tenderers to attend the meeting on 19.11.1982, the failure of the Board to issue proper notice to the tenderers to attend the meeting on 19.11.1982, the hastiness shown by the Board members in fixing such a nearer date are all highlighted by the prosecution to substantiate the mala fides of the members of the Board. To prove its case in this regard, the prosecution finds support from the evidence of no less a person than the Chief Engineer of the Board at relevant time, (CW 9 in the charge sheet). Going by the charge- sheet, the accused Nos.6 to 11 who attended the Board meeting on 17.11.1982 and 19.11.1982 are all similarly placed in sharing the criminal liability. It is not brought to the notice of the court as to how the 6th accused alone.could be treated differently. THE learned prosecutor has no case that the move to withdraw the prosecution against the 6th accused is founded on any materials which came to light after the filing of the charge. THE unusual manner in which the Board agreed to all the special conditions in the tenders resulting in heavy financial burden on the Board is another circumstance relied on by the prosecution to prove the conspiracy. THE sanctioning of the special conditions misusing the official position of the 6th accused and others as public servants is sought to be proved by various documents, besides the oral evidence of a number of witnesses. It is again not brought to my notice as to how the 6th accused stands on a different footing in regard to these material allegations. Paucity of evidence cannot therefore be taken as a ground to withdraw the prosecution against one among them. At any rate, it cannot be said that there was a proper application of mind in seeking withdrawal of the prosecution against one among the officials. THE alleged attempts made by the 6th accused along with others to cause disappearance of evidence appears to be one of the most important circumstances, relied on by the prosecution to prove the involvement of 6th accused in the conspiracy. Though the cracks in the concrete lining of the power tunnel were noticed even before the trial run, it is that the officials concerned tried to project everything as normal. By his report dated 31.7.1985, the 6th accused as Power Secretary is alleged to have misled the Minister concerned, the Legislative Assembly and the public at large in regard to the cause of leakage in the power tunnel. THE Member Vigilance and Security, an I.P.S. Officer (CW 22) is reported to have pointed out the cracks in the tunnel, defective method of construction and unauthorised diversion of cement in his report dated 23.7.1985 and 1.8.1985. He recommended further enquiries on these aspects. It is alleged that the 6th accused did all what is possible to suppress the reports by the Member Vigilance and Security and tried to legitimate everything. One another important allegation against the 6th accused is that he even tried to scuttle the judicial enquiry ordered by the Government. In the face of these serious allegations against the 6th accused, I am not persuaded to hold that the learned prosecutor applied his mind as a free agent uninfluenced by irrelevant and extraneous considerations. No doubt, it is too premature to say whether or not the materials collected by the prosecution, are sufficient to prove the involvement of this accused in the alleged conspiracy. Whether the circumstances relied on by the prosecution are incompatible with innocence of the accused is also a matter for the court to decide. Before assessment of the prosecution evidence, one cannot jump into the conclusion that of the 6th accused is an exercise in futility. Of course, finding support from the observations of the Supreme Court in Sheo Nandan Paswan's case, AIR 1987 SC 877, the learned Public Prosecutor argued with vehemence that the judgment of a Public Prosecutor under Section 321, Cr. P.C, cannot be lightly interfered with. But the settled decision of law, which I have already discussed, makes clear that the court has a duty to oversee whether the Public Prosecutor has properly exercised his power under Section 321, Cr. P.C. Having regard to the entire facts and circumstances of this case, it is not possible to hold that the Public Prosecutor has properly exercised his discretion or that there are justifiable or convincing reasons to deflect from the normal course of justice. Thus on a careful and anxious consideration of the materials available before court, I do not think that the learned Public Prosecutor has properly exercised the executive power vested in him under Section 321, Cr. P.C, or that he has applied his mind objectively uninfluenced by extraneous considerations in seeking the permission of the Court to withdraw the 6th accused from prosecution. I, therefore, decline to give consent to withdraw the prosecution against the 6th accused. THE result is that the petition is dismissed." (Emphasis supplied) There cannot be any doubt that the test applied by the learned Special Judge for deciding whether to grant consent for withdrawal of the prosecution under Section 321. Cr. P.C, was correct and his reading of the decision of this Court for that purpose was also correct. Rejection of the application of the Special Public Prosecutor and refusal to give consent for withdrawal of the prosecution was on the view taken that the learned Special Public Prosecutor had not applied his mind to the material in support of the prosecution as a free agent uninfluenced by irrelevant and extraneous considerations. In short the conclusion reached by the learned Special Judge was that the decision of the Special Public Prosecutor to invoke Section 321, Cr. P.C, was not a bona fide decision reached on proper application of mind to the material relied on by the prosecution to support the charge against accused No. 6G. Gopalakrishna Pillai. According to the decisions of this Court including Sheo Nandan Paswan v. State of Bihar, 1987 (1) SCR 702 on which reliance was placed by the learned Special Judge, this was the correct test and a ground available to the learned Special Judge to decline consent for withdrawal of the prosecution under Section 321. Cr. P.C.;