Yerneni Raja Ramchander @ Rajababu Vs. State of A.P. & Ors.  INSC
1386 (4 August 2009)
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. ...
CRIMINAL APPEAL NOS. OF 2009 (Arising out of SLP (Crl) Nos. 5402-5404 of 2009)
These appeals involving common question of law and fact were taken
up for hearing together and are being disposed of by this common judgment.
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 3 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."
The basic fact of the matter is not in dispute.
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.
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 4 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.
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.
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.
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 5 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.
Section 321 of the Code of Criminal Procedure reads as under :
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:
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 6 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
The learned Additional Public Prosecutor, in his application,
stated as under :
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.
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 7 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 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
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."
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 8 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
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 :
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
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, 9 relied on a
number of decisions including Sheonandan Paswan (supra) to opine:
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.
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.
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.
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.
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.
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.
The Ethics Committee of the Legislature of the State of Andhra
Pradesh was empowered to deal with the disciplinary action or otherwise 11
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.
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.
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.
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 :
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.
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) 13 in Cr.No.18/2005
under Section 468, 471 and 420 read with 120-B of CID Police Station,
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].
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.
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 ],
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 :
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 15 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
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.
These appeals are dismissed.
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]