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The Public Prosecutor, High Court of Andhra Pradesh Vs. Paga Pulla Reddy and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1977CriLJ2013
AppellantThe Public Prosecutor, High Court of Andhra Pradesh
RespondentPaga Pulla Reddy and anr.
Excerpt:
.....to base a conviction solely on expert opinion without substantial corroboration. this type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. 15. on a careful examination of the entire record we are satisfied that the chargesheet in the case was filed against the accused on wrong premises, and that the complainant suppressed from the investigating authorities the partition list dated 31-5-1971. we are clearly of the view that in the state of the evidence available for the prosecution, there is no reasonable possibility of the accused being convicted of any of the charges framed against him. the assistant police prosecuting officer is perfectly justified in seeking permission to withdraw from the..........inexpedient, in so far as there is no reasonable prospect of the case ending in a conviction. the learned magistrate refused consent on two grounds first, that the a.p.p.o. is not competent to file an application for withdrawal, and the second is, that there is a possibility of the accused being convicted in the case. against this order of the magistrate refusing consent for the withdrawal, the state has preferred the instant revision, which came up for hearing before our learned brother, ramachandra raju, j. the main contention raised on behalf of the de-facto complainant before the learned judge was that the revision is not maintainable, in so far as the impugned order of the magistrate is merely an interlocutory order, and revision by the high court of interlocutory orders passed by.....
Judgment:

Madhusudan Rao, J.

1. The Assistant Police Prosecuting Officer, Alampur filed an application Under Section 321 Cr. P. C. in the court of the Judicial First Class Magistrate, Alampur requesting the consent of the court for his withdrawal from the prosecution of the sole accused in C. C. No. 18/1972 on the file of that court. The application was filed on the ground that the case was instituted on false premises and that the prosecution of the accused is inexpedient, in so far as there is no reasonable prospect of the case ending in a conviction. The learned Magistrate refused consent on two grounds first, that the A.P.P.O. is not competent to file an application for withdrawal, and the second is, that there is a possibility of the accused being convicted in the case. Against this order of the Magistrate refusing consent for the withdrawal, the State has preferred the instant revision, which came up for hearing before our learned brother, Ramachandra Raju, J. The main contention raised on behalf of the de-facto complainant before the learned Judge was that the revision is not maintainable, in so far as the impugned order of the Magistrate is merely an interlocutory order, and revision by the High Court of interlocutory orders passed by the lower courts is barred by Section 397(2) Cr. P. C. Sri R. Ramalinga Reddy, the learned Counsel for the de-facto complainant, who argued the matter before our learned brother relied on two decisions of this Court and contended that no revision lies against an order in a criminal case unless when the order finally disposed of the Criminal Case. The cases relied are : Thakur V. Hariprasad v. State of Andhra Pradesh 1976 2 APLJ 51 : 1977 Cri LJ 471 and Criminal Revision Case No. 630/1975 disposed of by the High Court on 18-3-1976. It was urged that the test for deciding whether an order is an interlocutory order, or a final order, is whether despite the order the case is still pending, or whether the order by itself puts an end to the case. Being of the view that an order passed on a petition Under Section 321 of the Code of Criminal Procedure, is not merely an interlocutory order and that the revisional jurisdiction of the High Court in respect of such orders is not barred Under Section 397(2) Cr. P. C. and being further of the view that the matter requires an authoritative pronouncement, Ramachandra Raju, J., has referred the case for decision by a Division Bench and it is how this revision is before us.

2. Under the G. O. Ms No. 2376 dated 30-11-1961 Home (Courts-C) Department, the Government of Andhra Pradesh appointed all the Police Prosecuting Officers in the Telangana area to be Public Prosecutors, Ex-officio, This G. O. was not brought to the notice of the lower Court. Sri R. Ramalinga Reddi, the learned Counsel appearing for the de-facto com- pla'nant has conceded that the application Under Section 321 Cr. P. C, filed by the A.P.P.O, is maintainable, and that it is not invalid on the ground of want of locus standi.

3. In the light of the arguments addressed before us by the learned Additional Public Prosecutor, Sri Obulapathi Chowdhary for the State, Sri R. Ramalinga Reddi for the de-facto complainant and Sri A. V. Radhakrishna for the accused, the important questions that arise for determination in this revision are :--

(1) Is the revision application against the order of the Magistrate refusing consent, maintainable in view of Section 397(2) Cr. P. C. ?

(2) Did the lower court act illegally or improperly in refusing consent for the withdrawal from the prosecution ?

4. So far as the first question is concerned, it may be useful to reproduce Sub-sections (1) and (2) of Section 397 Cr. p. C.

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctnees, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

The powers of revision conferred on the High Court and the Sessions Judge under Sub-section (1) are very wide and can be exercised in the case of 'any finding, sentence or order recorded or passed' by a Magistrate. Sub-section (2), however, provides that the revisional powers cannot be exercised, 'in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.' This Sub-section is a newly added provision in the Code of 1973. The object of Sub-section (2) is to see that the disposal of the cases before the lower courts is not unduly delayed. In Parmeshwari Devi v. State AIR 1977 SC 403 : 1977 Cri LJ 245. Their Lordships of the Supreme Court have pointed out as follows in para 7 of the judgment :

The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of Sub-section (2) of Section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights.

A reading of Sub-section (1) and (2) together shows that the High Court has power to revise any finding, sentence or order, except an interlocutory order, passed by a Magistrate in any enquiry, trial or other proceeding. It is clear that Sub-section (2) envisages interlocutory orders in enquiries, interlocutory orders in trials, and interlocutory orders in proceedings other than enquiries and trials. A final order in a proceeding other than in an enquiry or trial cannot be construed as an interlocutory order within the meaning of Section 397(2) Cr. P. C. merely because, the proceeding has a direct relation to the enquiry or trial and such enquiry or trial did not terminate on the passing of the final order in the proceedings other than the enquiry or trial. An interlocutory order is one which is passed at some intermediate stage of an enquiry, trial or other proceeding, generally, to advance the cause of justice for the final determination of the dispute between the parties arising under the enquiry, trial or other proceeding. As pointed out by our learned brother in the order of reference the term 'interlocutory' is ordinarily understood as provisional, temporary, not final and the term is opposed to 'definitive' and contrasted with 'final'. In Thakur V. Hariprasad v. State of Andhra Pradesh 1977 Cri LJ 471 (Andh Pra)), one of us (Madhusudan Rao, J.) held that an order cancelling bail is an interlocutory order and the same cannot be revised Under Section 397(1) Cr. P. C. The reasons for the view were clearly given in the judgment, and the test laid down in that case cannot be a test for a decision in this case. Orders refusing bail, granting bail, or cancelling bail are interlocutory, in the sense that, they are merely, provisional and are not of such finality, as that the same court which passed those orders cannot pass orders to the contra at a later stage. The Magistrate may refuse bail to an accused person at one stage, and may grant bail to the same person at a different stage. A Magistrate may cancel bail of an accused person and may later grant him bail, if he considers such course expedient in the interests of justice. As pointed out in that case, there is a special provision Under Section 439 Cr. P. C. empowering the Sessions Judges and the High Court to grant or cancel bail at any stage and it was, therefore, held that an order passed by a Sessions Judge cancelling the bail of the accused in that case was merely interlocutory. In the instant case, having refused to give his consent under the impugned order, the Magistrate has no option, but to proceed with the case and he cannot entertain any further application Under Section 321 Cr. P. C. Unless set aside by a competent court, the order of the Magistrate refusing permission to withdraw from the prosecution is conclusive and it would be difficult to construe the same as interlocutory or provisional.

5. The other case relied on by Sri Ramalinga Reddi cannot also be of any support to his contention. In that case, the trial Magistrate rejected the complaint on the ground that no cognizance of the offence could be taken against the accused therein, in so far as the complainant did not obtain the necessary sanction Under Section 197 of the Code of Criminal Procedure, The Magistrate observed that the complainant was at liberty to approach the Court with the complaint after obtaining the necessary sanction. When the complainant preferred a revision in the High Court, our learned brother Chennakesav Reddy, J. dismissed the revision on two grounds : The first is, that the revision is not maintainable in so far as the order of the Magistrate is merely interlocutory. The second ground is, that on merits also the complainant did not have a reasonable case against the accused. The learned Judge appears to have expressed the view that the revision was barred by Section 397(2) Cr. P. C., in so far as the order of the Magistrate gave right to the complainant to approach the court, once again, after obtaining the necessary sanction. It does not appear that the learned Judge intended in that judgment to lay down the law, in regard to the revisional powers of the High Court in respect of the orders passed on an objection to the maintainability of a prosecution for want of necessary sanction for the prosecution.

6. Besides the above two authorities, Sri Ramalinga Reddi relies on the case in Paskaly v. State 1977 Mad LJ (Cri) 202 : 1977 Cri LJ (NOC) 92 (Andh Pra). In that case, the accused Paskaly filed a petition before the Sessions Judge questioning the maintainability of the prosecution against him on the ground that the sanction accorded by the Government for his prosecution is invalid. The Sessions Judge dismissed the petition. When the accused came up in revision to the High Court, one of us (Punnayya, J.) held that the revision is not maintainable in view of Section 397(2) Cr. P. C. The decision in that case was rendered only with reference to the facts and circumstances of that case.

7. In Mohanlal Magan Lal Thacker v. State of Gujarat AIR 1968 SC 733 : 1968 Cri LJ 876, examining the meaning of the words 'final' and 'interlocutory', Their Lordships of the Supreme Court pointed out that, 'the meaning had to be considered separately in regard to the particular purpose for which it is required to be interpreted, and that no single test can be applied to determine whether an order is final or interlocutory. It was held as follows in that case :

An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals.

The observations in Mohan Lal Magan Lal Thacker's case have been quoted with approval in Parmeshwari Devi. v. State 1977 Cri LJ 245(SC).

8. In the instant case, Sri Ramalinga Reddi argues that a revision could have lain to the High Court, if the Magistrate had given consent for the withdrawal and acquitted the accused; but, in so far as he did not give consent and the trial against the accused did not thereby terminate, no revision lies. We are unable to accept this submission. Section 321 Cr. p. C. reads as follows :

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 -- ....

Giving or refusing consent by the court for withdrawal from the prosecution can be made only before the pronouncement of the judgment in the case. Section 321 Cr. P. C. cannot be brought into play once judgment in the case is pronounced by the Court. An application Under Section 321 Cr. P. C. creates an independent proceeding apart from the enquiry or trial in the case and an order giving or refusing consent by the court on such an application is a conclusive order so far as that proceeding is concerned. We are not prepared to construe such a final order in a separate proceeding as an Interlocutory order in an enquiry or trial merely because the proceeding Under Section 321 Cr. P. C. has a direct bearing on a pending enquiry or trial, We do not, therefore, find any merit in the first contention.

9. So far as the second contention is concerned, the Public Prosecutor sought the consent of the Court for the withdrawal from the prosecution on the ground of inadequacy of evidence against the accused. Though Section 321 Cr. P. C. (which is substituted for the old Section 494) does not indicate the circumstances under which a Public Prosecutor can apply to the Court for its consent to withdraw from the prosecution, or the considerations on which the Court is to grant its consent and though the Section has been expressed in very general terms without any limitations either on the Public Prosecutor or on the Court, it has been held by all the High Courts and Supreme Court that the essential consideration which is implicit in the matter is that the withdrawal from the prosecution should be in the interests of administration of justice and that the Court has to exercise a judicial function in granting or refusing the consent. In State of Orissa v. Chandrika Mohapatra AIR 1977 SC 903 : 1977 Cri LJ 773, His Lordship, Bhagwati, J. pointed out as follows : (at pp. 907, 908)

The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.

It was further pointed out that the Public Prosecutor 'has to make out some ground which would show that the prosecution may not be able to produce sufficient evidence to sustain the charge, or that the prosecution does not appear to be well founded, or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution'. In the instant case the Public Prosecutor seeks consent to withdraw from the prosecution on the ground of inadequacy of evidence. Para 3 of the G. O. Rt. No. 2799, dated 13-11-1975 on the basis of which the A.P.P.O. filed the application for withdrawal reads as follows :--

The Government have examined the case de novo. After perusal of the entire police record and other papers pertaining to the Civil litigation between the parties, the Government feel that there is no sufficient evidence on record to sustain the charges against the accused, as the case has been instituted on false premises on account of family disputes and personal rivalries and the purpose of the prosecution seems to be not vindication of law but wreaking personal vendetta.

The learned Magistrate who refused consent is of the view, that there is evidence which may lead to a conviction of the accused. The question now is whether the ground urged by the A.P.P.O. is correct. to appreciate this question it may be necessary to examine the facts of the case which are as follows :--

Dr. V. Vikramasimha Reddy, the de facto complainant, is the son of late Lakshmikesava Reddy, a resident of Gadwal. p. Pulla Reddy, the accused, was practising as an advocate at Gadwal. The said Pulla Reddy was elected as a Member of the Legislative Assembly in February, 1972. The accused is distantly related to Dr. Vikramasimha Reddy (who will hereinafter be referred to as the complainant). The father of the complainant died in the year 1943, leaving behind him his widow, and his two minor sons the complainant and the complainant's younger brother Indrasena Reddy. He had also left behind him considerable property including lands in Moldakal, Settikunta and Kalkuntla Villages. The complainant had to leave his village in the year 1953 for his education. Being old, the mother of the complainant could not herself manage the immovable properties. She, therefore, appointed the accused as her agent for the management of the lands in the villages of Moldakal and Settikunta by executing a general power of attorney in the year 1959. The complainant's mother died on 6-11-1970. After her demise and after obtaining his M.B.B.S. degree, the complainant returned to Gadwal in March, 1971. The complainant and his brother divided the properties into two equal shares on 31-5-1971.

10. On 25-9-1971, the complainant gave a report to the Inspector of Police, Crime Branch, C.I.D., Hyderabad alleging that the accused committed the offences of forgery and cheating by false personation. After investigation, the Inspector of Police C.B.C.I.D. filed a charge-sheet against the accused on 25-2-1972 for offences punishable Under Sections 420, 468 and 471 I.P.C.

11. The allegations in the charge- sheet are that the accused obtained land development loans from the Government to a tune of Rs. 14,000/- during the years 1967 and 1968 impersonating the complainant and forging the signatures of the complainant in the loan records. It is further alleged that when demands were made by the Government for repayment of the loans, the accused forged the signatures of the complainant and made representations to the higher authorities requesting time for payment of the loan amounts.

12. Admittedly, there is no direct evidence of the false personation. There is also no direct evidence of the accused having forged the signatures of the complainant in any of the disputed documents. An examination of the entries in the acquittance roll in regard to the disputed loans shows that the accused could not have impersonated the complainant nor could he have forged the signatures of the complainant in the registers. The loans in question are : (1) Rs. 5000/- taken on 10-3-1961; (2) Rs. 3500/- taken on 22-8-1961; (3) Rs. 500 taken on 18-12-1962; (4) Rs. 500 taken on 27-12-1962; (5) Rs. 1250 taken on 2-2-1963; (6) Rs. 1250 taken on 5-3-1963; (7) Rs. 1000 taken on 30-3-1964 and (8) Rs. 1000 taken on 18-3-1965. The register shows that while there is the signature of the complainant in the column of 'signature of loanee' against the loans, the signature of the accused is found against the loan Nos. 1, 4, 5, 6 and 7 as a witness. If the accused should have figured as a witness and affixed his signature as a witness, it is difficult to believe that he figured also as a loanee and forged the signature of the loanee, except when the disbursing officers also colluded with the accused and, admittedly, such collusion is not the case of the prosecution. The acquittance roll shows that four Tahsildars, Messers : Ahamadulla Qadri, Venkatachalam, K. V. Bhasker and P. Shankarayya; and two Special Deputy Collectors, Messers : George Samuel and Rasheed Khan were the disbursing officers of the various loan amounts. None of the Tahsildars is cited as a witness for the prosecution in the chargesheet. No doubt, one Tahsildar Sri A. V. Chary is cited as witness No. 21, but he is in no way concerned with the disbursement of any one of the disputed loan amounts. Only one Special Deputy Collector Mr. Rasheed Khan was cited as witness No. 20 and he is the only witness so far examined on behalf of the prosecution before the Magistrate as P. W. 1. The acquittance roll shows that he was the disbursing officer for the loan amount of Rs. 1000/- dated 30-3-1964 and the other loan amount of Rs. 1000/- dated 18-3-1965. Even in his examination in chief as P. W. 1 he stated, 'I cannot say to whom that money was paid.' This witness was not even treated hostile by the prosecution and was also not cross-examined by the prosecution or the accused. His evidence is left unchallenged by both the parties and there are also no reasons to discredit or doubt his testimony.

13. The only evidence on which the prosecution is rested and which is the basis for the Magistrate's refusal for the withdrawal is the evidence of the Band-writing Expert, who opined that the disputed signatures are not in the handwriting of the complainant and that 'there are similarities indicative of common authorship between the disputed writings and the writings of the accused.' While considering the ground of inadequacy of evidence urged by the prosecution, the learned Magistrate observed as follows in Para 7 of his order :

In every criminal case there is no rule that there will be direct evidence to warrant a conviction. Conviction can also be given on circumstantial evidence.

The Magistrate is evidently of the view that despite non-availability of any other evidence connecting the accused with the offences alleged, there is the possibility of the accused being convicted on the basis of the opinion of the Handwriting Expert. To our mind, this view is wholly erroneous. The opinion of a Handwriting Expert is, generally, considered by the Courts as a piece of corroborative, but not substantive evidence. Even if it is to be treated as substantive evidence, being merely opinionative, it is the weakest kind of evidence which cannot be made the basis of a conclusion to result in a conviction. In Magan Bihari Lal v. State of Punjab 1977 Cri. LJ 711 : AIR 1977 SC 1091 Their Lordships of the Supreme Court have pointed out as follows : (at pp. 714, / 715).

It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction.

It is not the case of the complainant who is opposing the withdrawal that there is any other evidence in support of the charges against the accused which can either corroborate or be corroborated by the opinion of the Handwriting Expert.

14. Further the recitals in the partition deed dated 31-5-1971 executed by the complainant and his brother, Indrasena Reddi no doubt whatever show that the complainant was fully aware of the disputed loan amounts by the date of the partition deed. The recitals further show that the complainant and his brother divided not only the assets, but also the liabilities covered by the disputed loans without any demur While considering the partition deed the recitals in which give a lie direct to the case of the complainant, the learned Magistrate observed as follows in Para 6 of his Order :

No doubt the partition list shows that the de facto complainant acknowledged the loans on the lands of Kalkuntla Village which have fallen to his share in partition. It is to be seen whether the acknowledgment of the loan in partition list will tantamount to the acknowledgment of taking the loan from the Tahsil Office. The learned A. P. P. O. vehemently argued that the acknowledgment of the loan in the partition list dated 31-5-1971 falsifies the case of the de facto complainant that the accused forged his signatures and obtained the loan. I do not find much force in his contention that the mere acknowledgment of the loan in a partition list by the de facto complainant will falsify the case of the complainant.

We are unable to approve the view of the learned Magistrate. If, according to his own statement the complainant returned to his village in March. 1971 and partition of the properties with his brother was effected on 31-5-1971, and if he and his brother coolly accepted the liability under the disputed loans, it would be difficult to believe his belated case reported on 25-9-1971 that the loan amounts were not drawn by him. Realising the error in the view of the learned Magistrate, Sri Ramalinga Reddi contends that the loans referred to in the partition list are not the disputed loans. We are not prepared to accept this contention, which is being raised before us for the first time. Further the recitals in the partition list unmistakably indicate that the liabilites shared by the complainant and his brother are only the Government loans which are under dispute. That the loans referred to in the partition list are private loans is a belated afterthought developed for the first time, when the case is being argued before us, and there is not even a fraction or farthing of material in support of this submission. At no stage till now did the complainant contend that the loans referred to in the partition list are different from the disputed loans.

15. On a careful examination of the entire record we are satisfied that the chargesheet in the case was filed against the accused on wrong premises, and that the complainant suppressed from the investigating authorities the partition list dated 31-5-1971. We are clearly of the view that in the state of the evidence available for the prosecution, there is no reasonable possibility of the accused being convicted of any of the charges framed against him. The case had a long drawn chequered career for the last over five years and, under the circumstances, to allow the prosecution to proceed any further would only be enabling abuse of the process of the law. The Assistant Police Prosecuting Officer is perfectly justified in seeking permission to withdraw from the prosecution on the grounds mentioned in para 3 of the G. O. Rt. No. 2799 dated 13-11-1975. The learned Magistrate acted improperly in refusing consent for the withdrawal. We therefore, set aside the order of the learned Magistrate refusing consent. The permission applied for by the Public Prosecutor for withdrawing from the prosecution is hereby granted. In so far as charges were already framed against the accused, the accused is acquitted of the offences with which he is charged Under Section 321(b) of the Code of Criminal Procedure.

16. In the result, the Revision is allowed.


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