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1979 SCR 2 229 . 1979 AIR SC 366 . 1979 MLJ CRI 361 . 1979 SCC 3 4 . 1979 CRILJ 154 . 1979 CRLJ

SC 154 . 1979 SCC CRI 609 .

Union Of India v. Prafulla Kumar Samal And Another

Supreme Court Of India (6 Nov, 1978)

CASE NO.

Criminal Appeal No. 194 Of 1977

JUDGES

S. Murtaza Fazal Ali

D.A Desai, JJ.

ADVOCATES

Soli J. Sorabjee, Additional Solicitor General (E.C Agarwala and Girish Chandra, Advocates, with him), for

the Appellant;

Gobinda Mukhoty and N.R Chowdhary, Advocates, for the Respondents.

Important Paras

1. 10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

2. 27. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the

High Court that there was no sufficient ground for trying the accused in the instant case. Moreover, this

Court would be most reluctant to interfere with concurrent findings of the two courts in the absence of any

special circumstances.

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Summary

1. The Special Judge, Puri, after having gone through the charge-sheet and statements made by the

witnesses before the police as also other documents came to the conclusion that there was no sufficient

ground for framing a charge against the respondents and he discharged them under Section 227 of the

Code of Criminal Procedure, 1973 (hereinafter called "the Code").

2. The appellant went up to the High Court in revision against the order of the Special Judge refusing to

frame the charge, but the High Court dismissed the revision petition filed by the appellant and maintained

the order of discharge passed by the Special Judge.

3. Under the Code the Committing Magistrate has been authorised to peruse the evidence and the

documents produced by the police and commit the case straightaway to the Sessions Court if the case is

one which is exclusively triable by the Sessions Court.

4. It would appear that the legislature while dispensing with the procedure for commitment enquiry under

the Code of 1898 has conferred a dual responsibility on the trial Judge who has first to examine the case

on the basis of the statement of witnesses recorded by the police and the documents filed with a view to

find out whether a prima facie case for trial has been made out and, then if such a case is made out to

proceed to try the same.

5. , as the offences alleged to have been committed by the respondents fall within the provisions of the

Act, the Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court

having been applied fully to the trial of such cases.

6. It is manifest that the accused has got only one opportunity and that too before the Sessions Judge for

showing that no case for trial had been made out.

7. The discretion is to be exercised by a senior and more experienced court so as to exclude any abuse of

power.

8. It is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons

recorded by him, his discretion should not normally be disturbed by the High Court or by this Court.

9. The Court has held that whereas strong suspicion may not take the place of the proof at the trial stage

it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the

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 accused.

10. The Tehsildar of the area directed the Revenue Officer, Cuttack to fix the valuation of the land of

Respondent 1.

11. In the circumstances it cannot be said that the letter written by Respondent 1 referred to above was

an evidence of a criminal intention on the part of Respondent 1 to grab huge compensation by practising

fraud on the

12. One of the important premises on the basis of which the charge was sought to be framed has rightly

been found by the High Court not to exist at all.

13. In the circumstances it cannot be said that Respondent 1 acted illegally in agreeing to the land being

acquired by the Government.

14. 27. For the reasons we find ourselves in complete agreement with the view taken by the High Court

that there was no sufficient ground for trying the accused in the instant case.

JUDGMENT

S. Murtaza Fazal Ali, J. This appeal is directed against the judgment dated August 30, 1976 of the High

Court of Orissa by which the High Court has upheld the order of the Special Judge, Puri discharging

Respondents 1 and 2.

2. The facts of the case lie within a narrow compass and centre round an alleged conspiracy said to have

been entered into between Respondents 1 and 2 in order to commit offences under Sections 5(2) and

5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) read with Section 120-B

IPC. The main charge against the respondents was that between February 19, 1972 and March 30, 1972,

the respondents entered into an agreement for the purpose of obtaining pecuniary advantage for

Respondent 1 P.K Samal and in pursuance of the said conspiracy the second respondent Debi Prasad

Jena, who was the Land Acquisition Officer aided and abetted the first respondent in getting a huge sum

of money for a land acquired by the Government which in fact belonged to the Government itself and

Respondent 1 was a lessee thereof. It is averred in the charge-sheet that Respondent 1 by abusing his

official position concealed the fact that the land which was the subject-matter of acquisition and was

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situated in Cuttack Cantonment was really Khasmahal land belonging to the Government and having

made it appear that he was the undisputed owner of the same, got a compensation of Rs 4,18,642.55.

The charge-sheet contains a number of circumstances from which the inference of the conspiracy is

sought to be drawn by the police. After the charge-sheet was submitted before the Special Judge, the

prosecution requested him to frame a charge against the respondents. The Special Judge, Puri, after

having gone through the charge-sheet and statements made by the witnesses before the police as also

other documents came to the conclusion that there was no sufficient ground for framing a charge against

the respondents and he accordingly discharged them under section 227 of the code of Criminal

Procedure, 1973 (hereinafter called the Code). The Special Judge has given cogent reasons for passing

the order of discharge. The appellant went up to the High Court in revision against the order of the Special

Judge refusing to frame the charge, but the High Court dismissed the revision petition filed by the

appellant and maintained the order of discharge passed by the Special Judge. Thereafter the appellant

moved this Court by an application for special leave which having been granted to the appellant, the

appeal is now set for hearing before us.

3. The short point which arises for determination in this case is the scope and ambit of an order of

discharge to be passed by a Special Judge under section 227 of the code. The appeal does not raise any

new question of law and there have been several authorities of the High Courts as also of this Court on

the various aspects and grounds on which an accused person can be discharged, but as section 227 of

the code is a new section and at the time when the application for special leave was filed, there was no

direct decision of this Court on the interpretation of section 227 of the code, the matter was thought fit to

be given due consideration by this Court.

4. We might state, to begin with, that so far as the present case (offences committed under the Prevention

of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law

Amendment Act under which the police has to submit a charge-sheet directly to the Special Judge and the

question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless

to follow the procedure prescribed for trial of sessions cases and the consideration governing the

interpretation, of section 227 of the code apply mutatis mutandis to these proceedings after the

charge-sheet is submitted before the Special Judge.

5. Before interpreting and analysing the provisions of Section 227 of the Code so far as pure sessions

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trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced

substantial and far-reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays

and simplify the procedure, has dispensed with the procedure for commitment enquiries referred to in

Sections 206 to 213 of the Code of 1898 and has made commitment more or less a legal formality. Under

the previous Code of 1898 the Magistrate was enjoined to take evidence of the prosecution witnesses

after giving opportunity to the accused to cross-examine the witnesses and was then required to hear the

parties and to commit the accused to the Court of Session unless he chose to act under Section 209 and

found that there was no sufficient ground for committing the accused person for trial. Under the Code the

Committing Magistrate has been authorised to peruse the evidence and the documents produced by the

police and commit the case straightaway to the Sessions Court if the case is one which is exclusively

triable by the Sessions Court. Thus, it would appear that the legislature while dispensing with the

procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the trial

Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police

and the documents filed with a view to find out whether a prima facie case for trial has been made out

and, then if such a case is made out to proceed to try the same. In our view the legislature has adopted

this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence

on materials which do not furnish a reasonable probability of conviction. In the instant case, as the

offences alleged to have been committed by the respondents fall within the provisions of the Act, the

Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having

been applied fully to the trial of such cases. Thus, it is manifest that the accused has got only one

opportunity and that too before the Sessions Judge for showing that no case for trial had been made out.

This was obviously done to expedite the disposal of the criminal cases.

6. Secondly, it would appear that under Section 209 of the Code of 1898 the question of discharge was to

be considered by a Magistrate. This power has now been entrusted to a senior court, namely, the

Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as

to whether or not charges should be framed in a particular case against the respondents. The discretion,

therefore, is to be exercised by a senior and more experienced court so as to exclude any abuse of

power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in

discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by

the High Court or by this Court.

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7. section 227 of the code runs thus:

If, upon consideration of the record of the case and the documents submitted therewith, and after hearing

the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not

sufficient ground for proceeding against the accused, he shall discharge the accused and record his

reasons for so doing.

The words not sufficient ground for proceeding against the accused clearly show that the Judge is not a

mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind

to the facts of the case in order to determine whether a case for trial has been made out by the

prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the

matter or into a weighing and balancing of evidence and probabilities which is really his function after the

trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out

whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground

would take within its fold the nature of the evidence recorded by the police or the documents produced

before the court which ex facie disclose that there are suspicious circumstances against the accused so

as to frame a charge against him.

8. The scope of section 227 of the code was considered by a recent decision of this Court in the case of

State Of Bihar v. Ramesh Singh 1977 4 SCC 39 where Untwalia, J., speaking for the Court observed as

follows:

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the

place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion

which leads the Court to think that there is ground for presuming that the accused has committed an

offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the

accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the

sense of the law governing the trial of criminal cases in France where the accused is presumed to be

guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court

should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the

guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the

defence evidence, if any, cannot show that the accused committed the offence, then there will be no

sufficient ground for proceeding with the trial.

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This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial

stage, yet it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against

the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample

powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment

to the Sessions Judge has been made out.

9. In the case of K.P Raghavan v. M.H Abbas AIR 1967 SC 740 this Court observed as follows:

No doubt a Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere Post Office,

and has to come to a conclusion whether the case before him is fit for commitment of the accused to the

Court of Session.

To the same effect is the later decision of this Court in the case of Almohan Das v. State of West Bengal

AIR 1970 SC 863 where Shah, J., speaking for the Court observed as follows:

A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift

and weigh the materials on record, but only for seeing whether there is sufficient evidence for

commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie

evidence or the evidence is totally unworthy of credit, it is his duty to discharge the accused: if there is

some evidence on which a conviction may reasonably be based, he must commit the case.

In the aforesaid case this Court was considering the scope and ambit of Section 209 of the Code of 1898.

10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the code

has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or

not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has

not been properly explained the Court will be fully justified in framing a charge and proceeding with the

trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is

difficult to lay down a rule of universal application. By and large however if two views are equally possible

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and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but

not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the code the Judge which under the present

Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the

prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and

the documents produced before the Court, any basic infirmities appearing in the case and so on. This

however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter

and weigh the evidence as if he was conducting a trial.

11. We shall now apply the principles enunciated above to the present case in order to find out whether or

not the courts below were legally justified in discharging the respondents.

12. Respondent 1 was a Joint Secretary in the Ministry of Information and Broadcasting from April, 1966

to January 1969. Later he worked as Joint Secretary in the Ministry of Foreign Trade till November 12,

1971. Thereafter, Respondent 1 was working as Joint Secretary, Ministry of Education and Social Welfare.

The second respondent worked as Land Acquisition Officer in the Collectorate, Orissa from February,

1972 to August 18, 1973.

13. In the year 1969 the All India Radio authorities were desirous of having a piece of land for construction

of quarters for their staff posted at Cuttack. In this connection, the said authorities approached

Respondent 1 who had a land along with structure in the Cantonment at Cuttack. As the All India Radio

authorities found this land suitable, they approached Respondent 1 through his mother for selling the land

to them by private negotiation. As this did not materialise, the All India Radio authorities moved the

Collector of Cuttack to assess the price of the land and get it acquired. Accordingly, the Tehsildar of the

area directed the Revenue Officer, Cuttack to fix the valuation of the land of Respondent 1. The Revenue

Officer reported back that the land belonged to Respondent 1 and was his private land and its value would

be fixed at Rs 8000 per guntha. It is common ground that the land in question was situated in Cuttack

Cantonment and was Khasmahal land which was first leased out to one Mr Boument as far back as

September 1, 1943, for a period of 30 years. The lease was given for building purposes. In 1954, Mrs

Boument who inherited the property after her husband's death transferred the land to Respondent 1 with

the consent of the Khasmahal authorities. When Respondent 1 came to know that the land in question

was required by the All India Radio authorities, he wrote a letter to Mr A.S Gill on October 28, 1970

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suggesting that the land may be acquired but price fixed by mutual consent. It may be pertinent to

mention here that in this letter, a copy of which being Ex. D-4(12) is to be found at p. 86 of the

paper-book, Respondent 1 never concealed the fact that the land really belonged to the Government. In

this connection, Respondent 1 wrote thus:

I have represented to you against the Revenue Authorities quoting a higher price for similar Government

land more adversely situated and a lower price for my land despite its better strategic location.

14. We have mentioned this fact because this forms the very pivot of the case of the appellant in order to

assail the judgment of the courts below. A perusal of this letter clearly shows that Respondent 1 made no

attempt to conceal that the land in question was a Government land which was leased out to his vendor. A

copy of the original agreement which also has been filed shows that under the terms of the lease, the

same is entitled to be renewed automatically at the option of the lessee and unless the lessee violates the

conditions of the lease, there is no possibility of the lease being resumed. As it is, the lease had been

continuing from the year 1943 and there was no possibility of its not being renewed on September 1, 1973

when the period expired. In these circumstances, therefore, it cannot be said that the letter written by

Respondent 1 referred to above was an evidence of a criminal intention on the part of Respondent 1 to

grab huge compensation by practising fraud on the Government. Respondent 1 was a high officer of the

Government and was a lessee of the Government, a fact which he never concealed and if he was able to

get a good customer for purchasing his land or acquiring the same, there was no harm in writing to the

concerned authority to fix the proper valuation and take the land. There was no question of any

concealment or malpractice committed by Respondent 1.

15. Apart from this, the contention of the appellant that the fact that the land being Khasmahal land

belonging to the Government was deliberately suppressed by the respondents is completely falsified by

the circumstances discussed hereinafter:

The land in question was situated in a Cantonment area and it is not disputed that all lands in the

Cantonment area were Khasmahal lands belonging to the Government.

16. The High Court in this connection has observed as follows:

Government authorities admit that the land in question was known to be khasmahal land from the very

inception. This must lead to an inference that the authorities knew that the interest of the Opposite Party 1

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in the land was that of a lessee and the State Government was the proprietor.

17. The High Court has further observed that a number of witnesses who were examined by the police

had stated that it was common knowledge that all khasmahal lands in the Cantonment area in Cuttack

were Government lands. Relying on the statement of Mr T.C Vijayasekharan, Collector, Cuttack, the High

Court observed as follows:

Shri Vijayasekharan who has admittedly played an important role in the land acquisition proceeding has

said that it is a matter of common knowledge that all khasmahal lands in Cantonment area at Cuttack are

Government lands. He has further categorically stated that Shri p.m Samantray did not put undue

pressure of any kind.

18. Furthermore, it would appear that Mr B.C Mohanty, Land Acquisition Officer, submitted a report about

the land in question on February 15, 1971 in which he had clearly mentioned that the land in question was

Government land and that Respondent 1 was a Pattidar in respect of the land as shown in the record.

Thus, one of the important premises on the basis of which the charge was sought to be framed has rightly

been found by the High Court not to exist at all. The records of the Government showed the nature of the

land. Respondent 1 at no time represented to the All India Radio authorities or the Government that the

land was his private one and the records of the Government clearly went to show that the land was

Government land. In these circumstances, therefore, it cannot be said that Respondent 1 acted illegally in

agreeing to the land being acquired by the Government.

19. Another important circumstance relied on by the appellant was the great rapidity with which the land

acquisition proceedings started and ended clearly shows that the respondents had joined hands to get the

lands acquired and the compensation paid to Respondent 1. In this connection, reliance was placed on

the fact that the copies of the records of rights were prepared on March 30, 1972 in which the land was no

doubt shown as having been owned by the State. Bhujarat report was also prepared on the same date.

Respondent 1 presented his copy of the deed of transfer also on the same date and Respondent 2 made

the award for Rs 4,18,642.55 also on the same date. The entire amount was disbursed also on the same

date and possession also was handed over on the same date. Prima facie, it would appear that the Officer

acted in great hurry perhaps at the instance of Respondent 1. These circumstances are clearly

explainable and cannot be said to exclude every reasonable hypothesis but the guilt of Respondent 1.

Admittedly, the All India Radio authorities were in a great hurry to get the land acquired and take

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possession of the same. As Respondent 1 was a high officer of the IAS cadre there may have been a

natural anxiety on the part of the small officers posted in the district of Cuttack to oblige Respondent 1 by

completing the proceedings as early as possible and meeting the needs of the All India Radio.

20. It would, however, appear that once notices under Sections 9(1) and 10(1) of the Land Acquisition Act

were issued and the objection filed by the appellant was withdrawn, because there was no one else in the

field, there was no impediment in the way of acquiring the land and taking possession from Respondent 1.

In fact, it would appear, as pointed out by the High Court, that as far back as February 22, 1972 the Land

Acquisition Officer who was a person other than the second respondent had sent a letter to the

Government with the counter-signature of the Collector for sanctioning the estimate of acquisition of 2

acres of land belonging to Respondent 1. Later, however, the area of the land was reduced from 2 acres

to 1.764 acres and revised estimates as desired by the Revenue Department were sent on March 7,

1972. This estimate amounted to Rs 4,18,642.55 and was sent through the ADM's letter on March 8,

1972. The Home Department by their letter dated March 11, 1972 sanctioned the aforesaid estimate.

Thereafter, the Government indicated to the Collector that an award might be passed for acquiring 1.764

acres of land. These facts apart from negativing the allegations of criminal conduct against the

respondents demonstrably prove the untruth of the circumstance relied upon in the charge-sheet, namely,

that unless the Respondents 1 and 2 acted in concert and conspiracy with each other, Respondent 1

could not have known the exact figure of the compensation to be awarded to him. In this connection,

reliance was placed on a letter written by Respondent 1 to the Vigilance Officer, L.S Darbari on March 15,

1972 where he had mentioned that as karta of the HUF he would be getting a compensation of Rs

4,18,642.55 which is to be paid to him on March 30, 1972 and it was argued that unless the two

respondents were in league with each other how could Respondent 1 get these details. We are, however,

unable to agree with this contention.

21. We have already mentioned that a fresh estimate for 1.764 acres was prepared and the total

compensation was Rs 4,18,642.55 as only the Raiyyati or the lessee's interest was proposed to be

acquired and this letter was sent to the Government for sanction and the estimate was sanctioned on

March 11, 1972. It was contended that no notice was given to the Khasmahal department, so that the

Government could claim compensation of the proprietory interest. It is obvious that what has been

acquired in the present case is merely the Raiyyati or the lessee's interest and as the proprietory interest

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vests in the Government itself, there is no question of either acquiring or claiming compensaiton for the

interest of the Government. In the case of Collector Of Bombay v. Nusserwanji Rattanji Mistri & Others

AIR 1955 SC 298, this Court observed as follows:

If the Government has itself an interest in the land, it has only to acquire the other interests outstanding

therein, so that it might be in a position to pass it on absolutely for public user .... When Government

possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside

such acquisition, because there can be no question of Government acquiring what is its own. An

investigation into the nature and value of that interest will no doubt be necessary for determining the

compensation payable for the interest outstanding in the claimants, but that would not make it the subject

of acquisition.

22. To the same effect is a later decision of this Court in the case of Special Land Acquisition Officer,

Hosanagar v. K.S Ramachandra Rao 1973 2 SCC 51 where this Court observed as follows:

Mr M. Veerappa, the learned counsel for the State of Mysore, contends that the Land Acquisition Officer

had not assessed the compensation payable for the rights of the respondents in the land acquired .... We

have gone through the Award made by the Land Acquisition Officer. The Land Acquisition Officer appears

to have valued the rights of the respondents in the lands acquired .... Whether the valuation made by him

is correct or not cannot be gone into in these proceedings.

23. As the appellant was naturally interested in finalising the deal as quickly as possible, there could be no

difficulty in finding out the estimates which had been sanctioned a week before Respondent 1 wrote the

letter to the Vigilance Department. This fact proves the bona fide rather than any wrongful conduct on the

part of Respondent 1 which may lead to an adverse inference being drawn against him.

24. Finally, it was argued that what was acquired by the Government was merely the lessee's interest, but

Respondent 1 appears to have got compensation as the owner. This is factually incorrect. We have

already referred to the circumstances which clearly show that the Government was fully aware that it was

only the lessee's interest which was being acquired and even the fresh estimate for Rs 4,18,642.55, which

was sent to the Government, was shown as representing the Raiyyati interest. Mr Agarwala appearing for

the respondents fairly conceded that having regard to the nature, character and situation of the land, it

could not be said that the amount of compensation awarded did not represent the market value of the

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lessee's interest of the land.

25. On the other hand, in the counter-affidavit at p. 87 of the paper-book, it has been alleged that 16 sale

deeds executed during the year 1970 and 5 sale deeds executed during the year 1971 pertaining to the

village in question were acquired at the rates varying from Rs 42,165 to Rs 7,50,000. The High Court has

also pointed out that the records before the trial Judge show that the Collector Vijayasekharan had valued

the land at the rate of Rs 1.70 lakhs per acre as far back as February 3, 1970 and if two years later the

valuation was raised to Rs 2 lakhs it cannot be said that the land was in any way over-valued.

26. Lastly, there does not appear to be any legal evidence to show any meeting of mind between

Respondents 1 and 2 at any time. Although the Collector at the time of the acquisition was a distant

relation of Respondent 1, he had himself slashed down the rate of compensation recommended by the

Revenue Officer from Rs 2,10,000 to Rs 2,00,000 and it was never suggested by the prosecution that the

Collector was in any way a party to the aforesaid conspiracy.

27. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the

High Court that there was no sufficient ground for trying the accused in the instant case. Moreover, this

Court would be most reluctant to interfere with concurrent findings of the two courts in the absence of any

special circumstances.

28. For the reasons given above, the judgment of the High Court is affirmed and the appeal is dismissed.