Punjab-Haryana High Court
State Of Haryana vs Arun Jain & Others on 4 December, 2018
Author: Sudhir Mittal
Bench: Sudhir Mittal
CRM-M-38270 of 2018 (O&M) --1--
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Sr. No.286
CRM-M-38270 of 2018 (O&M)
DECIDED ON: December 04, 2018
STATE OF HARYANA
..PETITIONER
VERSUS
ARUN JAIN AND OTHERS
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present: Mr. Deepak Sabherwal, Additional Advocate General, Haryana.
Mr. Sandeep Kumar-complainant-respondent No.24 in person
with Mr. Vishal Sharma Haritwal, Advocate.
*****
SUDHIR MITTAL, J. (ORAL)
On 12.06.2013, a demonstration was being held outside the residential house of Sh. Naveen Jindal in Hisar. The demonstrators/ protesters were members/supporters of BJP and HJC. They had gathered to protest against the administration for not arresting Sh. Naveen Jindal, although FIR had been registered against him. Police bandobust had been provided to protect the property of Sh. Naveen Jindal. During the course of the protest, the protesters allegedly threw black oil on police personnel on being instigated by their leaders. They also jostled with the police personnel in their attempt to enter the residential house of Sh. Naveen Jindal. Allegedly, public traffic was also disrrupted due to this activity. Some of the protesters were rounded up by the police and on the statement of P/SI Sandeep Kumar, District Traffic Police, Hisar, FIR No.492 was registered at Police Station Civil Lines, under Sections 109, 147, 149, 186, 1 of 5 ::: Downloaded on - 30-12-2018 06:09:11 ::: CRM-M-38270 of 2018 (O&M) --2--
283, 324, 326, 332, 353, 451, 511 IPC. It may be noted that no police personnel received any injuries.
On completion of investigation, challan was presented and charge was framed on 15.07.2017. Thereafter, the State Government wrote a letter dated 23.02.2018 to the concerned Public Prosecutor to withdraw from prosecution who moved an application dated 27.02.2018 (P-3) under Section 321 Cr.P.C.
A perusal of the application dated 27.02.2018 (P-3) shows that the Public Prosecutor mentioned therein that he has applied his independent mind and has sought withdrawal on the grounds that there was (a) no evidence regarding damage to individual or public property, (b) withdrawal would result in restoration of peace and harmony in society (c) no prejudice would be caused to the interest of the State (d) loss to public exchequer could be restricted by saving of court time (e) there was no likelihood of success of the prosecution.
Vide judgment dated 12.04.2018, the trial Court rejected the aforementioned application on the ground that the acceptance of the application would not advance the ends of justice. The State preferred a revision against this judgment, which has been dismissed vide judgment dated 01.08.2018 primarily on the ground that discretion exercised by the trial court could not be interfered with in the exercise of revisional jurisdiction.
Learned counsel for the petitioner submits that in view of language of Section 321 Cr.P.C., the court only has the authority to grant consent to withdraw from prosecution in case, it comes to the conclusion that the Public Prosecutor has applied his independent mind. The consent 2 of 5 ::: Downloaded on - 30-12-2018 06:09:11 ::: CRM-M-38270 of 2018 (O&M) --3--
cannot be refused by entering upon the merits of the controversy. All that the court is required to see is that the Public Prosecutor has formed an independent opinion after going into the material available on record and that opinion is not influenced by executive action. In this case, the Public Prosecutor has mentioned reasons on the basis of which he has formed his opinion. The record also indicates that the statement of the complainant was also recorded by the concerned court and he had stated that he had no objection if the State withdrew from prosecution. Thus, the requirement of law was fulfilled and the Courts below have fallen in error in rejecting the application filed on behalf of the prosecution. Reliance is placed upon judgment in case Swaranjit Kaur Bajwa vs. State of Punjab, 2008(4) RCR (Criminal) 792.
Pursuant to issuance of notice of motion, the complainant- respondent No.24 has put in appearance through counsel. He is present in Court personally also. His learned counsel has submitted that he has no objection to withdrawal from prosecution and that this petition may be allowed.
In the case of Swaranjit Kaur Bajwa (supra), a Single Judge of this Court has interpreted Section 321 Cr.P.C. based upon various judgments of the Supreme Court of India. It has been held that under Section 321 Cr.P.C., the Public Prosecutor performs an executive function and that the circumstances under which the said function may be exercised cannot be exhaustively laid down. They may be social, economic or political circumstances. The court only performs a supervisory function limited to the extent of forming an opinion that the Public Prosecutor filed the application for withdrawal from prosecution un-influenced by any 3 of 5 ::: Downloaded on - 30-12-2018 06:09:11 ::: CRM-M-38270 of 2018 (O&M) --4--
extraneous consideration. It has been held as under:-
"10. Having considered the roles and duties of Public Prosecutor and the court, one may have to make reference to the grounds on which such permission for withdrawing from the prosecution can be generally sought. The section itself gives no indication as to the grounds on which the Public Prosecutor may make the application. Section also does not contain any consideration on which the court is to grant its consent. The Public Prosecutor of course has to exercise his power in relation to the facts and circumstances of the case in furtherance of, rather than as a hindrance to the object of law. He has also to justify his action on the material in the case which substantiate the grounds alleged, which may not necessarily be gathered by judicial methods and may be based on other materials which may not be strictly legal or admissible evidence. The legislature has not defined the circumstances under which a withdrawal is permissible. The courts have observed that it would not be a right to attempt to lay down any hard and fast rule circumscribing the limits within which the withdrawal may be made. It has also been laid down that it is always desirable, though not mandatory, that the reasons which prompt the Public Prosecutor to request the court to grant consent for withdrawal be disclosed. It has also been held that if reasons are not stated in the application for withdrawal by the Public Prosecutor, the Magistrate is entitled to ask the Public Prosecutor to give reasons. These then would be the parameters which would govern the exercise of power under Section 321 Criminal Procedure Code."
Thus, there is no gain saying that the interpretation of Section 321 Cr.P.C. can only be that the court is not required to adjudicate on the grounds taken by the Public Prosecutor for withdrawal from prosecution. It only has to satisfy itself that the decision taken is independent. This means that so long as the court is convinced that the action of the Public 4 of 5 ::: Downloaded on - 30-12-2018 06:09:11 ::: CRM-M-38270 of 2018 (O&M) --5--
Prosecutor is not the result of pressure exercised by the Government and the reasons mentioned for withdrawal from prosecution are plausible reasons, it would not involve itself into the merits of the controversy to come to a conclusion different from that of the Public Prosecutor.
In this case, there is nothing to suggest that the Public Prosecutor has been coerced into filing the application dated 27.02.2018 (P-
3). Neither of the courts below have returned a finding that the said application was moved under compulsion by the Public Prosecutor. The reasons based on which the Public Prosecutor moved for withdrawal from prosecution are plausible reasons and are covered by the parameters laid down in the case of Swaranjit Kaur Bajwa (supra). The complainant- respondent No.24 himself has no objection to withdrawal from prosecution. Under these circumstances, the courts below mis-directed themselves by going into the merits of the controversy.
Thus, the petition is allowed and impugned order dated 12.04.2018 as well as judgment of the revisional Court dated 01.08.2018 are set aside. The application of the State dated 27.02.2018 (P-3) stands accepted.
Copy of the order be sent to the Court/Successor Court of the Trial Magistrate concerned for compliance.
December 04, 2018 (SUDHIR MITTAL)
Ankur JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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