Punjab-Haryana High Court
Suresh Kumar And Others vs State Of Haryana And Another on 1 October, 2013
Author: Sabina
Bench: Sabina
Crl. Revision No. 1467 of 2011 (O&M) -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Revision No. 1467 of 2011 (O&M)
Date of Decision: 1.10.2013.
Suresh Kumar and others ........Petitioners
Vs.
State of Haryana and another ......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Parveen Kumar, Advocate
for the petitioners.
Mr. Gaurav Dhir, DAG, Haryana.
Mr. Sumeet Sangwan, Advocate
for respondent No. 2.
.....
SABINA, J.
Petitioners have filed this petition under Section 401 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) challenging the order dated 11.5.2011 whereby Court of Revision had set aside the order passed by the Trial Court allowing the application moved by the prosecution under Section 321 Cr.P.C.
Learned counsel for the petitioners has vehemently argued that the Court of Revision had erred in allowing the revision petition. In fact, the Court while dealing with the application under Section 321 Cr.P.C. was not obliged to assess the evidence or discover whether the case would end in conviction or acquittal. As per Section 321 Cr.P.C. there was no indication qua the grounds on which the Public Prosecutor could move the application. The Court was merely required to satisfy itself that the executive function had been properly exercised by the Public Prosecutor. FIR in question had been lodged due to political rivalry. In support of his arguments, learned counsel Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -2 - has placed reliance on 'Sheo Nandan Pawan Versus State of Bihar and others, AIR 1987 Supreme Court, 877', wherein it was held as under:-
"I will now briefly refer to some other cases cited to understand how Courts considered the scope of Section 321 depending upon the facts of each case.
In the case of Bansi Lal v. Chandan Lal, AIR 1976 SC 370 this Court followed its earlier decision reported in [1972] 2 SCR 599 : (AIR 1972 SC 496) which in turn followed 1957 SCR 279 : (AIR 1957 SC 389) )and declined consent when withdrawal as sought on the ground that the prosecution did not want to produce evidence and continue the criminal matter against the accused. The Sessions Judge gave his consent as it appeared to him "futile to refuse permission to the State to withdraw prosecution". This consent was set aside because reluctance to produce evidence was held to be not sufficient ground for withdrawal.
In State of Orissa v. Chandrika Mohapatra (1977) 1 SCR 335 : (AIR 1977 SC 903), the application for withdrawal was made on two grounds: (i) that it was considered inexpedient to proceed with the case; (ii) that the evidence collected during investigation was meagre and no useful purpose would be served by proceedings with the case against the accused. The Magistrate gave consent holding that compelling the State to go on with the prosecution would involve unnecessary expenditure and waste of public time. This Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -3 - Court upheld the consent and held that meagre evidence was a legitimate ground for withdrawal. The following observation at page 338 (of SCR) : (at P.906 of AIR) is useful for our purpose on an important aspect. In that case, as in this case, the Magistrate had clearly stated in his order that he was giving consent after going through the materials placed before him. This is how the Court summed up its finding:
"It is difficult for us to understand how the High Court could possibly observe in its order that the Magistrate had not perused the case diary when in terms the learned Magistrate has stated in his order that he had read the case diary and it was after reading it that he was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill-founded. Then again it is difficult to comprehend how the High Court could possibly say that the learned Magistrate accorded consent to the withdrawal of the prosecution on the ground that it was inexpedient to proceed with the case, when, in so many terms, the learned Magistrate rejected that ground and granted consent only on the second ground based on inadequacy of evidence .."
When the Magistrate states in his order that he has considered the materials, it is not proper for this Court not to accept that statement. The proper thing to do is to hold that the Magistrate gave consent on objective Singh Gurpreet consideration of the relevant aspects of the case. It 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -4 - would be acting against the mandate of Section 321 to find fault with the Magistrate in such cases, unless the order discloses that the Magistrate has failed to consider whether the application is made in good faith, in the interest of public policy and justice and not to thwart or strifle the process of law.
In Balwant Singh v. State of Bihar, (1978) 1 SCR 604 : (AIR 1977 SC 2265) this Court felt unhappy when the Public Prosecutor and the Magistrate had surrendered their discretion, but still declined to grant leave under Article 136 and the withdrawal stood confirmed.
In Subhash Chander v. State, (1980) 2 SCR 44 : (AIR 1980 SC 423), this Court upheld the consent given for withdrawal since a fresh investigation had revealed that the case was framed by the concerned Police Officers with ulterior motives. This Court observed that two relevant matters to be considered about the consent are: (1) whether the considerations are germane and (2) whether actual decision was taken by the Public Prosecutor or he only obeyed the orders dictated to him by others.
In Rajendra Kumar Jain v. State, (1980) 3 SCR 982 :
(AIR 1980 SC 1510), this Court had to deal with two sets of cases--one relating to the Baroda Dynamite case and the other the Bhiwani Temple Demolition case. In that case, this Court summarised eight propositions Singh Gurpreet which are given in the judgment rendered by 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -5 - Tulzapurkar, J. in Sheonandan Paswan v. State of Bihar (AIR 1983 SC 1125). This Court observed that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution, though that is a traditional ground for withdrawal. Political purposes and political vendetta afford sufficient ground for withdrawal.
All the above decisions have followed the reasoning of Ram Naresh Pandey's case (AIR 1957 SC
389) and the principles settled in that decision were not doubted.
It is in the light of these decisions that the case on hand has to be considered. I find that the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the materials placed before him and the order of consent given by the Magistrate was also after due consideration of various details, as indicated above. It would be improper for this Court, keeping in view the scheme of Section 321, to embark upon a detailed enquiry into the facts and evidence of the case or to direct re-trial for that would be destructive of the object and intent of the Section." Learned State counsel, on the other hand, has submitted that the State had moved the application for withdrawal of prosecution of the petitioners as there was no documentary evidence available on record against the petitioners. The case had been registered against the petitioners due to village enmity and political rivalry. Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -6 -
Learned counsel for respondent No. 2, on the other hand, has opposed the petition and has submitted that thorough investigation was conducted in the matter and vide Annexure R-2/1, allegations of misappropriation/embezzlement were made out against the petitioners. Petitioners had committed embezzlement of the public funds. Hence, the application for withdrawal of prosecution of the petitioners by the Public Prosecutor had not been made in good faith.
Section 321 Cr.P.C. 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:
Provided 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 Police Establishment Act, 1946 (25 of 1946 ), or Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -7 -
(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 his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he hag 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 prosecution.
Thus, as per the above provision, Public Prosecutor or Assistant Public Prosecutor who is incharge of the case may withdraw from the prosecution of any person with the consent of the Court. While deciding the application under Section 321 Cr.P.C., the Court is required to satisfy itself that the application has been moved by the Public Prosecutor in good faith and the discretion exercised by the Public Prosecutor is proper.
In the present case, FIR in question was registered against the petitioners on the allegations of misappropriation and embezzlement of public funds. A perusal of Annexure R-2/1 reveals that 19 allegations were levelled against the accused and they were duly inquired into by the Inspector, State Vigilance Bureau. After inquiry, it transpired that the accused, in Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -8 - connivance with each other, after preparing the bogus record, had embezzled ` 4,62,089/-. After completion of investigation and necessary formalities, challan was presented against the petitioners.
Annexure P-5 is the letter written by Under Secretary, Jails and Judicial for Financial Commissioner and Principal Secretary to Government, Haryana, Admn. of Justice Department to the District Magistrate, Bhiwani that it had been decided by the government to withdraw from prosecution qua FIR in question. The District Magistrate was requested to take necessary action to withdraw the case from the concerned Court under intimation to the government.
Annexure P-2 is the application under Section 321 Cr.P.C. moved by the Public Prosecutor. The contents of the said application read as under:-
"1. That the above noted case is pending in this Hon'ble Court and is fixed for consideration on charge on 9.10.2006.
2. That the above noted case was registered on a written complaint of Ran Singh, Ex Sarpanch of village Kadma levelling 19 charges against the accused persons regarding misappropriation of Govt. funds and preparing forged record of Water Shed Scheme and Aravalli Project etc. The case was initially enquired by Rajender Singh, Inspector, SVB, Hisar and on the basis of inquiry conducted by Rajender Singh, Inspector, the case was later on investigated by Dilbag Singh, Inspector, SVB, Hisar. Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -9 -
3. That during investigation, Rajiv Ahlawat, Maman Chand Kaushik, Udayvir Sihag, Mahavir Singh SDO, Vijay Pal J.E., Ishwar Singh, Gram Sachiv and Ramesh Chander Makkar, ASCO were found innocent and placed in Khana No. 2.
4. That the case is at a preliminary stage and no formal charges has been framed. The Investigation Officer has not collected the sufficient evidence to connect the accused with the case and the case is based on oral statements of witnesses.
5. That there is no documentary evidence in this case and no recovery of any type has been effected in this case and the case was registered against the accused persons due to village enmity and political rivalry.
6. That there is little chance for the success of this case and the withdrawal from the prosecution against the accused persons will bring peace and harmony between the administration and the public.
7. That I being the competent to withdraw from the prosecution above noted case and is of the considered view that the present case is fit for withdrawal from prosecution."
A perusal of the application reveals that the Assistant Public Prosecutor had merely moved the application for withdrawal from prosecution as directed by the State vide Annexure P-5. The Assistant Public Prosecutor was aware of the fact while moving the application that 19 charges had been Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh Crl. Revision No. 1467 of 2011 (O&M) -10 - levelled against the accused qua misappropriation and the same had been duly inquired by the Inspector Vigilance. In para 5 of the application, it has been stated that there was no documentary evidence in this case nor any recovery had been effected and the case had been registered against the accused due to village enmity and political rivalry. On the other hand, Inspector Vigilance vide his report Annexure R-2/1, after going through the statements, documents, inspection and from technical report, had opined that the accused had committed embezzlement by forging and preparing bogus record. A perusal of the report further reveals that while dealing with each allegation, reference had been made to the documents on record by the Inspector Vigilance. This shows that the Assistant Public Prosecutor has merely moved the application as directed by the State and has failed to apply his mind to the case independently. The application does not appear to have been made in good faith after proper appreciation of the material on record. In these circumstances, the learned Court of Revision rightly allowed the revision petition as the Trial Court had erred in allowing the application under Section 321 Cr.P.C., moved by the Public Prosecutor. There is no quarrel with the proposition of law settled by the Apex Court in Sheo Nandan Pawan's (supra) but the said decision fails to advance the case of the petitioners.
No ground for interference is made out.
Dismissed.
(SABINA) JUDGE October 01, 2013 Gurpreet Singh Gurpreet 2013.10.07 17:06 I attest to the accuracy and integrity of this document chandigarh