Himachal Pradesh High Court
Unknown vs Union Of India And on 26 April, 2024
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Jyotsna Rewal Dua
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP No.12451 of 2023 IN .
CWPIL No.9 of 2020 Reserved on:28.3.2024 Pronounced on:26.04.2024 IN THE MATTER OF:
Court on Its own motion r to In re: Special Court of MPs/MLAs CMP.No.12451 of 2023:
State of Himachal Pradesh rep.by it's Additional Secretary (Home) ____________________________________________________________ Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?
Present:
For the Applicant: Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocate Generals and Mr. Arsh Rattan & Mr. Sidharth Jalta, Deputy Advocate Generals Ms. Devyani Sharma, Senior Advocate as Amicus Curiae with Mr. Anirudh Sharma, Advocate M.S. Ramachandra Rao, Chief Justice.
This CWPIL had been registered as per order of the Supreme Court of India titled Ashwani Kumar Upadhyay and others v. Union of India1 wherein the Supreme Court directed each High Court to register a suo motu 1 Order dt.10-9-2020 in W.P.(Civil)No.699/2016 ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 2 case with title "In Re: Special Courts for MPs/MLAs" to monitor progress of cases pending in the State.
2. The application CMP No.12451 of 2023 has been moved by the State .
of Himachal Pradesh seeking permission of this Court to withdraw the prosecution against sitting/former MLAs on the basis of instructions issued by the Home Department of the State of Himachal Pradesh vide Letter No. Home-E (B)-16-2/2022 dt.31.12.2022 (Annexure A-1).
3. The said instructions dt.31.12.2022 call for withdrawal of criminal cases allegedly registered on political grounds/or against allegedly peaceful political agitations.
4. According to the pleading in the application CMP No.12451 of 2023, the instructions were circulated to all the District Magistrates to review such cases in consultation with the respective Superintendents of Police and the District Attorneys and to take necessary action in all such cases in which no violence or damage was caused either to the public or personal property.
5. Withdrawal of prosecutions is permitted and regulated under Section 321 Cr.P.C. It states as under:
"321. 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:::: Downloaded on - 26/04/2024 20:41:44 :::CIS 3
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
(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 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 prosecution."
6. Though as per the above provision, there was no requirement of seeking permission of the High Court before withdrawing prosecutions, such permission has become mandatory in view of the decision of the Supreme Court in Ashwani Kumar Upadhyay vs. Union of India and another2 in cases where the accused are sitting/ former MLAs. In this case the Supreme Court directed as under:
"7. The learned Amicus Curiae has drawn our attention to various instances across the country, wherein various State Governments have resorted to withdrawal of numerous criminal cases pending against MP/MLA by utilising the power vested under Section 321 CrPC. It merits mentioning that the power under Section 321 CrPC is a responsibility which is to be utilised in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilised with utmost good faith to serve the larger public interest. Recently, this Court in State of Kerala v. K. Ajith3, held as under : pp. 350-51, para 25) "25. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 CrPC can now be formulated:
2(2021) 20 SCC 599 3 (2021) 17 SCC 318 ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 4 25.1. Section 321 entrusts the decision to withdraw from a prosecution to the Public Prosecutor but the consent of the court is required for a withdrawal of the prosecution;
25.2. The Public Prosecutor may withdraw from a prosecution not merely .
on the ground of paucity of evidence but also to further the broad ends of public justice;
25.3. The Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution; 25.4. While the mere fact that the initiative has come from the Government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;
25.5. In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature.
Before deciding whether to grant its consent the court must be satisfied that:
(a) The function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;
(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;
(d) The grant of consent subserves the administration of justice; and
(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the Public Prosecutor is duty-bound to maintain;
25.6. While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinising the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and 25.7. In a situation where both the trial Judge and the Revisional Court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well- settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial Judge or of the High Court to ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 5 apply the correct principles in deciding whether to grant or withhold consent."
8. In view of the law laid down by this Court, we deem it appropriate to direct that no prosecution against a sitting or former MP/MLA shall be .
withdrawn without the leave of the High Court in the respective suo motu writ petitions registered in pursuance of our order dated 16-9-20202. The High Courts are requested to examine the withdrawals, whether pending or disposed of since 16-9-20202, in light of guidelines laid down by this Court.
..." ( emphasis supplied)
7. Thus as per the above judgment, Section 321 Cr.P.C entrusts the decision to withdraw from a prosecution to the Public Prosecutor, but the consent of the Court is required for a withdrawal of the prosecution in cases relating to sitting or former MPs/MLAs. The judgment holds that the Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice; that he must formulate an independent opinion before seeking the consent of the Court to withdraw from the prosecution; that the power vested under section 321 Cr.P.C is a responsibility which is to be utlised in public interest and cannot be used for extraneous and political considerations and has to be used with utmost good faith to serve the larger public interest.
8. The judgment directs that the Court must make an effort to elicit the reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons; and in deciding whether to grant its consent to a withdrawal, the Court exercises a judicial function but it has been described to be supervisory in nature. While determining whether the withdrawal of the prosecution subserves the administration of justice, the Court would be justified in scrutinizing the nature and gravity of the offence and its ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 6 impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated.
9. The judgment directs that before deciding whether to grant its .
consent the Court must be satisfied that:
(a) The function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;
r to
(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;
(d) The grant of consent subserves the administration of justice;
and
(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the Public Prosecutor is duty-bound to maintain;
10. The decision in Ashwani Kumar Upadhyay (2 supra) has also been referred to in the instructions Letter No. Home-E (B)-16-2/2022 dt.31.12.2022 (Annexure A-1) issued by the Home Department of the State of Himachal Pradesh.
11. In the application, a list of cases against the MLAs/MPs District-wise is given.
::: Downloaded on - 26/04/2024 20:41:44 :::CIS 712. On a direction given by this Court on 16.10.2023, copies of FIRs in these cases/ charge sheets (where filed) and opinions of Public Prosecutors/ District Attorneys have been filed vide CMP No.148 of 2024 which had .
been allowed on 4.1.2024.
13. This Court had appointed Ms. Devyani Sharma, Sr. Advocate as Amicus Curiae to assist the Court and copies of the above documents were also furnished to the learned Amicus Curiae.
14. Submissions of the learned Advocate General for the applicant and learned Amicus Curiae were heard on 21.3.2024 and 28.3.2024.
15. We have been taken through the documents filed by the State in detail.
Consideration by the Court
16. In the judgment in Ashwani Kumar Upadhyay and others (2 supra) the Supreme Court has referred to a report of the learned Amicus Curiae which highlighted inter alia the misuse of the prosecutors' power to withdraw cases under section 321 Cr.P.C. It also recorded that the learned Amicus Curiae had drawn it's attention to various instances across the country, wherein various State Governments have resorted to withdrawal of numerous criminal cases pending against MP/MLA by utilizing the power vested under section 321 Cr.P.C. The Court declared therefore that the power under Section 321 Cr.P.C is a responsibility which is to be utilized in public interest and that it cannot be used for extraneous considerations. The Court has also emphasized that while determining whether the withdrawal of the prosecution subserves the administration of justice, the Court would ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 8 be justified in scrutinizing the nature and gravity of the offence and it's impact upon public life.
17. In this application, 65 cases are mentioned for which permission of .
this Court to withdraw prosecution has been sought.
Cases already disposed off
18. But at the time of hearing, the learned Advocate General has given the list of cases which have been disposed off. They are as under:
a) State vs. Sukhvinder Singh Sukhu and others (Item No.2 of the list mentioned in the application) -
FIR 239/2018 PS Sadar Shimla u/s 143, 188 IPC
b) State v. Vikram Jaryal and others -(Item No. 59 of the list mentioned in the application) FIR No.53/2016 PS Dalhousie u/s 353,332,341,506,147,149 IPC
c) State v. Abhmanue Jaryal and others-(Item No.60 of the list mentioned in the application) FIR No.125/2017 PS Chowari u/s.353,332,323,506,147,149 IPC
d) State v. Kush Kumar and others-(Item No.61 of the list mentioned in the application) FIR No.124/2017 PS Chowari u/s341,323,506,147,148,149 IPC
e) State v. Rakesh Pathania -(Item No.63 of the list mentioned in the application) FIR No.110/2013 PS Nurpur u/s 152,353,332,147,149 IPC and Section 3 PDP Act.
19. Therefore the instant order will not apply to these 5 cases.
20. Keeping in mind the parameters laid down in Ajith (2 supra) and Ashwani Kumar Upadhyay (2 Supra) we shall examine whether each of the other 60 cases can be allowed to be withdrawn by the State.
A. Cases involving offences under Section 269 IPC
21. In some of cases, the sitting/former MLAs are accused of committing offences under section 269 IPC.
::: Downloaded on - 26/04/2024 20:41:44 :::CIS 922. The said provision penalizes negligent acts likely to spread infection of disease dangerous to life and makes it punishable with imprisonment for 6 months or fine or both.
.
They are:
(i) FIR NO.163/2020 PS Shimla Sadar (Annexure A5) (p.167-
169) in which a charge sheet has also been filed (pg.409-410) which has been recommended for withdrawal.(Item No.5 in list in CMP.NO.148/2024) r to
(ii) FIR No.71/2020 PS Shimla East (Annexure A-14) (p181-182) in which a charge sheet has also been filed (pg.443-445) which has been recommended for withdrawal. (Item No.11 in list in CMP.NO.148/2024)
(iii) FIR No.279/2020 PS Shimla Sadar (Annexure A-16) (p187-
189) in which a charge sheet has also been filed (pg.457-459) which has been recommended for withdrawal. (Item No.13 in list in CMP.NO.148/2024)
23. They were registered in connection with certain rallies, protesting against the then Government, conducted during the Covid-19 pandemic in July,2020 and December,2020.
24. Though there have been recommendations made for withdrawal of these cases citing lack of damage to public and private property and also lack of violence causing injury to any person, we are not willing to permit withdrawal of these cases.
25. Public representatives ought to have been conscious of the risk caused by Covid-19 pandemic and the potential loss of lives by spread of ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 10 the virus where large gatherings are organized compromising physical distancing. This Court can take judicial notice of the large loss of lives during the Covid-19 pandemic.
.
26. Considering the nature and gravity of the offence and it's impact upon public life, we are therefore not in agreement with the opinion of the Public Prosecutor/Advocate General that they ought to be permitted to be withdrawn under Section 321 Cr.P.C. In our opinion these cases ought to go investigation.
r to to trial since charge sheets have also been filed after completion of B. Cases involving offences under Section 353 IPC
27. In some of cases, the sitting/former MLAs are accused of committing offences under section 353 IPC.
28. Section 353 IPC makes punishable act of assault or criminal force by accused to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant.
29. The following are the cases where the said offence has been included in the FIRs/charge sheets filed:
(i) FIR NO.225/2020 PS Shimla Sadar (Annexure A40) (p.252-
254) in which a charge sheet has also been filed (pg.699-700) which has been recommended for withdrawal. (Item .No.30 and 37 (repeated)in list in CMP.NO.148/2024) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 11
(ii) FIR NO.133/2017 PS Palampur (Annexure A66) (p.318-319) in which a charge sheet has also been filed (pg.982-997) which has not been recommended for withdrawal. (Item .No.64 in list .
in CMP.NO.148/2024)
30. In Sk. Ayyub v. State of Maharashtra4, the Supreme court held:
"We do agree with the learned counsel for the State that such offences committed against the public servants while discharging their duties should be seriously viewed. We are very much conscious that the public servants should not be deterred or obstructed in an unlawful manner in discharging their official duties and anybody who commits an offence while causing such obstruction should, no doubt, be punished severely."
31. It is not expected of public representatives to cause harm by assault or use of criminal force to public servants like police officers and other civil servants and they are expected to uphold the law. It would be difficult to maintain law and order in society if these acts are viewed lightly.
32. Such conduct has to be seriously viewed as laid down in the above judgment and therefore withdrawal of prosecution under Section 321 Cr.P.C cannot be permitted. Though there have been recommendations made for withdrawal of these cases citing lack of damage to public and private property and also lack of violence causing injury to any person, in our opinion, these cases ought to go to trial since charge sheets have also been filed after completion of investigation.
41994 Supp (2) SCC 269 : 1994 SCC (Cri) 1222, at page 275 :
::: Downloaded on - 26/04/2024 20:41:44 :::CIS 12C. Cases involving offences under section 504/506 IPC
33. Section 504 IPC makes punishable intentional insult with intent to provoke breach of peace. Section 506 IPC makes punishable offence of .
criminal intimidation.
34. The following are the FIRs /charge sheets where this offence is mentioned:
35. The following are the cases where the said offences have been included in the FIRs: r
(i) FIR NO.44/2019 PS Reckong Peo/Kalpa (Annexure A44) (p.269-270) in which a charge sheet has also been filed (pg.
755-757) which has been recommended for withdrawal by the Asst.District Attorney , but recommendation by the District Attorney, if any, is not placed on record. (Item .No.44 in list in CMP.NO.148/2024)
(ii) FIR NO.51/2016 PS Ani (Annexure A52) (p.282-284) in which a charge sheet has also been filed (pg.869-870) which has been recommended for withdrawal. (Item No.49 in list in CMP.NO.148/2024)
(iii) FIR NO.53/2019 PS Ani (Annexure A53) (p.285-287) in which a charge sheet has also been filed (pg.882) which has been recommended for withdrawal by the Asst. District Attorney, but recommendation by the District Attorney, if any, is not placed on record. (Item No.50 in list in CMP.NO.148/2024)
(iv) FIR NO.79/2019 PS Jawali (Annexure A64) (p.313-315) in which a charge sheet has also been filed (pg.968-971) which ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 13 has been recommended for withdrawal. (Item No.62 in list in CMP.NO.148/2024)
36. In Fiona Shrikhande v. State of Maharashtra5,: (2014) 1 SCC (Cri) 715, at .
page 48 :
"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied."
37. Public representatives should not act in a manner which would lead to breach of public peace. Thus withdrawal of case involving such alleged acts of sitting/former MLAs would have impact on public life.
38. As noted above, even the prosecutor had not recommended withdrawal of cases (iv) and (vi) referred to above. Considering the nature and gravity of the offence and it's impact upon public life, we are not inclined to permit withdrawal of prosecution of other cases i.e., (i), (ii), (iii) and (v) though there have been recommendations made for their withdrawal citing lack of damage to public and private property and also lack of violence causing injury to any person. We are therefore not in agreement with the opinion of the Public Prosecutor/Advocate General that they ought to be permitted to be withdrawn under Section 321 Cr.P.C. They have to face trial as chargesheets have been filed long back in these cases.
5(2013) 14 SCC 44 ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 14 D. Cases involving offences under Section 8B of the National Highways Act,1956.
39. Section 8B of the National Highways Act,1956 punishes a person .
committing mischief by doing act which renders or which he knows to be likely to render any national highway impassable or less safe to travel or for conveying property with imprisonment of either description which may extend upto 5 years, or with fine, or with both.
40. The cases involving the said offence are:
(i) FIR NO.97/2013 PS Kumarsain in which a charge sheet has also been filed (pg.498-499) which has been recommended for withdrawal. (Item No.17 in list in CMP.NO.148/2024)
(ii) FIR NO.124/2017 PS Theog (Annexure A-31) (p.227-228) in which a charge sheet has also been filed (pg.598-600) which has been recommended for withdrawal. (Item No.28 in list in CMP.NO.148/2024)
(iii) FIR NO. 61/2012 PS Theog (Annexure A-32) (p.230-231) in which a charge sheet has also been filed (pg.607-608) which has been recommended for withdrawal. (Item .No.29 in list in CMP.NO.148/2024)
(iv) FIR NO.129/2017 PS Theog (Annexure A-36) (p.241-242) in which a charge sheet has also been filed (pg.643-645) which has been recommended for withdrawal. (Item .No.33 in list in CMP.NO.148/2024)
(v) FIR NO.201/2018 PS Theog (Annexure A-38) (p.247-248) in which a charge sheet has also been filed (pg.667-668) which ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 15 has been recommended for withdrawal.(Item .No.35 in list in CMP.NO.148/2024)
(vi) FIR NO.101/2013 PS Kumarsain (Annexure A-42) (p.257-258) .
in which a charge sheet has also been filed (pg.712-714) which has been recommended for withdrawal.(Item .No.39 in list in CMP.NO.148/2024)
(vii) FIR NO.51/2016 PS Ani (Annexure A-52) (p.282-283) in which a charge sheet has also been filed (pg.856-870) which has been recommended for withdrawal.(Item .No.49 in list in CMP.NO.148/2024)
(viii) FIR NO.65/2022 PS Amb (Annexure A-56) (p.292-294) in which a charge sheet has also been filed (pg.894-895) which has been recommended for withdrawal. (Item .No.53 in list in CMP.NO.148/2024)
(ix) FIR NO.221/2020 PS Ghumarwain (Annexure A-58) (p.297-
298) in which a charge sheet has also been filed (pg.928-929) which has been recommended for withdrawal. (Item .No.55 in list in CMP.NO.148/2024)
41. There are also some cases as indicated below where the National Highway was stated to have been obstructed /made impassable, but Section 8 B of The National Highways Act,1956 has not been invoked inexplicably. In our opinion, it ought to have been invoked having regard to the allegations against the accused. Such cases are:
(i) FIR NO.151/2020 PS Shimla West (Annexure A-9) (p.170-
171) in which a charge sheet has also been filed (pg.414-415) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 16 which has been recommended for withdrawal.(Item .No.6 in list in CMP.NO.148/2024)
(ii) FIR NO.268/2018 PS Shimla West (Annexure A-10) (p.172-
.
173) in which a charge sheet has also been filed (pg. 419-420) which has been recommended for withdrawal.(Item .No.7 in list in CMP.NO.148/2024)
(iii) FIR NO.117/2019 PS Dhalli (Annexure A-11) (p.174) in which a charge sheet has also been filed (pg.423-424) which has been recommended for withdrawal (Item .No.8 in list in CMP.NO.148/2024)
(iv) FIR NO.81/2018 PS Dhalli (Annexure A-12) (p.177-178) in which a charge sheet has also been filed (pg.434-435) which has been recommended for withdrawal. (Item .No.9 in list in CMP.NO.148/2024)
(v) FIR NO.114/2020 PS Theog (Annexure A-13) (p.179-180) in which a charge sheet has also been filed (pg.439-440) which has been recommended for withdrawal (Item .No.10 in list in CMP.NO.148/2024)
(vi) FIR NO.90/2019 PS Kumarsain (Annexure A-18) (p.192-193) in which a charge sheet has also been filed (pg.482-483) which has been recommended for withdrawal. (Item .No.15 in list in CMP.NO.148/2024)
(vii) FIR NO.103/2018 PS Rampur Bushehar (Annexure A-19) (p.195-196) in which a charge sheet has also been filed (pg.491-495) which has been recommended for withdrawal (Item .No.16 in list in CMP.NO.148/2024) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 17
(viii) FIR NO.109/2018 PS Kumarsain (Annexure A-21) (p.200-
201) in which a charge sheet has also been filed (pg.502-503) which has been recommended for withdrawal (Item .No.18 in .
list in CMP.NO.148/2024)
(ix) FIR NO.54/2022 PS Kumarsain (Annexure A-22) (p.202-204) in which a charge sheet has also been filed (pg.514-516) which has been recommended for withdrawal (Item .No.19 in list in CMP.NO.148/2024)
(x) FIR NO.44/2022 PS Rampur Bushehar r (Annexure A-23) (p.206-207) in which a charge sheet has also been filed (pg.524-525) which has been recommended for withdrawal (Item .No.20 in list in CMP.NO.148/2024)
(xi) FIR NO.95/2019 PS Kumarsain (Annexure A-24) (p.209-210) in which a charge sheet has also been filed (pg.536-537) which has been recommended for withdrawal (Item .No.21 in list in CMP.NO.148/2024)
(xii) FIR NO.200/2018 PS Rampur Bushehar (Annexure A-26) (p.214-215) in which a charge sheet has also been filed (pg.554) which has been recommended for withdrawal (Item .No.23 in list in CMP.NO.148/2024)
(xiii) FIR NO.142/2012 PS Theog (Annexure A-28) (p.219-220) in which a charge sheet has also been filed (pg.575-577) (Item .No.25 in list in CMP.NO.148/2024)
(xiv) FIR NO.188/2020 PS Theog (Annexure A-29) (p.222-223) in which a charge sheet has also been filed (pg.584-585) which has been recommended for withdrawal (Item .No.26 in list in CMP.NO.148/2024) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 18
(xv) FIR NO.202/2020 PS Theog (Annexure A-30) (p.225-226) in which a charge sheet has not been filed ( not mentioned in the list in CMP.NO.148/2024) .
(xvi) FIR NO.222/2020 PS Theog (Annexure A-34) (p.236-237) in which a charge sheet has also been filed (pg.628-630) which has been recommended for withdrawal (Item .No.31 in list in CMP.NO.148/2024) (xvii) FIR NO.218/2020 PS Theog (Annexure A-35) (p.239-240) in which a charge sheet has also been filed (pg.636-638) which has been recommended for withdrawal (Item .No.32 in list in CMP.NO.148/2024) (xviii) FIR NO.69/2022 PS Theog (Annexure A-37) (p.244-245) in which a charge sheet has also been filed (pg.663-664) which has been recommended for withdrawal (Item .No.34 in list in CMP.NO.148/2024) (xix) FIR NO.121/2015 PS Theog (Annexure A-41) (p.255-256) in which a charge sheet has also been filed (pg.706-707) which has been recommended for withdrawal (Item .No.38 in list in CMP.NO.148/2024) (xx) FIR NO.95/2018 PS Sadar Kullu (Annexure A-48) (p.271-
272) in which a charge sheet has also been filed (pg.769) which has been recommended for withdrawal (Item .No.45 in list in CMP.NO.148/2024) (xxi) FIR NO.10/2020 PS Patlikuhal (Annexure A-49) (p.273-274) in which a charge sheet has also been filed (pg.789-790) which has been recommended for withdrawal (Item .No.46 in list in CMP.NO.148/2024) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 19 (xxii) FIR NO.42/2020 PS Patlikuhal (Annexure A-50) (p.276-277) in which a charge sheet has also been filed (pg.815) which has been recommended for withdrawal (Item .No.47 in list in .
CMP.NO.148/2024) (xxiii) FIR NO.489/2018 PS Sadar, Una (Annexure A-55) (p.290-
291) in which a charge sheet has also been filed (pg.888-889) which has been recommended for withdrawal (Item .No.52 in list in CMP.NO.148/2024) (xxiv) FIR.No.101/2018 PS Nahan (Annexure A-60) (p.301-303) in which a charge sheet has also been filed (pg.939-942) which has been recommended for withdrawal (Item .No.57 in list in CMP.NO.148/2024) (xxv) FIR NO.119/2018 PS Majra Sirmour (Annexure A-61) (p.304) in which a charge sheet has also been filed (pg.943-
945) which has been recommended for withdrawal (Item .No.58 in list in CMP.NO.148/2024) (xxvi) FIR NO.3/2017 PS Janjaheli (Annexure A-65) (p.320) in which a charge sheet has also been filed (pg.1006-07) which has been recommended for withdrawal (Item .No.65 in list in CMP.NO.148/2024)
42. In the State of Himachal Pradesh, the roads and National Highways have been judicially recognized as the lifeline to it's citizens in the absence of rail connectivity within the State. In State of H.P. v. Umed Ram Sharma6, the Supreme Court has held that access to the road is access to life itself. It declared:
6(1986) 2 SCC 68, at page 74 ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 20 "The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with Article 19(1)(d) of the Constitution and in .
the background of Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely throughout the territory of India and he has also the right under Article 21 to his life and that right under Article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well settled. We accept the proposition that there should be road for communication in reasonable conditions in view of our constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication."
43. The punishment under section 8B of the National Highways Act,1956 extending upto 5 years is intended to be a deterrent to dissuade mischief mongers from interfering with the flow of traffic carrying people including sick people, produce or goods to other parts of the State and the Country.
44. Obstruction of a road or national highway by anybody severely impacts public life in the hilly terrain of the State as there is hardly any rail connectivity. Therefore, though the District Attorneys have proposed withdrawal of prosecution in the above cases citing lack of damage to public and private property and also lack of violence causing injury to any person, we are not inclined to permit withdrawal of these cases and hold that the accused in these cases must face trial.
E. Cases involving offences under Section 51 of the Disaster management Act,2005
45. The Statute had been enacted by the Parliament for effective management of disasters and for matters connected therewith.
::: Downloaded on - 26/04/2024 20:41:44 :::CIS 2146. Section 51 provides punishment for obstruction by any person, without reasonable excuse, to the officer or employee of the Central Government or the State Government or a person authorized by the .
National Authority or the State Authority or District Authority in the discharge of his functions under the Disaster Management Act,2005.
47. The punishment is imprisonment for a term which may extend to one year or with fine or with both; and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger, punishment is imprisonment for a term which may extend to 2 years.
48. The following are the cases where this provision has been invoked:
(i) FIR NO.222/2020 PS Theog (Annexure A-34) (p.236-37) in which a charge sheet has also been filed (pg.628-630) which has been recommended for withdrawal. (Item .No.31 in list in CMP.NO.148/2024)
(ii) FIR NO.264/2020 PS Sadar Kullu (Annexure A-51) (p.279) in which a charge sheet has also been filed (pg.853) which has been recommended for withdrawal.(Item .No.48 in list in CMP.NO.148/2024)
49. These cases relate to incidents which had occurred during Covid -19 pandemic in 2020-21. Obstructing officers and employees in discharging their duties at such a critical time is a serious crime if proved and cannot be taken lightly and it has a great impact on public life. Though there have been recommendations made for withdrawal of these cases citing lack of damage to public and private property and also lack of violence causing injury to any person, we are not ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 22 inclined to permit withdrawal of these cases. The accused have to stand trial as charge sheets have also been filed longback.
F. Cases involving burning of effigies:
.
50. One such cases is FIR No.203/2018 dt.10-9-2018 u/s 143,188,341,336 IPC (Annexure A-1) (pg.18-20) ( Item .No.1 in list in CMP.NO.148/2024)
51. The learned Amicus has placed before us the decision of a Division Tamil Nadu7.
r to Bench of the Madras High Court in Mr.Santhos Yadav v. Bar Council of
52. In Mr.Santhos Yadav (7 Supra), the petitioner's application for enrolment as an Advocate was withheld by the Bar Council of Tamilnadu stating that he was accused of an offence under section 285 IPC for burning effigy of a political leader. When he approached the High Court, it granted him relief stating that there is no provision in the IPC which makes burning of effigies a punishable offence and Section 285 IPC is also not attracted by a mere act of burning an effigy.
53. We agree with the reasoning of the Madras High Court and hold that in the absence of any provision in the IPC making the burning of effigy a criminal offence, mere act of burning an offence would not be ground to prosecute the accused.
Other cases:
54. This leaves the following cases to be considered-
(i) FIR NO.156/2018 PS Shimla East (Annexure A-3) (p.387-388) under Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.3 in list in CMP.NO.148/2024) 7 2015-3-LW-528 ( Madras) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 23
(ii) FIR NO.150/2019 PS Sadar Shimla (Annexure A-4) (p.392-
393) Sections 143,341,188 IPC which has been recommended for withdrawal. (Item .No.4 in list in CMP.NO.148/2024) .
(iii) FIR NO.10/2021 PS Shimla East (Annexure A-12) (p.449-452) Sections 143,341,188 IPC which has been recommended for withdrawal. (Item .No.12 in list in CMP.NO.148/2024)
(iv) FIR NO.254/2020 PS Shimla East (Annexure A-14) (p.463-
472) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.14 in list in CMP.NO.148/2024)
(v) FIR NO.275/2019 PS Shimla West (Annexure A-22) (p.539-
544) Sections 143,451 IPC which has been recommended for withdrawal. (Item .No.22 in list in CMP.NO.148/2024)
(vi) FIR NO.124/2022 PS Shimla Sadar (Annexure A-24) (p.557-
562) Sections 143,451 IPC which has been recommended for withdrawal. (Item .No.24 in list in CMP.NO.148/2024)
(vii) FIR NO.47/2019 PS Theog (Annexure A-27) (p.589-595) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.27 in list in CMP.NO.148/2024)
(viii) FIR NO.136/2022 PS Shimla Sadar (Annexure A-27) (p.672-
681) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.36 in list in CMP.NO.148/2024)
(ix) FIR NO.110/2022 PS Shimla Sadar (Annexure A-40) (p.718-
720) Sections 341,188 IPC which has been recommended for withdrawal. (Item .No.40 in list in CMP.NO.148/2024)
(x) FIR NO.46/2016 PS Shimla Sadar (Annexure A-41) (p.725) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.41 in list in CMP.NO.148/2024) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 24
(xi) Kalandra, PS Sanjauli (Annexure A-42) (p.743-744) Sections 186,189 IPC which has been recommended for withdrawal.
(Item .No.42 in list in CMP.NO.148/2024) .
(xii) FIR NO.28/2019 PS Shimla Sadar (Annexure A-43) (p.751-
752) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.43 in list in CMP.NO.148/2024)
(xiii) Kalandra, PS Anni (Annexure A-51) (p.884-885) Sections 186 IPC which has been recommended for withdrawal. (Item .No.51 in list in CMP.NO.148/2024)
(xiv) FIR NO.147/2010 PS Barmana (Annexure A-54) (p.898-911) Sections 363,365,341/34 IPC which has been recommended for withdrawal as the complainant did not support the prosecution case during evidence. (Item .No.54 in list in CMP.NO.148/2024)
(xv) Kalandra PS Nadaun (Annexure A-56) (p.933-934) Sections 186,189 IPC which has been recommended for withdrawal.
(Item .No.56 in list in CMP.NO.148/2024)
55. Most of the cases relate to protests held against Government and are said to be peaceful without use of violence. The offences involved in these cases are petty in nature and do not partake the seriousness of the other cases which have been discussed above. There does not appear to be any damage to person or property.
56. In regard to the said cases, we are satisfied that the application for withdrawal has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law; that it does not suffer from any improprieties or illegalities as would cause manifest injustice if consent were to be given;the grant of consent subserves the administration ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 25 of justice; and the permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the Public Prosecutor is duty-bound to maintain.
.
57 Having perused the opinions of the Public Prosecutor in these cases, we agree with his view that they can be withdrawn under section 321 Cr.P.C.
Conclusion:
58. For the aforesaid reasons, we partly allow this application and permit withdrawal by the State under section 321 Cr.P.C only in so far as the following cases:
(i) FIR NO.156/2018 PS Shimla East (Annexure A-3) (p.387-388) under Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.3 in list in CMP.NO.148/2024)
(ii) FIR NO.150/2019 PS Sadar Shimla (Annexure A-4) (p.392-393) Sections 143,341,188 IPC which has been recommended for withdrawal. (Item .No.4 in list in CMP.NO.148/2024)
(iii) FIR NO.10/2021 PS Shimla East (Annexure A-12) (p.449-452) Sections 143,341,188 IPC which has been recommended for withdrawal. (Item .No.12 in list in CMP.NO.148/2024)
(iv) FIR NO.254/2020 PS Shimla East (Annexure A-14) (p.463-472) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.14 in list in CMP.NO.148/2024)
(v) FIR NO.275/2019 PS Shimla West (Annexure A-22) (p.539-
544) Sections 143,451 IPC which has been recommended for withdrawal. (Item .No.22 in list in CMP.NO.148/2024) ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 26
(vi) FIR NO.124/2022 PS Shimla Sadar (Annexure A-24) (p.557-
562) Sections 143,451 IPC which has been recommended for withdrawal. (Item .No.24 in list in CMP.NO.148/2024) .
(vii) FIR NO.47/2019 PS Theog (Annexure A-27) (p.589-595) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.27 in list in CMP.NO.148/2024)
(viii)FIR NO.136/2022 PS Shimla Sadar (Annexure A-27) (p.672-
681) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.36 in list in CMP.NO.148/2024)
(ix) FIR NO.110/2022 PS Shimla Sadar (Annexure A-40) (p.718-
720) Sections 341,188 IPC which has been recommended for withdrawal. (Item .No.40 in list in CMP.NO.148/2024)
(x) FIR NO.46/2016 PS Shimla Sadar (Annexure A-41) (p.725) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.41 in list in CMP.NO.148/2024)
(xi) Kalandra, PS Sanjauli (Annexure A-42) (p.743-744) Sections 186,189 IPC which has been recommended for withdrawal.
(Item .No.42 in list in CMP.NO.148/2024)
(xii) FIR NO.28/2019 PS Shimla Sadar (Annexure A-43) (p.751-752) Sections 143,188 IPC which has been recommended for withdrawal. (Item .No.43 in list in CMP.NO.148/2024)
(xiii)Kalandra, PS Anni (Annexure A-51) (p.884-885) Sections 186 IPC which has been recommended for withdrawal. (Item .No.51 in list in CMP.NO.148/2024)
(xiv) FIR NO.147/2010 PS Barmana (Annexure A-54) (p.898-911) Sections 363,365,341/34 IPC which has been recommended for ::: Downloaded on - 26/04/2024 20:41:44 :::CIS 27 withdrawal as the complainant did not support the prosecution case during evidence. (Item .No.54 in list in CMP.NO.148/2024)
(xv) Kalandra PS Nadaun (Annexure A-56) (p.933-934) Sections .
186,189 IPC which has been recommended for withdrawal.
(Item .No.56 in list in CMP.NO.148/2024)
59. We place on record our appreciation for the assistance rendered by learned Amicus Curiae.
60. The application is disposed off as above.
r (M.S. Ramachandra Rao)
Chief Justice
(Jyotsna Rewal Dua)
April 26, 2024 Judge
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