Gauhati High Court
Apurba Ballav Goswami vs State Of Assam And Ors. on 5 September, 2006
Equivalent citations: (2007)2GLR581
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. Subject to what conditions withdrawal from prosecution can be permitted by Section 321 of the Code of Criminal Procedure ('the Code') and what roles the Public Prosecutor plays in seeking withdrawal from prosecution and while dealing with an application made under Section 321 of the Code, what powers and duties of a court are, are some of the vital questions, which the present revision petition has thrown up for determination.
2. This revision is directed against the order, dated 10.6.2002, passed, in GR Case No. 1099/2000, by the Sub-Divisional Judicial Magistrate (S), Golaghat, permitting withdrawal of the case by prosecution and acquitting the accused-opposite party of the offence allegedly committed by them under Section 51 of the Wild Life Protection Act, 1972.
3. Before I discuss the facts, which have given rise to the present writ petition, it is, in the context of the facts of the present case, apposite to point out the basic principles governing exercise of jurisdiction under Section 321 of the Code. For this purpose, let me reproduce hereinbelow Section 321, which run as follows:
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:
Provided that where such office -
(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.
4. The Constitution Bench, in Sheonandan Paswan v. State of Bihar , speaking through Khalid, J, laid down that while considering an application made under Section 321, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal what, however, the court must determine is whether the application seeking withdrawal from prosecution has been made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law and, further, if, on considering the facts of the case, the court finds that the application suffers from such improprieties or illegalities as would cause manifest injustice, if consent was given, the court shall not allow such an application. Held the Constitution Bench, in Sheonandan Paswan (supra), that when the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such materials and, on such consideration, must either give consent or decline consent. Section 321 should not be construed to mean, observed the Apex Court, in Sheonandan Paswan (supra), that the court has to give a detailed reasoned order, when it gives consent, and, hence, if on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration of the materials available before the court, the order giving consent has necessarily to be upheld. Made the Apex Court clear, in Sheonandan Paswan (supra), that Section 321 contemplates consent by the court in a supervisory and not in an adjudicatory manner; what the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. Made it also clear the Apex Court, in Sheonandan Paswan (supra), that though Section 321, enables the Public Prosecutor to withdraw from the prosecution of any accused, a duty is, at the same time, cast on the court to ensure that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper.
5. Having taken into consideration the decision of the Constitution Bench in Sheonandan Paswan (supra), the Apex Court, in Abdul Karim and Ors. v. State of Karnataka and Ors. , which arose out of an order permitting withdrawal from prosecution of a number of accused under the Terrorist and Disruptive Activities (Prevention) Act, ('TADA') following a demand from Veerappan, an alleged poacher of elephants and smuggler of ivory and sandalwood, a three Judge Bench observed and held, thus, "The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice."
6. Laying down as to what a Public Prosecutor is required to do and what the court must look for, while considering an application made under Section 321, the court, in Abdul Karim (supra), further observed, thus, "It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its permission, in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent."
7. From what have been pointed above in Abdul Karim (supra), it becomes transparent that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from prosecution of an accused, it is really for the Public Prosecutor to apply his mind to all the relevant materials and, on consideration of such materials, when the Public Prosecutor, in good faith, feels satisfied that the public interest will be served by the withdrawal from the prosecution and that such withdrawal will advance the course of justice and will not thwart or stifle the process of law or course of justice, and, if on being so satisfied, the Public Prosecutor, makes an application under Section 321, the role of the court starts and the court can give consent if it is satisfied after considering all the materials, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. For the purpose of enabling the court to reach such a conclusion, it is necessary that the application made under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant materials, that withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. That apart, all such materials, which the Public Prosecutor considered, must be set out, briefly but concisely, in the application seeking withdrawal or in an affidavit annexed to the application or, in a given case, the materials may also be placed before the court, with its permission, in a sealed envelope. Though it is not for the court to weigh the materials, nonetheless it is a duty cast on the court to give consent only when it is satisfied that the materials reasonably lead to the conclusion that the withdrawal from the prosecution will serve the public interest.
8. Emphasizing that withdrawal of prosecution can be allowed only in the interest of justice and even if the Government directs a Public Prosecutor to withdraw from the prosecution of an accused, the Public Prosecutor owes a duty to the Code and that the court too has a duty to consider all relevant circumstances to find out if the withdrawal of prosecution would advance the cause of justice, the Apex Court, in Rahul Agarwal v. Rakesh Jain and Ors. observed and held,
10. From these decisions as we/I as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321. Code of Criminal Procedure is to be carefully exercised by the court haying due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.
9. In fact, reminding those, who are connected with administration of justice, in general, and the Public Prosecutors, in particular, that for a Public Prosecutor, it is not the Government, but the Code, which shall be the master and shall guide the Public Prosecutor, while making an application under Section 321, the Supreme Court, in Balwant Singh v. State of Bihar observed as follows:
The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor. It was non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution.
10. Describing the role of a Public Prosecutor in making application for withdrawal from prosecution, the Supreme Court, speaking through, Krishna Iyer, J. in Subhash Chander v. State (Chandigarh Administration) and Ors. observed as follows:
7. ...The law is, thus, well settled and its application is all that calls for caution. In the special situation of this case, two principles must be hammered home. The decision to withdraw must be public prosecutor, not of other authorities, (sic not) even of those whose displeasure may affect his continuance in office. The court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the Public Prosecutor. The two matters which are significant are: (a) whether the considerations are germane, and (b) whether the actual decision was made or only obeyed by the Public Prosecutor.
9. The functionary clothed by the Code withdraw from the prosecution. The Public Prosecutor is not the executive, nor a flunkey of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive.
12. The Code is the master for the criminal process. Any authority who coerces or orders of pressures a functionary like a Public Prosecutor, in the exclusive province of his discretionary power, violates the rule of law and any Public Prosecutor who bends before such command betrays the authority of his office. Maybe, government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the Public Prosecutor to consider whether the case or cases may not withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and responsible position of government, which in the last analysis has to maintain public order and promote public justice. But the decision to withdraw must be his.
11. What surfaces from the above discussion is that the decision to withdraw must be of the Public Prosecutor and not of any other authority including those, whose displeasure may adversely affect the Public Prosecutor's continuance in office. The court too, while considering an application under Section 321, is a monitor and not a servitor. It is the solemn duty of the court to ensure that the principles, governing withdrawal from prosecution of an accused, have been adhered to, and observed by, the Public Prosecutor, while making the application under Section 321. While exercising this supervisory and not adjucitory power, the court shall, however, guard against crippling or usurping the powers of the Public Prosecutor. As observed the Apex Court in Subhas Chandra (supra), what a court, while functioning under Section 321, shall determine is whether decision to withdraw has been dictated to, and obeyed by, the Public Prosecutor or whether it is the Public Prosecutor, who has, on considering all relevant materials, decided, in good faith, to withdraw from prosecution of the accused. To put it differently, the decision to withdraw from prosecution of an accused has to be, ultimately, of the Public Prosecutor and not of the Government. Since the discretion to withdraw has to be that of the Public Prosecutor and not of anyone else, the Public Prosecutor cannot surrender his discretion to anyone's else discretion. On what considerations and governed by what principles of law, a Public Prosecutor or an Assistant Public Prosecutor would come to the conclusion to withdraw from prosecution of an accused are, however, already indicated hereinabove.
12. Bearing in mind what role a Public Prosecutor plays, while conducting prosecution and what shall shape and govern his actions and deeds, while conducting prosecution, which obviously includes making of application for withdrawal from prosecution, and what the court has to look for and determine, while considering an application for withdrawal from prosecution made under Section 321 of the Code, let me, now, turn to the facts of the present case.
13. The material facts and various stages, which have led to the passing of the impugned order, dated 10.6.2002, aforementioned, may, in brief, be set out as follows:
(i) An offence report, seeking prosecution of the accused-opposite party herein, under Section 59 of the Wild Life (Protection) Act, 1972, for violation of the provisions of Sections 9 and 39 thereof read with Section 25(1) of the Arms Act. was submitted to the Chief Judicial Magistrate, Golaghat. In the offence report, so submitted by the Divisional Forest Officer, Eastern Assam Wild Life Division, Bokakhat, the case of the complainant was, in brief, thus : on 12.2.2000 at about 11 am, the present accused-opposite party, who are six in number, came to Numaligarh from Dimapur, State of Nagaland, in two vehicles and killed 5 numbers of wild monkeys and wild birds in Deopahar PRF and its adjoining areas with three numbers of 22 rifles, two of the rifles having been found to have been fitted with telescopes. Seeing the killing of the wild animals and birds, a group of youth informed Numaligarh Beat Office about the killings and took two foresters, namely, Dipak Das and Ashok Bora to the place of occurrence to prevent further killing of animals and birds. On arriving there, the two foresters saw the said two vehicles parked by the side of the road and the accused-opposite party coming out of the forest carrying carcass of the wild animals and birds. The said two foresters, then, with the help of the public, caught hold of the accused-opposite party, while they were trying to flee from the scene. In the process of apprehending the accused-opposite party, one of the foresters, namely, Ashok Bora sustained injuries and had to be shifted to the hospital. The accused-opposite party were, then, brought to the office of the DFO, Eastern Assam Wild Life Division, and the vehicles, arms and ammunitions aforementioned along with carcass of the birds and wild animals were seized. The six of the accused include one officer of the Indian Administrative Service. This offence report gave rise to GR case No. 1099/2000.
(ii) On production of the accused, the Chief Judicial Magistrate, Golaghat, remanded the accused to judicial custody on 13.2.2000.
(iii) When the case was pending in the court of learned Sub-Divisional Judicial Magistrate (S), Golaghat, the Public Prosecutor filed a petition under Section 321 of the Code seeking consent of the court to withdraw from the prosecution of all the accused persons. The relevant portion of the application, so made under Section 321, is reproduced hereinbelow:
As desired by the State Government of Assam the Public Prosecutor, Golaghat vide Govt. letter No. GHJ 20/2002/7 Dated Golaghat, the 10th May, 2002 this application is submitted by the later under Section 321 Cr.PC seeking consent of this hon'ble Court for withdrawal from prosecution against all the accused persons involved in GR case No. 1099/2000 on the following grounds.
GROUNDS
1. That the Government of Assam is of the opinion that the case may be withdrawn in the interest of maintaining good relationship between the people of Assam and Nagaland and in the interest, of Public Service between the two neighbouring states.
2. That the Public Prosecutor, Golaghat, Assam presently dealing with the case makes this application under Section 321 Cr.PC seeking consent of this hon'ble Court for withdrawal of the interest of Public Policy.
It is therefore, prayed that your Honour would graciously be pleased to give consent for withdrawal of GR case No. 1099/2000 from prosecution.
14. The learned SDJM (S), Golaghat, then, passed an order, which is quoted hereinbelow:
10.6.2002 Seen petition filed by the learned P.P., Golaghat praying for withdrawal of the case.
Heard the learned P.P. appears on behalf of the prosecution. The case is hereby withdrawal as per prayer of the learned P.P. Golaghat.
The accuseds are acquitted from the offence under Section 51 of the Wild Life Protection Act.
15. Feeling aggrieved by the withdrawal from the prosecution of the accused-opposite party and their acquittal, the petitioner, who is a journalist and a wild life activist, has impugned the order, dated 10.6.2002, aforementioned in this revision petition.
16. I have heard Mr. G. Uzir, learned Counsel for the petitioner, and Mr. K. Munir, learned additional Public Prosecutor, Assam. None has, however, appeared on behalf of the accused-opposite party.
17. While it is submitted, on behalf of the petitioner, that the impugned order is wholly illegal inasmuch as even the basic minimum conditions required for exercise of powers under Section 321 did not exists in the present case and the learned SDJM ought not to have allowed the withdrawal from the prosecution of the accused and acquitted them, the learned Additional Public Prosecutor's plea is that the withdrawal from prosecution is a sovereign act of the State and may be permitted in a given case. In the case at hand, according to the learned Additional Public Prosecutor, the withdrawal from prosecution was sought in the interest of maintaining harmonious relation between the people of Assam, on the one hand, and the people of Nagaland, on the other, and the learned Court below committed no illegality in permitting the withdrawal from the prosecution of the accused-opposite party.
18. In the light of what has been discussed and pointed out above, when I revert to the factual matrix of the present case, what attracts the eyes, most prominently, is that the application made under Section 321, in the present case, merely reflects that as desired by the Government of Assam, the Public Prosecutor, Golaghat, sought the consent of the learned court below to withdraw from the prosecution of the accused-opposite party. The application did not disclose that the Public Prosecutor was himself satisfied that the withdrawal of the prosecution was necessary to maintain good relation between the people of Assam and Nagaland and/or in the interest of justice. The Apex Court has been consistent, and has, as a matter of fact, reiterated in Abdul Karim (supra), that it is for the Public Prosecutor to apply his mind to all the relevant materials and it is only if, on such consideration of the materials, the Public Prosecutor is, in good faith, satisfied that the public interest would be served by withdrawal from the prosecution that he can make an application under Section 321. In the case at hand, the petition, in question, does not, however, reveal any application of mind by the Public Prosecutor to the materials placed before him. As a matter of fact, the application, made under Section 321, does not even reveal that any material was ever placed and/or was ever considered by the' Public Prosecutor before making the application, in question.
19. While it is not necessary for the court to assess the materials to determine if the case would end in conviction or acquittal, what the learned court below ought to have ensured is that there were materials placed before the Public Prosecutor, Golaghat, the Public Prosecutor had applied his mind to such materials and was, in good faith, satisfied, on considering all relevant materials, that the withdrawal from prosecution is in the public interest and would not stifle or thwart the process of law or cause injustice. In fact, the decision of the Apex Court, in Abdul Karim (supra), makes it clear that the Public Prosecutor's petition must disclose, though briefly and concisely, the materials considered by him before making the application for withdrawal so as to help the court arrive at a correct and sustainable decision. In the present case, however, no such materials were disclosed to the learned court below. While seeking withdrawal from prosecution under Section 321, the Public Prosecutor, let us remember, is not merely a mouthpiece of the Government; his master, as the Apex Court observed, in Balwant Singh (supra), is not the Government, which appoints him, but the Code of Criminal Procedure and he has to be guided by the provisions of Code and not what the Government desires.
20. In the case at hand, there was absolutely no foundation laid for making of the application under Section 321. The learned Court below also acted unaware of its duties in the matter. When no material had been considered by the Public Prosecutor and when he had acted merely on what the Government had desired and when there was obviously no attempt made by the Public Prosecutor to verify and satisfy himself that such withdrawal was in the public interest and/or that such withdrawal would not thwart or stifle the process of law and cause manifest injustice, the application, in question, could not have been treated to have satisfied the requirements of Section 321 enabling the court to give consent to the withdrawal sought for. When, in Abdul Karim (supra), the Public Prosecutor had acted only as an instrument of the State Government, while seeking withdrawal from prosecution, the Apex Court observed, "In the applications under Section 321 made by the Special Public Prosecutor before the Designated Court at Mysore submitted that the Special Public Prosecutor had decided to withdraw from prosecution the charges under the TADA Act "in order to restore the peace and normalcy in the order area and among the people living in the border area and to maintain peace among the public in general and inhabitants of the particular village" and that such withdrawal from prosecution was necessary "in the larger interest of the State and in order to avoid any unpleasant situation in the border area". The applications did not state why the Special Public Prosecutor apprehended a disturbance of the peace and normalcy of "the border area" or the "particular village", nor was any material in this behalf, or a summary thereof, set out. There was, therefore, no basis laid in the applications upon which the learned Judge presiding over the Designated Court could conclude that the Special Public Prosecutor had applied his mind to the relevant material and exercised discretion in good faith and that the withdrawal would not stifle or thwart the course of the law and cause manifest injustice.... The Special Public Prosecutor, in fact, acted only upon the instructions of the Government of the State of Karnataka. He, therefore, did not follow the requirement of the law that he be satisfied and the consent he sought under Section 321 cannot be granted by this court."
21. In the present case, it is abundantly clear that the Public Prosecutor had not made the application, under Section 321, in terms of the repeated and authoritative pronouncements of the Apex Court. When the application made under Section 321 revealed no legal basis for making of such an application by the Public Prosecutor and, particularly, when there was nothing on record to reveal that the. Public Prosecutor had applied his mind to the relevant materials and had exercised his discretion in good faith, the learned court below ought not to have given its consent and permitted the withdrawal. The learned court below also, thus, failed to apply its mind to the requirements of law and merely accepted the application for withdrawal as a routine affair without noticing the glaringly noticeable fact that the withdrawal from prosecution was not at all in accordance with law and was, rather, in serious disregard of the position of law, which authoritatively stood pronounced, in this regard, by the Apex Court. Such an order, which stands impugned in the present revision, shall, if allowed to stand good on record, cause serious miscarriage of justice.
22. In the result and for the reasons discussed above, this revision succeeds. The impugned order, 10.6.2002, is hereby set aside. The case is remanded to the learned court below for proceeding with the same in accordance with law.
23. Before parting with this revision, it may also be pointed out in the present case, the revision has been filed by a member of the public. Normally, this court would not have interfered on an application made by a member of the public ; but in view of the fact that the offence report itself discloses that the accused-opposite party were allegedly apprehended with the active help of the members of the public, one cannot say that a member of the public cannot feel aggrieved by illegal and improper exercise of jurisdiction under Section 321 of the Code. That apart, this court, on having noticed manifest illegalities committed by the learned court below in giving its consent to the withdrawal from the prosecution, could have taken up even suo motu this revision. Considered thus, I am firmly of the view that this revision petition cannot be thrown out merely on the ground that the informant was not one of the persons, who had himself apprehended the accused-opposite parties. Before parting with this revision, it is also made clear that setting aside of the order, dated 10.6.2002, aforementioned shall not operate as a bar for the Public Prosecutor, Golaghat, to make any future application, in the present case, in accordance with law, for withdrawal from prosecution of the accused-opposite party herein.
24. With the above observations and directions, this revision shall stand disposed of.
25. Let the LCR be sent back forthwith.