Karnataka High Court
Deputy Commissioner And District ... vs The State Of Karnataka, on 8 September, 2010
Equivalent citations: 2012 CRI. L. J. (NOC) 124 (KAR.) (DHARWAD BENCH), 2011 (4) AIR KAR R 181
CrE;P.Nos.80'2"O. 80?l, 8072.
8073 and 80;/;gl%;)f 201G
M,
IN THE HIGH COURT or
CIRCUIT BENCH AT DHARWAD '-
Dated this the 891 Day of Septembe-§'j20:l:V(}VVs'lll
THE HON'BLE MR.JU)STI(§I31..A'A1,I "
Criminal Petition Nos:8lO70;. 8107:. .'soll7',2:
80713 and o€_20lO 5
BETWEEN:
Deputy Commissionef _
Election
LegislatiVe«*As<sein_bly Co1istit:ue--hcy.,»
Bellary. b ...Petitioner
ll (common in all Crl.Ps.)
[By Sv"1v=_i. Sharat" "P-._c;1\/ocate 81 Sri Krishna S.Dixit,
Senior'C_ounsel,_)' _ ---
' The St,at:e"'o.f Karnataka,
by vl?ol*;<":e Sfo}b-Inspector,
" . Cowl Eiazéiar Police Station,
"-R6195 by State Public Prosecutor,
H1.ghv._Court Buildings,
T __Dha1"Wade
Ramakrishna, S/o Ramanna?
Age: 87 years, working in OMC
Mines, R/o Havambhavi,
Dist: Bellary.
(_A"§'*~('""'**a'/"'/v
.AI1anth, S/o._Rudrapf.ra;*V. A _ ._ AV
Age: 23 yearef,"~R/C»; Ba.sa;¢Vanal:jur1te;'
{Z},gB'IA_f';ur:dawade, for
Advocates for R6)
. The State by Police Sublnspector,
Cowl Bazaar Police Station,
Bellary, Rep. by
State Public Prosecutor,
High Court Buildings,
At Dharwad. c -
. Nfluluganna, S/0 Ramayyadkg
Age: 35 years, R/0 Bellary_._
. Nagendra, S / o Hanumanllapl;lja,g
Age: 23 years, R/0'BaSaVE{l19ll{"o1fI'tC,
Siraguppa Road, B~--el}--ary'_._ " *
Siraguppa Blellargy. :1.'
. Mallikarjurisfl, S / o _Ira.r"ina.__ H
Age' :" years , '7R",' Q' 'Bgasavarilakunte,
Siraguppa }?.Oad;l Bellaziy; ~
. Gali
S/Q 1ate"B_.lCh.a'ng'a Reddy,
Age: "43 years.' BJP Candidate for
'*Bellary'City Aselelrnbly Constitutency,
; » Former Mayor, Bellary
ll l\/l:,.1.f;--lci'plal.'Corporation, Bellary.
C:rl.P.Nos'80'?O, 80?}, 8G'E'2,
8073 and 8074 of 2010
.,,.Respor1dents
(in Crl.P. No.8072/2010)
Shri
(By Srl.l':.K.M.Nataraj; Addl. Advocate General and Shri
l{;B.Adhyapak, for R1; Sri Ravishankar and Shri
Y.Lakshmikanth Redclys
~42
Cri.P.N0s.8070, 807i, 8072,
8073 and 80?4 ef 2010
. The State by Felice Sub~InspeC:t0r,
Cowl Bazaar Police Statien,
Beflary, Rep. by
State Public Prosecutor,
High Court Buildings,
At Dharwad.
. Govindu, S/0 M.Doraiswamy,v'7..A
Age: 34 years, Modaliyaéf,
2401 Ward, City Municipah
Corporator and owner of
Scorpio Car R/0 Bégbu N221idi;1~- 1'
Street, Bellafy. " t 7
Age: 40 years:,L>V1'Be11a1y. _
. R.ShiVakuma_t, S/:o"'R;Shesh§1gi1-1;.
. B.S0mé:she4k_afV @ *
Age:__ 39 yre_2i1'S;;,R/0.jC:af1esh_Sti;eet,
. Beilary Valu,
Age: '39'--yea1'§ ,' 'owl Béaraar,
Be11ar'y.___' " V ' '
. Tejeswar, /"e_V'_i'shwanath,
' . A V'Agei-."t32"t'years, R/0 Contonment,
_ " e11.aI'y .' < "=
fifliemed S/0 Mahammed,
Age:V__v3'2,years, R/0 Cowl Bazaar,
Bellamy.
.VtD--:Vakar Reddy, S/0 Sanjeevereddy,
'Age: 29 years, R/Q Belagal Cross,
; Bellary.
{_%"~£"*«~r'"'\,,,,w¢,.,»»~'~z«
CrI.P.N{)s¢8Ci7'O, 8071, 80725
8073 and 8074 Gf 2010
CS1
9. Rehaman, S/0 P.C§.ShaikshavaI:i,
Age: 27 years, R/0 Cowl Bazaar,
Bellary.
10. PG. Govindaraju, S/0 Raju,
Age: 27 years, R/0 Bellary. ._
11. B.V.Srir1iVasareddy, A
S/0 Venkatareddy, Age; .39 years",
R/0 Havambhavi, Be11ar_yf'~~ '
12: B.Sriramu1u, S/e.B.TimHraVpp'a';»t._
Age: 38 years, Forrf1i1er'MIgA.,
Sirguppa Road, Be11.a'1'y'.s---.~' ...Resp0ndents
' A _ vV.»(1n"e;f1--.Vr*. No.8073/2010)
(By Sri. K,VM.N1ataraj;«Add1._AdVOc:ate General and Shri
K.B.Adhy"apak,V"""fer. 'A-Biavishankar and Shri
G.B.GundaWad:e, fer V"-Si1r_1_ YiLakshmikanth Reddy,
Advqeates my RIi:'I'&_"i2)
1. The Statehy.P01ieeS.i1b~Inspeet0r,
..«1E}0W1 Bazaar. Felice Station,
" ~---.Bei»1'ary", .. Rep. by
~ ~ _State,Pu_b1i__(_: Prosecutor,
Bufldings,
2. S/0 Najeer Ahamed,
T Age: 30 years, R/0 Shareef Street?
V Vkiiowl Bazaar? Beflary,
Shivakumara S/0 Gurubasappa,
Age: 40 years, R/0 near Viyani
Institute, Nethaji Nagar, Befiary.
("MSW-«Wu-a&wr'*
'.2 '
cri,p:;ivos.,'so9:'oV;' seer, 8072,
_. * 'so*zs and-8o",--?'4i or 2910
4. Shankar Reddy, S/o Ramana
Age: 23 years, R/o Bellary}'''~.V_M " . '
5. Khaja Mohiddin, S,/go Mastah_:,'-
Age: 26 years, R/oafshar-eeijStreet,'*._
Cowl bazaar, Bellary. '
6. B.Sreerarnulu;. _S/ BV.Tl.iiméi}jp_a5 '
Age: 38 Former_ C'
Now C" _
Legislatiye».Assemb<ly"Constituiency,
Sirguppa " Bellcary. C" 'C .. Respondents
. " (in C1"l.P.NO.8074/2010)
(By Sri; Advocate General and Shri
K.B._Adhya"pal:,._jfor'--._ R1; Sri Ravishankar and Shri
G.Ej.GundaWa.de, for Shri Y.Lakshmikar1th Reddy,
" '~ _ Adfi}loc;;1.test_for R2;"3;'4 & 6)
"criminal petitions are filed under Section
482 of the Code of Criminal Procedure seeking to set
the impugned Judgment and Sessions Judge,
dated O5.06.20lO rendered by the learned
gvggflrincipal District and Sessions Judge, Bellary in
Crl.R.P. l\los.l37, l38, l39, l4l and l4O of 2010
respectively.
These criminal petitions coming on for dictating
the orders this day, the Court made the following:
'..«/-=«=-=-~*~»/"'""
,:m«..
C1'l.P.Nos.8070, 8071, 80?2§
8073 and 8074 of 2010
:?:
COMMON ORDER
These five Criminal Petitions are iiiedV'..__ur;_{j'er Section 482 of Cr.P.C. by the same petitior:er:'A--l$fiz.., .. 4 Deputy Commissioner and D_istri.etfjv Bellary, who is the informant_ in (5;(_3fNos. 593 and 594 of 2008 the Vti.le»'thevf%learned I Additional JMF C, referred to as "Trial Court" for of/fl:-1&"3 legality and Correctness dated 05.06.2010 passed Sessions Judge, Bellary "Revisional Court" for short) in Cr1.I'i.'lI'l'<,_l_ 1'~I<;oslV.V' of 2009 allowing the said re\Iision' petitionsvvanrl thereby reversing the orders dated r29.08..2009_A"passed by the Trial Court in the said C'.riiiiinai*Cjas'es. Common question of law is involved in all these petitioner Therefore, they are disposed of by :~f_"' thlilsvComrnon Order.
egie' Cr1.P¢Nos.8070. 8071* 8072, 8{}'?3 and 8874 o{2{}EC3
2. The Trial Court? by its order dated 29.08__f2009 passed in the said respective Criminal Cases;V:'d§£:'o:éX>¥ed the memo dated 03.08.2009 filed by informant seeking its perrn-its'sievn fl b arguments opposing the the learned Assistant Puhli-of'E?roseeu.to1'*.1inder'"SeCtionVV 321 Cr.PrC.(hereina.fte3jV.refei*red'Vr_:t:oA"APP""for'short) in each of the said of the Trial Court for '-C8.S.s"§§1:E1UI1Ch€d against the holding that the petitioner-inforrne;'.ni 'lodetuisdvéstandi' to oppose the said anplieations' the learned APP, ,.«figfi.'Aggrieve<1V__1;y.the said orders of the Triai Court, (Respondent State herein) filed the said Crfrnined Petition Nos.137 to 141 of 2009 before..th.ehRevisiona1 Court. By its Common Order dated V' 'fff}AA5;t}'{3.2O1O9 the Revisional Court allowed 3}} the said ' revision petitions and set aside the orders of the learned W. »-z.
sflqé "~t"'fl'*'\.x1"N Cri.P.Nos,,E§0fE'G;.V807it, 8072, eo:?.3'a.n::_:~zof;4 of 2.010 :9: Triai Court impugned therein it petitioneninformant has no '1ochus'"s'ta_n'di'~: toV:"oppoS'e the said applications filed by the 321 of Cr.P.C. Aggrieved setici of the Revisional Couitr petitions are filed under Section 482 of
4. the informant in the said before the SHO Cowl Bazaeir against the respective accustedi for Section 171E of IPC and und-e.rpSection'3'."of."Kernataka Open Spaces (Prevention 'Of.':'1)2:'sfigi1rernent)'"itAct, 1981. After completion of 'Vin\}eeti',g§:tio:n,:_jeharge~sheet came to be filed in the said Crimin.:eJ"-.$3ases for the said offences against the respective accused therein.
5. Before the plea of the accused could be "recorded in the said cases, the learned APP filed his application dated 17.07.2009 under Section 321 Cr.P.C; ,%,,»»«a¢ 6-.;%"'*e""' CrliP.NoEs.8070, 8071, 8372, 8073 and 8Q?4 of 2010 :11: 29.08.2009, passed in each of the said Crirninaijtifases, held that the petitionerainformant has 3:0 oppose the said applications. The Revis_io:iial':Cotii*t;"inVl* Criminal Revision Petitions :£hat:lw¢'r¢ prosecution, took contrary viev_v,'= allowed the'; said', revisions and thereby set _thellord:ers the Trial Court impugned
8. I Shri. Krishna S.DiXit, @1113' petitioner--informant; Additional Advocate General; to as "AAG" for short) Shri lielarned Additional Government A. forlHt"i'i'ell respondent ~ State and Shri "'i.'%f1an'l{ar,ll_j.the learned counsel for the respondents ae4euse~dtl:i'r:s all these petitions. Perused both the orders of th'e."5ilrial Court and the Revisional Court,
9. Having heard both the sides, the only point that arises for my Consideration in all these petitions is:
"
er1.PiNos.ss§_?"el. 80271, 8072, 80?'3.;;;n'd_ son of 2010 :12: Whether the injorlzjnargt X , o Criminal Cases (Petitioner nerein), set criminal law in information against uio'eeu.sed htherepinf has 'locus staneli' to..V:lgpp5O9't;~ filed under Section .of$;.vV.'b§}:VV.t;fi1e learned of the said (::?'i[fl1ti?:J._:i.lvEA@:'(fi§éS-:_VSé€~kif?'gV:"£fOn3€nt of the Trial said Cases?
10. ' Mailp said revision petitions, the respondent'thereinp' petitioner herein) contended that theo'r<;lers_ofAtkieiearned Trial Court, impugned in re'A»rision« were 'interlocutory orders' and ' ;.there~fore;V'«vlti1e_ respective criminal revisions Challenging of the said orders were not rn'::int-einatfiie. in View of that Contention, the Revisiona} ApC;ourtv..--Araised point No.2 for its consideration which 'reeds as:
V "Whether the order passed by the learned Magistrate is interlocutory order which bars strewn"
cri,P.Nos,ee::o,;ao?i, 8072, 8073 ane of 2010 17:4:
lodged information before the p'oiice.coneerr1ei7i alleging that the respective accused in the Said cases'~Cornroitte:i the offences under Section II.'VC.__ar1(;iVtin'é;*-tier' Séjctiori" V 3 of the Karnataica Open-..V_Sp_aces' '--{l§re\(e?ntion of Disfigurement) Act,Vi--§:8_1' basis of the said information, the ioriirines against the respective and filed said Criminal Cases for therefore, the petitioner has the applications, filed by the learned it Section 321 of Cr.P.C. seeking of the 'Trial Court for withdrawal of the said ' ;c'ases.V_V4i'rom«A"'vprosecution, by placing before the Trial H "Vth.eVA'g:=.re1evant material showing that the said apkpliciations deserve to be rejected. He further V "oo.ntended that, though there is no specific provision in giving the informant in a criminal case a right "of audience for opposing the withdrawal application filed under Section 321 Cr.PC by the iearned APP/Senior C..i.§*"~'°e~--~** C1'l.PiNos.8é§t7ltIr.8O7i. so'/2, soar and _so74 of 201:3 :l5:
APP/Public Prosecutor, in the~interes7t tlzaell informant deserves an opportunitylof lbeingoheard question of giving consent -l:dy..V_theA'Court__io:r"':$ki'thd'raWal' V of the case. He further conten'ded'--.thatlsince there is no provision in Cr.PC of audience to the informant, natti_ral.V that an opportunityfto'goppoee application shall be given «<,xl'I:ji-iorsetls the criminal law in motion By info.rn1ation"'t5efore the police. Pershri K.M.Nataraj, the learned Ad§litional.lAdy6clate' General (AA ), strongly contended .th'at the cognizance of an offence is taken by the 1 Tjrial the informant will have no say in co..nduct.ing;"of the criminal case at various stages and therefore, the petitioner, though informant, has no locus l.s%El.'£i'I7rCli to oppose the said applications filed by the lfiearned APP seeking withdrawal of the said cases. He further contended that, the question, 'whether or not to §"w-~»~,,...s.
seem"
' W" '/ W V"
CrLP.N(3S.80.7'C?_, 807}, 8072, 8073 and 8074 of 2010 :18: give consent for witthdrawai', vxjonid _ = prosecution represented by the Court, a third person, though Charge~sheet witnesses, "of the Crime, cannot be of heard in the matter and Court has rightly reversedghe of Court holding that the no locus standi to oppose' the Common Order of not call for any interference in these:ipetitionsi'._He::_"-further contended that, in the of_____t.he provisions in the Code of the ' 'Eroe_edure there is no provision providing for H audience to the informant either while an application under Section 321 of Cr.P.C. 'foryvithdrawai from prosecution, or at any stage of the after cognizance of the offence is taken. He further 'eontended that if such an opportunity is given to a third person either on the ground that he is informant or on ¢.wM§""*«a"°"'z.,»»~«»=vW V v, I Crl.P,Nos.8_Q._70, 8071, 8072, 8073 §:tl"Iti8C}74 of 2010 :18: Section 321 of Cr.P.C in the respective is involved in all these petitions; I facts constituting the offences 1 therein are chargeesheeted;llVthflernierits of the applications that through the learned APP under Further, I need not the learned APP to file the 321 of Cr.P.C. and the pQw.er"o,t giving or declining to git/e c:3i1sei1t":'forWithdrawal of the said criminal cases from I have to focus only on the question 4u'LL3hetfter.lV' the petitioner herein, being the A "tin alt said criminal cases, has 'Locus 'V the said withdrawal applications.
.. Learned AAG, placing strong reliance on xgsdeveral decisions of Hon'ble Supreme Court and Various Courts, strongly supported the View taken by the C Revisional Court that the petitioner--informant has no ?
er1.P.No_s.so-:{_o;~s0?:, 8072, sore s;:>.:1;sov74 of 2010 :19: locus standi to oppose the*rsai'd for withdrawal.
16. In AIR 1924 Patgal"j2ssw._(DBj. Hfihagat Vs. Narain Singh), first 'relied upon by the learned AM}, itis held Code], gives the Trial "gr or refuse consent and that interfere in revision if so1h€v"q{1éS{i§§n involved. It is further observed private prosecutor has no positionlllltat litigation: the Crown is the prosecutor and «theeustodian of the public peace and if ~ deei'des«.to'vl_et an offender go, no other aggrieved party 'to object on the ground that he has not tal{en"---l:hi's"lfull toll of private vengeance. It is further ll rrobuservedz "If, therefore, in the present case, the Court l allowed the Public Prosecutor to withdraw the ease _.:upon insufficient per grounds, the Local CrI.P.Nos.8O'.7O, eon, eoziz, 80'?3 anti sew; ef zoie :20: Government is the only authority who Cnatetion V' for the correction of that error."
17. Suffice it to eagiftkiat of the High Court of'Patna in relate to the 'right of 'C--_e12.t1ifr1ed.jf the petitioner» informant while deciding the of consent for withdrawal of th'e'.eriinii1a1 case, C' it ci.eC'isions relied upon by the learned 'AIR 1952 Rajasthan 42 (C.N.20) (Amar Nétrian The State of Rajasthan and In the\...s..aid case before the High Court of ' 'right of private party to apply in revision' On that question, the High Court held that firitfate party has no locus standi to apply in 2 » ire*vi_sion against the order passed under Section 494 of (old Code). This Vi€W of the Rajasthan High it it 'Ceurt is quite eontrajy to the View taken by the High Gear: of Andhra h in 1999 Cr1.L.J. 3566 Cr't.P.Nos.8Q70, 8071, 8972, 8873 and 8074 of 2010 :22: Supreme Court the question that fell for was, 'whether the Committing Magistrate give consent to withdraw the 9 despite the Case being tridble L Session. Therefore, it v§ras::"obserVe.d' 'Hon'h1e'T Supreme Court, at para Nor?-thereincA,_ as urrderri "Para.7. There that only thga (pujour-t" xvtorfidisdcharge or acqupit: 4 some other pro}r_isiorrs 'or C-'ode"v, can exercise the 32CI";"""C:rimina1 Procedure :*v.Co--de.»Th%§' -pox2\}e1=.::conferred by s. 321 is itself V 'po'\xJei'j.rconferred on the Court ' ~ hefore..,pwrrom.'V'a «prosecution is pending and nexercise"'Vof the power is not made
-,d'epen"dent upon the power of the Court to discharge the accused under some V___ot;herACprovision of the Code. The power to " discharge or acquit the accused under S. 321 is a special power founded on S. 321 itself, to be exercised by the Court independently of its power of enquiry into the offence or to try the accused. Again, the Wgmcm Cr1.P,1v\l§)S;;8£§7"{3:;'e.8Cr? 1, 8872. _.&'~_O73":z§2':é._ _8€:=.7___4' 'ef 2910 expression judgment" in the ::':C"orite§it 'fags 5% understood to meat: e-fghe juV.dgrnen't"""3§fljieh_V3§ may be ultimately pre»:;e';:neefif'~.if "i1"vie ease were 1:0 be (:0mefn.ix1:ted.»='te' a..C»oi1::'ji of SeSfsien." Since the question oj"'--'Io1cus--_of_»ihe"'--:2fgfQr=:21cznt' in opposing the application» for :7v'itE1dIjax>ira}»--,twee considered by the HOfl§b1€»"'vS1;{§)_§EH1(§__CQL1I'{" ifn_1:he said deeisicn, the aboveV.pr0_1:Ses itie:;1_.:s bf ---I1Q_ Help to the respondent - State;,,__ -. ' .20. o f-- decisions relied upon by the AAG Cr1.L.J. 3211 (Kerala High Court) «{Saranz:mq"Reter and others Vs. State of Kerala). In the 1 'tfiefgfe the High Court of Kerala, 'an application fe2'*..1wi£;}lCZnei2;L$al was filed by the Compiainartt, but not by the ..AApfosecv:.i50r§. Thereferee the High Court of Keraia heid that 'it..\2§as only the Public Proeecutor or the Aesistant Public:
_...?r0seeutor inwtharge of the prosecution, who could file an application under Section 321 of Cr.P.C. for withdrawal of the ease and this power eafmot be Subject wwpgwymww <:r;.p.Nes.8o%'c3, 80?}, 8972, 83753 ..;m:g_ SQ74 0f 20 3 0 High Court. and even if a I:hird__.p.ar_:y matter to the: rzotice of the Court will have 'sue motu' p_dV£§¢r t0 'ca.11' for'-:a£1.§1"'e:;;ainine'V I the records of any p.:0C€e§j.i:1g§S_-- _' p}"st».._iVs fI,1aI'""rZh.,.C7IT, ;§1e1d that this power is not ()ITl1:,;'cVl"\{f'c'£i'1"<}J_iV)Vi':§EV::.:' Court under S€CtiQI1 397, but also available rte of Art.227 of the C0nstvifi:1;f i()I1V'::;\':V»iL'Ve_; Vto say that the said applicable to the present Cases locus of the petitioner inf0;1mg1nt'foV.§)AppQsé thé Withdrawal applications.
of the decisions relied upon by the :ggma*';«1«c;%1s 2004 Crl.L.J. 747 {Delhi High Court) (K{%<§n:"vCIié;z£dhary Vs. State). The facts of this said case 'we--.r§: Iisgorkers of iwo rival political parties were inciuzlged "A'iA'!'ii;i;!OiOlLS Conduct" by pelting stones and damaging each V' ""}:3z:her's vehicles, Therejbre, the azrcused were chczrga sheeted in the said case. Triad was not' gei Commenced in £%0W€e.,....sm-~»»» ///////..
exercise ajudicial discretion. It is also observed in ivdecision that Public Prosecutor, though an 'V the carat and that he is bound to assist the Court with if fhis.__fa.irly considered View and the Court is entitled to the benefit of the fair exercise of his function.
C = -These observations of Horfble Supreme Court do not, in cri.p.ries;§3o?o;'.j'so":.i, 8072, __ -3073 ago save of zoio :30:
25. In Ninth of the decisioxinsf relied learned AAG, i.e., in A1R'V.i9§7 :332?iv"{::ji'i'afa"'vs.t:.iteof"
Bihar Vs. Ram Naresh Pandeij':arnd_v_qnotiaerii the Hon'ble Supreme Court has -494 [old Code) is enabling one_an_d v:eé.ts-- 'JProsecutor the discretion.' 2 its consent to xmthdrary: for any permit. It is further -ithfi j function of the Court in granting its Well be taken to be a judicial function; it followsA"th;at in granting consent the Court 'executive-'officer, is, in a larger sense, also an officer of any Way, indicate whether the informant in a criminal case, who sets criminal law in motion, has locus to %vé aim";
............... .. g the-«*present eases. Similarly, the 14th of ' .i:he. relied upon by the AAG i.e., AIR 2008 SC Baldev Mishra @ Sharma Vs. State of winnsideied by the Hon'ble Supreme Court, is also not "'V.ap;jlieable to the present cases. CrllP._N.0_s.8l§'7lZl;~ smf 1, 8072, ,$O73%fiKl8&?4ef2GlO :34: eonsideratiens. Therefore, I aim A~theli'.Vi'ey{r ti1.at.V'l'§§iie above observations also are-.__inap"p1ie'ablextethe ptleseritlv C8868.
28. In 2006 L' (S.:ii';-fihztkha and others Vs. State of U.'.-PW. andbtfiefs),_"»t_he.V'_1;{fi?bf the decisions relied Horrble Supreme matter of withdrawal fromiv:prQsee'ditiQh9,«.the"P1,iblig: Prosecutor cannot act like a post bex' I-1' the dictate of the State Governmelflts. =T'hei."efére, the said decision is also Mdhafqsfitra), wherein refusal of Consent was
29. Fifteenth of the decisions relied upon by the learned AAG is AIR 2004 SC 4674 = (2004)? SCC 338 C:'1.P.N0s.807€}, 8071, 8672.
8073 and 8074 sf 2Q£O : 35 : (Adalat Prasad Vs. Rooplal Jirtdal and other'é}.:w said case, before the Honfble Supre:n€:'f"
question Was. "whether {he Ma§;I£s'isz"ate' ; review his order issuing prqcesstipgsssed to taking cognizance of the said question, V./thee held:
After taking Cognizanéee and examining the e0mp121{i11:%x;;;f.-- if Magistrate is satisfied grbund to proceed with the by Way of summons unde1:"'S,! '2(§4' Therefore what is necessary or 5,1..(:onditiQn"p'ree'edent for issuing process under 8.
{he sativsfaéction of the Magistrate, either by the Complainant and the witnesses or by in:_quieg§Ac0ntemp1ated under S. 202, that there is .1'"s:.1fficierit ground for proceeding with the complaint to "._is'su:e process under 8. 204 of Code. ........ .. It is true ' "Eihat if a Magistrate 'takes eegmizanee cf an offence, issues prseess without there being any afiegaiiion (W~ ...... .. . . . . . . . . _ ..
<:r1.P.No:;. 'em 1, eo:?2.
:--.:h:§~ ';f§{3?"?g if 2010 :56):
recorded its deeieien thereon the4 ejffe<;bt': appellant did not have Ioegs te":3};:1'pQse for withdrawal of the Crimiilel»casee"~f_h'af:e-Zxvxrége filed by the prosecution and': thereiijfgig;e 'e1:3,f.xr ie"Ié1i'dV down by the Horfble Supreme VA case on the question of of criminal case in opposingifiheg§di'h'd1'awaI of the Case. :*;40._ = entire judgment in the said ease between 'the'"1:ine"$~.._V The facts in the said case as could. be géthe1*ed fforfimajority View per Baharul Islam, Jet para Nos=..3_§5_, 40, 42, 43, 44, 45, 46 and 48 of the 1983 SC 194] are as under:
A "(air ' appellant therein ViZ., Sheonandan was a Member of Bihar Legielative flesembly and he was elected ae such from Dal party, in 1972, respondent No.2 Viz., D12Jaga:r111aJ:h Mishra, became Minister fer Ceeeperation and fXgI'iC'LfliL1I'€, Baring June 1974., Su.b~Divisi0na1 Cooperative Audit Officer, Patna, submitted his report of the W"N§»-«-«4"""~».a..,.»»*"* ..... .. _ .
CrI.P_.--}§:es;E3GC3i}; ; V3072, '8Q73ja:1d'8O"i'4,of 2910 :55: High Court in revision Wasnot raised for Te:é;neidere,t.iend'V.e by the Horfble Supreme C0urtV;"'t, ._
43. The 18? point has____heer1~.._e0nsi'de1fed_5at para Nes.4~9 and 50, the"'--...f;2l¥dA ijeihts have been considered respectivety No.58 of the judgment. Lordship has considered' thzitd was raised by the learned" therein and recorded findingVS.tir1«ereoh.' and 61 read as under:
_"Pa1:a"'«lt'$9: other submission of the e§pe11aht' 'is__t_hat there is a prima faeie Case fded&.'teiveu1.vby the Special Judge and that this éheuld send it back to him for trial."
"Para@:63.: Although it does not arise out of the " "three points formulated by Mr. ..\/'efiugopal at the start of his argument, nor V' does it arise out of the appellant's petition opposing withdrawal, learned counsel submitted that there was a prime faeie case fer tria} by the Special Judge and the case should he remanded te him for trial. Let us Jet"
C"E'§.?.NOS;80'7Ut 8071, 8072, 8073 and 8074 0f2C)1€) :56: examine that aspect aiso as it has argued atlength." V j_ _ [Emphasis Supplied}... V » 3
44. Further, para N<i2,_62:..... Baharui Islam, J (majority:/*-Lggw} féacis as £3 "Para 62, Before is pertinent to 11:iV§1"1tior_iAA.t}:1';9;;t :.j_iV_1L-_.~,,':1'2i:As ap};;V-tintipéétion before the Spec'iV:%=1i_"'Jttd§é, j!".:ljie§.AA_';;1'1'»j1';_el1ant did not fing1A't'fg;u1t:tt"iivit1;i':: a§1yffj».p_f Mgrounds of filed by the Pubijc 'S°e'ction 321. His v.,OI"1"Iy. ;.'xxrast'_'th;{t an attempt was "Public Prosecutor to sbutttettxg that the Court should ' -vappls} it§3:V'iridetjeI1wdent mind before according zsonsgnt "" the Withdrawal and that he ,, ., heard in the matter.
[Emphasié Supplied] T 1"téaJ5tQV.é4'.V0bservati0ns of His Lgrdship Bahrul Islam J 2 go to Show that thfi appellant Sheonandan .}'a:s'*AWan was permitted. by the 1€a1*n€d Special Judge ta ' file his application and also to submit his arguments by taking reievant contentions opposing the applicatian for mfw Cri,P,No:3.80'?'_0, 8071, 8072, 80:73 a.t_1d'SO74 of 2010 : 63 : withdrawal application. in otherhworde;"thiefpetitioner?-'V. informant has right to be heard inctheéinatter consent for Withdrawal ofthe_vsaid'case, A A
50. Yet another Vpdireiied iiprjn by the learned counsel for of the H0n'b1e Supreme Ceurt. the eaee or .J.K.International Vs. State of éovefntwtent diilgedihi and others reported in is chederved by Hon'b1e supreme Courttat para' 12 of its judgment in the said case as under:' * V' But the situation here is it as the accused approached the V for quashing the criminal pp proceedings initiated by the appellant. It may not be that the complainant shcuid have been made 3. party by the accused himself in the petition for quashing the criminal proceedings, as the accused has no such obligatien when the case was charge» sheeted by the police, It is predominantly the concern of the State to continue the _it.bei'oa7e tiruahighei' forums." 7:'Pa1"aV»a1fhe_V"'scheme envisaged in the wC_ode;')V., Ainclicates that a person who is aggrievediihjrwthe offence committed, is not
--.aItog._ether wiped out from the scenario of the . zncfely because the investigation was ~~ was laid by them. Even the fact that the Cr§.P.Nos.8Q'?0, 8017], 8072, 8073 and 8074 of 2010 :§4:
prosecution. But when the complVainen*t:*ge. wishes to be heard when the proceedings are sought to be _ would be negation of justiicegitio him' foreclosed from being heua:f_d"~,eii7eni.'after makes a request to ..Court in that What is the advantage iiioffltize teigling him that he notlibé allievien at the risk of the initiated by him being quashed.' to him to be thheiiicriininaiproceedings are quai'shei:d" ' imajrfihaire right to challenge Code of Crinzin-a:.l"'*.Pi'ocedure ( for short " the taken over by the poiice and the charge--sheet Court had taken cognizance of the offence is not sufficient to debar him from reaching the Court for ventilating his grievance. Even in the Sessions Court, where the Public Prosecutor is the only authority empowered eoirieetness of""th.e.__Qrder of the learned Magistrate and ' ;ti1erefor'e,'<..h'e eannot be given any opportunity of being the withdrawal application cannot be it eeehallenge the correctness of the order of the learned l"A._lViagistrate giving consent to withdraw the case from /. _..proseeuti0n, one cannot understand why an Crl.P.l}§§}s;8£uF?il;'e~8Cr'?L 8Q?'2, of 2010 :68: informant will have no role ..
need not be and eannot"be.._giveii. 'any being heard While éhellhlapplieaition for withdrawal from in View of the above observations,.-- Court, contention" if the learned Magistrate , application and thereijyllgixreis foruvvithdrawal of the ease, the inforniant willhave'"h;is*--.rej:nedy either by filing a private eon1plaint--«.Vll0r a revision challenging the If the informant could be given a right to opportunity should be denied to the informant to eereeeww-w *§%i».
in 'de'Ci'sieh'.vef Calcutta High Court in Sk.Abdu;r Karim 2 Atvetotntehtded that the petitionerdnformant has no locus the Trial Court to oppose the Withdrawal tflapplieattiont It is observed by the High Court of Calcutta, CrI,P.N0s.8:§.'70, 8071. 8072, 8073* .:m:1_ E>~Q?'4 of 2010 :69: 0 ose the withdrawal a lieatien wheI?1 it is'-e'orisi.Cier'e_.d ' by the Magistrate on merits'
52. In the ease "Rights Commission Vs. Stai:§..gf othefe feported in (2009) 6 sec 767, White-ht by the learned counsel fO1':_theV Suiareme Court has observed above, the role of vic:tirn__i_1f; a"'::1*i'1fi§.;1e1I t_I'ia_I"can__I1ex9'er he lost sight of. He or she an iheep§i1'ab'1veV't':';.ta;keh01der in the adjudicating processf 'These Ghsefvations also support the case of the; p"etiti0her ant herein.
_ Tgeairned AAG, placing strong reliance on the V5: The' State and others reported in 1981 Cr1.L.J. 219, at para No.8 of the judgment, as under:
Vhgretiltiiig permission to withdraw the 'teased.' it cannot be said that permissionvh irnproperly upon extraneous ' thatiters. WI' "" Hétccordingly uphold the order 'hy the learned Sessions Judge. In it of the View that a private party has no " locus standi to move against an order of Cr1.P.Nos.80'Ff3, son, 80272, eo73_a;.i;:1'so?4 of 2010 :7"(}:
Para 8: "Having eonsidered"a1_i'h-,th;e referred to by Mrs. Moitre Sattar the order of:__V'the learned Judge is to be exarnined _to it iivhefther permission was 'right}?':gite_1'rVfor Withdrewai. The learned Sessiorls tindoubtedly had the jp'1'incip'Ies' decisions of that it is the adInini$tI_§atio11 .oi'~ij:tstiee Vhthhat should weigh the," ttleairhedht " Sessions Judge granted thisjeonnection I may point out that though tvhere is no direct authority on the point, I acquittal passed by the learned Judge upon an application being made under Section 321 Cr.P.Code to him by the Public Prosecutor in a case which he was conducting. The language of Section 321 of the Code makes it quite clear th atter is between the Crl.P.Nos..8i)-iZo;.80?l, 8072, sore 'am-soV74 of 2010 :'?'l:
Public Prosecutor and the it/Iagist--rat;e Judge concerned and a "i3artyjA%'l'ias right to interfere in_"s1zieh"AineettereglA*f._gA.n}f Public Prosecutor Assistant ' Ptiblic Prosecutor in the consent of the ¢¢::irt,l ti_n'ie'1before the judgment' is from the prosec.ntito€n._V_of generally or in rriore of the offences which is'-teed'; Section 321 Cr.P.C.) being the custodian of is the only person who i " can rnalgelan application for withdrawal and, Eifewfithdraxikallttis granted by the court in the r. of administration of justice, no Voarty can come up against that order ofdvvilthdrawal.
" 54. Yet another decision relied upon by the A :lear_ned AAG is 1989(1) Crimes 593 (Kerala High Court) l{Madcm Gopal Vs. State of Kerala and 2 others). The facts in the said case were: "2"d respondent therein was ca doctor employed in Gouemment Service and the third respondent therein was a private Medical Practitioner 5%' C'f§.P,N€}S.SQ7G§ 807%. 8072, 80'?f:'> and 8074 of ZOEQ : 772 : running :2 hospiiai and both of them were <:har;iie>:§hee§ed and tried before the learned JMFC, Cochin, for under Section 304A of LPG. The-IZem"ned_1'A§!i§'hfi£e€i,' -13:1 {he b__j:
said case, an application Vundei*.__$eoiion";3_'21 of seeking withdrawai of the }5:¢se¢u::on;' The learned JMFC' con;$ehte§E to the" 'Loithdrawal. Therefore, the defacto the husband of the deceased',";f{Ied aggrieved by the said order". .::ft_>.,;E'ao';S';' hthe Hon'ble Supreme Courf phi No_;'1_ has under:
';P_gra,% 13 ..,V .A:..:; : the consideration _ _Vwhi»E:"h w.ei'ghed Nvith the Government, the P1"aS_<_:C.ut0r and the Court are not _ge1f1-1.1 é;ne and consent was not properly can still file a private complaint, as Shoo Nandan Paswar1's case ( séupra), ' with the possible risk of a suit for malicious an orosecution if his complaint is bereft of any basis, Ram Naresh Pandey's case (supra) may even indicate shat a private complain: may not have a locus standi. 'When the executive authorities invested with the :""'-..,.»..u.,.w,wWW 5%.";
//'C Cr1.P.Nos.8G70, 8071, 8072, 8073 and 8074 of2C!iO primary responsibility of prosecuting seriotist offences, which are ciassified as offences, decide to withdraw on which the court feels ge1jrn'ane,'."'a"' individual who claims to be f offence cannot succe_ssfuiiyLi'-persuade " the'; A' Court for a direction the proceed with case: Wish.es'f.'§
55. The learned upon the decision of of Razack and others Vs: 2001 Crl.L.J. 275, has taken the View that Vithe vithdrawal from prosecution neither cornplainantd'-nodr charge~sheet witness has locus stém{di3~."s'~in"i' the efiercise of discretion by the Public 1 Prosecu't.or ,v§ithdre.vi? from prosecution.
.55. As to the occurrence of any offence, criminal i;3§€i;*'~..may be set in motion by any member of the public, {eho comes to know of the occurrence of that offence, and in that regard, he has to lodge his information r§}?7l)« Cri.P.NoS.8{}'?G, 80?}, 8072, 8073 and 8074 ef 2010 : 74 : before the police concerned. Thereafter, a duty east on the State to investigate into the said offerieee. evidence and bring the offender to submitting ehargeeheet aga..iIi's*:._ the competent Court. All this is with a View to maintain i.orde1~.
Therefore, iaunehing. 'TC-rirr1iriai"i 'ease, its eontinuation and accused, is the responsibiiig/'-- of same is in the 'public interest' is involved in institjjiiirig a wrong doer and in eeeinghthiat in accordance with law. This is the rea?sor1'v§hy;- provided under Section 320 C";'P€C§»'."'*f.h'o1igh eeritiain offences are permitted to be 1 eempeiir.;_ded~,.,Vif the Victim of the erirrie and the accused who Cff}Fi1II'.:i'itS Crime mutually agree, Certain heinous offeneee; are not allowed to be compounded, even with ' fih'e-1i§ermission of the Court. ':"mN:§:;'"»"\».M,,..» Crl.P.Nos.80?'O, 8071, 80272.
8073 and 8074 of 201%} :'}"8:
Horfble Supreme Court at para No. 14 of its Judginent in the ease of Sheonandan Paswan vs. and ors. reported in AIR 1987 SC 87\ the informant in a criminal withdrawal application filed by thegtate , para No. 14 in the said as Para 14 : "The learrled'l._co;.unse1p»on behalf of Dr. Jagannathp Misraf' another contention a with a View to displaeirl-g~fthe.:_:1o(:us'~--lstlanpdi of Sheonandan l3_a.sx2vai1.ttol«1.:prefer aprevsent appeal. It was urged. it l.:VXZh€.I:l"-.V_ShTl Lallan Prasad Sinha applied 'for to withdraw the _prose'e.ution Dr. Jagannath Misra and *3,ot_l1ers, lS"heQ_nai1dan Paswan had no locus to withdrawal since it was a matter .laetween the Public Prosecutor and the it Chi,et€--;§'udieia1 Magistrate and no other person a right to intervene and oppose the ' \fl?ithd1'aival, and since Sheonandan Paswan had no standing to oppose the withdrawall he was not entitled to prefer an appeal against the order of the learned Chief Judicial Magistrate amia Cr1.P.Nos.80?'O. 8071, 8072, sore and 8074 of 2010 :81: must therefore reject the contention urged on V behalf of Dr. Jagannath Misra that Sheonandafn.»_d'~V. Paswan had no locus standi to withdrawal of the prosecution. If ' entitled to oppose the :$§\}ithdraVizai»;' prosecution, it must follow for-tiori i"d--A turning down of his opposition Chief Judicial Magistraite.,L:heVV_ was to prefer a revision:4_app1i_eatiori:.the Highbourt and on the High' 'Court'dddddrejeetingvdddhis revision applicationiphe "pi:ei'er an appeal to ftheriefore reject this contentioniflof the<--.1'en;i'ned counsel appearing on bjehaldfi agaiinath .1v\v/iisra. 6I=.__ learned counsel for the petfitivoner rexferring the above observations contended » that it is the 'minority view' since no contrary View is in the majority Judgement, the above préoposition has to be followed.
62. Per Contra, while commenting on the above "ininority view, and piaeing reliance on the Division s:*"-~«§%"°"""""M " '2 "" ",'i"<c W,nw Ci'i.P.Nos.8G'.7O. 8071, 8072, SCVFB and 8074 of 2010 :82: Bench decision of this Court in the ease of Desattally Service Co-operative Society Ltd., and othef§":
State of Karnataka and others reported KAR 122, the learned AAG V' minority View in the said law laid down by the Supfeine» Coi11*t._eVeii; the majority View is not eontrafy to Vfninorityhview.
63. I1ea:d.__Not:eWB' a§1d_"p:.§xa 2o..:..«6f its judgment in the said Division Bench of this ii by majority of Jtid.ges_ of Bench» Observations made Vininotity of Judges on a point ;f'ann.ot bewfegharded as laying down the law i. point even if majority of Judges have silent on that question. AIR 1975 i Reion; AIR 1963 Ker 155, Expi.
"{-{Sara 28)."
Para 20. "Even so, it was contended by learned Counsel for petitioners that it was on account of the exietenee of the safeguard wymevn Cri.P.NOs.8070, 8Cf'?1. 8072, 8073 and 80274 Of201G :83: of hearing the affected eopperative soeietieee before making an order of ama1game.tt*0h_;-".j' this court held in Puttappas ease(AiR . Kant 148)(FB) that the e_onfe_rme'fivt'ef:p0\ife.1f}_ on the Registrar or Deptrty See. 14~A of the waefixjiot unggtfi;-teed. or; arbitrary and that appIie_atin}.1 the principle audi,.a1teram~p.arte1:m, ist diepehsed with, that p0we.rt"beeQn?tes
64. As.:a11'_eac1j/H"bysupra, in View of the Hon'b1e Supreme Court in V.s'.AcIt.@ij;h§i'iiiand'ct;i---C V§;"'~RfBalakrishna Pillai and other'e_(Al'_R' International (AIR 2001 SC _1'14i)C';'=.ar1d_Ndt.itmtil Human Rights Commission , SCC am of the considered opinion that 'the'petitierleréirxformant herein has locus to oppose the application before the learned Magistrate. Shri Ravishankar, the learned counsel for the h';je'sper1dents~aeeused in these petitions strongly Vhfleorrtended that if the subprdinate eriminai Court passes a-~«~:%~%"w"m"'*""°"y7 Cr}.P.Nos.807{), 80?}, 80725 8073 and 8074 of 2813 :84: any order without there being any specific proyjision in the Criminal Procedure Code for passing such' it amounts to exercise of inherent powers "a{§eet':on_ 482 of Cr.P.C., which are Veste;i""on1y j but not in any subordinate erirriignal eourt and «therefore, if the right of audience'-v..is'*V.r»given'..to,the":TpetitionerV~ informant by the iearned Magistrate, it aniounts to such exercise of inherent powers';a'nd.._tth,ere£0re, the learned Magistrate be:__perné;:itt'ed"'to- 6_6_,_ "v~Ijér5e'::91_1tra'; eounsel for the petitioner, referriI1g--.'to orders that are being passed by the MagistrateitVwititipoutfthere being specific provision for paasgzing' sueh"ord_ers and which orders are approved by ' APS3X C.@tiIt, submitted that giving right of audience to to oppose the Withdrawal application does not arnount to exercise of inherent powers under Section A :%i82~.of Cr.P.C. in this regard, he referred to the orders dismissing the complaint for non-prosecution, granting aafrwen er1.p.Nes,.se7'o;.Vso71, 8071 so?s':;n§:Vpes74 of 2010 :85: interim bail, and an order" '"issui;;g "to "theft informant/complainant before eeeepting Report. <
67. It eannothe tho1ig'h"there is no specific provision thotdelrh.Afof"_;_dismissing the complaint tor: ptoeeeding, such as :;'_:>25'Cr.PC, for default on the pm-'--tV I;e.on1pieir1o1'1t.,{petitioner, in prosecuting the have been passing orders dismissingsueh_'eo:npL:1iht/ criminal proceeding for non prcisecution. "'Ft11jt_her, despite there being no specific »A Cr.P.C., as laid down by the Horfble in the case of Bhagwant Singh Vs. Coizxfzifssioner of Police and another reported in AIR V "1'9$5VV"'SC 1285 (which is strongly relied upon by the "I.v1e'a"1;ned AAG) and also in Gcmgadhar Janardan Mhatre .-7:Vs. State of Maharashtra and others reported in AIR 2004 SC 4753, issuing of notice to the informant/ Com Iainant ivin him o ortunitv of heir; P m§..g%\/Ag PP - g C1'l.P.N0sl8070, 8071, 80?/'2, 8073 and 8074 of 20lO : 88 : heard becomes mandatory before the Magistrate accepts the 'B' Summary Report filed by the police A. V
68. T he Apex Court haspppglyen its "
passing above kinds of orders::.o:4b&r::,:th.e "
despite there being no '~.I)/ov'§slQ1\\;¥_«,, such orders and despite powers vested with them. the considered opinion that, the informant an opportunity of withdrawal of Cannot be said that it amouints: powers by the learned Magistrateuplwhilehll'arer:l..:1ot Vested in him or that it .. _ A' amounts to any'il1_egality committed by the Magistrate' reasons aforesaid, l am of the Co:'rsidere<l:l*opin1on that the present petitions deserve to ' he pallowed. Henee the following:
<***~Ǥ~%'""""'M Cri.P.N0s.807CI, 8071, 8072.
8073 and 8074 of 2010 :87: ORDER
(a) Criminal Petition Nos.80'70, 8072, 8078 and 8074 of 2010 fi1e:5:1_."'u,ni<ier"
Section 482 of Cr.P.C. arehereby;aiiiowevdib"
(b) The impugned it 05.00.2010 passed the 1e'arnedp: erineipaii Sessions Judge, Bellary',-..iri-- V osfi 137 to 141 of 209 is_.h.ere.by
(c) The orders' passed by the ie.arri;%ed_V IjAdd_itiona1. iJiMn;:, Bellary, in 5a3"and 586 of 2008 .~or1* the met-110 'filed by"t'ne informant in the *.,5ai--d' case?gIiz,V.i,»i,th-ep_Depi1ty Commissioner and E'1.e(3tion: hiffitfiicer, are hereby restored. The «1e.a_.rned Magistrate shall receive _fr=orn:the petitioneninformant the objections it to the applications filed under 321 of Cr.P.C, by the learned APP in ~ the respective eases seeking consent for Withdrawal of the respective cases, hear the arguments of the learned Counsel representing the informant, consider the documents produced by him and then, nignww Cri.P.N<:>s.80'?O, 807i, 8072.
8073 and 8074 013010 dispose of the said applications 75 aceordancé with law.
Kms