Orissa High Court
State Of Orissa vs Krushna Chandra Tripathi on 30 June, 1989
Equivalent citations: 1989CRILJ2222
ORDER J. Das, J.
1. This is a suo motu revision with a view to examine the legality, propriety and correctness of the order dt. 6-12-84 passed by the Sub-Divisional Judicial Magistrate, Jharsugda allowing withdrawal of G.R. case No. 974 of 1981 and as a consequence of that acquittal of the accused.
2. G.R. Case No. 974 of 1981 was registered on 7-12-81 on receipt of the F.I.R. of D.I.C., Rengali Police Station and the charge-sheet was submitted on 20-12-82 under Section 394, I.P.C. and cognizance was taken on the same day. On 28-1-84 charge under Section 392, I.P.C. was framed against the accused and the accused pleaded not guilty to the charge and claimed for trial. Then the case proceeded for trial. On 16-3-84, it appears that 8 prosecution witnesses were present. As the accused was absent, prosecution witnesses were discharged and N.B.W.A. was issued against the accused and the bail bond was forfeited. On 8-5-84 the case was advanced and a petition for withdrawal of the case was filed. The petition for withdrawal appears to have been written by the Asstt. Public Prosecutor, Jharsuguda. On 20-10-84 the Public Prosecutor himself filed a petition for withdrawal of the case. On 6-12-84 the learned S.D.J.M., Jharsuguda passed the impugned order allowing the withdrawal of the case. Hence the suo motu revision has been instituted.
3. The substantive portion of the petition of the Asstt. Public Prosecutor dt. 8-5-84 is as follows:
That the Govt. Pleader has directed the A.P.P., Jharsuguda for withdrawal of the above case under wireless message No. 127 dt. 30-3-84 and No. 187 dt. 25-4-85.
The petition which appears to have been written by the Public Prosecutor, Sambalpur in his own hand and filed by him is as follows:
The prosecution submits as follows:
1. That the above case has been registered and C.S. was submitted against the accused under Section 332, I.P.C and it is sub judice.
2. That while submitting charge-sheet, the major defects could not be noticed and rectified and C.S. was submitted for which the case is likely to end in acquittal.
3. That the prosecution as such wants to withdraw the case on administrative ground.
It is, therefore, prayed that the Hon'ble Court may be pleased to grant permission to the prosecution to withdraw the case, and accordingly the accused may be set at liberty.
4. The impugned order dt. 6-12-84 is as follows:
The accused is absent. N.B.W. not back. The Public Prosecutor, Sambalpur on 20-10-84 has filed a petition to withdraw the case under Section 321, Cr. P.C. In the said petition it has been mentioned that the C.S. has been submitted under Section 332, I.P.C. But in fact C.S. has been submitted Under Section 392, I.P.C. Moreover, the P.P. has submitted that some major defects are there for which the case is likely to end in acquittal for which the prosecution wants to withdraw the case on administrative grounds. However, heard the A.P.P. The petition of the P.P. is allowed. The accused is acquitted Under Section 321(b), Cr. P.C. since in this case charge has already been framed. Send the case record to the C.J.M., Sambalpur for approval. Recall the N. B. W.
5. It is seen from the petitions of the A.P.P. and the P.P., Sambalpur that they have not stated any reasons for withdrawal The A.P.P. has simply stated that he was praying for withdrawal on the direction of the P.P. The petition of the P.P. is misconceived as he has stated that charge-sheet was submitted against the accused under Section 332, I.P.C. although the charge-sheet has been actually submitted under Section 392, I.P.C. In any case, charge has been framed against the accused under Section 392, I.P.C. and cognizance was also taken under that Section 2 and hence the petition of the P.P. is undoubtedly misconceived and incorrect The P. P. has not given any reason for withdrawal.
The learned S.D.J.M. has also passed an order mechanically and without applying his judicial mind and the order does not contain any reason at all.
6. It is the established principle that withdrawal of a case is an executive act. The Court, however, perform a supervisory function in granting consent to the withdrawal It is of course not the duty of the Court to reappreciate the grounds which led the Public Prosecutor to request withdrawal from prosecution, but the Court must consider as to whether the Public Prosecutor has applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard, as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution. It shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompted the Public Prosecutor to withdraw from the prosecution, I am fortified in this view by a decision (Rajendra Kumar Jain v. State).
7. There are numerous decisions to the effect that the reasons for withdrawal must satisfy the judicial conscience of the Court. The order of withdrawal is also a judicial order and hence the Court must record the reasons for permitting withdrawal. The ultimate guiding consideration for withdrawal is always the interest of administration of justice and hence the Public Prosecutor has to make out some grounds to show that the prosecution may not be able to procure sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that object 6f administration of justice would not be advanced. (State of Orissa v. Chandrika Mdhapatra).
8. In view of the established principles of law as stated above, the permission for withdrawal vide the impugned order, is improper, incorrect and illegal as the impugned order does not contain any reasons for permitting withdrawal of the case and the Public Prosecutor has not also stated any reasons in his petition. On the other hand, the petition of the Public Prosecutor is apparently misconceived. This shows that neither the Public Prosecutor nor the S.D.J.M have discharged their respective responsibility properly.
9. This is a case under Section 392, I.P.C. The allegations as revealed from the case diary makes out a prima facie case. The offence by itself is serious and added to it the allegations are all the more serious as the offence appears to have been committed by a Police Constable. The prosecution allegation is that the accused-Police Constable forcibly went to the house of the informant at 3 A.M. (night) and on the point of knife forced the informant to open the box and took away a sum of Rs. 710/- and decamped. Thus, the alleged crime is quite heinous and the person, who is charged with maintaining law and order has been alleged to be the law breaker. A case of this nature should not be allowed to be withdrawn lightly.
10. On perusal of the case diary I find that there is no serious defect in the prosecution irrespective of the ultimate result of the case and so the entire petition of the Public Prosecutor is utterly misconceived and far from the facts. This goes to show that the Public Prosecutor has acted quite mechanically without being aware of his responsibility. The learned S.D.J.M. has also been influenced by the Public Prosecutor and has passed a mechanical order without recording his satisfaction that this is a fit case for withdrawal.
11. In the above circumstances, the impugned order dt. 6-12-84 permitting withdrawal of the case cannot be sustained and the same must be set aside.
12. In the result, the revision is allowed and the impugned order dt. 6-12-84 permitting withdrawal is set aside and consequently the order of acquittal of the accused is also set aside and the case is remanded back to the lower Court for trial of the case in accordance with law.