Orissa High Court
Citizens Of Tirtol vs State Of Orissa And Ors. on 6 March, 1997
Equivalent citations: 1997(I)OLR548
Author: A. Pasayat
Bench: S.N. Phukan, A. Pasayat
JUDGMENT A. Pasayat, J.
1. This petition was rergistered on the basis of a letter addresed to the Honourable the Chief Justice of. this Court alleging that at the behest of the Deputy Chief Minister of the State eleven criminal cases were intended to be withdrawn, and this amounted to interference with the judicial process. A copy of Setter from the Under-Secretary to Government, Home (Special Section) Department addressed to the District Magistrate, Jagatsinghpur requiring him to furnish his view was enclosed to the petition along with the letter alleged to have been written by the Deputy Chief Minister.
2. In the counter-affidavit filed by the State, it has been stated that Section 321 of the Code of Criminal Procedure, 1973 (in short, the 'Code') lays down the procedure for withdrawal of case, and the allegations are frivolous and motivated as the stage of with drawal has not come and the matter is under consideration on the basis of suggestion given by the Deputy Chief Minister.
3. At this juncture a reference to Section 321 of the Code so far as it is relevant is necessary. The same reads 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) 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 :
xxx xxx xxx "
Two main features of Section 321 are (?) initiation by the Public Prosecutor or Assistant Public Prosecutor in charge of a case; and (ii) consent of the Court.
4. As observed by the apex Court in State of .Orissa v. Chandrika Mohapatra and others : AIR 1977 SC 903, it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with th9 prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touch-stone on which the question must be determined whether the prosecution should be allowed to be withdrawn. In H.K.Jain v. State through Special Police Establishment: AIR 1980 SC 1 510, the apex Court has observed that an elected Government, sensitive and responsible to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a claim which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecution already launched. The Court in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. The power of Public Prosecutor to withdraw from prosecution is wide but should not be used as a rubber stamp. This Court in Balabhadra Das and another v. State of Orissa and Ors.: (1991) 4 OCR 263 went to the extent of saying that the concerned file should be made available to the Public Prosecutor and the Court to examine if it would be beneficial to the society. Withdrawal from prosecution is an executive function of the Public Prosecutor. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else. and so, he cannot surrender that discretion to someone else. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but nobody can compel him to do so. Though Section 321 does not lay any bar to restrain the Public Prosecutor from filing the application for withdrawal, he must apply his mind to see whether withdrawal is called for. The Court is not to reappreciate the grounds which led the Public Prosecutor to require withdrawal from the prosecution, but has to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. 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. [See N.K. Jain's case (supra).
5. The Court may grant permission to withdraw only if it is satisfied on the materials placed before it to show that the grant of it would subserve the administration of justice, and that permission was not being sought covertly with an ulterior purpose unconnection with the vindication of law which the executive organs are in duty bound to further and meint. (See M. N. Sankararsarayanan Nair v. P.V. Balakrishnan : AIR 1972 SC 496). The sola consideration for the Public Prosecutor when he decides to withdraw from a prosecution is the larger factor of the administration of justice-not political favours nor party pressures nor like concerns. Of course, the interest of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side 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. Public justice may be a much wider conception than the justice In a particular case.
As observed by the apex Court in Sheo Nandan Paswan v. State of Biha and Ors. : AIR 1987 SC 877, Section 321 providing for withdrawal from prosecution gives no indication as to the grounds on which the Public Prosecutor may make the application or the "considertions on which the Court is to grant its consent. The initiative is that of the Public Prosecutor, and what the Court has to do is only to give its consent and not to determine any matter judicially. the judicial function implicit 'In (the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive 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. When an application under Section 321 is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. The Court's function is to give consent. The Court is not obligated to record reasons before consent is given. However. it does not. mean that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its Judicial discretion by considering such materials and on such consideration, either gives consent or declines consent. All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith and the Court should be satisfied that the exercise of discretion by the Public Prosecutor is proper.
6. The true legal position flowing from Section 321 is as follows :
(1) Under the Scheme of the Coda prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
(2) The withdrawal from the prosecution is an executive function of the Public Prosecutor.
(3) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
(4) The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
(5) The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of puclic justice, pubiic order and peace. The board ends of justice will certainly include appropriate social, economic and political purposes sans Tammany Mail enterprise.
(6) The Public Prosecutor is an officer of the Court and responsible to the Courts.
(7) The Court preforms a supervisory function in granting its consent to the withdrawal.
(8) The Court's duty is not to re-apprectate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his rnind as a free ^gent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimata repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.
(9) it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution.
7. The Court has a responsibility and as to take in the administration of criminal justice and so. has the Public Prosecutor, its Minister of Justice. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone mast have control over the case and decide what is to be done in each case. The consent of the Court is not a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion be considering such materials, and on such consideration, either gives consent ..or, .declines consent,, The section should not be construed to mean that tho Court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an over-all consideration of the .materials available, the order giving consent has necessarily to be upheld.
8. The discretion of the Court In such matters is necessarily \o be exercised with reference to such materials as .is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplimentary at a higher level to those of the executive but are intended to prevent abuse. Section 321 which corresponds to Section 494 of the old Coda requiring the consent of the Court for. withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the. responsibility for a prima facie determination of the triable issue. The consent is not to be lightly given on the application of the Public Prosecuton without a careful and proper scrutiny of the grounds on-which the application for consent is made. The position on the point was illuminatingly stated In State of Bihar v. Ram Naresh Pandey : AIR 1987 SC 389. These aspects have also been highlighted by one of us (A. Pasayat, J.) in State of Orissa v. Bijayranian Singh Bariha and eight Ors.: (19 3) 6 OCR 136.
9. In the light of legal principles as.-enumerated above, the position is crystal clear that the stage of withdrawal in terms of Section 321 of the Code has not yet arrived. It appears from the counter affidavit filed by the State that the matter is under consideration on the basis of suggestion given by the Deputy Chief Minister. Suggestions can be given by any person, but the procedure for withdrawal has to be in accordance with prescriptions made in Section 321.
The present petition is therefore premature, and is accordingly disposed of.
S.N. Pukan, C.J.
10. I agree.