Uttarakhand High Court
Kishor Singh vs State Of Uttarakhand And Another on 14 November, 2017
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 255 of 2017
Kishor Singh ....... Revisionist
Versus
State of Uttarakhand & another .......Respondents
Hon'ble Sudhanshu Dhulia, J. (Oral)
Mr. R.S. Sammal, Advocate, present for the revisionist.
2. Mr. J.S. Virk, Assistant Government Advocate with Ms. Mamta Joshi, Brief Holder for the State/respondent No.1.
3. This criminal revision has been filed with a delay of 423 days. The reasons for delay in filing the criminal revision seem to be genuine and bona fide. Consequently, delay in filing the criminal revision is condoned. Delay condonation application (CRMA No. 1529 of 2017) is allowed.
4. Heard learned counsels for the parties on merit.
5. The present revisionist before this Court is an accused in FIR No.46 of 2009 which has been registered under Sections 147/336/427/436 of IPC, Section 3 of the Prevention of Damage to Public Property Act and Section 7 of the Criminal Law (Amendment) Acts/Ordinances and presently facing a trial before the court below.
6. The incident relates to 23.08.2009, when a group of about 27 people burnt down a public bus, thus causing harm to public property. Thereafter, the first 2 information report was lodged, which was registered as FIR No.46 of 2009 under Sections 147/336/427/436 of IPC, Section 7 of the Criminal Law (Amendment) Acts/Ordinances and Section 3 of the Prevention of Damage to Public Property Act, at Police Station - Kaladhungi, Nainital against unknown persons. After investigation, the police submitted the charge-sheet against certain persons, including the present revisionist. Consequently, the learned Magistrate took cognizance in the matter and subsequently the matter was committed to the court of Sessions and presently the trial is going on. Out of 16 prosecution witnesses, two witnesses have already been examined, according to the learned counsel for the revisionist. Meanwhile, an application was moved by the prosecution for the withdrawal of the case under Section 321 of CrPC. Under the U.P. Amendment Act, under Section 321 of CrPC, the prosecution must have a written permission of the State Government which has to be filed in the Court below. Section 321 of CrPC reads 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:
Provided that where such offence-3
(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."
7. The aforesaid provision gives powers to the Public Prosecutor to withdraw from the prosecution any person either generally or in respect of any one or more of the offences for which he is tried at any stage, at any time before the judgment is pronounced. All the same, such a withdrawal is only permissible "with the consent of the Court". The Court, in the present case, has refused to grant its consent and has rejected the application of the prosecution vide order dated 05.04.2016, which is presently being challenged by the revisionist before this Court.
8. Learned counsel for the revisionist - Mr. R.S. Sammal would argue that the aforesaid provision (i.e. Section 321 of CrPC) gives wide powers to the State to 4 withdraw a case from prosecution but it does not specify under what circumstances and for what reason the case has to be withdrawn. All the same, the learned counsel for the revisionist agrees that such a withdrawal can only be done, if it serves the interest of justice. According to the learned counsel for the revisionist, therefore, the State realized that the act which has been ascribed to the revisionist and other similarly situated persons by the prosecution was not pre-planned but was at the spur of the moment where they were agitating as one Shri Balwant Singh was killed inside the Police Station and which has given rise to this agitation. Moreover, as per the prosecution there is no sufficient evidence.
9. Undoubtedly, Section 321 of CrPC gives powers to the prosecution to withdraw the case from prosecution and these powers are widely worded. However, these powers cannot be in seriatim but only as per the requirement of the law, particularly if interest of justice so demands.
10. The seminal decision on this of the Hon'ble Apex Court is the case of Sheonandan Paswan Vs. State of Bihar and others reported in (1987) 1 SCC 288, where it has been held that the consent can only be given by the Court for withdrawal of the case from the prosecution if the court is satisfied that the withdrawal is in good faith. Public policy interest of the administration, etc can be good grounds for withdrawal of prosecution, but reasons must be assigned. In the case at hand, however, the court below did not find that it is a case where consent is liable to be given. The trial court had, therefore, after giving reasons as to why the consent is not liable to be given in the present case has held that at the relevant date i.e. on 23.08.2009, 5 it has come to light after investigation in the charge-sheet that the accused persons had caused loss to the public property without instigation and without reason. In such cases, consent for withdrawal of prosecution if given would send a wrong message. The charge against the accused persons is that they had destroyed two Roadways buses on 23.08.2009 and considering that there is enough evidence, this Court is in total agreement with the court below, particularly because there is a huge destruction of the public property at the hands of the revisionist and other persons. Therefore, it is not a case where consent was liable to be given by the Court, for withdrawal from the prosecution.
11. No illegality or infirmity can be found with the order dated 05.04.2016 passed by the court below.
12. Consequently, the revision fails and the same is hereby dismissed.
13. However, considering that this matter relates to the year 2009, the trial Court is hereby directed to finish the trial as expeditiously as possible. Let the trial be a continuous trial on day-to-day basis hearing without granting any undue adjournment to any of the parties, in the true letter and spirit of Section 309 of CrPC.
(Sudhanshu Dhulia, J.) 14.11.2017 Ankit/