Madhya Pradesh High Court
Ramnaresh And Anr. vs Arjun And Ors. on 8 February, 2008
Author: B.M. Gupta
Bench: B.M. Gupta
ORDER B.M. Gupta, J.
1. This petition is for impugning the order dated 11th October, 2007 passed by the Additional Sessions Judge (Fast Track Court), Jaura in criminal revision No. 18/07, whereby the learned Judge while setting aside the order dated 16th January, 2007 passed by the JMFC, Jaura in criminal case No. 1175/04, rejecting an application under Section 321 of Cr.P.C. filed on behalf of the prosecution, has allowed the application for withdrawal of the prosecution pending in aforementioned case against respondents No. 1 to 7 for the offence punishable under Sections 147, 148, 323/149, 325/149 of IPC and has acquitted them.
2. Admittedly, with regard to an incident happened on 25/3/01, two cross-cases are pending in the trial court. In criminal case No. 1175/04 pending in the court of learned Magistrate, the respondent Nos. 1 to 7 are the accused persons and facing trial for the offence punishable under Sections 147, 148, 323/149 and 325/149 of IPC. In cross-case No. 1205/04 pending in the same court, the petitioners along with three others viz. Gopal, Jashwant and Sriram are the accused persons facing trial for the offence punishable under Sections 148, 323, 325 and 326/149 of IPC. It is also admitted that, out of these two cross- cases, the application for withdrawal of the prosecution under Section 321 of Cr.P.C was filed in criminal case No. 1175/04 which has been allowed vide impugned order and the same has been assailed in this case.
3. The application dated 27/9/07 filed by Assistant District Prosecution Officer, Jaura goes as under:
vkosnu i= varxrZ /kkjk 321 tk-QkS- fuEu izdkj izLrqr gS& egksn;] e-iz-'kklu fof/k vkSj fo/kk;h dk;Z foHkkx Hkksiky e-iz-ds vkns'k dza-12@75@06 iath dza-1361@21&ds ¼vfHk-½ fnukad 178-06 ds ifjis{; esa Fkkuk tkSjk ds vi-dza-102@01 ¼iz-dza1175@04½vfHk- Hkokuh 'kDdj vkfn dk izdj.k ekuuh; Jheku th ds U;k;ky; esa fopkjk/khu gS mDr izdj.k e-iz-'kklu fof/k&fo/kk;h dk;Z foHkkx Hkksiky ds mDr vkns'k ds ifjis{; esa yafcr lk/kkj.k fdLe ds izdj.k dks yksdfgr esa okfil ysus dh vuqlalk ij jkT; 'kklu us okfil fy;s tkus dk fu.kZ; ysdj okfil fy;s tkus ds funsZ'k fn;s gSA vr% mDr izdj.k dks okfil ysus ds laca/k esa /kkjk 321 tk- QkS- ds varxrZ izLrqr gS tks Lohdkj dj okfil fd;s tkus dk vkns'k iznku djus dh d`ik djsA gLrklgk-ftyk vfHk;kstu vf/kdkjh tkSjk ftyk eqjSuk e-iz-
On perusal, it appears that the application has only been filed in compliance of the order of the government without any observation or opinion of the learned public prosecutor, who is only empowered to withdraw the case under Section 321 of Cr.P.C. The relevant part of the provision of Section 321 of Cr.P.C. goes as under:
321. Withdrawal from prosecution.-Any 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," (a), (b) and Provided that....
The provision provides that it is only the public prosecutor or Assistant Public Prosecutor in charge of a case, with the consent of the court withdraw from the prosecution of any person. However, the application can be filed by the Public Prosecutor, when he so directed by the Government but at that time the Court is to make an effort to visit the reason for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. In this regard, perusal of the observation of the Apex Court in paragraph 13 and13A of Rajendra Kumar Jain v. State Through Special Police Establishment and Ors. is required to be perused, which goes as under:
13. Thus, from the precedents of this Court; we gather-
1. Under the scheme of the Code 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 public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammany Hall enterprises.
6. The Public Prosecutor is an officer of the Court and responsible to the Court.
7. The Court performs a supervisory function in granting its consent to the withdrawal.
8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor 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.
13-A. We may add, 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 prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake 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, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.
As per the facts of this case, a well known political personality George Fernandes and 24 others were prosecuted under the sanction of the Government vide its order dt.6th September, 1976 for the offence punishable under Section 121A, 120B of IPC read with Section 4, 5 and 6 of Explosive Substances Act, Section 5(3)(b) and Section 12 of the Indian Explosives Act. When the Govt. changed on 26th March,1997, an application Under Section 321 of Cr.P.C. was filed by the Public Prosecutor inter-alia on the ground that in the public interest and changed circumstances, the Central Govt. has desired to withdraw from the prosecution of all the accused, while dealing with this case, the aforementioned principles of law have been laid down by the Apex Court. With regard to the jurisdiction of filing of an application by a Public Prosecutor, Hon.ble Apex Court has observed in paragraph 15 as under:
15. Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal.... If the policy-makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words. If ill-informed but well meaning bureaucrats choose to use expressions like "the Public Prosecutor is directed" or "the Public Prosecutor is instructed", the Court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy. 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.
Thus, in the light of the above observation, it appears that an application cannot out rightly be rejected on the ground that the same has been filed on a direction of the Govt. But, in such a situation, the Court, while considering the application has to consider the fact as to whether the Public Prosecutor too was satisfied to withdraw from the prosecution for good and relevant reasons, as observed in last three lines of paragraph 15.
4. In this regard, the observation of the Apex Court in para 10 of its judgment in Rahul Agrawal v. Rakesh Jain and Anr. 2005(1) CCSC 168, will also be required to be perused which goes as under:
10. From these decisions as well 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.
Similar view has been quoted by the Apex Court in paragraph 5 of one another case of R.M. Tiwari v. State (NCT of Delhi) and Ors. 1996 SCC (crimes) 361, from the case of State of Orrissa v. Chandrakar Mohapatra .
5. It will, therefore, be seen that 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 does not appear to be 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 the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.
Keeping in view the above quoted observation of the Apex Court, on perusal of the text of the application filed on behalf of the Assistant Public Prosecutor and quoted herein above, it appears that the Govt. in public interest has taken a decision to withdraw the cases of simple nature and upon receiving the communication from the Govt. the application has been filed. The required satisfaction of the Public Prosecutor does not appear. That apart, had it been a single case, arising out of the incident in question, the public interest would have not been questioned. But, admittedly, arising out of the same incident two cross cases are pending. Simply because the offences being slightly different, calling one case of a simple nature and another not of a simple nature, does not appear justified. Such a step taken on behalf of the learned Public Prosecutor cannot be said to be in the public interest or in the interest of justice, as required under the law. It tantamount in the interest of one out of the two parties of the case. Compelling one of the two parties to face the trial and giving benefit to the other party while withdrawing the case pending against it, in my considered opinion ought not to be allowed. The nature of the offences under which the other party is being tried is not very different. There appears difference of the offence punishable under Section 325 IPC against one party and 326 IPC against the another. Although, offence under Section 326 IPC is of a serious nature in comparison to other offence punishable under Section 325 IPC. But nature cannot be said to be very different. In one case, grievous hurt is caused by hard and blunt object, while in other by sharp, shooting, stabbing or by a dangerous object. That apart, the other requirements as highlighted in various observations of the Apex Court quoted and emphasized herein above and also do not appear, that the prosecution is likely to end in acquittal or the continuance of the case is only causing severe harassment to the accused withdrawal is like to bury the dispute and bring about harmony between the parties and alike. But on the contrary, while withdrawal the prosecution of one of the parties will create more tension between them. In view of all this, the impugned order, allowing the application appears erroneous.
5. Learned Senior Advocate, Shri V.K. Saxena on behalf of the respondent has submitted that in such cases instead of rejecting the application out rightly, a direction ought to be given to the State to file fresh application for withdrawal from the prosecution against the respondent. Shri Saxena still does not argue that a direction is required to file two applications or the Public Prosecutor is required to consider filing applications for withdrawal from both the cases. In support Shri Saxena has drawn attention at the observation of the Apex Court in the case of R.M. Tiwari (supra). The relevant paragraphs 10 to 12 of the judgment are as under:
10. The observations in Kartar Singh have to be understood in the context in which they were made. It was observed that a review of the cases should be made by a High Power Committee to ensure that there was no misuse of the stringent provisions of the TADA Act and any case in which resort to the TADA Act was found to be unwarranted, the necessary remedial measures should be taken. The Review Committee is expected of perform its functions in this manner. If the recommendation of the Review Committee, based on the material present, is, that resort to provisions of the TADA Act is unwarranted for any reason which permits withdrawal from prosecution for those offences, a suitable application made under Section 321, Cr. P. C. on that ground has to be considered and decided by the Designated Court giving due weight to and opinion formed by the Public Prosecutor on the basis of the recommendation of the High Power Committee.
11. It has also to be borne in mind that the intital invocation of the stringent provisions of the TADA Act is itself subject to sanction of the Government and, therefore, the revised opinion of the Government formed on the basis of the recommendation of the High Power Committee after scrutiny of each case should not be lightly disregarded by the Court except for weighty reasons such as mala fides or manifest arbitrariness. The worth of the material to support the charge under the TADA Act and the evidence which can be produced, is likely to be known to the prosecuting agency and, therefore, mere existence, of prima facie material to support the framing of the charge should not by itself be treated as sufficient to refuse the consent for withdrawal from prosecution. It is in this manner an application made to withdraw the charges of offences under the TADA Act pursuant to review of a case and the Review Committee has to be considered and decided by the Designated Courts.
12. The applications made under Section 321, Cr. P. C. not having been decided on the basis indicated above, fresh applications made in all such cases pursuant to the recommendations of the Review Committee or the revised opinion of the Government have to be considered and decided by the Designated Courts in the manner indicated above." On perusal of this observation of the Apex Court, it appears that in that case, charges under TADA Act were to be tried, for which the initial invocation of the stringent provisions of TADA Act was subject to sanction of the government and, therefore, the revised opinion of the government, formed on the basis of the recommendation of the high-power committee, after scrutiny of each case was not to be lightly discarded. In those circumstances, the direction for filing fresh application in pursuance of the recommendations of the review committee or the revised opinion of the government was directed. The present case is not based on charges related to TADA Act. Hence, the contention of Shri Saxena does not deserve to be sustained.
6. In view of the above, the impugned order appears erroneous and an abuse of the process of the Court. Hence, the petition is allowed. The impugned order is set aside.