Orissa High Court
Balabhadra Dash And Anr. vs State Of Orissa And Ors. [Alongwith Crl. ... on 22 February, 1991
Equivalent citations: 1991CRILJ2457, 1991(I)OLR486
JUDGMENT S.C. Mohapatra, J.
1. All the four accused person have invoked inherent jurisdiction of' this Court to bring an end to the prosecution against them. Since all the applications relate to the same, proceeding they are heard together- and are disposed of in this common order.
2. On 26-1-1983, earth from a trench dug for construction of a Dam collapsed causing simple/grievous/fatal injuries to the' various labourers working in the trench and mine valuable lives were knot; bout three . hours after, at about 3.30 P.M. officer in charge of the police station received information of the accident and proceeded to the spot. -He drew First Information Report on his own information and after completion of investigation, he submitted charge-sheet against the four accused persons Under Sections 337/338/304-A, I.P.C On receipt of the order of sanction Under Section 197 (4) Cr.P.C against public officers, learned -Sub-divisional Judicial Magistrate took cognisance of the offences and directed issue of processes against all accused persons for appearance to face trial. Criminal Misc. Cases 529 of 1988, 144 of 1989 and 752 of 1990 have been filed by the accused persons for 'quashing cognisance.
3. Executive Engineer in-charge of the Project, Assistant Engineer junior Engineer and representative of the Contractor' who was executing the work on behalf of contractor are the four accused persons in this case. After sanction to prosecution, State Government appointed a committee to enquire and submit a report about the causes of accident. Committee in its report was of the opinion that Executive Engineer and the Assistant Engineer are not responsible for the accident, it however, reported fixing responsibility of junior Engineer and the contractor for the accident. After receipt of the report, .the State Government instructed learned Public Prosecution 'for to withdraw from prosecution against the Executive Engineer and the Assistant Engineer. Accordingly, Public Prosecutor filed an application in Court on 15-1-1987 for permission to withdraw. On the finding that details are wanting, learned Sub-divisional Judicial Magistrate refused permission to withdraw. Criminal Misc. Case No. 5 11 of 1938 has been tiled by Executive Engineer and Assistant Engineer to set aside the said order.
4. In view of the defects pointed ,out by learned sub-divisional Judicial Magistrate, learned Public Prosecutor filed another petition on 22-12-1987 for permission to withdraw from prosecution against the Executive Engineer and. the . Assistant Engineer in which defects of the earlier petition seating material facts were removed Learned Judicial Magistrate, First Class to whom the case had been transferred by then refused permission on the ground amongst others that earlier petition on self-same facts had already been rejected. Against this order. Executive Engineer and Assistant Engineer have filed Criminal Misc. Case No. 530 of 198d.
5. Since all the accused persons pray for quashing cognizance in exercise bf inherent power Under Section 482, Cr.PC, I lake up those applications first. Inherent power is wide in nature and this provision in Cr.P.C. having been made to secure ends of justice or to prevent abuse of the process of Court, such power is to be exercised with great against. Wider would be the power, greater should be the restraint. Ordinarily, trial of an accused in a criminal prosecution is to be concluded under the provisions of Criminal Procedure Code and High Court would be reluctant to conclude the same at the interim stages as has been held in AIR 1960 SC 866 (R. P. Kapur v. State of Punjab). However inherent power can be exercised in the circumstances indicated in the said decision. Even if, one of the conditions laid down therein would be satisfied, High Court may not exercise its discretion to interfere if accused can get the same relief which is sought from a subordinate authority. In this respect, can be stated broadly that in cases where charge is to be framed, accused can satisfy the trial Court at the time, of framing charge that on the materials on record, no charge is possible to be framed against him and accused can be discharged. High Court should keep in mind that at different stages provided for in the Code itself, continuance of prosecution against an accused is cross-checked by the trial Court. Even in absence of accused, while taking cognisance, trial Court applies its mind. In cases where sanction is require i, sanctioning authorities apply mind. For filing charge sheet or prosecution report, investigating agency applies mind After process is issued where charge is to be made, all materials are considered for the purpose. in sessions trials, application of mind is made at the time of commitment. Again while framing charge in Sessions Court, there is application of mind. Parliament has kept in mind that crime is a wrong to society and to maintain peace and tranquillity, an accused is to be tried, but under our jurisprudence, without materials a person should not be called upon to face trial. At the stage of cognisance Court examines if on the Allegations made, ingredients of any offence are satisfied and at the time of framing charge whether it can have reasonable suspicion that accused might have committed the offence. Provision has been made in the Code to permit investigating agency for further investigation even during trial. Court is also authorised to issue; . process against persons who have not: been made accused to face trial where materials brought to record make out a prima facie case against such person. Courts have also been given power to summon witnesses when .satisfied that evidence sought for would be necessary for a fair trial. In case; a prosecution is brought to an end midway, there would be no scope for the provisions of the Code being utilised in given cases and it may so happen that real culprit would escape. Where charge-sheet is filed against more than one accused persons, quashing of cognisance or charge against one or in respect of one of the several offences would affect the prosecution itself since trial Court would not be in a position either to exercise power Under Section 319, Cr.P.C, or make additional charge on availability, of evidence in that regard during trial. Therefore, prayer for quashing charge or taking cognisance ought not to be entertained in a routine manner and unless High Court is satisfied that there is abuse of process of Court or ends of justice demands it, such prayer ought not to be entertained. Even if, such prayers are entertained, all endeavours should be made to examine if the abuse of powers of Court can be eradicated .without bringing the proceeding to an end in the midway. Where accused would be put to such inconvenient position that subsequent examination of these questions would materially affect him which would be irreparable in nature, High Court can for reasons to be recorded in that regard, examine the materials to interfere with the continuance of trial.
6. In this case, I am not inclined to exercise my inherent power at this stage since all the accused persons have opportunity to advance submissions before the learned Magistrate that materials on record do not call for framing charge against them, in matters where some relief can be giver, by a subordinate authority, normally higher authority should not exercise its power to give the same relief. Accordingly, all Criminal Misc. Cases in that regard have no merit at this stage and are dismissed giving liberty to accused persons to move the trial Court at appropriate stage for bringing an end to the trial. I may make it clear that dismissal of these applications should not be taken as a ground by the trial Court to refuse to examine the submission if otherwise permissible under law as I have not examined the question on merits.
7. Mr. Dhal submitted that in case trial continues accused persons would be prejudiced as they will have to attend Court on each day the case is posted in default of which, there is every likelihood of issue of Non-bail able Warrant for securing their attendance. In order to mitigate this prejudice, I may only express that learned Magistrate shall do well in permitting all the accused persons to be represented until their personal attendance would be necessary for the purpose of furtherance of trial
8. As regards withdrawal of the prosecution, learned Magistrate is not correct that merely because one application had already been rejected, second application should not be entertained. State Government also should not feel bound to move for withdrawal for a second time merely because on an earlier occasion it had considered the matter and was not inclined to instruct Public Prosecutor for withdrawal from prosecution, It is true that .where on self-same grounds petitions are filed times without number. Court ought to refuse to entertain the same and public authorities should not examine the said question. That would amount to wasting public time and public policy of finality shall be defeated. Where, however earlier petition has not been . considered on its own merits, or where new circumstances are brought to notice, there would be nor prohibition to entertain the second application if the same is; not specifically prohibited by law. As 1 find, earlier order was not entertained for want of details and learned Sub-divisional judicial Magistrate refused to give consent, second application ought not to have been rejected on the ground that similar prayer was turned down earlier. Since second application can be considered on merits, I need not enter into merits of first order "refusing to give consent.- Criminal Revision No. 5.T1 of 1988 need not be entertained for academic purpose only and is accordingly dismissed.
9. Section 321, Cr.P.C, gives wide power to a Public Prosecutor to withdraw from prosecution. It 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, with- draw 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 :
(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, 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."
Perusal of the aforesaid provision makes it clear that power vested in the Public Prosecutor for withdrawal from prosecution is wide in its nature. Public Prosecutor is thus, expected to apply his mind and consider whether it is just and reasonable to apply for consent of Court keeping in mind interest of the society against which the wrong is alleged to have been committed. It should not act merely as a rubber stamp for the State Government which .instructed it to withdraw or to sign on the dotted lines. Before instructing Public Prosecutor, State Government should also consider the question carefully. Consideration is to be made as per rules of business made by Governor under the Constitution as well as the Secretariat instructions and the life in which consideration is made should contain reasons. When matter is for benefit of society, there is no scope of its being confidential. Accordingly, Public Prosecutor should be supplied with the entire file so that if necessary, it can be produced before the Court for its perusal to give consent. If this procedure is followed changes of favouritism or extraneous political considerations would be curbed to a great extent. It is true that Public Prosecutors are appointed by State Government, Under the rules of conduct an Advocate is to act fearlessly. in case Public Prosecutor is inclined to consider that instruction is not beneficial to the society he ought to advise the State Government accordingly without fear even if it has the effect of termination of his appointment as Public Prosecutor. Where Public Prosecutor decides to file an application for consent after due consideration, such application should be self-contained. On such application being filed, Court is to consider whether consent is to be given. Principles of consideration by Court have been laid down by the Supreme Court in the decision reported in A.I.R. 1977 S. C. 903 (Stats of Orissa v. Chandrika Mohapatra and others) where it has been observed that the Public Prosecutor is 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 clearly showing that the object of administration of justice would not be advanced or furthered by going on with the prosecution. Ultimately, guiding consideration always must be the interest of administration of justice and this is a touch-stone on which the question must be determined whether the prosecution should be allowed to be withdrawn. In A. I. R. 1987 S. C. 868 (Mohd. Mumtaz v. Smt. Nandini Satpathy and others) and A. I. R. 1987 S. C. 877 (Sheo Nanda Paswan v. State of Bihar and others) principle laid down in earlier decision has been further explained
10. Mr. Dhal cited a decision of this Court reported in 64(1987) C. L. T. 672 (Madhusudan v. State) where against the refusal of Court to give consent, accused approached this Court While relying on the guideline of decisions of Supreme Court it was observed that Public Prosecutor is required to act in good faith and Court is to be satisfied that exercise of discretion by the Public Prosecutor is proper. On the materials on record, this Court was satisfied that there is no material to come to a conclusion otherwise. Although it has been observed that Court is not to re-appreciate the grounds which fed the Public Prosecutor to request for consent to withdraw such observation is to be read in the context in which it was made which means that Court is not the appellate authority of Public Prosecutor. Grounds taken by the Public Prosecutor are to be examined by Court to find out whether they are reasonable. When Court is satisfied that request is unreasonable or tainted with extraneous considerations or without application of mind at the dictate of the State Government, it can refuse to give consent. Administration of justice is paramount consideration. It is sufficient to indicate that consideration by this Court would depend upon facts and circumstances in each case.
11. Mr. H. Kanungo, learned Additional Government Advocate relied upon a decision reported in (1989) 2 OCR 305 (Stata of Orissa v. Krushna Chandra Tripathy) where applying the tests laid down by Supreme Court, this Court held that permission for withdrawal granted by trial Court was not on proper Consideration on the facts and circumstances of that case.
12. Sanction given for prosecution at an earlier stage his been taken to be a ground by the learned Magistrate to be a circumstance to refuse permission, I may make it clear that it may be a circumstance to refuse consent for withdrawal but in a case where Public Prosecutor can explain the circumstances under which sanction was given, learned Magistrate may being satisfied with the explanation, attack to weight to the same. Earlier sanction is no doubt a material to be taken into consideration for examining fair play while giving consent for withdrawal. Such sanction, however, is not sine qua non for refusal of consent to withdraw from the prosecution. Where on the materials on record, Court is satisfied that the guidelines as indicated by the Supreme Court are satisfied, merely because .there was an earlier order of sanction for prosecution by the State Government, it should not be a ground to refuse permission.
13. A question arises whether refusal by Court to give consent can be challenged by accused when State does not make a grievance of the same I need not examine the said question in this case since on the face of the order dated 27-1-1988, I find that , trial Court has not taken into consideration relevant points for refusing consent and facts as available may be required or be supplemented by other facts and circumstances.
14. Interest of justice would be best served in case order dated 27-1-1988 is set aside and learned Magistrate is directed to reconsider the question of permission to the learned Public Prosecutor to withdraw. Learned Magistrate shall do well in giving opportunity to the Public Prosecutor and the accused persons who have already entered apprearance to bring further materials to record if they are so advised so that it will be able to have proper consideration of the question of withdrawal from prosecution.
15. In the result, Criminal Misc. Case No. 530 of 1988 is allowed and all other applications are rejected for the reasons stated above.