Rajasthan High Court - Jodhpur
Deva Ram vs State on 3 September, 2021
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Second Bail Application
No. 8369/2021
Deva Ram S/o Kana Ram, Aged About 53 Years, Village
Salagnada, At Present Ramnada Tausar, P.s. Kotwali, Nagaur. (At
Present Lodged In District Jail, Nagaur).
----Petitioner
Versus
State, Through Pp
----Respondent
For Petitioner(s) : Mr. RS Choudhary
Mr. Prakash Chandra Bishnoi
For Respondent(s) : Mr. Farzand Ali, GA-cum-AAG
Mr. Sandeep Shah, AAG
Mr. Anil Joshi, PP
Mr. Vijay Bishnoi
Mr. V. Saravana Kumar, Special
Secretary (Home), Govt. of Raj.,
Jaipur
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 03/09/2021 In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.
At the threshold Mr. Farzand Ali, learned GA-cum-AAG, informs the Court that although he was directed by this Court to appear in this matter but since he has been removed as counsel in the matter, therefore, he has tendered his resignation from the post of Addl. Advocate General as well as Government Advocate as he feels it detrimental to his self-respect. Mr. Farzand Ali further informs the Court that State has already substituted Mr. Sandeep (Downloaded on 04/09/2021 at 08:28:39 PM) (2 of 15) [CRLMB-8369/2021] Shah, learned AAG, and as he does not have the required instructions, he may be exempted from continuing with the submissions.
Earlier this Court directed Mr. Farzand Ali, learned GA cum AAG to assist the Court, as he was doing earlier because the matter involves complex question of law but the submissions made today do not go down well with the smooth adjudication process to be undertaken by this Court.
At this juncture, Mr. Sandeep Shah, learned AAG, has shown order dated 01.09.2021, issued by Secretary (Law), Government of Rajasthan, Law (Cell-4) Department, which says that Shri Farzand Ali, GA-cum-AAG shall continue to conduct the present case including bail application and Mr. Sandeep Shah is appointed/authorized to file all requisite affidavits as directed by the Hon`ble Court and shall appear on behalf of Special Secretary (Home), who is presently holding the post. Mr. Sandeep Shah, learned AAG, has also shown order dated 27.08.2021 whereby limited sanction is reflected. Another order dated 03.09.2021 has been shown which shows that the decision regarding resignation of Mr. Farzand Ali, GA-cum-AAG is yet to take place.
Mr. Sandeep Shah made a clear statement that State of Rajasthan has not removed Mr. Farzand Ali from representing State in the present case; more so he shall continue to represent the State in the matter except for Special Secretary (Home) for whom Mr. Shah has been authorized.
This Court felt it appropriate to record the aforesaid submissions as the issue raised herein pertains to prestige of lawyer (Officer of this Court) and the adjudication process cannot (Downloaded on 04/09/2021 at 08:28:39 PM) (3 of 15) [CRLMB-8369/2021] be continued when misunderstanding between the lawyers, who are officers of court, their overtake efficiency and strength.
In the fitness of things and aforesaid submissions made by Mr. Sandeep Shah, this Court further requested Mr. Farzand Ali to continue to assist this Court as he has already instructions from State and further Mr. Sandeep Shah, learned AAG, shall be representing Special Secretary (Home) only.
It is needless to say that the agony caused to learned AAG Mr. Farzand Ali while appearing in this case has unnecessarily mired the whole issue, which was not called for. In the fitness of things learned AAG Mr. Farzand Ali, who was requested by this Court to continue to assist in this matter as per instructions of State assured the Court that though he was anguished and peeved by the manner in which he was treated in this matter, he has agreed to continue with his assistance. Moreover, the misunderstanding has been cleared. This Court and the State continue to repose full faith in him, and assures that he shall not press for his resignation.
On such assurance given by Mr. Farzand Ali, the issue of representing State stands resolved and the Court records its satisfaction and appreciation upon the conduct of lawyers (Officers of Court), who have harmoniously agreed to continue to work for smooth adjudication process of Court, particularly, leanred AAG Mr. Farzand Ali and learned AAG Mr. Sandeep Shah.
A copy of this order be sent to Secretary (Law), Government of Rajasthan, Jaipur.
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(4 of 15) [CRLMB-8369/2021] Since now proper representation has been assured by the Officers of State, adjudication on merits is made in a separate order.
This Court passed following orders on 29.07.2021 and 26.08.2021, which are quoted hereinbelow for ready reference :-
29.07.2021 :
"In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.
Hon`ble Division Bench of this Court passed certain orders for removal of encroachments and while the encroachment removal drive was being undertaken, it is alleged that public representatives incited and instigated mob to attack the team of administration which had gone for removal of encroachment. The JCB Driver, who was part of the team, was killed at the spot as a result of fury created by the mob violence.
Counsel for the petitioner submits that it is mockery of justice that on the one side petitioner, being a poor driver, is being subjected to prosecution whereas on the other side politically powerful persons are being discharged from the offence alleged by moving application under Section 321 Cr. P.C. Counsel for the petitioner has drawn attention of this Court to order dated 20.02.2021 issued by Special Secretary (Home), Government of Rajasthan, Jaipur.
Counsel for the petitioner submits that this order for moving application under Section 321 Cr. P.C., before the learned court below creates serious prejudice to persons like present petitioner, who is being victimized for his presence at the spot even when he has actually not committed the crime in- question.
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(5 of 15) [CRLMB-8369/2021] Upon such submission, this Court asked learned Public Prosecutor to procure details of such report in pursuance of order dated 20.02.2021 and a certified copy whereof has been furnished today. Order dated 20.02.2021 and the application under Section 321 Cr. P.C, for withdrawal from prosecution in consequence of order dated 20.02.2021 both are taken on record.
This Court after perusing order dated 20.02.2021 and the application under Section 321 Cr. P.C., directs learned Additional Advocate General cum Government Advocate to get an affidavit of the Special Secretary (Home), Government of Rajasthan, Jaipur who is author of order dated 20.02.2021 as to what was the public interest involved whereby this decision has been taken to move application under Section 321 Cr. P.C. The same be produced before this Court on the next date.
This Court takes note of the parameters laid down by Hon`ble Supreme Court in The State of Kerala Vs. K. Ajith & Ors., reported LL 2021 SC 328, particularly, the relevant paras 23 & 24 of which reads as follows :-
23. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution Under Section 321 of the Code of Criminal Procedure can now be formulated:
(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;
(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;
(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;
(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons; (Downloaded on 04/09/2021 at 08:28:39 PM)
(6 of 15) [CRLMB-8369/2021]
(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:
(a) The 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;
(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;
(d) The grant of consent sub-serves the administration of justice;
and
(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;
(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and
(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction Under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent. C.2 Immunities and Privileges of MLAs
24. Articles 105 and 194 of the Constitution provide in similar terms for the privileges and immunities of Members of Parliament14 and MLAs respectively. Article 194 of the Constitution is extracted below:
194. Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof (1) Subject to the provisions of this Constitution and to the Rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given (Downloaded on 04/09/2021 at 08:28:39 PM) (7 of 15) [CRLMB-8369/2021] by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution forty fourth Amendment Act, 1978.
(4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature. (emphasis supplied)"
As per judgment passed by Hon`ble Apex Court in The State of Kerala Vs. K. Ajith & Ors. (supra), formulation of independent opinion by Public Prosecutor is must, which is not evident from the application filed under Section 321 Cr. P.C., in July, 2021 by the Prosecution Officer, CJM Court, Nagaur before the court of learned Chief Judicial Magistrate, Nagaur. The Prosecution Officer, CJM, Nagaur shall also be required to file an affidavit as to whether he has complied with the judgment The State of Kerala Vs. K. Ajith & Ors. (supra).
Since counsel for the petitioner wants to argue the bail application on merits but before doing so, this Court seeks proper response/affidavit in regard to the Section 321 Cr. P.C., application and order from the concerned Officer and Public Prosecutor therefore the same is awaited.
It is made clear that compromise made between the parties shall have no bearing in the present facts and circumstance for deciding the bail.
List on 26.08.2021."
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(8 of 15) [CRLMB-8369/2021] 26.08.2021
"In the wake of second surge in the COVID-19 cases, the Court is functioning virtually and abundant caution is being maintained for the safety of all concerned.
At the outset, learned Government Advocate cum Additional Advocate General was asked as to in what circumstances, the affidavit of the Special Secretary (Home) Government of Rajasthan, Jaipur, who is the author of the order dated 20.02.2021, has not been produced before this Court even when the seriousness of the issue was communicated to him.
Since there is no justifiable reason why such affidavit has not been filed by the concerned officer and looking into the gravity of the matter, the Special Secretary (Home) Government of Rajasthan, Jaipur, who is the author of the order dated 20.02.2021, is directed to remain present before this Court alongwith his affidavit as called for on the next date.
The requisite affidavit of learned Public Prosecutor as directed is being filed during the course of the day by the office of learned GA cum AAG.
List on 03.09.2021."
This Court has taken a very serious view of the power exercised by State Government under Section 321 Cr. P.C., whereby some of the accused persons, particularly, two sitting MLAs were being absolved from criminal charges as an application for withdrawal of case against them was preferred.
Counsel for the petitioner brought it to the knowledge of this Court that in the same incident, the State is taking prejudicial action of withdrawing cases against two sitting MLAs while the accused in this case is languishing behind jail.
Upon such submission, this Court directed Mr. Farzand Ali, GA-cum-AAG, to file affidavit of Special Secretary (Home), (Downloaded on 04/09/2021 at 08:28:39 PM) (9 of 15) [CRLMB-8369/2021] Government of Rajasthan, Jaipur, who was Author of order dated 20.02.2021 communicated to Public Prosecutor to withdraw the cases. This Court also asked PP through whom an application was made as to how and in what circumstance he filed such an application before the court below for withdrawal of prosecution.
Since orders passed earlier were not complied and the matter was pertaining to rule of law, a very serious view was taken by this Court and the concerned Officer i.e. Special Secretary (Home), Government of Rajasthan, Jaipur was directed to remain present in person vide order dated 26.08.2021.
Mr. V. Saravana Kumar, Special Secretary (Home), Government of Rajasthan, Jaipur who was author and alongwith learned AAG are present in Court today and an affidavit has been submitted which reflects that the State Government constituted a State Level Committee vide order dated 29.11.2019 in order to assess/ contemplate and make deliberations for the matters for which a recommendation for withdrawal of prosecution can be made for the matters which are pending trial/inquiry before the competent court.
It was explained that it was on the recommendation of the State Level Committee that two sitting MLAs named in FIR No.417/2019 lodged at P.S. Kotwali, District Nagaur were considered to be absolved of criminal charges from prosecution on account of exercise of powers under Section 321 Cr. P.C., by the State Government. The application in-question is pending before the learned court below.
This Court has perused the judgment dated 10.08.2021 passed by Hon`ble Apex Court in the matter of Ashwini Kumar (Downloaded on 04/09/2021 at 08:28:39 PM) (10 of 15) [CRLMB-8369/2021] Upadhyay Vs. Union of India & Anr., in Writ Petition (Civil) No.699/2016, relevant portion whereof reads as follows :-
"At the outset we may note that the learned Amicus has filed his 13th Report dated 09.08.2021. The Report, inter alia, addresses various concerns which are broadly indicated as under: (I) Misuse of the Prosecutor's power to withdraw cases under Section 321, Cr.P.C.
(II) Continuity of tenure of Judicial Officers (III) Jurisdiction of Special Court (M.P./M.L.A.) to try cases against legislators elected from other States (IV) Jurisdiction of Special Courts with respect to cases triable by Magistrates (V) Trial of cases where an M.P./M.L.A. is the complainant (VI) Safe and secure witness examination facility.
We are inclined to address the first two issues by this order as these issues are of immediate concern and may be easily disposed of. It may not be out of context to state that issues no. 3 and 4 give rise to substantive question of law which may require some elaborate arguments, which will be taken up on a subsequent date.
Misuse of Prosecutor's Power u/s 321 of Cr.P.C. Learned amicus has drawn our attention to various instances across the country, wherein various State Governments have resorted to withdrawal of numerous criminal cases pending against M.P./M.L.A. by utilising the power vested under Section 321, Cr.P.C. It merits mentioning that the power under Section 321, Cr.P.C. is a responsibility which is to be utilized in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilized with utmost good faith to serve the larger public interest. Recently, this Court in State of Kerala Vs. K. Ajith, (2021) SCC Online SC 510, held as under:
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(11 of 15) [CRLMB-8369/2021] "The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:
(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;
(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;
(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;
(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;
(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature.
Before deciding whether to grant its consent the court must be satisfied that:
(a) The 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;
(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;
(d) The grant of consent sub-serves the administration of justice; and (Downloaded on 04/09/2021 at 08:28:39 PM) (12 of 15) [CRLMB-8369/2021]
(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;
(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and
(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-
settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent."
In view of the law laid down by this Court, we deem it appropriate to direct that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court in the respective suo-motu writ petitions registered in pursuance of our order dated 16.09.2020. The High Courts are requested to examine the withdrawals, whether pending or disposed of since 16.09.2020, in light of guidelines laid down by this Court."
This Court on scrutinizing record finds that Division Bench of this Hon`ble Court directed the State to remove certain encroachments, upon which, when the State Administration was removing the encroachments on 28.08.2019 at about 9:00 am, they were attacked by a mob led by concerned MLAs. (Downloaded on 04/09/2021 at 08:28:39 PM)
(13 of 15) [CRLMB-8369/2021] The affidavit brought on record shows consideration, in which the Committee opined that since the matter involved removal of encroachment and the public at the site were agitated, therefore, in the heat of moment the incident happened, which resulted into killing of JCB Driver, who was participating in the encroachment removal.
Upon being asked, the Special Secretary (Home) present in-person submitted that the assessment was made on the basis of material provided by Co-Members of Committee and since the police Department was ceased of record, the Police Officer present briefed the Committee. However, neither the Secretary nor learned AAG present before the Court could satisfy this Court as to what was broad end of public justice as envisaged by Hon`ble Apex Court in the judgment of The State of Kerala Vs. K. Ajith & Ors (supra) involved in the present matter.
However, learned AAG and the Secretary tried to justify that the powers under Section 321 Cr. P.C., entitle State to take opinion but it was finally upto the court to accept the proposal.
This Court has today applied its mind in light of directions passed by Hon`ble Apex Court in the matter of Ashwini Kumar Upadhyay Vs. Union of India & Anr. (supra) and after due application of mind and looking into the facts of case including language of FIR, it is a fit case where application for withdrawal of the criminal case in FIR No.417/2019 of P.S. Kotwali, Nagaur cannot be allowed.
While scrutinizing record with the principles which were directed to be kept in mind in the judgment of The State of Kerala Vs. K. Ajith & Ors (supra), this Court finds that neither the ends (Downloaded on 04/09/2021 at 08:28:39 PM) (14 of 15) [CRLMB-8369/2021] of public justice are met nor there are any good relevant reasons which could justify allowing of application of State to withdraw the cases while exercising powers under Section 321 Cr. P.C. We do not wish to go into investigation of the case and pass orders on pure merits as it would unnecessarily prejudice rights of the accused persons as well as the prosecution, thus, the issue involved is decided by this Court while exercising the powers envisaged under the judgment rendered in Ashwini Kumar Upadhyay (supra) and power envisaged under Section 482 Cr. P.C., and accordingly, the application under Section 321 Cr. P.C. filed in connection with FIR No.417/19, P.S. Kotwali, Nagaur and the State order No.P.16(16) withdraw/Gruh-10/2021 dated 20.02.2021 are quashed and set aside, as they do not conform to the precedent law of the Hon'ble Apex Court reproduced hereinabove.
The Registry shall send certified copy of this order to the concerned CJM court at Nagaur, which shall be kept in the file. The issue of withdrawal of cases, thus, stands closed by the aforesaid order.
The Special Secretary (Home) Mr. V. Saravana Kumar present in the Court assures the Court that in future State shall be more careful while exercising powers under Section 321 Cr. P.C., and shall abide by the directions of the Hon'ble Apex Court in the matter.
Learned AAG submits that non-compliance of the order in time was an inadvertent error. The issue of withdrawal of prosecution under Section 321 Cr. P.C. brought to notice of this (Downloaded on 04/09/2021 at 08:28:39 PM) (15 of 15) [CRLMB-8369/2021] Court by counsel for the petitioner, thus, stands closed accordingly.
The Director (Prosecution) is directed to ensure that every Public Prosecutor of the State is circulated with copy of order passed the matter of The State of Kerala Vs. K. Ajith & Ors (supra) and Ashwini Kumar Upadhyay (supra) so as to ensure that the learned Public Prosecutor acts strictly in tandem with the directions of the Hon'ble Supreme Court. It is needless to say that the State shall also be required to abide by these orders very strictly.
Presence of Officer Special Secretary (Home) Mr. V. Saravana Kumar shall not be required in future.
List on 13.09.2021.
(DR.PUSHPENDRA SINGH BHATI),J.
184-nirmala/Sanjay-
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