Delhi District Court
Syed Ahmad Bukhari vs State (Nct Of Delhi) on 22 November, 2016
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET COURTS: DELHI
CR204750.16
Criminal Revision No. 96 of 2016
ID No. 02406R0282432016
Syed Ahmad Bukhari
S/o Syed Abdullah Bukhari
R/o H. No. 4099, Katra Nizamulk
Urdu Bazar, Jama Masjid
Delhi110006 .......... Petitioner
Versus
State (NCT of Delhi)
Through Secretary
Habibur Rehman
S/o M.S. Habibur Rehman
R/o H. No. 145, Basti Hazrat Nizamuddin
New Delhi
Nafisa W/o Habibur Rehman
R/o H. No. 145, Basti Hazrat Nizamuddin
New Delhi .......... Respondents
State v. Habibur Rehman & Ors FIR No. 325/2001 U/s: 186/353/34 IPC PS: Lodhi Colony Instituted on : 27.08.2016 Argued on : 15.11.2016 Decided on : 22.11.2016 O R D E R 1 Feeling aggrieved from the impugned order dated 5.5.2016 passed by the court of Sh. Ravindra Kumar Pandey, Ld. MM01 (SED), Saket Court, New Delhi, whereby the Ld. MM was pleased to dismiss the application under section 321 CrPC filed by the Ld. APP for the State in FIR No. 325/2001 U/s 186/353/34 IPC, PS Lodhi Syed Ahmad Bukhari v. State etc - CR No. 96 of 2016 1 of 8 Colony, in a case titled as "State v. Habibur Rehman & Ors", holding that the said application as moved by APP Sh. Yogendra, seeking withdrawal of prosecution qua the accused persons therein, was not maintainable, the petitioner had challenged the aforesaid order on the following amongst various other grounds : Because the impugned order had been passed by the Ld. MM in a mechanical manner and was contrary to the settled proposition of law on the subject as while disposing off the application under section 321 CrPC, the Ld. MM was not required to go into the merits or other nittygritty of the case, as the application had been moved by the APP for the State after due application of his mind in the larger interest of the State.
2 Brief facts that had given rise to the filing of the present petition are succinctly given as under : A case u/s 186/353/34 IPC and u/s 3 & 4 Damage to Public Property Act (DPP Act) titled State Vs. Habibbur Rehman & Ors. was registered at P.S. Lodhi Colony vide FIR No. 325/01, in which, NBWs were issued against the petitioner herein to ensure his presence before the Trial Court. In the meantime, an application dated 05.06.2013 seeking withdrawal of the prosecution qua the accused persons u/s 321 Cr.P.C was moved by the APP for the State, mentioning therein that the petitioner herein being the Shahi Imam of Jama Masjid could not be arrested in this case as there was grave and genuine apprehension of an outburst and communal tension following his arrest and the APP being the Incharge of the case and having examined the facts of the case had moved the aforesaid application seeking withdrawal of the case from prosecution qua the accused persons as the charge sheet would not stifle or thwart the process of law or cause manifest injustice.
Syed Ahmad Bukhari v. State etc - CR No. 96 of 2016 2 of 8 The Ld. Trial Court after hearing the APP for the State had dismissed the aforesaid application u/s 321 Cr.P.C. holding that in the cases where offence involved in the destruction or damage to any property belonging to Central Government, then in such cases, the prosecutor / Incharge of the case could have been appointed by the Central Government to move such application, the petitioner had challenged the same.
4 I have heard Sh. Feroz Khan Ghazi, Ld. Counsel for the petitioner, Sh. Pravin Rahul, Ld. Addl. PP for the state/respondent no. 1 and Sh. Rizwan Ahmed, Ld. Counsel for respondents no. 2 and 3 and have gone through Ld. Trial Court record. 5 Sh. Rizwan Ahmed, Ld. Counsel appearing for respondents no. 2 and 3 had also supported the present revision petition and had stated that he does not want to file any reply to the present revision petition and has no objection if the revision petition in hands is allowed by this Court.
6 It is an interesting revelation to this Court that instead of citing the complainant, i.e. Sh. B B L Gupta, Executive Engineer,CPWD, Sh. Arab Singh Executive Engineer, CPWD and Sh. Bankey Lal, Dy. Director (Horticulture), CPWD, New Delhi, who were complainants in this case, the petitioner had chosen to implead the coaccused persons as the respondents.
7 It has been argued by Sh. Feroz Khan Ghazi, Ld. Counsel for the petitioner that there were valid and sufficient reasons for the Prosecutor to have moved the application for withdrawal of the prosecution as per the directions contained in communication No. F.14/1/2011/HG/1700 dated 12.5.2011, the copy of which was placed on record by Insp. Sanjiv Kumar, Addl. SHO, PS Lodhi Colony today itself. However, perusal of the same makes it amply clear that the Lt. Governor Syed Ahmad Bukhari v. State etc - CR No. 96 of 2016 3 of 8 of Delhi had accorded the permission for withdrawal of the present case on the recommendations of GNCT, Delhi, whereas the FIR in the present case was registered at the instance of Central Government, i.e. CPWD and as per the language of section 321 CrPC itself, it was mandatory for the APP to produce the permission granted to him by the Central Government for withdrawal of the prosecution which had apparently not been done in the present case.
8 Further, it is not mandatory for the Court to permit withdrawal of the prosecution whenever any such application is moved by the Prosecutor on flimsy and whimsical grounds and therefore section 321 CrPC provides that such withdrawal can only be made with consent of the Court and not otherwise. 9 A perusal of the said application filed by the APP under section 321 CrPC makes it amply clear that the ground for withdrawal of the prosecution was cited as the petitioner being the Shahi Imam of Jama Masjid, Delhi and therefore taking into consideration his position and status amongst the particular Community being the Head Priest (Shahi Imam) of Jama Masjid, Delhi, he was not arrested in the case as there was grave and genuine apprehension of an outburst and communal tension following his arrest.
10 However, I do not find myself in agreement with this plea taken by the Prosecutor as India is a secular democratic republic country with a mixed culture in the society and the people from different sects and religions reside peacefully in this country. There cannot be a denial of the fact that Constitution of India is the supreme law of the nation and all of us owe the moral, legal and statutory duty to upkeep the principles enshrined in the Constitution of India. Neither any one is, nor he could be above the law irrespective of his status or position enjoyed by him in his particular Syed Ahmad Bukhari v. State etc - CR No. 96 of 2016 4 of 8 community or sect. This plea appears to be a very funny and hilarious in nature because if such exemptions and exceptions are being carved out in legal arena, then, I am afraid that if any of the so called Head Priest of a particular community or sect would ever be brought to the corridors of justice for any of his acts or omissions constituting an offence as provided in books of statute. In future all communal/religious leaders would start demanding such exemptions and immunities citing their position or status in the community or sect to which they belong and thus no such person would ever be punished for any of the wrongs done by him constituting offences under Indian Penal Laws.
11 Even the Ex Prime Minister of this nation, namely late P.V. Narshimha Rao as well as a very senior leader of the opposition of that time, namely. Sh. L K Adwani, had also faced trial before the court of law and that had not sparked any tension or unrest in the society.
12 Another argument raised by Ld. Counsel appearing for the petitioner is the mismanagement being caused to the law enforcement agency if the petitioner being the Shahi Imam of Jama Masjid, Delhi, who is holding a high status in a particular community and having a cover of "Z+" security is called in the court to face trial, also does not appear to be tenable because recently some senior leaders of the opposition party, namely Ms. Sonia Gandhi and Sh. Rahul Gandhi, who were summoned as accused in the "National Herald case", and who had much higher degree of security threat, had appeared before the Court of law without any kind of inconvenience being caused to any one. Hence, this plea as taken by the petitioner as well as the prosecution, does not appear to be tenable to me.
13 In support of his arguments and contentions, Ld. Counsel appearing for
Syed Ahmad Bukhari v. State etc - CR No. 96 of 2016 5 of 8
the petitioner has relied upon the citation of "Rajender Kumar Jain & Ors v. State Through Special Police Establishment & Ors", reported as AIR 1980 SC 1510:(1980), Crl.J.1084, which provides the following factors or conditions for the Court to consider before permitting the withdrawal of prosecution which read as under: "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 some one 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 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."
14 A perusal of the impugned order categorically reflects that Ld. MM was pleased to decline the request of the Prosecutor on the ground that he was not an authorized and competent person to file the said application on behalf of the Central Government. Hence, I do not find any merits in the contentions raised by Ld. Counsel Syed Ahmad Bukhari v. State etc - CR No. 96 of 2016 6 of 8 for the petitioner that since the Lt. Governor of Govt. of NCT, Delhi had also accorded his consent, hence, it could have been considered as a consent from the Central Government also.
15 No communication from the Central Government has been placed on record either before this Court or before the Ld. Trial Court showing that any permission to that particular Prosecutor was accorded by the Union of India to move such an application seeking withdrawal of prosecution qua the petitioner. 16 It was categorically held by the Hon'ble Apex Court in the case of "S.K.Shukla v. State of Uttar Pradesh", AIR 2006 SC 413 as well as in "Rahul Agarwal v. Rakesh Jain, AIR 2005 SC 910 that in withdrawal from prosecution, Public Prosecutor cannot act on the dictates of State Government. He has to act objectively as he is also an officer of the Court. Besides, the Courts are also free to assess whether prima facie case for granting such consent is made out or not. 17 In view of the aforesaid legal position and the grounds taken by the Prosecutor before the Ld. MM's Court, I do not find any illegality or infirmity in the impugned order warranting any interference of this Court in the exercise of its revisional powers and jurisdiction. It appears that the petitioner is trying to take advantage of his being the Head Priest (Shahi Imam) of Jama Masjid, Delhi, representing a particular community and is trying to brow beat the powers of the Courts under a fictitious and imaginary threat of an outburst of communal tension and unrest. The petitioner, like any other ordinary citizen of India, is liable to be prosecuted and tried by the court in accordance with law, to meet the ultimate fate of the criminal case registered against him like any other accused.
18 Accordingly, the present revision petition in hands is dismissed being
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devoid of any merits with cost of Rs.25,000/ to be deposited by the petitioner in Prime Minister's National Relief Fund for wasting the precious judicial time of the court.
19 TCR alongwith copy of the order be sent back to the Ld. Trial Court for necessary perusal and compliance/records.
20 Revision file be consigned to record room after completion of all other necessary formalities in this regard.
announced in the open court on (LOKESH KUMAR SHARMA) 22nd November, 2016 Additional Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Syed Ahmad Bukhari v. State etc - CR No. 96 of 2016 8 of 8