Bombay High Court
Goverdhan S/O Abhiman Chavan vs The State Of Maharashtra on 31 March, 2010
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : N A G P U R.
CRIMINAL APPLICATION No. 3650 OF 2009
Goverdhan s/o Abhiman Chavan,
aged 35 years, Occupation : Cultivator,
r/o Ukalipen, District Washim. ... APPLICANT.
-VERSUS -
1. The State of Maharashtra,
Through P.S.O. P.S. Ansingh,
District Washim.Amravati.
2. Keshao s/o Nivrutti Mahale,
aged adult, Occupation : Cultivator,
r/o Ukalipen, District Washim. ... RESPONDENTS.
....
Mr. A.P. Tathod Advocate for the Applicant.
Mr. D.B. Patel, A.P.P., for Respondent No.1.
Mr. S.U. Nemade Advocate for Respondent No.2.
....
CORAM : A.B. CHAUDHARI, J.
DATED : 31 March, 2010.
st
ORAL JUDGMENT :
Rule. Rule heard forthwith with the consent of counsel for rival parties.
2. The question of law that falls for consideration is, whether power of State Government under Section 321 of Code of Criminal ::: Downloaded on - 09/06/2013 15:47:37 ::: 2 Procedure to withdraw a criminal prosecution is unaffected by fundamental right of a citizen of India.
3. FACTS :
District Magistrate, Washim, issued a prohibitory order dated 30th July 2005 under Section 37(1)(3) of Bombay Police Act, 1951 for the entire Washim district valid from 2.8.2005 till 15.8.2005 with usual prohibitions imposed therein. Respondent no.2/complainant Keshao Nivrutti Mahale, r/o Ukalipen, lodged first information report with P.S.O. P.S. Ansing. He stated that he was voting and counting agent of his village politial party in the Gram Panchayat elections which was held on 8.8.2005.
Village political party led by Gowardhan Patil won the elections but his party lost the election. There was a procession taken out by the elected party. But at about 5-30 p.m. the procession stopped at his house and accused persons trespassed into his house and threw three bags of red and blue colour (Gulal) all over his house, tin roof and walls of the house and broke the wooden cot and also threatened him. F.I.R. was registered.
Offence was investigated and charge-sheet under Section 148, 143, 427, 506 and 135 of Bombay Police Act was filed.
On 14.8.2007 Public Prosecutor applied to the trial Court for withdrawal of the prosecution under Section 321 of Code of Criminal Procedure as per the instructions issued by State of Maharashtra. The trial ::: Downloaded on - 09/06/2013 15:47:37 ::: 3 Court rejected the said application by impugned order. Hence this application.
4. SUBMISSIONS :
Counsel for the applicant submitted that it is the choice of the State Government to withdraw a criminal prosecution and except finding out whether Public Prosecutor has applied his mind independently and was acting in good faith and withdrawal is sought in public interest, the Court has nothing further to do. The reason about requirement of policy decision by Government given by the trial Court is wrong and is never contemplated under Section 321 of Code of Criminal Procedure. The decision of Punjab & Haryana High Court to that effect has no application.
The case in question is a individual case for which no policy decision is required. Government has decided to withdraw the prosecution with a view to achieve peace in the village and hence trial Court erred in not giving consent. Complainant has no locus standi to oppose withdrawal at any stage.
5. Learned A.P.P. supported the withdrawal of prosecution and urged that Section 321 of Code of Criminal Procedure does not contemplate hearing the complainant.
6. Per contra, counsel for respondent no.2 opposed the application and argued that the decision to withdraw the prosecution was ::: Downloaded on - 09/06/2013 15:47:37 ::: 4 taken by the State Government without any notice to respondent no.2 who is the victim and at whose instance prosecution was instituted. He had a right to be heard when decision was taken against his interest. Offences committed did not only were limited to violation of his right of privacy and of his family members but breach of prohibitory orders as well. He thus prayed for dismissal of the application.
7. CONSIDERATION :
Section 321 of Code of Criminal Procedure reads thus :
"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 the Code no charge is required, he shall be acquitted in respect of such offence or ::: Downloaded on - 09/06/2013 15:47:37 ::: 5 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 Delhi Special Police Establishment Act, 1946 (25 of 1946), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to Central Government, or
(iv) was committed by a person in the service of all 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 ::: Downloaded on - 09/06/2013 15:47:37 ::: 6 produce before it the permission granted by the Central Government to withdraw from the prosecution."
8. It is not in dispute that respondent no.2- Keshav, the complainant, was never heard by the State in the matter. It is true that Section 321 of the Code of Criminal Procedure does not provide for any notice of hearing to the complainant in a criminal case instituted by the State. However, fundamental right of a citizen, in this case the complainant-victim, to be treated fairly by State certainly must affect the power of the State to act under Section 321 of Code of Criminal Procedure.
Principles of natural justice form integral part of Article 14 and includes right to fair treatment. Right to fair treatment is an essential inbuilt of natural justice. The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the constitution. But then it is possible to save it from unconstitutionality by applying the doctrine of reading down looking to the intent of the legislature behind Sec. 321 Cr.P.C. The doctrine of reading down is an internal aid to construe the words or phrase in statute to give reasonable meaning. The object of reading down is to keep the operation of the statute within the purpose of the Act and constitutionally valid. The courts, though have no power to amend the law by process of interpretation, but do have power to amend it so as to be in ::: Downloaded on - 09/06/2013 15:47:37 ::: 7 conformity with the intendment of legislature. Doctrine of reading down is one of the principles of interpretation of statute in that process.
9. In the instant case, applicants/accused had moved the State Government for withdrawal of the prosecution, which request was accepted upon considering their request. The complainant also could have been heard when the matter was being considered by the State looking to the rule of audi alteram partem.
10. Looking to the facts in the present case, it is clear that applicants firstly violated the prohibitory order under Section 37(1)(3) of The Bombay Police Act and then went in procession to the house of respondent no.2- complainant with a view to humiliate and intimidate him due to the defeat of his village political party and the success of political party of Gowardhan Patil. Having trespassed in his house they threw red and blue `gulal' all over his house and also walls in huge quantity of three bags, broke his cot and also threatened him. This was nothing short of `hooliganism, rowdisom and goondasim' which is being now-a-days seen in the villages during panchayat elections. During these panchayat elections many in the villages under heavy intoxication of liquor freely made available by the Government of Maharashtra indulge in the same.
The deafening sound with which bands and D.J. are played contrary to law is never heard by the Government. No arrangements are ever made to ::: Downloaded on - 09/06/2013 15:47:37 ::: 8 prevent such an ugly demonstration. In fact, it has become the order of the day in the villages during panchayat elections. In the case at hand the applicants severally violated the privacy of the complainant and his family members and made `ugly' tamasha in his house. Should the Government decide to withdraw prosecution without hearing the complainant and without understanding his plight. Will it not send a message to the society that those who are politically influential can always get rid of the prosecution and are again free to indulge in similar offences. Such accused persons or applicants would mock at the complainant by getting the prosecution withdrawn. State is protector of law and the rights of its citizens. No doubt Section 321 of Code of Criminal Procedure gives a power to decide to withdraw the prosecutions but such a power cannot be exercised arbitrarily or without affording an opportunity to the victim- the complainant. In the result, I make the following order.
ORDER Crim. Appln. No. 3650 of 2009 is dismissed.
Copy of this judgment be sent to the Secretary, Law and Judiciary, Govt. of Maharashtra, for information.
JUDGE ::: Downloaded on - 09/06/2013 15:47:37 :::