Himachal Pradesh High Court
Pawan Thakur vs State Of H.P. And Others on 19 December, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr. Revisions No. 154 and 376 of
.
2019
Reserved on : 2.12.2019
Decided on: 19.12.2019
__________________________________________________
___
Cr. Revision No. 154 of 2019
Pawan Thakur
...Petitioner
Versus
State of H.P. and others
...Respondents
Cr. Revision No. 376 of 2019
Anil Kumar
...Petitioner
Versus
State of H.P. and others
...Respondents
Coram
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? yes
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2
For the petitioner : Mr. I.N. Mehta, Advocate, for
the petitioner in Cr. Revision
No. 376 of 2019 and Ms. Sunita
.
Sharma, Senior Advocate with
M/s Dhananjay Sharma,
Saraswsti Devi and Nagender
Kumar, Advocates, for the
petitioner in Cr. Revision No.
154 of 2019.
r to
For the respondent : Mr. Sudhir Thakur, Senior
Advocate with Mr. Karun Negi,
Advocate, for respondents No.
1, 3, 5 to 19, 21, 22 and 24 to 27
in Cr.Revision No. 376 of 2019
and for respondents No. 3, 4, 6
to 20, 22 to 27 in criminal
revision No. 154 of 2019.
Mr. Hemant Vaid and Mr.
Arvind Sharma, Additional
Advocates General, for the
respondent-State.
Sureshwar Thakur, Judge (oral)
Both criminal revision petition No. 154, of, 2019, and, criminal revision petition No. 376 of 2019, are, directed against, the, affirmative orders, as, pronounced by the learned Special Judge, Solan, 2 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 3 respectively upon Misc. Applications No. 14-S/4, and, and Cr. Misc Application No. 15-s/4 of 2019, .
applications whereof became, instituted in Session trial No. 8-s/7 of 2013, and, became, cast under, the, provisions, of, Section 329 of Cr. P.C., hence seeking therethrough, the, apt prosecutrial withdrawing rfrom to permission, from the learned trial Court, for hence prosecution, against, the accused/respondent, obviously, hence both are amenable for a common verdict, being pronounced, upon, them.
2. The afore application(s), became constituted before the learned Special Judge, Solan, during, the pendency, of, Session trial No. 8- S/7 of 2013, as, arose, from, FIR No. 4/2006, constituting therein offences, embodied, under Sections 420, 468, 471, 120-B, of, the Indian Penal Code, and, under Section 13(1)(d)(ii), 13(2) of the Prevention, of, Corruption Act, 1988. Since, as 3 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 4 aforesaid, the learned Special Judge, rather allowed the afore application(s), hence, the .
apposite complainants', institute therefrom, hence criminal revision petition, No. 154 of 2019, and, criminal revision petition No. 376, of 2019, before this Court, for, seeking therethrough, reversal, of the conjoint affirmative verdict, pronounced, upon, the afore applications, hence, by, the learned Special Judge.
3. The allegations constituted, against, the respondent/accused, are, grooved, (a) in, the constitution, of, the selection committee concerned, for, making recommendation(s), of, selectees, to, various posts, being illegal, (i) given its constitution, being rather without the approval, of, the state government, hence, thereupon the, mandate, borne, in, Rule-6 of the H.P. Ministerial/Non-Ministerial State Municipal Services (Recruitment and Promotion Rules, 1997, and, 4 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 5 Section 6 of the H.P. Municipal Services Act, 1994, rather becoming breached. The afore illegality, in, .
the constitution, of, the apposite selection committee, was, earlier contended, by the prosecution, to, bestow hence illegal benefits of selection, and, of, promotion, to, the persons purpose, hence r to concerned, as, recommended, for, the afore by, the apposite selection committee, (b) besides, it was also earlier contended, by, the prosecution qua there occurring tampering(s), and, over-writing(s), in the marks, awarded, hence by the members, of, the selection committee, to, the selectees/recomendees concerned, hence, also an apposite incriminating misdeamnor, rather therethrough connecting, the, prima-facie guilt, of, the accused, rather becoming sparked.
4. The law, appertaining, to, the permissibility, of, the casting, of, an application, before the 5 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 6 learned Court concerned, hence by the public prosecutor concerned, under Section 329, of, the .
Cr.P.C., is, encapsulated, in, a judgment, of, the Hon'ble Apex Court, reported in 2018(18) Supreme Court Cases, 448, rendered in case titled as, "Abdul Wahab K. State of Kerala and others", paragraph 11 whereof stands extracted hereinafter:
"The said provision confers authority on the Public Prosecutor to withdraw from theprosecution of any person accused of an offence, both when no evidence is taken and even if the entire evidence has been taken. The outer limit for exercising the said power is guided by the expression "at any time before the judgment is pronounced."
therein it has become tritely expostulated vis-a-vis, the Public Prosecutor concerned, becoming enjoined to objectively, and, free from, any, extraneous influence, and, also, free from any 6 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 7 extraneous consideration(s), besides paramountly, in the public interest, hence make an application, .
under Section 321 of the Cr. P.C., before the learned Court concerned. Further onwards, in a judgment reported, in, (1987) 1 Supreme Court Cases, 288, and, rendered in case titled as, "Sheonandan Pawan versus State of Bihar and others", also alike, the afore expostulation of law, occurring, in, the afore judgment (supra), as, rendered by the Hon'ble Apex Court, has therethrough settled, the trite test(s), for, validating, any prosecutrial application, cast under Section 321 of Cr. P.C., before the learned Court concerned, (a) tests whereof enjoins qua the apposite application becoming filed, hence by the Public Prosecutor, who is, competent, to, make, an, application, for withdrawal, b) his being In-charge, of, the case, (c) the application requiring, the, consent of the Court, wherebefore the Charge, is, 7 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 8 pending. It, also, becomes enshrined therein, that in case, the afore parameters, become, satiated, .
thereupon, the revisional Courts, hence empowering jurisdiction(s), to, make interference(s) therewith, becoming trammeled, and, squarely constricted.
5. Even, in, the judgment rendered, by the Hon'ble Apex Court, reported in (1980) 3 Supreme Court Cases, 435, rendered in case titled as, "Rajinder Kumar Jain versus State through Special Police Establishment and others", it, becomes propounded therein, (a) that, the ultimate discretion, for moving an application, under Section 321 of Cr. P.C. before the Court concerned, becoming completely vested, in the Public Prosecutor concerned, (b) besides, it has also become propounded therein, that, the jurisdiction, of, the Court, being supervisory, and being limited, foronly discerning, from, the grounds, as, cast in the 8 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 9 application, as, also, from the connected therewith records, vis-à-vis, hence the Public Prosecutor .
concerned, making an independent application, of, mind, pre-eminently hence, in, the broader public interest.
6. Nowat, a perusal, of, the grounds, set-
forth, in the application, cast under Section 321, of, Cr. P.C., by the Public Prosecutor concerned, hence before the learned trial Judge, discloses, vis-
à-vis, the afore parameters, and, expostulation(s), rather becoming encapsulated therein. However, it is, also, incumbent, upon this Court, to ,discern from, the material existing on record, as also from, the, afore application, as became instituted, before the learned Special Judge concerned, conspicuously after, the testimony(ies), of, the, prosecution witnesses, becoming recorded, vis-à-
vis, whether the afore test(s), becoming proven, to beget satiation. For making ascertainment(s), vis-à-
9 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 10vis, the afore facet, it is imperative, to allude, to, the testification, rendered by PW-20, (a) who, in his .
cross-examination, has, made un-equivocal voicing(s), vis-à-vis, the Recruitment and Promotion Rules, appertaining, to, the Municipal Council/Committee, becoming notified, in the year 2005, (b) and, also thereafter, hence, makes be-
speaking(s), vis-à-vis, prior thereto, no prescribed procedure and format, hence for recruitment, appointment, and, promotion, of, the apposite employees, by, the Government, in, the Municipal Council/Committee, rather existing. Further thereonwards, (c) he also deposed, vis-à-vis, his omission, to, recollect, qua, any instructions, becoming issued, to the Municipal Committee, for absorbing, on priority basis, all the persons, already working in the Municipal Commtitee, (d) and, thereonwards, he depose, vis-à-vis, on account of experience of employees, rendering duties, as Safai 10 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 11 Karamchari, Keymen, meter reader etc, hence the requisite, experience(s) gained, rather by the afore .
category(s) of staff, becoming instructed, through, instructions, issued, by the Government, from time, to time, vis-à-vis, the Municipal Council/Committee concerned, for becoming borne in mind, for, the requisite purpose. The afore recorded testifiation, crystallizes inferences, vis-à-vis, the charge, against, the, apposite accused, (e) qua their(s) illegally constituting, a, selection committee(s), and, theirs thereafter hence making tainted recommendation(s), of, selectees, and recommendees, illegality(s) whereof, is/are, alleged, to, spur, from infringement, becoming visited, upon, the Recruitment, and, Promotion Rules, as, appertaining, to, the Municipal Committee/Council, (f) and, comprised, in, prior to the constitution, of, the afore committee(s), rather the sanction, of, the government, becoming 11 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 12 enjoined to be obtained, whereas, it not becoming obtained, thereupon, the entire process, of, the .
selection committee, in, its hence making recommendations, to, promotions, and, for, recruitments hence purportedly acquiring, a, taint and, also any purported tampering(s)/over-
the participants',
r to
writing(s), , on the marks, as, become allotted to in the, relevant process, conspicuously rather becoming collapsed, and, staggered, as, (g) reiteratedly, given the requisite Rules, appertaining to the constitution, of, the selection committee, becoming, notified, in the year 2005, whereas, the relevant process, rather commenced much prior thereto. Moreover, the lack of instruction(s), becoming meted, to, the Municipal Committees, vis-à-vis, the adoption of procedure, for initiating the process, for, recruitment, and, selection, rather empowering, the, Municipal Council/Committee concerned, to, 12 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 13 suo moto adopt lawful procedure(s), adoption whereof hereat, is, not evidently tainted, (h) the .
testification, rendered by PW-20, vis-à-vis, the experience, of Safai Karamchari, Keymen, and Meter Readers, in the afore, becoming instructed, through instructions hence issued to the Municipal Council/Committee, to to, rather become reckoneable factor, for, absorbing their services, (i) r a and, are reiteratedly also abundantly suggestive, and, exemplificatory, vis-à-vis, the selection committee concerned, not, breaching any apposite Rules, nor also, the purported over-writing in the marks, awarded, by, the selection committee, constitute, any, penal mis-demeanor, as, the Selection committee concerned, was authorized, to, make the afore changes, in, the awarding of the marks, to the aspirants, who, participated in the relevant process, (j) emphatically, when the committee concerned, did 13 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 14 not, transgress or breach, the, mandate, of, the relevant rule, given theirs rather not in .
contemporaneity therewith, becoming fully operationalized, nor also, when the instructions, issued from time to time, by the government, to the Municipal Committees/Councils, as appertain to composition, of, selection committee(s), or, vis-à-vis, constitution thereof, become(s) breached. The afore deposition of PW-20,is, meted succor by PW-
21. The effect of the afore deposition, is, qua its' rather supporting and succoring, all the reasons, set-forth, in the application, cast under Section 321 of Cr. P.C., by the Public Prosecutor concerned, before the Special Judge concerned, (k) and, hence when the imperative parameter(s), appertaining, to, the learned Public Prosecutor concerned, hence making, an, independent, and, objective application of mind, to, ensure qua all the, exculpatory effects, of, the testifications, of, the 14 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 15 afore witnesses' vis-à-vis, the subjudice charge, before the learned trial Judge concerned, .
becoming tenably, and, justifiably bestowed upon them, is/are, also evidently borne, in, mind, by him,
(l) besides, when his application of mind, is, free from any extraneous influence, or, consideration, rather when it falls within the ambit, of, the afore testification(s. Moreover, when the learned Special Judge concerned, has also borne in mind, (f) the paramount parameter, vis-à-vis, upon, the afore anvils, rather, the, charge, against the accused, collapsing and failing, (g) thereupon the consent, of, the Court, to, the afore endeavour of, the prosecution also cannot become dis-
countenanced, as, thereupon this Court would condone, the, harassment and humiliation, as would become visited, upon the respondent/accused, despite, on anvil, of, the afore testification(s), rather the charge against 15 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP 16 them, collapsing, hence in its entirety. Moreover, no prejudice or harm, vis-à-vis, the public interest, or, .
vis-à-vis, the societal interest, also cannot be construed, to, become encumbered thereon(s).
7. There is no merit, in the, instant criminal revision petitions, and, the same are dismissed. The impugned order, pronounced by the learned Special Judge, Solan, upon Civil Miscellaneous Applicaions No. 14-S/14, and, No. 15-s/4 of 2019, in session trial No. 8-S/7 of 2013, are maintained and affirmed. Records be sent back forthwith. Also, the pending application(s), if any, are also disposed of.
(Sureshwar Thakur) 19.12.2019 Judge Kalpana 16 ::: Downloaded on - 21/12/2019 20:26:00 :::HCHP