Madhya Pradesh High Court
Nagrik Upbhokta Margdarshak Manch vs State Of M.P. And Ors. on 5 March, 2002
Equivalent citations: 2002CRILJ4215
Author: Uma Nath Singh
Bench: Uma Nath Singh
ORDER
1. There is an age old saying that spiritual growth is not alien or dissociated from bodily health. Fitness of body is as important as alterness of mind which is sometimes comparable to awareness of being. In absence of harmony and compatibility there cannot be a composite projection of the mind body relationship which may lead to serious psychospmatic disorders. He who conceives the idea of the growth of mind can not ostracise the essence of physical growth which is dependent on the atmosphere and grows up. Pollution free atmosphere and hygienic food are essential, nay, preliminary requisite for the growth of Homo sapiens as they stand demarcated and separated from other beings. That is hypostasis of basic existence which has nexus with humane development. Not for nothing it has been said that one day indulge in a religious activity but while so doing he cannot totally abandon the effort or a demand to uplift his physical health. Health does play a paramount role not only in the individual life but also in the sphere of the collective. When the question of establishing the right arises the right of the collective in most cases has to weigh supreme and individual right unless totally protected, has to yield or succumb. An effort, even if it has logical or legal sanction, in the technical sense can not weight if it created a dent in the collective good. The maxim salus populiest suprema' has to be respected in the sphere of law making and following the law. The general well being of the society can not be allowed to take a back seat as the essential purpose of law is to promote the welfare of citizens in a collective manner. The purpose of saying the aforesaid is that when the law must play its full play it cannot totally ignore what is good for the public at large. There may be a rose in the barren land but there cannot be a law in the barren place. Possibly for that reason the 'Siddhanta'.
Yadyapi Sidham Lok Viruddham, Na Aadarniyam, Na Aacharniyam.
2. We have begun with the aforesaid prefatory note as Mr. V.K. Tankha, learned Advocate General for the State and Mr. J.P. Sanghi, learned counsel for the intervener, Shri Mahila Grih Udyog Lijjat Papad have been quite vocal in criticising the adroit effort and ingenuous stand putforth by the petitioner, Dr. P.G. Najpande, the President of Nagrik Upbhokta Margdarshak Manch in this public interest litigation wherein he has prayed for quashment of certain orders whereby the State Government in the Department of Law and Legislative Affairs has issued directions to the public prosecutor at different places for filing applications under Section 321 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') to withdraw the cases instituted against the intervener as well as certain other persons and personalities. Submission of Mr. Tankha is that a writ under Articles 226 and 227 of the Constitution cannot be issued in a case of this nature inasmuch as the controversy does not come within the ambit and sphere of public interest litigation and the petitioner has no locus stand to assail the order of the State Government. The learned Advocate General has pyramided his submissions by putting forth that the manner in which the writ petition has been setforth and the prayers have been made would amount as if a writ of mandamus can be issued to take away the power conferred on the State Government under Section 321 of the Code. To elucidate the power conferred on the statute cannot be totally abrogated by the issuance of a prerogative writ, more so, when the State Government has only passed the order and no consequential action has been taken and such a consequential action is dependent upon other factors like filing of necessary application by the public prosecutor and grant of permission by the concerned courts.
3. Mr. Sanghi, learned senior counsel for the intervener has submitted that the present writ petition has been filed in a mala fide manner as intervener has been targeted and no one else. It has also been submitted by him that to give vent to personal vendetta, the present writ petition has been filed by magnifying the State action to be a Himalayan blunder.
4. Mr. Dixit, learned counsel for the petitioner, per contra, has canvassed that the petitioner represents a social organisation and is the president and he is highly qualified. He has approached this Court in various public interest litigations and at no point of time this Court has felt that he has made any effort to create an unnecessary or unwarranted catastasis. It is also putforth by him that when he came to know about the orders he had no option but to approach this Court for appropriate relief as he sanguinely felt that an attempt has been made to corrode the collective good.
5. As a preliminary objection has been raised with regard to locus standi, we feel obliged to answer the same at the very out set. It is not disputed in the return that the respondent No. 2 has issued orders for withdrawal of the prosecution in respect of offences punishable under. The Prevention of Food Adulteration Act, 1954 (in short the Act'). On a perusal of the pleadings it also transpires that certain orders have been passed by the competent authority of the State Government for withdrawal of the cases in respect of some other persons. It is well settled that an offence under the provisions of the Preventive of Food Adulteration Act is a heinous crime against the society. It is not a crime against a person. It cannot be regarded as a innocuous activity. Certain examples have been cited as the prosecution was lodged with regard to spurious salt but it has been directed to withdraw the prosecution. The importance of salt cannot be lost sight of in the context of human existence. Salt has very vital role to play in the growth of human physic. In a branch of thereby called Bio-chemic there are twelve salts which are administered as curative measures. One may also have look at the myths or legends to find out the role of salt in human dist. One may also find out now violation of salt law created an epoch making impact in the third decade of the last century in the entire world. The purpose of saying all these that the people who are involved in these kinds of crimes must understand that they have committed crime which required to be seriously dealt with. Mr. Dixit, learned counsel has submitted that in certain cases permission had been granted and the prosecution had been withdrawn. When the petitioner came to know about this he thought it apposite to bring it to the notice of this Court. At this juncture we think it appropriate to mention that in these types of cases the criminal law is set in motion by filing a complaint by the food inspector and he does so after obtaining the sanction from the competent authority. It is not the case which can be compared to crime instituted under Section 326 or 307 of the Indian Penal Code where there is a victim. The victim may not have a role to play in a direct manner but still he acts some time as the watch dog. He has right under Section 401 of the Code to assail the order passed by the trial Judge if he is aggrieved depending upon the facts and circumstances. He has the locus stand to move this Court under the provision of Cr.P.C. If the public prosecutor does not assail any order, incidents are not very rare where the informants visit this Court for quashment of the same. But, a pregnant one, in case of this nature there is no direct victim. In view of this the petitioner thought it as his sacrosanct duty as a citizen to bring it to the notice of this Court. Hence, we are of the considered opinion that the present litigation has been filed by the petitioner as pro bono publico and can not be thrown at the threshold on the ground of locus standi. Resultantly we repel the preliminary objection.
6. Now we shall proceed to deal with the factual aspects of the case. Mr. Dixit, learned counsel for the petitioner would like us to issue a writ of certiorari for quashment of the orders passed by the respondent No. 2 vide Annexures P-8 and P-9. He also prays for issuance of direction to set aside certain orders where permissions have been granted. Mr. Tankha, learned Advocate General for the State has submitted that the Law Department has only issued direction and at this juncture, it would not be appropriate to quash the same as in that event it would tantamount to a substitute of the opinion of the learned trial Magistrate. Learned Advocate General fairly submitted that if the Magistrate commits an error the same can be rectified by the higher forum. It is also canvassed by Mr. Tankha that the same can be challenged in a proceeding under Section 482 of the Code but it cannot be challenged in an omnibus writ petition like this. Mr. Sanghi, learned counsel for the intervener has submitted that the reliefs sought for by the petitioner are premature inasmuch as there has been no application of mind by any trial Magistrate.
7. At this juncture we may profitably state that a return has been filed by the respondents 1 to 5 justifying their action.
8. A rejoinder affidavit has been filed by the petitioner.
9. We refrain from adverting to the same in detail for the nature of order we are going to pass.
We may note here the submission of Mr. Dixit that reasons which have been ascribed in the return are neither germane nor relevant and infact factually incorrect and is too specious. Be that as it may, at this juncture, we would not dwell upon the same.
10. It is not disputed at the Bar that the State Government had issued orders in number of cases relating to the respondent No. 8 directing the public prosecutor to file appropriate application under Section 321 of the Code seeking permission of withdrawal during prosecution. It is also not in dispute that in certain cases the applications have been filed and the Magistrates have granted the permission. In those cases where the permissions have been acceded to we are not expressing any opinion but grant leave to the petitioner to challenge the same in appropriate proceeding before this Court. We shall only address to the grievance in relation to the cases where permissions have not been accorded. We may hasten to add here that we entirely agree with Mr. Tankha that this Court in exercise of extraordinary jurisdiction under Articles 226 of the Constitution should not quash the order passed by the Department of Law and Legislative Affairs. But we may hasten to add directions issued by the Department of Law is not the Bible for the public prosecutor nor for the Court. Before granting permission of withdrawal the law in the field has to be applied in the proper perspective. So we proceed to state the law so that the learned Magistrate would appropriately be guided before giving consent under Section 321 of the Code. The said provision reads as under :
321. Withdrawal from prosecution :- Any 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 this Code no charge is required, he shall be acquitted in respect of such offence or offence :
Provided that where such offence -
(i) was against any law relating to a manner 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 (25 of 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 discharging of his official duty.
and the prosecutor in charge of the case has 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.
11. We may at this juncture, notice certain decisions in the field. In the case of the State of Orissa v. Chandrika Mohapatra (1976) 4 SCC 250 : 1977 Cri LJ 773 the Apex Court expressed thus :
It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has 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 which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.
12. In the case of Sheonandan Paswan v. State of Bihar (1983) 1 SCC 438 : 1983 Cri LJ 348 there Lordships expressed the view that exercise of power under Section 321 of the Code is an executive function of the Public Prosecutor for which the discretion has been vested with him but the said discretion is not absolute. It is subject to, the Court's supervisory function.
13. In the case of Sheonandan Paswan v. State of Bihar AIR 1987 SC 877 : 1987 Cri LJ 793 Constitution Bench held as under :
This section enables the Public Prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced, but this application for withdrawal has to get the consent of the Court and if the Court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. It clothes the public prosecutor to withdraw from the prosecution of any person, accused of an offence both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is "at any time before the judgment is pronounced.
14. Their Lordships further in paragraphs 70 and 71 ruled thus :
70. The section gives no indication as to the grounds on which the public prosecutor may make the application, Or the considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give the consent and not to determine any matter judicially. The judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the executive function of the Public Prosecutor has not been improperly exercised, or that is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
71. The Court's function is to give consent. This section does not obligate the Court, to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the material before him the Court exercises its judicial discretion by consent or declines consent. The section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the materials available the order giving consent has necessarily to be upheld.
15. In the case of Bansi Lal v. Chandan Lal AIR 1976 SC 370 : 1976 Cri LJ 328 it was observed that reasons to grant permission should not be accepted as necessary for mere asking but the Court must be satisfied on the material placed before it that the grant of permission would serve the administration of justice and that permission was not sought with an ulterior purpose unconnected with vindication of the law which the executive organs are in duty bound to further maintain.
16. In the case of R.M. Tewari v. State (NCT of Delhi) with Govt. of NCT, Delhi v. Judge, Designated Court II (TADA) and Mohd. Mehfooz v. Chief (1996) 2 SCC 610 : 1996 Cri LJ 2872 the Apex Court held as under:
...Designated Court was right in taking the view that withdrawal from prosecution is not to be permitted mechanically by the Court on an application for that purpose made by the public prosecutor. It is equally clear that the public prosecutor also has not to act mechanically in the discharge of his statutory function under Section 321 of the Cr.P.C. on such a recommendation being made by the Review Committee.
17. This Court in the case of Hariram Singh Thakur v. State of M.P. 1994 Cri LJ 745 refused to interfere with the order of refusal to accord permission from withdrawal of prosecution on the ground that circumstances justified declining of consent.'
18. In the case of Tariq Riyaz v. State of M.P. 1999(2) MPJR 267 : 1998 Cri LJ 4437 this Court expressed the view as under (at p. 4443 of Cri LJ) :
...In absence of any materials being putforth before the Court except stating that there was public interest because of a letter written by the authority in the Department of Law it cannot be said that the Courts below exercised their discretion in an injudicious manner. As is apparent from the communication and the application filed by the Public Prosecutor the Court was not apprised of the basis or on what material the public prosecutor was satisfied that the case warranted withdrawal and accordingly sought permission of the Court. The present case is not where the prosecution has sought withdrawal on the basis that it would not be able to produce sufficient evidence to sustain the charge or that it was not properly founded. This is not a case where it is canvassed that the policy of the State Government requires withdrawal of the case. The cause putforth is that the public interest requires the withdrawal. It is to be borne in mind that an onerous duty is cast on the Court to see that the permission is not sought on the ground which are extraneous to the interest of justice and the offenders go unpunished without justification because of withdrawal of prosecution against them. The statutory duty which has been conferred on the Public Prosecutor is a sacrosanct one and it has to be performed independently being apprise of the material on record and on a perusal of the reasonings which are sanguine, genuine and objectively sustainable. A spacious or mercurial submission in the petition without any supporting material would not meet requirement of law as that would indicate that the Public Prosecutor has not really applied his mind with keenness and objectivity and the Court in its turn would not be in a position to exercise its discretion at this juncture. The factual matrix in the present case clearly exposits that the public prosecutor had no material with him except the letter of the Law Department while filing the application under Section 321 of the Code and as a consequence there the Court was not in a position to have even a cursory glance at the material available with the Prosecutor. As has been held by the Apex Court in the case of Bansi Las (1976 Cri LJ 328) (supra) the Court must be satisfied on the materials placed before it. In absence of any material before the Court the net result is that consent is to be granted for asking. In that case it becomes a mere formality which is contrary to the mandate of law. On a close scrutiny of the application filed by the Public Prosecutor and the communications made by the authorities in the Department of Law to the Public Prosecutor it is plain as day that the Public Prosecutor did not apply his independent mind and the petition was quite spacious and nothing was brought to the notice of the Court. Nothing has been spelt out how the public interest is served in withdrawal of the criminal case against the petitioner.
19. Recently the Apex Court in the case of Abdul Karim v. State of Karnataka AIR 2001 SC 116 : 2001 Cri LJ 148 after referring to the case of Sheo Nandan Paswan 1987 Cri LJ 793 (supra) laid down the dictum in following manner :
8. The appellant in Criminal Appeals Nos. 741-743/2000 before us opposed the Special Public Prosecutor's application. He is the father of Shakeel Ahamed who, as the application recites, had, allegedly, been killed by Veerappan and his associates. The appellant's statement of opposition referred to the abduction of Rajkumar and alleged that, consequence thereupon, the Government of the State of Karnataka had yielded to the demands of Veerappan and his associates, and his had been widely publicised by the media. The statement of opposition submitted that no cogent reasons had been given for the decision to drop the TADA cases. It submitted that it was the duty of the Special Public Prosecutor to inform the Court of the reasons prompting him to withdraw the prosecution and of the Court to apprise itself of these reasons. The Special Public Prosecutor rejoined to the statement of opposition by contending that all cases against Veerappan and his associates were not being withdrawn and they would be prosecuted. He, therefore, denied the submission in the statement of opposition that the Government of the State of Karnataka had yielded to blackmail by Veerappan.
xxxxxx xxx xxx
19. The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by him withdrawal from the prosecution. In turn, the Court has to be satisfied, considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will' not stifle or thwart the process of law or cause manifest injustice.
20. It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the Court, with its permission. in a sealed envelope. The Court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the Court to weight the material. The Court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The Court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the Court accords consent, it must make such order on the application as well indicate to higher Court that it has done all that the law requires it to do before granting consent.
20. Thus from the aforesaid enunciation [ of pronouncement of law it is plain as day that the public prosecutor has a sacrosanct duty to apply his mind to the documents and to see that no prosecution is withdrawn | because of a letter has been issued until he is fully satisfied. The Court undoubtedly, has a duty. The Court cannot afford to abdicate its obligation and grant permission as if it is a routine duty. It should not act in a mechanical, routine and deskilled manner. The gravity of the offence, service to public interest, social concinnity and collective good are to be kept as paramount consideration. The collective cannot be allowed to suffer. The sotto voce of the order of the executive and application filed by the public prosecutor are to be appreciated in proper perspective. In cases of this nature the collective cries aloud :
What is he whose grief Bears such an emphasis ? Whose phrase of sorrow conjures the wandering stars, and makes them stand Like wonder-wounded hearers ?
21. In view of our preceding analysis, the application filed in pursuance of the order passed by the respondent No. 2 the public prosecutor must act as mandated in law and should not act as if he is a post office. We may hasten to add in number of cases applications are filed by the public prosecutor where he has only annexed the order of the Law Department and placed it before the Court. The Court as has been indicated hereinbefore must satisfy itself in consonance of the law governing the field and should not be solely guided by the application and pass an order of consent as a routine manner. It must be borne in mind that no Court should act as a post office as the Court has a duty to perform and the duty has to be done with Kantian rigroism. There is no escape from it. We would be failing in our duty if we do not mention that Mr. Sanghi, learned counsel for the intervener has made a colossal complaint about the food inspectors alleging that the cases have been filed as their personal demands were not meet with. Such an allegation, at this juncture, appears to us quite mercurial. The learned counsel has also putforth that the society is run by destitute women. The destitute women are not above the law. For that matter, none. The law must operate and cannot be permitted to go into exile. We do hope that the State Government, Public Prosecutor as well as the Courts having jurisdiction shall keep themselves alive to their respective roles and do the needful. Registry is directed to send a copy of this order to the learned District Judges so that he can bring it to the notice of the learned Magistrate of the District.
22. The writ petition is accordingly disposed of without any order as to costs.