Chattisgarh High Court
Rajendra Kumar Rai vs The State Of Chhattisgarh on 14 July, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on : 19/04/2023
Order passed on : 14/07/2023
CRR No.663 of 2020
1. Rajendra Kumar Rai, aged about 63 years, S/o Late Shri Ajay
Pal Rai, R/o Gunderdehi, P.S. Gunderdehi, Civil and Revenue
District-Balod (CG)
2. Shyamlal Kanwar, aged about 70 years, S/o Late shri Shiv
Prasad Kanwar, R/o Village-Bhaisma, P.S.-Urga, Civil and
Revenue Distt. Korba (CG)
---- Petitioners/Applicants
Versus
1. The State Of Chhattisgarh Through Station House Officer, Police
Station-Kartala, Distt. Korba (CG)
2. District Magistrate (Korba), Distt. Korba (CG)
3. Tarun Mishra S/o S.C. Mishra, aged about 51 years, R/o Village-
Urga, Police Station-Urga, Distt. Korba (CG)
---- Respondents
CRR No.742 of 2020
State of Chhattisgarh, through Station House Officer, Police Station-Kartala, Distt. Korba (CG)
---- Applicant Versus
1. Sarman Singh Kanwar, S/o Lt. Anand Singh Kanwar, aged about 70 years, R/o Village-Bhaisma, Police Station-Urga, Distt. Korba, Chhattisgarh.
2. Abhishek Singh Bhumihar S/o Nandeshwar Singh, aged about 27 years, R/o Village-Bhaisma, Police Station-Urga, Distt. Korba, Chhattisgarh.
3. Mohindar Singh Kanwar @ Titu, S/o Shyamlal Kanwar, R/o Village-Bhaisma, Police Station-Urga, Distt. Korba, Chhattisgarh.
4. Nandkumar Kanwar @ Vikky Kanwar S/o Jamuna Singh Kanwar, R/o Village-Krmandi, Police Station-Urga, Distt. Korba, Chhattisgarh.
5. Shyamlal Kanwar, aged about 70 years, S/o Late Shri Shiv Prasad Kanwar, R/o Village-Bhaisma, P.S.-Urga, Civil and Revenue Distt. Korba (CG) 2
6. Rajendra Kumar Rai, aged about 63 years, S/o Late Shri Ajay Pal Rai, R/o Gunderdehi, P.S.- Gunderdehi, Civil and Revenue Distt. Balod (CG)
---- Non-applicants For Applicants : Mr. Pawan Kesharwani, Advocate in CRR No.663/2020 and Mr. Sanjay Pathak, P.L. in CRR No.742/2020. For Respondents : Mr. Sameer Uraon, Govt. Advocate for respondents No. 1 & 2 in CRR No.663/2020 and Mr. Pawan Kesharwani, Advocate for respondents in CRR No.742/2020 Hon'ble Smt. Justice Rajani Dubey C.A.V. Order The present revision petitions under Sections 397 read with 401 of CrPC have been filed against the order dated 5.10.2020 passed by the Special Judge (S.C./S.T. Act), Korba in Sessions Trial No.85/2015 whereby the application filed by the prosecution under Section 321 of CrPC for withdrawal of prosecution against the respondents/accused has been dismissed.
02. An FIR was registered at Police Station-Kartala, Distt. Korba bearing Crime No.49/2014 for the offence punishable under Sections 148, 342, 294, 427, 506 Part-II, 325, 323, 395, 365 read with Section 149 of IPC against the respondents/accused. However, vide letter dated 6.11.2019 the Under Secretary, Govt. of CG, Law & Legislative Affairs Department, Raipur accorded sanction to the prosecution/District Magistrate, Korba for filing an application under Section 321 of CrPC for withdrawal of the prosecution against the respondents/accused. Thereafter, the public prosecutor filed an application under Section 321 of CrPC before the Court of Sessions Judge, Korba on 13.1.2020 in Sessions Trial No.85/2015. The learned 3 trial Court after hearing on the application under Section 321 of CrPC and considering the documents placed on record, rejected the said application by the order dated 5.10.2020. Hence these revisions.
03. Learned counsel for the petitioners jointly submit that the impugned order is arbitrary, illegal and contrary to the law applicable to the facts and circumstances of the case. The Court below completely ignored the fact regarding consideration of the application for withdrawal of prosecution as required under Section 321 of CrPC. The public prosecutor who filed the said application, was in-charge of the said case, competent to make an application for withdrawal of prosecution and filed the same after communication issued on behalf of the State, Law & Legislative Affairs Department, Raipur vide Memo No.12/09/2019/21-Ka (Abhi.)/CG/2019, Raipur dated 6.11.2019 signed by the Under Secretary and as per order of His Excellency, the Governor of the State. The public prosecutor after applying his mind, filed the detailed application under Section 321 of CrPC followed by written argument on behalf of the prosecution/State. All the pre- requisite conditions were complied with and refusal for the consent of the Court is not proper. Hence, it is admitted on behalf of all the parties in these criminal revisions that the impugned order passed by the Court below be set aside and withdrawal of prosecution of the accused persons herein may be permitted and consequently, they be acquitted of the charges leveled against them.
04. In both the revision petitions, all the parties supported each other so far as prayer to set aside the impugned order is concerned. 4
Reliance has been placed on the judgment of the Hon'ble Supreme Court in the matters of Sheo Nandan Paswan Vs. State of Bihar and others, (1987) 1 SCC 288; Subhash Chander Vs. State (Chandigarh Administration) and others, (1980) 2 SCC 155; the order dated 16.2.2016 passed by this Court in Criminal Revision No.951/2015, Ramesh Kumar Sharma & another Vs. State of CG & others and other connection revision petitions and the order of this Court dated 2.7.2015 passed in CRMP No.849/2013.
05. Heard learned counsel for the parties and perused the material available on record.
06. The Hon'ble Apex Court in Sheo Nandan Paswan (Supra) held in paras 73, 85, 86 & 90 as under:
"73. Section 321 gives the Public Prosecutor the power for withdrawal of any case at any stage before judgment is pronounced. This presupposes the fact that the entire evidence may have been adduced in the case, before the application is made. When an application under Section 321 Cr.P.C. is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. To contend that the court when it exercises its limited power of giving consent under Section 321 has to assess the evidence and find out whether the case would end in acquittal or conviction, would be to rewrite Section 321 Cr.P.C. and would be to concede to the court a power which the scheme of Section 321 does not contemplate. The acquittal or discharge order under Section 321 are not the same as the normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion of the evidence in the case of 5 acquittal or absence of prima facie case or groundlessness in the case of discharge. All that the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The Court after considering these facets of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. In this case, on a reading of the application for withdrawal, the order of consent and the other attendant circumstances, I have no hesitation to hold that the application for withdrawal and the order giving consent were proper and strictly within the confines of Section 321 Cr.P.C.
85. The scope of Section 321 can be tested from another angle and that is with reference to Section 320 which deals with "compounding of offences". Both these sections occur in Chapter 24 under the heading "General Provisions as to Enquiries and Trials." Section 320 (1) pertains to compounding of offences, in the table, which are not of a serious nature while Section 320 (2) pertains to offences of a slightly serious in nature but not constituting grave crimes. The offences in the table under Section 320(1) may be compounded by the persons mentioned in the third column of the table without the permission of the court and those given in the Table II, under Section 320(2) can be compounded only with the permission of the court. Under sub-section 4(a), when a person who would otherwise be competent to compound an offence under Section 320, is under the age of 18 years or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the court, compound such offence. Sub- section 4(b) provides that when a person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the 6 Code of Civil Procedure, of such person may, with the consent of the court, compound such offence.
86. These two sub-sections use the expression "with the permission of the court" and "with the consent of the court"
which are more or less ejusdem generis. On a fair reading of the above mentioned sub-sections it can be safely presumed that the sections confer only a supervisory power on the court in the matter of compounding of offences in the manner indicated therein, with this safeguard that the accused does not by unfair or deceitful means, secure a composition of the offence. Viewed thus I do not think that a plea can be successfully put forward that granting permission or giving consent under sub-section (4)(a) or (4)
(b) for compounding of an offence, the court is enjoined to make a serious detailed evaluation of the evidence or assessment of the case to be satisfied that the case would result in acquittal or conviction. It is necessary to bear in mind that an application for compounding of an offence can be made at any stage. Since Section 321 finds a place in this chapter immediately after Section 320, one will be justified in saying that it should take its colour from the immediately preceding section and in holding that this section, which is a kindred to Section 320, contemplates consent by the court only in a supervisory manner and not depending upon a detailed assessment of the weight or volume of evidence to see the degree of success at the end of the trial. All that is necessary for the Court to see is to ensure that the application for withdrawal has been properly made, after independent consideration, by the Public Prosecutor and in furtherance of public interest.
90. Section 321 Cr.P.C. is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 7 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis."
07. In the matter of Ghanshyam Vs. State of MP & others, (2006) 10 SCC 473, the Hon'ble Supreme Court while interpreting Section 321 of CrPC held that discretion to withdrawn from the prosecution is that of the public prosecutor and none else, he may withdraw from prosecution not merely on ground of paucity of evidence but on other relevant factors as well as in order to further the broad ends of justice, public order, peace and tranquility.
08. In the matter of Balwant Singh Vs. State of Bihar reported in (1977) 4 SCC 448, the Hon'ble Apex Court observed as under:
"The statutory responsibility for deciding upon withdrawal squarely vests in the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution."
09. In the present case also, it is clear from the documents available on record that the public prosecutor after receipt of order/decision of the Home Department of the State, decided to withdraw from the prosecution after examination of the case. It also records the 8 satisfaction of the public prosecutor that after examination of the facts of the case, he fortified the view of the Government, thereafter considering the broad ends of justice, order of peace and taking into account that by such withdrawal, no law and order situation will be damaged, moved such application for withdrawal. Therefore, taking the case in the terms of the principles of law laid down by the Hon'ble Apex Court in aforesaid matters and after perusal of the application of the public prosecutor, it appears that the application was made after proper application of mind. Being so, the trial Court was not justified in rejecting the said application.
10. In the result, the impugned order passed by the learned trial Court dated 5.10.2020 deserves to be and is hereby set aside. Consequently, the application for withdrawal from the prosecution filed by the public prosecutor dated 13.1.2020 in Sessions Trial No.85/2015, State of Chhattisgarh Vs. Sarman Singh Kanwar and others, is allowed. The prosecution is permitted to withdraw the Sessions Trial No.85/2015 pending before the Court of Special Judge (S.C./S.T. Act), Korba, Distt. Korba, against the accused persons.
Sd/ (Rajani Dubey) Judge Khan