Rajasthan High Court - Jaipur
Chunnu Mian vs State Of Rajasthan And Ors. on 24 August, 1987
Equivalent citations: 1987WLN(UC)612
JUDGMENT Mahendra Bhushan Shrama, J.
1. The non-petitioner No. 3 Dharam Singh Sagar at the relevant time i.e. in the month of May, 1976 was posted as Dy. Suprintendent of Police, Fatehpur, District-Sikar and later on was selected/appointed as I.A.S. and presently is posted some where in Rajasthan. The non-petitioner No. 2 Shankarlal was then Dy. Superintendent Neem-ka-Thana District Sikar. Balu Ram non-petitioner No. 4 at that time was S.H.O. Police Station Raghunathgarh, District Sikar. Pannalal non-petitioner No. 5 was Reader to non-petitioner No. 3. The petitioner Chunnu Mian had registered an FIR No. 10 dated January 26, 1976 at the Police Station Fatehpur District Sikar. Chunnu Mian was produced for remand before the learned Chief Judicial Magistrate Sikar on May 4, 1976 and he made a statement on oath before the Chief Judicial Magistrate wherein he also stated that accused non-petitioners gave beating to him with cleaves and shoes in Ringas Guest House and he had got himself medically examined. From Ringas Guest House he was taken to Fatehpur Police Station and after being kept there for two days he was beaten by the police people. Learned Chief Judicial Magistrate after recording the statement on oath of the petitioner Chunnu Mian under his order dated May 3, 1976 ordered that Chunnu Mian be presented to the Medical Jurist that day itself and the medical report be submitted to him the same day before 4 p.m.
2. Chunnu Mian was produced before the Medical Jurist, who on Medical examination found four contusions on his person. Learned Chief Judicial Magistrate under his order dated May 5, 1976 took cognizance of the offence against the non-petitioners Nos. 2 to 5, under Sections 330 and 323 IPC and because he had taken cognizance of the offence he did not feel it proper to try the case and therefore transferred the case under Section 410(1) Cr.PC to the court of Munsif and Judicial Magistrate First Class Sikar for trial according to law. Before the learned trial court an application under Section 197 Cr.PC was filed on behalf of the non-petitioners Nos. 2 to 5 but it was dismissed by the learned trial court and the revision too preferred by the accused-non-petitioners did no succed.
3. The petitioner was represented by a counsel of his own. On October 15, 1979, it was ordered by the court that because the Public Prosecutor attached with it was appearing for accused persons, a letter be addressed to the District Magistrate to appoint Special Asstt. Public Prosecutor in the case as the cognizance has been taken by the Chief Judicial Magistrate. On the aforesaid letter of the trial court the District Magistrate Sikar appointed the Asstt. Public Prosecutor I Sikar as Special Asstt. Public Prosecutor in the case. Thereafter, an application was filed by the aforesaid Asstt. Public Prosecutor on September 26, 1980 under Section 321 Cr.PC seeking consent of the court to withdraw from the prosecution. The application was opposed on behalf of the petitioner and the learned trial court under its order dated August 24, 1981 dismissed the aforesaid application of the Special Asstt. Public Prosecutor on the ground that he was not incharge of the case and therefore he cannot file the application under Section 321 Cr.PC.
4. Against the aforesaid order of learned trial court a revision petition was filed before the Sessions Judge, Sikar by the State, non-petitioner No. 1 here in who under his order dated May 19, 1982 allowed the revision petition and the application of the Special Asstt. Public Prosecutor was allowed. The order of the learned trial court was set aside and as a consequence thereof the consent was given to the special Asstt. Public Prosecutor to withdraw from the prosecution.
5. Aggrieved against the aforesaid judgment of the learned Sessions Judge the petitioner has filed the present revision petition before this Court. A two-fold contention has been raised by Mr. Tibrewal, counsel for the petitioner, that it was a complaint case and therefore the Special Asstt. Public Prosecutor was not the incharge of the case and could not have been incharge of the case and therefore his application under Section 321 Cr.PC could not have been allowed and that in the facts and circumstances of the case the learned Sessions Judge should not have allowed the application when the trial court had dismissed the same, more so, when no case for giving the consent to withdraw the prosecution was made out.
6. The first question is as to whether it was a complaint case or a State Case? If it is a State case the District Magistrate could have appointed Special Assistant Public Prosecutor and he would then be incharge of the case and he could have filed the application under Section 321 Cr.PC for permission to withdraw the prosecution. But if it was a complaint case, then under Section 321 Cr.PC he being not incharge of the case, could not have filed the application for consent to withdraw the prosecution. In the case of State of Punjab v. Surjit Singh, AIR 1967 SC 1014 a question of right of Public Prosecutor to file the application under Section 494 of Cr.PC 1898 (which corresponds to Section 321 of Cr.PC 1973) arose. In that case a complaint was filed by one Harnek Singh. The police on investigation took the view that Rajpal the second respondent in the case did not participate in the occurrence and has been falsely implicated on account of enmity. The police thereafter filed a complaint before the Magistrate only against the first respondent Avtar Singh. The complainant instituted a complaint before the Magistrate against both namely, Avtar Singh and Rajpal. The Dy. Superintendent of Police in the capacity of Public Prosecutor filed an application under Section 494 Cr.PC 1898 for consent of the court to withdraw from the prosecution. The said application was opposed by complainant on two grounds that the Dy. Superintendent of Police did not exercise the powers of Public Prosecutor. Any how the Magistrate over-ruled the objection and gave his consent for withdrawal of the case against the aforesaid second respondent. The order of the learned trial court was confirmed by the Sessions Judge. The Punjab High Court took the view that under Section 494 Cr.PC 1898 a Public Prosecutor cannot withdraw the case pending before the Magistrate instituted before the private complaint despite the complaintant's objection to withdraw the case. The Supreme Court examined the matter and in para No. 30 of its judgment said as under:
In our opinion the Public Prosecutor, who can file an application under Section 494 of the Code must be the Public Prosecutor who is already incharge of the particular case in which that application is filed. We are not inclined to accept the contention of the learned counsel for the appellant that the expression the Public Prosecutor in Section 494 is to be understood as referring to any person who is a Public Prosecutor, whether he is a Public Prosecutor appointed generally under Section 492(1) or for the purpose of a particular case as contemplated under Section 492(2) of the Code.
If any Public Prosecutor who had nothing to do with a particular case, is held entitled to file an application under Section 494, in our opinion the result will be very anomalous. For instance, if there are two Public Prosecutors appointed for a particular Court, and one of the Public Prosecutors is conducting the prosecution in a particular case and desires to go on with the proceedings, it will be open to the other Public Prosecutor to ask for withdrawal from the prosecution.
7. The court further said, that because in that case the prosecution was being conducted by the complainant and the Dy. Superintendent of Police Bhatinda was nowhere in the picture when he filed the applicat on under Section 494 of the old Code the view of the High Court that such a Public Prosecutor is not entitled to file an application for withdrawal is correct. It can therefore be said that only the Public Prosecutor incharge of the case can file an application for consent of the court to withdraw the prosecution. So far as the complainant's case is concerned in case it is being prosecuted by the complainant, the Public Prosecutor attached with the court cannot be said to be the Public Prosecutor of the case and obviously he will have no jurisdiction to file the application under Section 11 Cr.PC to withdraw the prosecution.
8. Thus, the question, as contained in the earlier part of this judgment, is as to whether it was a complaint case or was a case otherwise than filed on a complaint. The contention of the learned counsel for the petitioner is that a complaint has been defined in Section 2(d) of the Code of Criminal Procedure, 1973 and means any allegation made orally or in writing to a Magistrate with a view to his taking action under the Code of Criminal Procedure that some person whether known or unknown has committed an offence but it does not include a police report. He therefore contends that even if a person makes allegations orally to the Magistrate with a view to his taking action under the Code of Criminal Procedure that some person whether known or unknown has committed offence, it will be a complaint. According to the learned counsel when the accused was produced for remand before the Chief Judicial Magistrate Sikar, he had made oral allegations which had been recorded in writing in the shape of statement on oath and thereafter the Chief Judicial Magistrate took cognizance of the offence. According to the learned counsel cognizance was taken by the Chief Judicial Magistrate under Section 190(1)(a) Cr.PC. The contention of the learned Advocate General on the other hand is that the petitioner was produced in a case under Section 457 and 411 IPC in respect of theft of antiques, for remand. His statement was recorded on oath and thereafter without taking cognizance of the offence the learned Chief Judicial Magistrate had first directed the Medical Jurist to examine the complainant medically and after receipt of the injury report had taken cognizance of the offence. He therefore contends that cognizance was not taken under Section 190(1)(a) and was taken under Section 190(1)(c) of the Code. Any Magistrate of the first Class and any Magistrate of the Second Class specially empowered in this behalf under Sub-section (2) may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. Mr. Jain, learned Advocate General referred to some of the order-sheets of the trial court in order to press his point that the cognizance was taken under Section 190(1)(c) and not under Section 190(1)(a) of the Code. As already stated earlier the petitioner was produced for remand before the Chief Judicial Magistrate in a FIR under Section 457 and 411 IPC which related to theft of antiques of substantial value. The moment he was produced before the Chief Judicial Magistrate on May 3, 1976 for remand he complained that he had been beaten by the police. The learned Chief Judicial Magistrate saw the injuries on his person and felt it necessary that he be medically examined. The accused was sent for med 'cal examination and report of the Medical Jurist was received which was to the effect that there were four contusions on the back of left buttock, back of right buttock, below right eye and below left eye. The accused-petitioner was examined on oath by the learned Chief Judicial Magistrate on May 4, 1976 and on the basis of his statements and medical report the learned Chief Judicial Magistrate took cognizance under Section 313 IPC against the accused-non-petitioners. Chunnu Mian was represented by a counsel before the Munsif and Judicial Magistrate Sikar to whom the learned Chief Judicial Magistrate transferred the case. On June 25, 1979 an objection was raised that the list of witnesses has not been filed and therefore the com-plaint should be dismissed. The accused then said to the court that cognizance of the offence has been taken by the court in the complaint and therefore list of witnesses should be filed by the court. The learned trial court observed that the case has been fixed for evidence of the complainant and there is no ban in recording his statement. He further held that the proceedings cannot be dropped only on the ground that list of witnesses has not been filed because cognizance has been taken by the court. The statement of the complainant was recorded. As already stated earlier the accused persons were represented by Asstt. Public Prosecutor II. On October 15, 1979 the petitioner was present and the court wrote in the order sheet that because the A-P.P. was appearing on behalf of the accused persons under the orders of the District Magistrate, therefore the District Magistrate should be requested to appoint Speeial Asstt. Public Prosecutor for prosecution as cognizance of offence was taken by the Chief Judicial Magistrate. On January 30, 1980 the petitioner was present and has made a request for adjournment of the case as his advocate was not well. The case was adjourned and it was also recorded in in the order-sheet that the appointment of Special Asstt. Public Prosecutor by the District Magistrate be awaited. On March 20, 1980, a remander was sent to the District Magistrate to appoint Special Asstt. Public Prosecutor for conducting the case. It was only on March 26, 1980 that the Special Asstt. Public Prosecutor was appointed. The contention of the learned counsel for the non-petitioners that Special Asstt. Public Prosecutor was appointed on the request of the court, he became the incharge of the case and therefore could have filed application for consent of the court to wiihdraw the prosecution.
9. In my opinion from the narration of the above facts it can be said that cognizance of offence was taken on complaint which had been made orally by the petitioner to the learned Chief Judicial Magtstrate. The learned Chief Judicial Magistrate sent Chunnu Main for medical examination then recorded his statement and took cognizance of offence. It is not a case where after taking cognizance Chunnu Main was got medically examined but it is a case where first he was medically examined, then his statement was recorded. It was done after he had orally complained to the learned Chief Judicial Magistrate. Learned Magistrate had therefore power to enquire the matter even on oral complaint and after inquiry i.e. getting the petitioner medically examined and recording his statement on oath, he took cognizance of the offence. It cannot be said that cognizance was taken under Section 190(1)(c), but cognizance was taken against the non-petitioner under Section 190(1)(a) Cr. P.C. Merely because at one stage of the case it was given out by the petitioner that he was not required to file the list of witnesses because cognizance has been taken on a complaint by the Chief Judicial Magistrate and it was for him to give the list of witnesses, it cannot be said that the facts and circumstances of the case that cognizance of offence was taken under Section 190(1)(c) by the learned Chief Judicial Magistrate on information received from any person. I have no doubt that cognizance of offence was taken under Section 190(1)(a) Cr. PC.
10. If that be so, can it be said that even if the learned trial court had requested the District Magistrate to appoint Special Asstt. Public Prosecutor and one was appointed by the District Magistrate, he became the incharge of the case and could have filed an application under Section 321 Cr PC for consent of the court to withdraw the prosecution. In my opinion if cognizance has been taken on a complaint and the complainant is also represented by the counsel the court could not have written to the District Magistrate to appoint Special Asstt. Public Prosecutor and the said Special Asstt. Public Prosecutor could not have become the incharge of the case. Any other view would lead to serious consequences. It may be that a complaint is filed against functionaries of the State Government against whom there are serious allegations and the court which took cognizance of offence against them and if a view is taken that in all cases including the complaint it can appoint a Special Asstt Public Prosecutor, then the Special Asstt. Public Prosecutor so appointed will be able to and will have jurisdiction to file an application under Section 321 Cr.PC for consent of the court to withdraw the prosecution. The court inspite of serious opposition of the complainant may allow the application of the Public Prosecutor to withdraw from the prosecution. Such a course will not be in the interest of public adminstration, and administration of Criminal law. I can do no better than refer to the case of Surjit Siugh (supra). In that case in paras 31 and 32 the Supreme Court laid down the law and it has been held that if the prosecution is being conducted by the complainant in a complaint case then the Public Prosecutor could not be any where in the picture and he could not have filed the application for consent of the court to withdraw from the prosecution. Thus, I am of the opinion that Special Asstt. Public Prosecutor who was appointed by the District Magistrate in this case had no power or jurisdiction to file an application to withdraw from the prosecution under Section 321 Cr. PC.
11. An application was filed by the Special Public Prosecutor on September 26, 1980 before the learned trial court wherein reference was made to the letter dated September 23, 1980 of the District Magistrate as well as of the State Government dated September 25, 1980. It was prayed that he has been ordered to withdraw the case. He therefore filed the application. It may be stated that no reason was contained in the said application under Section 321 Cr.PC. The discretion is of the Public Prosecutor to withdraw from the prosecution, though the suggestion may eminate from the State Government. In the case of Sheodan Paswan v. State of Bihar and Ors, , referring to the contention raised on behalf of the petitioner that the Public Prosecutor had sought the withdrawal from the prosecution at the bequest of the State Government, the court observed that:
It is true that the State Government had taken its own decision to withdraw from the prosecution in the case against respondents Nos. 2, 3 and 4 and it is also true that the said decision was communicated to Shri Lalan Prasad Sinha but if the two letters, one dated 25th February, 1981 from the Law Secretary to the District Magistrate and the other dated 26th March, 1981 from the Addl. Collector, Incharge Legal Section to the Special Public Prosecutor, Incharge Vigilance case, are carefully scrutinized it will be clear that the State Government merely suggested to Shri Lalan Prasad Sinha (which it was entitled to do) to withdraw from the prosecution, but at the same time asked him to consider the matter on his own and after satisfying himself about it make the necessary application which he did on 17th June, 1981.
12. Thus, it will be clear that though the State Government may suggest to the Public Prosecutor that he may withdraw the prosecution, but ultimately it is the discretion of the Public Prosecutor to withdraw or not from the prosecution. In the instant case from the application it does not appear that the Public Prosecutor who as already stated earlier was not the incharge of the case and could not have filed the application, for consent to withdraw from the prosecution, applied his mind and took his own decision to withdraw from the prosecution. The learned Magistrate considered the application which was contested by the petitioner and in his order dated August 24, 1981 came to conclusion that Asstt. Public Prosecutor was not the incharge of the case and he could not have withdrawn from the prosecution under Section 321 Cr. PC. He further observed that in the application for withdrawal from the prosecution no ground seeking such withdrawal has been mentioned. On revision by the State Government, which in my opinion was not maintainable because the Public Prosecutor conld not have been the incharge of the case, it being a complaint case, cognizance having been taken, on complaint the learned Sessions Judge held that so far as offence under Section 330. IPC is concerned, and in all cognizaible offences it is the State which is responsible for the prosecution and therefore the Public Prosecutor could have withdrawn from the prosecution. The learned Sessions Judge also came to the conclusion, and in my opinion not rightly, that the complaint was not properly filed as it should have been filed by the Chief Judicial Magistrate and not by the complainant. Then he allowed the application, set aside the order of the learned Magistrate.
13. In my opiniom no application for withdrawal from the prosecution could have been filed and consent of the court could not have been accorded by the learned Sessions Judge to the Special Public Prosecutor to withdraw from the prosecution, more so, when the learned Magistrate did not find any ground to the special Asstt. Public Prosecutor to withdraw from the prosecution and he was right in saying that the Special Public Prosecutor could not be the incharge of the case. But the case relates to the month of May 1976 i.e. which is almost 10 years old. Even from the statement on oath made to the learned Chief Judicial Magistrate it cannot be said that any offence under Section 330, IPC is made out. Besides the statement, there is no evidence on record. In my opinion under the circumstances no useful purpose would be served by allowing the revision and sending the accused persons for trial before the learned Magistrate after a period of 10 years, when one of the non-petitioners, namely Shri Sagar is a member of Scheduled caste and during the pendency of revision before the learned Sessions Judge he had been selected to the IAS as its member posted in Rajasthan.
14. Consequently, I do not consider in the interest of justice and public administration to interfere in the revision petition and it is hereby dismissed on this ground.