Jharkhand High Court
Dhullu Mahato vs The State Of Jharkhand on 28 March, 2016
Equivalent citations: 2016 (3) AJR 4
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.277 of 2016
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Dhullu Mahato, Son of late Puna Mahato, Resident of Chitahi Basti,
P.O. Tundu, P.S. Barora, District-Dhanbad, Jharkhand.
.....Petitioner
Versus
The State of Jharkhand. ....Opposite Party
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Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. Milon Mukherjee, Sr. Advocate
: Mr. Indrajit Sinha, Advocate
For the State : Mr. Shekhar Sinha, APP
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03/28.03.2016In this application, the petitioner has prayed for quashing the order dated 7.1.2016, passed by Shri Binod Kumar, learned Judicial Magistrate, Dhanbad, in connection with Katras P.S. Case No. 120 of 2013, whereby and whereunder the application filed by the learned Public Prosecutor under section 321 of the Code of Criminal Procedure for withdrawal of prosecution against the petitioner had been rejected.
2. The officer in charge, Barora Police Station gave a written report, in which it was alleged that on 12.05.2013, he got an information that one Rajesh Gupta, who is named in Baghmara (Barora) P.S. Case No. 121 of 2013, and against whom, warrant of arrest had been issued, was hiding in his house and planning to flee away. On such information, the informant and other police personnels surrounded the house of the fugitive Rajesh Gupta, who was apprehended. As the accused was being put inside the police Jeep, the petitioner along with his supporters variously armed ransacked the police vehicle and attacked the police personnels, snatched the revolver of the informant and thereafter by using force took away Rajesh Gupta from the police custody.
3. Based on the aforesaid allegations, Katras P.S. Case No. 120 of 2013 was instituted. Upon conducting an investigation and having found the case to be true, chargesheet was submitted against the petitioner on 20.08.2013 and thereafter cognizance was taken. Charges were framed against the petitioner on 29.04.2014 under sections 147, 148, 149, 341, 323, 353, 332, 290, 427, 283, 224, 225 and 504 of the Indian Penal Code and trial proceeded. In course of trial, 14 witnesses were examined on behalf of the prosecution 2 including the investigating officer and the victim and the case had been fixed for recording statement under section 313 of Cr.P.C. when an application was filed by the learned Public Prosecutor under Section 321 of the Code of Criminal Procedure for withdrawal of prosecution against the petitioner. The learned Judicial Magistrate, Dhanbad vide order dated 7.1.2006 had rejected such application, which is the subject matter of the present case.
4. Heard Mr. Milon Mukherjee, learned senior counsel for the petitioner and Mr. Shekhar Sinha, learned A.P.P. for the State.
5. Mr. Milon Mukherjee, learned senior counsel appearing for the petitioner, has submitted that the petitioner is a Member of Legislative Assembly, who was elected from Baghmara Constituency and has always worked for the benefit of the Society and up-liftment of the downtrodden. It has been submitted that the petitioner has been implicated only because of the fact that the petitioner had shown his protest against the illegal activities of the then Deputy Superintendent of Police and the officer in charge of Barora Police Station and had also filed representation before the Chairman, Coal India Limited, highlighting the nexus between local police officials and coal Mafia. It has further been submitted that the petitioner had approached His Excellency the Governor of Jharkhand as well as the Director of C.B.I. by making representations highlighting the activities of the Coal Mafia in connivance with government officials in defrauding the State. It has further been submitted that Katras P.S. Case No. 120 of 2013 is an offshoot of Baghmara (Barora) P.S. Case No. 121 of 2013 instituted against Rajesh Gupta on the allegation of demand of extortion money and the said case had ended in an order of acquittal passed in favour of Rajesh Gupta by the learned trial court. Learned senior counsel for the petitioner in the aforesaid background has submitted that the criminal case instituted against the petitioner was palpably false and was a vexatious litigation and since the Government of Jharkhand after considering such aspects had taken necessary steps for withdrawal of the prosecution against the petitioner and communications were made by the Deputy Commissioner, Dhanbad to the Public Prosecutor. Submission has been advanced that the Public Prosecutor had applied his own independent mind on the records of the case and being satisfied that it is a fit case for withdrawal under section 321 of Cr.P.C. had filed 3 such application praying therein for withdrawal of prosecution against all the accused persons in connection with Katras P.S. Case No. 120 of 2013. Continuing with his argument, learned senior counsel for the petioner has further submitted that the application under section 321 Cr.P.C. so submitted by the learned Public Prosecutor itself reveals that he had formed his own independent opinion based on the records of the case but the learned Judicial Magistrate, Dhanbad had merely on the purported ground that the witnesses had supported the prosecution case and that the learned P.P. did not apply his mind had been pleased to reject such application. It has thus been submitted that the learned Judicial Magistrate had erred in rejecting such application on grounds which were non-existent and in fact the paramount consideration of the interest of public justice were totally ignored while rejecting such application filed by the learned Public Prosecutor. In such circumstances, therefore, it has been prayed that the order dated 7.1.2016, passed by the learned Judicial Magistrate, Dhanbad be quashed and set aside and the State be allowed to withdraw the prosecution against the petitioner.
6. Mr. Shekhar Sinha, learned A.P.P., has supported the argument advanced by the learned senior counsel for the petitioner.
7. From the argument advanced by the learned senior counsel for the petitioner, the only point for consideration is whether the Public Prosecutor had applied his mind while preferring such petition under section 321 Cr.P.C. and whether such application/non application of mind by the learned Public Prosecutor has been properly appreciated by the learned Judicial Magistrate while refusing to allow the withdrawal application.
8. In order to arrive at a just conclusion, it would be apt to refer to Section 321 of Cr.P.C., which is quoted hereinbelow:-
CRIMINAL PROCEDURE CODE, 1973 S.321 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 this Code no charge is required he shall be acquitted in respect of such 4 offence or 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 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 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 produce before it the permission granted by the Central Government to withdraw from the prosecution.
9. Section 321 Cr.P.C. gives power to the Public Prosecutor/Assistant Public Prosecutor to withdraw from the prosecution of any person. The scope and ambit of Section 321 has been considered time and again by the Hon'ble Supreme Court.
10. In the case of State of Bihar Vs. Ram Naresh Pandey, reported in AIR 1957 S.C. 389, a three Judges' Bench was deciding the question as to whether where an application for withdrawal under section 494 of the Code of Criminal Procedure ( Code of 1898) is made on the ground of insufficiency or meagreness of reliable evidence that is available, it is an improper exercise of discretion for the Court to grant consent before evidence is taken, if it was reasonably satisfied, otherwise, that the evidence, if actually taken, is not likely to result in conviction. While answering such question, it was held " in the situation, therefore, excepting for the view that no order to withdraw should be passed in such cases either as a matter of law or as a matter of propriety but that the matter should be disposed of only after the evidence is judicially taken, we apprehend that the learned Chief Justice himself would not have felt called upon to interfere with the order of the Magistrate in the exercise of his revisional jurisdiction".
11. The powers and duties of the Court had also been considered and it was held that the function of the Court in granting its consent may well be taken to be a judicial function and in granting the consent the Court must exercise a judicial discretion. It further went on to hold " the Judicial Function" therefore, implicit in the exercise of the judicial discretion for granting the consent would normally 5 mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised; or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
12. In the case of Bansi Lal Vs. Chandan Lal and others, reported in 1976(1) SCC 421, it was held as follows:-
"......Therefore when the Additional Sessions Judge made the impugned order, there was no material before him to warrant the conclusion that sufficient evidence would not be forthcoming to sustain the charges or that there was any reliable subsequent information falsifying the prosecution case or any other circumstance justifying withdrawal of the case against the respondents. Consenting to the withdrawal of the case on the view that the attitude displayed by the prosecution made it "futile" to refuse permission does not certainly serve the administration of justice. If the material before the Additional Sessions Judge was considered sufficient to enable him to frame the charges against the respondents, it is not possible to say that there was no evidence in support of the prosecution case".
13. In the aforesaid case under reference, it was also held that the Court must be satisfied "on the materials placed before it" that the grant of permission would serve the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law.
14. In the case of State of Orissa Vs. Chandrika Mahapatra, reported in 1976 (4) SCC 250, it was held as follows:-
"6. 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.
10. We have already discussed the principles which should govern cases of this kind where an application is made by the Public Prosecutor for grant of consent to the withdrawal of prosecution under Section 494 of the Criminal Procedure Code. We have pointed out that the paramount consideration in all those cases must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice. Now, in the present case, the application made by the Public Prosecutor clearly shows that the incident had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking. In these circumstances, the State felt that it would not be conducive to the interest of justice to continue the prosecution against the respondents, since the prosecution with the 6 possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking. We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution. We are, therefore, of the view that in the present case the learned Sessions Judge was right in granting consent to the withdrawal of the prosecution and the High Court was in error in setting aside the order of the learned Sessions Judge".
15. The primary consideration, therefore, on a plain reading of the aforesaid judgment suggests that the Public Prosecutor cannot merely make an application devoid of any reasons for withdrawal from prosecution but the same has to contain justifiable grounds, on which such prayer is made.
16. In the case of Balwant Singh & Others Vs. State of Bihar reported in 1977 (4) SCC 448, the duties of the Public Prosecutor when an application under section 321 Cr.P.C. is being sought to be made has been enunciated and it has been held as follows:-
"The statutory responsibility for deciding upon withdrawal squarely vests on 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. It further goes on to hold "For justice ordinarily demands that every case must reach its destination not interrupted en route. If some policy consideration bearing on the administration of justice justifies withdrawal, the Court may accord permission; not if no public policy bearing on the administration of justice is involved".
17. In the case of Subhash Chander Vs. State ( Chandigarh Administration) And others, reported in (1980) 2 SCC 155, Krishna Iyer, J in his imitable style had held thus:-
"5. Although skeletal, the conditions for such withdrawal are implicit in the provision, besides the general principles which have been evolved through precedents. Once a prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. All public power is a public trust, and the Public Prosecutor cannot act save in discharge of that public trust, a public trust geared to public justice. The consent of the court under Section 321 as a condition for withdrawal is imposed as a check on the exercise of that power. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. That is the essence of the nolle prosequi jurisprudence".
18. In the case of Sheo Nandan Paswan Vs. State of Bihar, reported in AIR 1987 SC 877 :(1987)1 SCC 288, Khalid J delivering the majority view had held as follows:-
7"63 The real question that has to be answered in this case is whether the executive function of the Public Prosecutor in applying for, and the supervisory functions of the court in granting consent to, the withdrawal have been properly performed or not. The four remaining points enumerated above virtually revolve around this question. 65 The Public Prosecutor should normally be credited with fairness in exercise of his power under Section 321, when there is no attack against him of having acted in an improper manner. He had before him the State Government's communication of the policy taken by it. He had before him the case diary statements and other materials. He perused them before filing the application. Thus his part under Section 321 in this case has been performed strictly in conformity with this section. The question that remains then is whether the grounds urged by him in support of withdrawal were sufficient in law. The application clearly shows that Shri Sinha applied his mind to the facts of the case. One would normally not expect a more detailed statement in an application for withdrawal than the one contained in the application in question, when one keeps in view the scope of Section 321 and the wide language it uses. The plea that there was lack of application of mind by the Public Prosecutor has only to be rejected in this case.
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 materials before him, the court exercises its judicial discretion by considering such materials and on such consideration, either gives 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."
19. In the case of Abdul Karim & Ors. Vs. State of Karnataka & Ors, reported in (2000) 8 SCC 710, it was held that the Court must be satisfied that the materials which have been set out by the Public Prosecutor can reasonably lead to the conclusion that the withdrawal from the prosecution will serve the Public Interest. The Court must be satisfied that the Public Prosecutor has considered the material and has reached the conclusion that his withdrawal from the prosecution shall serve the public interest. It must also weigh in the mind of the Court as to whether the grant of consent will thwart or stifle the course of law or result in manifest injustice.
20. The aforesaid view of the Supreme Court in the case of Abdul Karim (supra) was followed in the case of Rahul Agarwal Vs. Rakesh Jain, reported in (2005) 2 SCC 377, wherein it was held as follows:-
"10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution 8 would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321, Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same".
Recently the Supreme Court in the case of Bairam Muralidhar Vs. State of Andhra Pradesh, reported in AIR 2014 SC 3437-, while considering the gamut of judgements on the subject had held "..the Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really sub serve the public interest at large. An order of the Government on the Public Prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligation under the Code. He is required to constantly remember his duty to the Court as well as his duty to the Collective. In the instant case, as the application filed by the Public Prosecutor for withdrawal of prosecution would show that he had mechanically stated about the conditions precedent. It cannot be construed that he has really perused the materials and applied his independent mind solely because he has so stated. The application must indicate perusal of the materials by stating what are the materials he has perused may be in brief; and whether such withdrawal of the prosecution would serve public interest and how he has formed his independent opinion; the Public Prosecutor has been totally guided by the order of the Government and really not applied his mind to the facts of the case".
21. Strengthened with the law laid down by the Hon'ble Supreme Court as has been reflected in the judgments quoted above, this Court has to proceed by taking into consideration the application for withdrawal filed by the Public Prosecutor.
22. The withdrawal application was filed by the Public Prosecutor Incharge and the APP Incharge of the case. The opening line of paragraph 2 of the withdrawal petition does suggest that the application was filed not on the basis of a conscious independent decision of the Public Prosecutor Incharge but on the direction of the State Government.
It is necessary to quote paragraph 02 of the petition and the same as under:-
"That, pursuant to State Government's Order for withdrawal of the prosecution of the above case this petition is being filed for according consent by this Ld. Court(order of the Govt. attached 9 herewith)". The said petition gives a vague reference of the evidences collected during the investigation and nothing has been mentioned as to how the chances of conviction against the accused persons are bleak. Although 14 witnesses had been examined prior to the application under section 321 being filed by the P.P. Incharge but there is not even a casual reference about the statement of any witness to substantiate such stand taken by the learned P.P. Mention has also been made about the purported political rivalry and raising of issues of public importance to highlight the claim that withdrawal from the prosecution would serve the public interest and public justice and would lead to a stable social scenario. The petition, therefore, has concentrated on two aspects (a) there is no evidence against the petitioner in course of trial and (b) administration of justice in the facts and circumstances being of paramount importance, more so when the State claims that the petitioner is a victim of a political rivalry. The application under section 321 Cr.P.C. submitted by the P.P. Incharge, Dhanbad does not suggest that he had applied his independent mind with the facts and circumstances of the case. Mere use of common legal parlance in such petition would not subjugate the criminal law set into motion as nothing substantial in support of such prayer has been mentioned in the petition itself. Learned senior counsel for the petitioner in course of his argument had vehemently stated about the paucity of evidence against the petitioner and the remote chances of his conviction but the findings of the learned Judicial Magistrate that the prosecution witnesses have supported the case have not been tried to be contradicted by justifying such claim made by P.P. Incharge in his petition. It thus appears that so far as the evidence of the prosecution witnesses are concerned, save and except some reference made in the application under section 321 Cr.P.C. which, as has been discussed above, is vague and opaque does not inspire confidence with respect to such claim. At this juncture, it would be desirable to refer to the case of Rajender Kumar Jain Vs. State through Special Police Establishment & others, reported in (1980) 3 SCC 435, in which the entire scheme of section 321 Cr.P.C. has been summarized. The same is quoted thus:-
"14. Thus, from the precedents of this Court, we gather:
1. Under the scheme of the Code, prosecution of an offender for a serious offence is primarily the responsibility of the executive.10
2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammary Hall enterprises.
6. The Public Prosecutor is an officer of the court and responsible to the court.
7. The court performs a supervisory function in granting its consent to the withdrawal.
8. The court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."
23. The Court is, therefore, delegated the power of exercising supervisory function whenever an application under section 321 Cr.P.C. is preferred. The administration of justice, which also has to be one of the reasons for making such application under Section 321 Cr.P.C. does not seem to hold ground as the petitioner being a political figure, resort has been taken to the usual practice of being framed on account of political rivalry. The petition of P.P. Incharge thus does not contemplate luminescent reasonings to justify such application and such being the position no error or illegality could be detected in the impugned order dated 7.1.2016 passed by the learned Judicial Magistrate, Dhanbad in Katras P.S. Case No. 120 of 2013 and as a consequence thereof, this application sans merit is hereby dismissed.
(Rongon Mukhopadhyay,J) Rakesh/