Madhya Pradesh High Court
Tariq Riyaz vs State Of Madhya Pradesh on 9 March, 1998
Equivalent citations: 1998CRILJ4437
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. The pivotal question that falls for determination in this revision is whether the learned first Additional Sessions," Bhopal is justified in affirming the order passed by the learned Chief Judicial Magistrate, Bhopal in Criminal Case No. 5495/96 whereby an application preferred by the Public Prosecutor under Section 321 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') was rejected.
2. Shorn of unnecessary details the facts leading to filing of the present revision are that on 20-6-96 the informant, a constable in the Traffic Police, was assigned to perform his duties near the crossing of Bhopal Talkies and when the petitioner tried to cross the road ignoring the red light signal he was detained by the informant. According to the prosecution there was a scuffle between the petitioner and the informant and in quite promptitude an FIR was lodged by the informant. After the criminal law was set in motion the investigating agency conducted investigation and after completing all other formalities placed the chargesheet in the competent Court for offence punishable under Sections 353,332 and 506 of the Indian Penal Code.
3. It is put forth in the revision petition which has been filed by the accused-petitioner that after the incident the petitioner had gone to report the matter at Shahjahanabad police station as he was abused by the constable who was on duty but at the police station with the intervention of senior police officials the matter was amicably resolved. Thereafter, the petitioner went to the hospital and got himself treated. While he remained assured that the controversy had been given a decent burial, chargesheet was submitted in respect of the aforesaid offences by the investigating agency.
4. As is revealed from the petition as well as the impugned orders that the Deputy Secretary in the Department of Law and Legislative Affairs of the Government of Madhya Pradesh, Bhopal vide letter dated 1-9-97 communicated to the District Magistrate Bhopal with a copy there of to the Public Prosecutor to move an application Under Section 321 of the Code for withdrawing the case pending against the petitioner as in the opinion of the State it was not in the public interest to continue the prosecution against him. As in this letter the offence under Section 506, IPC was not mentioned, another letter was sent mentioning the aforesaid section to be read along with the letter written on the first occasion. In pursuance of the aforeasid communications the Public Prosecutor filed an application under Section 321 of the Code seeking permission to withdraw the case. The said prayer was rejected by the learned Magistrate by order dated 11-2-97 on the ground that there had been no application of mind by the Public Prosecutor and the circumstances did not warrant grant of permission for withdrawal of the prosecution. The prosecution assailed the aforesaid order before the learned Sessions Judge, Bhopal which ultimately came to be disposed of by the learned First Additional Sessions Judge who confirmed the order passed by the learned Magistrate on the basis that the grounds mentioned in the petition did not justify grant of permission to withdraw the prosecution. The aforesaid order though has not been challenged by the prosecution, is impugned in this revision by the accused-revisionist.
5. Assailing the aforesaid order Mr. Shandilya, learned counsel for the petitioner has contended that the approach of the Courts below in dealing with the aplication filed under Section 321 of the Code is fallacious as they have misdirected themselves in determination of the nature of jurisdiction vested in them under the Code while dealing with the application for withdrawal of prosecution. It is his further submission that the petition filed by the Public Prosecutor clearly put forth the reasons for doing so and the finding that there has been non-application of mind by the Public Prosecutor is unjustified in the facts and circumstances of the case. To substantiate his submission he has placed reliance on the decisions rendered in the cases of State of Orissa v. Chandrika Mohapatra AIR 1977 SC 903 :(1977 Cri LJ 773); Rajendra Kumar Jain v. State through Spl. Police Establishment AIR 1980 SC 1510 : (1980 Cri LJ 1084) and Madhav Rao Scindia (Shri) v. State of M. P. 1994 JLJ 36.
Mr. Manoj Naidu, learned Panel Lawyer for the State, in his turn, has submitted that though the prosecution has not challenged the order passed by the revisional Court the reasons which have been ascribed for not granting the permission to withdraw the prosecution are in actuality untenable.
6. Before I advert to deal with the fact situation of the present case it is essential to deal with the role of the Court and nature of jurisdiction exercised by it while dealing with an application for grant of permission for withdrawal of the case. To appreciate the scenario in proper perspective I may refer to Section 321 of the Code which reads as follows :
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 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 in 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 Prosecutorto produce before it the permission granted by the Central Government to withdraw from the prosecution.
On a bare perusal of the aforesaid provision it is luminously clear that the Public Prosecutor is entitled in law to withdraw from the prosecution of any person and at any stage before pronouncement of the judgment. Thus, the decision to withdraw is required to be taken by the Public Prosecutor and this withdrawal is materialised/concretised/effectuated with the,' consent of the Court. This is a statutory duty cast on the Public Prosecutor. He has to consider the various aspects and file an application. It is required of the Court to deal with the application seeking consent for such withdrawal. This exercise of jurisdiction is a judicial one. It cannot be exercised in a capricious and whimsical manner. It canot be performed in a routine or mechanical manner. The Court is not to function as a mere Post Office. The responsibility of the Court cannot be marginalised in this regard and the Court cannot abdicate its responsibility. The Court is not expected to act as a catalyst to further the application for withdrawal solely because an application has been filed. The Court does have a positive role though a different one, as the nature of jurisdiction is quite different while dealing with an application of this nature. The scope of the aforesaid provision had come up for consideration before the Apex Court on number of occasions. In the case of State of Orissa v. Chandirka Mohapatra (1976) 4 SCC 250:(1977 Cri LJ 773) the Apex Court observed that in granting consent to withdraw from prosecution the Court undoubtedly exercises judicial discretion but the discretion does not necessarily be exercised only with a reference to material gathered by the judicial method. Their Lordships further laid down as follows :
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.
The aforesaid view was reiterated in the case of Sheonandan Paswan v. State of Bihar (1983) I SCC 438 : (1983 Cri LJ 348) wherein their Lordships accepted that exercise of power under Section 321 of the Code is an executive function of the Public Prosecutor for which statutory discretion has been vested in him but the said discretion is neither absolute nor unreviewable. It is subject to the Court's supervisory function.
7. In this context I may profitably refer to the decision rendered in the case of Sheo Nandan Paswan v. State of Bihar AIR 1987 SC 877 : (1987 Cri LJ 793) wherein the Apex Court registered its view in the following manner (at page 831; of Cri LJ) :-
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.
From the aforesaid it is clear as noon day that the application for withdrawal has to have the consent of the Court and for giving such consent the Court has a specific role. Elaborating the aforesaid jurisdiction vested in a Court the Apex Court in the aforesaid case proceeded further to lay down as follows:
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 its 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, 1 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.
My purpose in referring to the above sections is only to show that Section 321, in view of the wide language it uses, enables the public prosecutor to withdraw from the prosecution accused, the discretion excercisable under which is fettered only be a consent from Court on a consideration of the materials before it and that at any stage of the case. The section does not insist upon a reasoned order by the Magistrate while giving consent. All that is necessary to satisfy the section is to see that the public prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the public prosecutor is proper."
8. From the aforesaid enunciation of law it is clearly perceptible that the Court while exercising its jurisdiction is not required to give consent as a matter of course. True it is, the Court is not required to pass a detailed reasoned order when it gives consent but it has to be satisfied that the Public Prosecutor has acted in a good faith and filed the application on a proper perusal of the material before him and there has been independent consideration by the Public Prosecutor and the same is in furtherance of public interest. The Court is to see that the exercise of discretion by the Public Prosecutor is proper. It is worthwhile to refer further to the view expressed in paragraph 75 of the Sheo Nandan Paswan (supra) wherein their Lordships have approved the view expressed by various High Courts and have observed that the Public policy, interest of administration, unexpediency to proceed with the prosecution for reasons, paucity of evidence can form the basis for withdrawal depending upon the facts and circumstances of the case. Their Lordships have elucidated the nature of discretion exercised by the Court in the following manner:
His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme, that with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of the triable issue. For instance the discharge the results therefrom need not always conform to the standard of "no prima facie case" under Sections 209(1) and 253(1) or of 'groundlessness' under Sections 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made.
9. At this juncture I may refer to another earlier decision of the Apex Court rendered in the case of Bansi Lal v. Chandal Lal AIR 1976 SC 370 : (1976 Cri LJ 328) wherein their Lordships observed that reasons to grant permission should not be accepted as a necessary formality, for the 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 and maintain.
10. In this context I may usefully refer to the decision rendered in the case of R. M. Tewari v. State (NCT of Delhi) with Govt. of NCT, Delhi v. Judge, Designated Court II (TAD A) and Mohd. Mehfooz v. Chief (1996) 2 SCC 610 : (1996 Cri LJ 2872) wherein the Apex Court expressed thus (at page 2873; of Cri LJ):
...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 CrPC on such a recommendation being made by the Review Committee.
11. At this juncture, I may refer to the decision rendered in the case of Madhav Rao Scindia (supra) wherein this Court has observed that the Court cannot act as a Court of Appeal and can interfere only when there is an abuse of power by the Public Prosecutor. While observing so the Court proceeded to state as follows :
In AIR 1957 SC 389 : 1957 Cri LJ 567 (The State of Bihar v. Ram Naresh Pandey) it has been held that this function of giving the consent of the Court is a judicial function. The Court must exercise judicial direction. This does not mean that the Court should decide the matter judicially. The Court has only to give its consent and to determine the matter judicially. This Court will not function as a fact finding authority but if the Court finds that it is a case of abuse of power by the Public Prosecutor then the consent will not readily be granted.
12. This Court in the case of Hariram Singh Thakur v. State of M. P. 1994 CrLJ 745 refused to interfere with the order of refusal to accord permission for withdrawal of prosecution on the ground that there has been 'circumstances justified declining of consent'.
13. The factual matrix of the case in hand is to be considered on the touchstone of the parameters laid down in the aforesaid decisions. On a perusal of the petition filed by the Public Prosecutor it is noticed that in paragraph two of the application it has been stated that the criminal case in question was pending for the last one year and charge had not been framed. In paragraph three of the petition it has been averred as per the opinion of the State Government as well as that of the prosecution it was in the public interest, that permission should be accorded for withdrawal of the prosecution. The learned Chief Judicial Magistrate after discussing the allegations forming the subject-matter of the prosecution has observed that there has been no independent application of mind by the District Public Prosecutor inasmuch he had only pressed into service the photocopy of the communication made by the authorities in the Department of Law. He has also taken into consideration that the ground agitated in the paragraph two that the case has been pending for one year and no charge has been framed could not be a factor to grant permission of withdrawal. It has also been observed by him that nothing has been indicated to demonstrate that the withdrawal was as an actual fact in public interest. On a perusal of the order passed by the revisional Court it is perceivable that he has referred to the reasonings given by the Chief Judicial Magistrate, negativing the prayer for grant of consent and has also observed that the delay in framing charge would not be a consideration for according permission for withdrawal from prosection.
14. Mr. Shandilya, learned counsel for the petitioner has emphatically putforth that the Courts below have fallen into error in their appreciation of the reasons indicated by the Public Prosecutor. He has referred me to the correspondences issued by the competent authority in the Department of Law that the State Government had taken a decision that continuance of the criminal case against the accused was not in public interest. A request was made to the Public Prosecutor to file appropriate application under Section 321 of the Code. In pursuance of the said communication application was filed as has been indicated earlier. The grounds which have been enumerated in the petition does not pertain to framing of charge but relate to public interest. May be the paragraph two of the petition can be construed as an assertion of actual fact but not as a ground for grant of permission. It is not mentioned that petition was filed seeking withdrawal on that ground. Even if that would have been agitated as a ground that would not have met the requirement of law for grant of withdrawal. I would refrain myself to deal with the said aspect as that does really form the bedrock seeking withdrawal. The real ground which was pressed into service for obtaining consent was public interest. As has been laid down by the Apex Court that consent of the Court is not matter of course and the same is not to be given without a careful and proper scrutiny of the grounds on which the application for consent is founded. The jurisdiction which is expected to be exercised being supervisory, it is incumbent upon the Court to see whether an attempt has been made to interfere with a normal course of justice for some purpose which is not germane to the issue. On a bare perusal of the petition filed by the Public Prosecutor it is clear as noon day that he has not applied his mind independently to the factual matrix and has acted in a mechanical manner as per the advice given by the authority in the Department of Law. Nothing has been put forth to indicate that the withdrawal from the prosecution would subserve public interest. The allegations as have been reflected in the impugned order indicate that there was a scuffle between the petitioner and the traffic constable for which the criminal law was set in motion. In absence of any material being put forth 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 grounds which are extranuous 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 apprised 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 thereof 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 Lal (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.
15. In view of the foregoing premises, I am of the considered view that the impugned orders withstand close scrutiny and do not warrant interference by this Court.
16. Resultantly, the criminal revision fails and the same is dismissed.