Delhi District Court
M/S Sunair Hotels Ltd vs State & Ors on 15 November, 2014
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
Crl. Rev. No. 12/2013
ID No. 02430R0005952012
M/s Sunair Hotels Ltd. : Appellant
Versus
State & Ors. : Respondent
Crl. Rev. No. 13/2013
ID No. 02430R0007752012
Kaveen Gupta : Appellant
Versus
State & Ors. : Respondent
Crl. Rev. No. 14/2013
ID No. 02430R0009312012
S.P. Gupta : Appellant
Versus
State & Ors. : Respondent
Crl. Rev. No. 15/2013
ID No. 02430R0007762012
S.P. Gupta : Appellant
Versus
State & Ors. : Respondent
Crl. Rev. No. 16/2013
ID No. 02430R0019392012
S.P. Gupta : Appellant
Versus
State & Ors. : Respondent
Crl. Rev. No. 12/13 Page No. 1 of 17
Date of Institution : 29.05.2013
Order was reserved on : 01.11.2014
Date of pronouncement : 15.11.2014
ORDER
1. A common order is being pronounced in all the aforementioned Revision petitions since the impugned order is the same in all the petitions. The aforesaid revision petitions have been preferred by the petitioners assailing the order dated 07.01.2012 passed by Ld. ACMM, Tis Hazari Courts whereby the said court allowed the prosecution to withdraw its application filed u/s 321 Cr.PC and dismissed the application of the petitioners herein filed u/s 91 Cr.PC for summoning of some documents.
2. Briefly stated, the facts necessary for deciding the present revision petitions are as follows:
(a) The petitioners are facing trial in chargesheets filed in furtherance of FIR No. 90/00 PS Connaught Place, FIR No. 99/02 PS Connaught Place and FIR No. 148/02 PS Defence Colony inter alia on the allegations that they had cheated the complainant M/s V.L.S. Finance Limited of a huge amount of money.
(b) On 24.11.2011 an application u/s 321 Cr.PC was filed by Ld. APP in all the aforementioned cases/FIRs on behalf of the State stating therein that the Ld. APP had gone through the investigation conducted and the nature of allegations levelled in the chargesheet against the accused Crl. Rev. No. 12/13 Page No. 2 of 17 persons and that he was of the opinion that taking into consideration the entire facts and circumstances of the case, the nature of allegations and the evidence available on record, there is no likelihood of the conviction of the accused persons and that therefore the withdrawal of the present case would be in public interest and therefore the court must grant the State the permission to withdraw the prosecution.
(c) Before the said application could be disposed off, on 16.12.2011 in all the aforementioned cases/FIRs another application was filed by the Ld. APP seeking withdrawal of the earlier application filed u/s 321 Cr.PC. In the said application it was inter alia mentioned that after thorough examination of the case filed and the evidence on record, Ld. APP finds that there is sufficient material on record to proceed against the accused persons and that the prosecution wishes to continue with its prosecution against the accused persons and the prosecution be allowed to withdraw its earlier application filed u/s 321 Cr.PC.
(d) The accused persons then in all the aforementioned cases/FIRs filed an application u/s 91 Cr.PC dated 02.01.2012 for summoning of 16 documents ostensibly with a view to assist the court to decide whether the Ld. APP had applied his mind and had acted bonafide in filing the second application.
(e) Ld. ACMM vide the impugned order dated 07.01.2012 allowed the application filed by Ld. APP on 16.12.2011 in all the aforementioned Crl. Rev. No. 12/13 Page No. 3 of 17 cases/FIRs for withdrawal of his first applications u/s 321 Cr.PC and dismissed the application filed by the petitioners herein u/s 91 Cr.PC by inter alia observing in the said order that nothing precludes the prosecution from withdrawing its earlier application u/s 321 Cr.PC and that no right had accrued to the accused persons by mere filing of an application u/s 321 Cr.PC.
3. Now the contention of the petitioners before this court as forwarded by Ld. Counsels Sh. Rakesh Tiku, Sh. Tarun Chandok, Sh. Vijay Aggarwal and Sh. Gurpreet Singh are as follows:
(a) As per the submissions forwarded by Ld. Counsel Sh. Tarun Chandok, the court of Ld. ACMM had absolutely no jurisdiction to allow the prosecution to withdraw the application filed by them u/s 321 Cr.PC for according to him there is no provision in Cr.PC which confers any such power or discretion upon a court of Ld. MM. He has sought to draw an analogy that when a court of a Magistrate after taking cognizance has been held not to have any powers to discharge an accused in a summons case, it also cannot be stated to have any powers to allow the prosecution to withdraw an application filed u/s 321 Cr.PC. He has further also contended that although the Public Prosecutor ordinarily enjoys the liberty whether or not to invoke the power u/s 321 of the Code, he forfeits the right to revoke the said liberty once he has filed an application u/s 321 Cr.PC. Thus according to Ld. Counsel Sh. Tarun Chandok once the Crl. Rev. No. 12/13 Page No. 4 of 17 Ld. APP had filed the first application u/s 321 Cr.PC on 24.11.2011, he had become functus officio thereafter to withdraw the said application for once he had applied his mind to the facts of the case and had reached a conclusion that the material on record was not sufficient to continue the prosecution, he could then not reverse the said opinion on the basis of the same material. Ld. Counsel Sh. Tarun Chandok has further submitted that the Ld. ACMM completely erred in law by not taking into consideration the volteface taken by the Ld. APP and allowed the State to simply withdraw its earlier application without passing an order on merits and without first considering the application filed by the petitioners u/s 91 Cr.PC.
(b) Ld. Counsel, Sh. Tiku, on the other hand, has fairly conceded that if the prosecution has a right to file an application u/s 321 Cr.PC it has an inherent right to withdraw the said application also and that therefore there is no bar against the court entertaining such an application. His submission however is that the court should have applied its mind whether there had been any change in circumstances on the basis of which the Ld. Prosecutor has sought to review his earlier opinion about the material on record being not sufficient to prosecute the accused persons. The contention of Ld. Counsel Sh. Tiku is that the proper course of action that should have been followed by Ld. ACMM was to have allowed the application filed by the petitioner herein u/s 91 Cr.PC and Crl. Rev. No. 12/13 Page No. 5 of 17 then to have examined the material that was before the State and then to arrive at a conclusion whether the Ld. Prosecutor should be allowed or not to withdraw the application filed u/s 321 Cr.PC. It is also being submitted by Ld. Counsel Sh. Tiku that though Ld. ACMM was right in observing that no right had accrued in favour of the accused persons to be discharged on the filing of the application u/s 321 Cr.PC by the prosecution, a right had definitely accrued in favour of the accused persons that the Ld. ACMM was bound to have considered the material that was before the Ld. Prosecutor to arrive at a conclusion that the case was fit for withdrawal of the prosecution.
4. In support of their contentions Ld. Counsels for petitioners have relied upon the following judgments/orders:
● Sheonandan Paswan Vs. State of Bihar & ors. AIR 1983 SC 194 ● Order dated 19.03.2013 of the Hon'ble Rajasthan High Court in Crl. Rev. No. 1115/2012 in the case titled as Mohan Lal Rao & Ors Vs. State of Rajasthan.
● Lal Singh Vs. State of Punjab 1981 Crl. L. J. 1069 ● State of Punjab Vs. Bhag Singh (2004) 1SCC 547 ● State Vs. L. Ganeshan 1995 Crl. L.J. 3849
5. On the other hand, Ld. APP Sh. Mishra for the respondents has mainly contended that there was no bar against the prosecution filing an application on 16.12.2011 for withdrawal of its earlier application in as much as the earlier application filed u/s 321 Cr.PC had not been disposed Crl. Rev. No. 12/13 Page No. 6 of 17 off by the Ld. ACMM. It is also the submission of Ld. APP Sh. Mishra that as per the instructions received by him, the first application had been moved by the concerned Ld. APP without considering the entire material on record and that infact the second application was filed by him after careful consideration of the entire material and his contention therefore is that the Ld. ACMM was absolutely right in allowing the prosecution to withdraw the earlier application filed u/s 321 Cr.PC. On behalf of the complainant, Ld. Counsels Sh. Aman Lekhi, Sh. Mohit Mathur and Sh.
P.S. Singhal have additionally inter alia submitted before this court that the petitioners herein are only abusing the process of law in as much as they have already approached the Hon'ble Delhi High Court under Article 226 Cr.PC for quashing of the orders passed by the Hon'ble Lt. Governor agreeing to the proposal of Director of Prosecution not to press the application for withdrawal of the case against the petitioners and that the Hon'ble Delhi High Court had dismissed the said writ petition vide a detailed order dated 14.06.2012 and that the LPA filed against the said order and the SLP filed against the said order had also been dismissed by the Hon'ble Delhi High Court and the Hon'ble Supreme Court respectively. According to the Ld. Counsels the petitioners herein have played a fraud upon this court by not placing the copies of the various petitions preferred by them and the orders passed thereon. Ld. Counsels have chosen to file a copy of the said petitions and the orders passed Crl. Rev. No. 12/13 Page No. 7 of 17 thereon with their written submissions and have pointed out that the Hon'ble Delhi High Court in its order dated 14.06.2012 has considered all the documents that the petitioners herein wanted to summon u/s 91 Cr.PC before the court of Ld. ACMM and after considering the said material has reached at a conclusion that there was no malafide on the part of the prosecution or the government to have filed an application for withdrawal of the application filed u/s 321 Cr.PC and the argument therefore is that the petitioners cannot now be allowed to reagitate the same issue before this court. Ld. Counsels for the complainant have further submitted that the role of a court on an application filed u/s 321 Cr.PC is only supervisory and the interference of the court is only called upon when the Ld. APP has not applied his independent mind and has been dictated by extraneous considerations and not when the prosecutor himself does not wish to press the said application. It has also been pointed out by Ld. Counsels for the complainant that in the present case even otherwise the Hon'ble Delhi High Court in its order dated 14.06.2012 has given a categorical finding that the Ld. APP had not acted malafide in withdrawing the earlier application and therefore the action of Ld. APP has found approval from the Hon'ble Delhi High Court. As regards the judgments on which the petitioners have placed reliance, Ld. Counsels for the complainant have submitted that they also rely upon the judgment pronounced in the case of Sheonandan Paswan (Supra) and according to Crl. Rev. No. 12/13 Page No. 8 of 17 them the facts of the rest of the judgments are totally distinguishable from the facts in the present case and therefore their submission is that the judicial dicta laid down therein cannot be followed in the present case.
6. In rebuttal, Ld. Counsel Sh. Vijay Aggarwal has vehemently contended that it is absurd on the part of the respondents/complainant to assert before this court that the decision of Hon'ble Delhi High Court dated 14.06.2012 in any way bars the revision proceedings before this court. He has pointed out that the petition before the Hon'ble Delhi High Court was preferred by the petitioners assailing the executive orders passed by the Hon'ble Lt. Governor and that the scope of the said petition under Article 226 of the Constitution is entirely different from the scope of the present revision proceedings and the questions raised in the petition under Article 226 of the Constitution were completely different from what the petitioners have raised in the present petitions. He has further contended that all the Hon'ble High Court has held is that the material examined by it was not found sufficient to exercise its discretionary powers under Article 226 of the Constitution to reverse the executive orders passed and that the said order has absolutely no relevance for this court to determine whether the Ld. ACMM exercised his powers judiciously or not. All the Ld. Counsels for the petitioners have relied upon para 31 of the order dated 14.06.2012 of the Hon'ble High Court to contend that in the said Crl. Rev. No. 12/13 Page No. 9 of 17 paragraph in fact the Hon'ble High Court has clearly observed that the petitioners have a right to raise all the issues before this court and that the order passed by the Hon'ble High Court does not act as a bar to the present petitions but infact is to be interpreted giving permission to the petitioners to raise all the issues available to the petitioners, before this court.
7. I have carefully considered the records of the present petitions and the judicial dicta referred to by the Ld. Counsels for petitioners. In the considered opinion of this court the submission of Ld. Counsel Sh. Tarun Chandok that a court of a Magistrate has no powers to allow the withdrawal of an application filed u/s 321 Cr.PC has absolutely no merits. Any party who has a right to file an application/petition before a court of a Magistrate, has an inherent right to withdraw the same and as a corollary thereof the court of a Magistrate will have the jurisdiction to allow the said withdrawal. There cannot be any analogy drawn between such a jurisdiction and the powers of a Magistrate to take cognizance or the powers to discharge an accused at an appropriate stage. In the considered opinion of this court the prosecution does have a right to review its decision to press an application filed u/s 321 Cr.PC and as a corollary thereof a court of a Magistrate does have the jurisdiction to allow the prosecution to withdraw its application filed u/s 321 Cr.PC if it so wishes. No doubt as contended by Ld. Counsel Sh. Tiku and as laid Crl. Rev. No. 12/13 Page No. 10 of 17 down by the Apex Court in Bhag Singh's and Lal Singh's cases (supra the judgment relied upon by the petitioners) the exercise of power of review of a decision is to be supported by reasons but the question to be considered in the present revision petitions is whether a court of the Magistrate has the powers to direct the State Government or the Ld. APP to reveal the reasons for their decision not to press an application u/s 321 Cr.PC and then to examine the said reasons. The Hon'ble Delhi High Court has no doubt ample jurisdiction to examine the veracity of the decisions reached by the executive and that has been already clearly done by the Hon'ble Delhi High Court in the present case while examining the petition filed before it under Article 226 of the Constitution. On the other hand, a court of a Magistrate conducting a criminal trial has limited powers at the stage of an application filed u/s 321 Cr.PC. No doubt as per the judicial dicta laid down by Hon'ble Supreme Court in Sheonandan's case (supra a judgment relied upon by all the parties) a court while granting or refusing consent u/s 321 Cr.PC has the jurisdiction to examine whether the Ld. Prosecutor for the State has applied his mind independently in filing the said application or not but the said supervisory duty laid down for a court to perform, cannot be stretched by any imagination to hold that a court has an overall supervisory control over the working of a Public Prosecutor appearing for the State even when he chooses not to press the application filed by him u/s 321 Cr.PC. In Crl. Rev. No. 12/13 Page No. 11 of 17 Sheonandan's case the Hon'ble Supreme Court has clearly held that with respect to an application filed u/s 321 Cr.PC, a court performs only a supervisory and not an adjudicatory function and that it is not necessary for the court to assess the evidence to determine whether the case would end in conviction or acquittal and all that the court has to see is whether the application has been made in good faith in the interest of public policy and not to thwart or stifle the process of law. Thus the supervisory function which the Hon'ble Supreme Court has laid down for a court is to be exercised only when an application u/s 321 Cr.PC is filed and pressed before the said court. This court does not at all agree with the petitioners that even if the prosecution does not wish to press the application u/s 321 Cr.PC, the court is bound to question the prosecution about the reasons for choosing to withdraw an application filed by it u/s 321 Cr.PC. Though it has been rightly contended by Sh. Tiku that a right had accrued in favour of the petitioners to the extent that once an application u/s 321 Cr.PC had been filed by the prosecution, the court was bound to consider whether it would be in the public interests to withdraw the prosecution, the said right cannot be stretched to hold that even when the prosecution did not wish to press its application u/s 321 Cr.PC, the petitioners had a right to insist that the court of Ld. ACMM should have considered the documents sought to be summoned by the petitioners u/s 91 Cr.PC and examined the material on the basis of which the Ld. APP had chosen to file the two applications Crl. Rev. No. 12/13 Page No. 12 of 17 containing contradictory assertions, for clearly even if the court came to a conclusion that the second application for withdrawal of the application filed u/s 321 Cr.PC was filed by the Ld. APP under dictates of the government, the court could not have substituted its own opinion for that of the Ld. APP to prevail upon the State to withdraw the prosecution of an accused person. In such view of the matter it would be a completely futile exercise to accept the prayer of the petitioners and remand the case back to Ld. ACMM to consider the material as sought to be summoned by them u/s 91 Cr.PC. Even otherwise it has been rightly pointed out by the Ld. APP for the respondents and the Ld. Counsels for complainant that the Hon'ble Delhi High Court in paras 26 and 30 of its order dated 14.06.2012 has categorically observed that the contention of the petitioners that the decision to withdraw from prosecution was imposed or thrust upon the APP has no merit. Thus the Hon'ble Delhi High Court has already given a finding that the Ld. APP in the present case could not have been stated to be acting on the dictates of the government. This court does not at all agree with Ld. Counsel Sh. Vijay Aggarwal that the aforementioned order of the Hon'ble Delhi High Court has absolutely no relevance for this court to determine whether the Ld. ACMM exercised his powers judiciously or not, for admittedly the petitioners have challenged the order of Ld. ACMM before this court mainly on the ground that he failed to take into consideration that the Ld. APP in view Crl. Rev. No. 12/13 Page No. 13 of 17 of the contradictory stands taken by him in the two applications filed appeared to be acting on the dictates of the government. In other words the prayer of the petitioners is that the Ld. ACMM should have examined the conduct of Ld. APP to determine whether he had acted independently while filing both the applications in question and in the considered opinion of this court when the Hon'ble Delhi High Court has examined the said issue, on the basis of the contention pressed by the petitioners before it and has passed observations thereon, the same would be binding upon this court also. Further the observations of Hon'ble Delhi High Court in para 31 of its order dated 14.06.2012 that the petitioners have the right to pursue the matter further in the present proceedings and to raise all the issues available to them, cannot be interpreted to hold that they have a right to reagitate an issue even if the same is no longer available to them.
8. The issue in the present case can also be looked into from another perspective namely that the two applications filed by the Ld. APP containing purportedly contradictory stands makes it abundantly clear that present is not a fit case where even otherwise the prosecution of the accused persons should be allowed to be withdrawn u/s 321 Cr.PC, for the two contradictory stands taken by Ld. APP can only be explained in two ways firstly, the Ld. APP did not inadvertently consider the entire material on record to first file an application u/s 321 Cr.PC or secondly, Crl. Rev. No. 12/13 Page No. 14 of 17 he changed his mind on the dictates and under the influence of another. In either of the two situations the court will not be in a position to allow the application filed by the prosecution u/s 321 Cr.PC in view of the judicial dicta laid down in Sheonandan's case. Thus viewed from this respect also, no case is made out for directing the Ld. ACMM to first consider the documents sought by the petitioners to be summoned u/s 91 Cr.PC and then to examine whether the prosecution should be allowed or not to withdraw its application u/s 321 Cr.PC.
9. Further in the considered opinion of this court, the judgments relied upon by the Ld. Counsels for petitioners in the court have no applicability in the facts of the present case. In Mohan Lal's case the application filed for withdrawal of application u/s 321 Cr.PC was filed by a Ld. APP, other than the one who had filed the application u/s 321 Cr.PC and the contention of the State was that the subsequent APP had not been authorized to file an application for withdrawal of the earlier application, when the matter was still pending for reconsideration before the government, which is not clearly the case in the present revision petitions. As regards the judicial dicta laid down in Ganeshan's case the facts of the said case were inter alia that there had been a change in the government which led to the reversal of stand taken by the prosecution regarding the withdrawal of the prosecution. In the said case the Hon'ble Crl. Rev. No. 12/13 Page No. 15 of 17 High Court had come to a categorical conclusion that there had been an abuse of the power by the executive. In the present case the Hon'ble Delhi High Court while deciding the writ petition filed under Article 226 of the Constitution has already categorically held that there has been no abuse of power by the executive in the present case and therefore the judicial dicta laid down in Ganeshan's case cannot also be said to be applicable in the facts of the present case.
10.In view of the discussion hereinabove this court is of the considered opinion that no illegality can be said to have been committed by the Ld. ACMM and that therefore there are no grounds made out for this court to exercise its revisional jurisdiction. In a catena of cases, it has been laid down that the powers of revisional jurisdiction are to be exercised only in exceptional cases where there has been a miscarriage of justice owing to:
● a defect in the procedure or ● a manifest error on the point of law or ● excess of jurisdiction or abuse of power or ● where the decision upon which the trial court relied has since been
reversed or overruled when the revision appeal is being heard.
11. In the present case, in the considered opinion of this court, no error has been committed by the Ld. ACMM on a point of law or in the procedure followed nor can it be stated that present is a case where the Ld. ACMM has exceeded his jurisdiction or has abused his powers or has relied upon Crl. Rev. No. 12/13 Page No. 16 of 17 a decision which has since then been reversed or overruled. As such the present petitions hereby stand dismissed. A copy of this order be placed in all the revision petitions and a copy thereof be also sent to Ld. Trial Court. Thereafter all the petitions be consigned to record room. Announced in the open court on this 15th day of November, 2014 (ANU GROVER BALIGA) Special Judge - NDPS Patiala House Courts New Delhi Crl. Rev. No. 12/13 Page No. 17 of 17