Delhi High Court
Government Of National Capital ... vs Preet Public Secondary School And ... on 25 November, 1997
Equivalent citations: 1998CRILJ1781, ILR1997DELHI121
ORDER
1. This is a revision petition under section 397/401 read with Section 482 of the Code of Criminal Procedure, 1908 (for short 'the Code'), preferred by the Govt. of National Capital Territory of Delhi against the order of the Metropolitans Magistrate, Shahdara, dated January 6, 1996 whereby the application of the Assistant Public Prosecutor under Section 321 the Code for withdrawal of the prosecution pending against the accused Ms. Sadhna Sharma was dismissed. The facts giving rise to this petition are as follows :-
Ms. Sadhna Sharma applied for the post of Head Mistress with the Preet Public Secondary School. Along with her application she submitted a certificate dated February 2, 1984 purported to have been signed by Shri N. N. Bhardwaj, Manager, Sanjay Gandhi Smarak Children Academy, Village Ajitpur (Shahranpur) certifying that she has worked in the School as an Assistant Teacher from July 20, 1981 to January 31, 1984. This certificate, however, was on the letter head of Sanjay Gandhi Smarak Kanya Junior High School. Pursuant to her application the management of the Preet Public School appointed Smt. Sadhna Sharma as Head Mistress of the school on July 27, 1992. It appears that subsequently the relations between Smt. Sadhna Sharma and the management of the School soured. On July 28, 1993 Ms. Sadhna Sharma along with other teachers of the school requested the management of the school for payment of their salaries in accordance with the rules of the Delhi Administration. Besides, in that representation the irregularities committed by the management of the school were also highlighted. In regard to these matters a representation was also submitted to the Director of Education Delhi. On receipt of the representation the Deputy Director of Education made an enquiry and recommended the take over of the school by the Director of Education. On September 19, 1993, the management of the school terminated the services of Ms. Sadhna Sharma. This action of the management was questioned by Ms. Sadhna Sharma by means of a writ petition, being Writ Petition No. 4723/93. This Court by its order dated November 4, 1993 accepted the writ petition and directed her reinstatement. Pursuant to the directions the management of the school allowed Ms. Sadhna Sharma to join her duties, but this was followed by a fresh order of her suspension dated November 8, 1993. Subsequently, on November 20, 1993 her services were again terminated by the management of the school without the permission of the Director of Education which is mandatory under the Delhi Education Act, 1973.
2. On December 27, 1993, the Lt. Governor, Delhi, issued a show cause notice to the management of the school as to why the management of the school be not taken over by the Director of Education under the Delhi Education Act. On June 1, 1994 the management of the school was taken over by the Director of Education.
3. On June 1, 1994, the erstwhile management of the school filed an FIR against Ms. Sadhna Sharma alleging that Ms. Sadhna Sharma had filed a false and fabricated certificate dated February 2, 1984 in order to secure employment with the school. The FIR was registered on June 1, 1994. After investigation of the case a challan was filed against Ms. Sadhna Sharma under sections 468/471 I.P.C. During the course of the proceedings before the trial Court the learned Assistant Public Prosecutor filed an application under section 321 of the Code for the withdrawal of the case. The trial Court by its order dated January 6, 1996 refused permission to the State to withdraw the prosecution. It is this order of the trial Court which has been impugned in this petition.
4. I have heard the learned counsel for the parties at length. Section 321 of the Code authorises the Public Prosecutor or the Assistant Public Prosecutor to withdraw a case with the consent of the Court at any time before judgment is pronounced in the matter. It is well recognised that a Public Prosecutor upon the request of the Government and on applying his mind to the relevant material can make an application for withdrawal of the prosecution, even though a prima facie case is made out against the accused. It is also well settled that the material on the basis of which the Public Prosecutor seeks withdrawal of the prosecution against an accused may have been gathered during the judicial proceedings or outside it. Similarly, the Court considering the request under section 321 of the Code is not required to exercise its judicial discretion only on the basis of the material gathered by judicial method during the trial. When the Public Prosecutor applies for withdrawal of a case, the Court is required to see whether in doing so he has exercised his own mind and judgment and the application is not a result of only executive pressure or flat. As long as the Public Prosecutor has acted in the interest of the administration of justice and is not seeking withdrawal of the case on the sole judgment of the State but according to his own lights on independently examining the matter, the Court should concede the request and will be loathe to substitute its opinion for that of the Public Prosecutor. It must be kept in view that it is the Public Prosecutor who has been vested with the discretion to initiate the proceedings for the withdrawal of the prosecution and the Court while granting or refusing the permission performs only a supervisory function and is not required to determine any matter judicially. As long as the grounds to withdraw exist and it appears that the Public Prosecutor applied his mind, the application for withdrawal of the prosecution should be allowed by the Court. The above principles have been judicially sanctified and hallowed by time.
5. In The State of Bihar v. Ram Naresh Pandey, 1957 SCR 279 : (1957 Cri LJ 567) the Apex Court held that Section 321 of the Code is an enabling provision and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. It further held that in granting consent it may well be taken to be a judicial function and, therefore, it follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of Section 494 would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to be is only to give its consent and not to determine any matter judicially.
6. In Sheonandan Paswan v. State of Bihar the Supreme Court referred to the various contingencies in which the Govt. can request the Public Prosecutor to apply for withdrawal of the criminal case even though a prima facie case is made out against the accused. In this regard, the Supreme Court held as follows (at page 376, of Cri LJ) :-
"Let us consider the point from the practical point of view. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central or State (Ss. 24 and 25, Cr.P.C.), appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without instructions of the Government; a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government, Take an extreme hypothetical case, in which Government is the prosecutor, and in which there is a prima facie case against an accused, but the Government feels on the ground of public policy, or on the ground of law and order, or on the ground of social harmony, or on the ground of inexpediency of prosecution for reasons of State, the case should not be proceeded with; the Government will be justified to express its desire to withdraw from the prosecution and instruct the Public Prosecutor to take necessary legal steps to withdraw from the prosecution. Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government."
7. Again in Subhash Chander v. The State (Chandigarh Admn), the Supreme Court, while dealing with the question of the discretion of the Public Prosecutor to move an application for withdrawal of a prosecution against the accused, laid down the grounds on which such an application can be made. In this connection it was held as follows (at Page 326; of Cri LJ) :-
"We do not truncate the amplitude of the public policy behind Section 494 Cr.P.C. but warn off tempting adulteration of this policy, taking the public prosecutor for granted. May be, the executive, for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotched. The fact that broader considerations of the public peace, larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, of order in a disorderly situation or harmony in a faction milieu, or halting a false and vexatious prosecution in a Court, persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister. The concurrence of the Court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal. For the Court should not be misused to continue a case conclusively proved to be a counterfeit. This statement of law is not exhaustive but is enough for the present purpose and indeed, is well-grounded on precedents."
8. Thus, even at the cost of repetition it may be stated that the Public Prosecutor in a fit case can file an application under Section 321 of the Code of Criminal Procedure for seeking permission of the Court to withdraw from prosecution. The Court while considering the application is not required to go into the merits of the case. All that it has to see is whether the Public Prosecutor before making the application applied its own independent mind to the material collected at the trial or otherwise and the grounds for withdrawal exist. These grounds cannot be exhaustively laid down as otherwise it would amount to restricting the sweep and amplitude of Section 321 of the Code which gives no indication of the grounds on which the Public Prosecutor may make an application for withdrawal. Some of the grounds for withdrawal of the criminal cases are the ones recognised by the Supreme Court in Sheonandan Paswan v. State of Bihar (supra) and Subhash Chander v. The State (Chandigarh Admn) (supra), and the same can be enumerated as follows :-
1. Broader considerations of public peace.
2. Larger considerations of public justice.
3. Promotion of long lasting security in a locality.
4. Halting a false and vexatious prosecution.
5. Considerations of public policy.
6. Purposes of law and order.
7. Advancing social harmony.
8. Inexpediency of prosecution for reasons of State.
9. Injustice to the accused in case the prosecution is continued;
10. On other similar and cognate grounds.
9. The above list is illustrative and is not exhaustive of the grounds on which an application under section 321 of the Code can be made. It is not intended to limit the considerations on the basis of which the Public Prosecutor can move the application under the said provision. The Public Prosecutor can also file an application for withdrawal of a prosecution when it is initiated by or at the instance of a complainant with a view to wreaking private vengeance from the accused. Such an application can also be made when it appears to the Public Prosecutor that the accused due to the criminal case has suffered enough harassment, mental torture and injury and the prosecution is being used against him as a vehicle of oppression.
10. In the instant case the Assistant Public Prosecutor made the application keeping in view the fact that the erstwhile management was inimically disposed towards the accused for the reason that she had made a representation exposing the gross mismanagement of the school as a consequence of which the management of the school was taken over by the Delhi Administration. The Assistant Public Prosecutor also considered the fact that services of the accused had been terminated three times by the erstwhile management committee of the school without prior approval of the Director of Education and she had to seek relief from the High Court by moving writ petitions. He also noticed that the managing committee had illegally made deductions from the salaries of the teachers and this was brought out in the representation of the accused to the Delhi Administration. Thus the learned Assistant Public Prosecutor was of the opinion that the managing committee had filed the FIR due to spite and as a counter-blast to the complaint lodged by the accused to the Director of Education. These grounds were enough for the Public Prosecutor to move the application under section 321 of the Code of Criminal Procedure.
11. It may also be recounted that the ostensible reason for the prosecution of the accused is traceable to the alleged certificate dated February 2, 1984 purported to have been signed by Shri N. N. Bhardwaj, Manager, Sanjay Gandhi Children Academy, Village Ajitpur. It is the case of the prosecution that the certificate was a fabricated one. On the basis of this allegation a challan against the accused was filed on June 2, 1995.
12. It may be mentioned that the prosecution was initiated through an FIR dated June 1, 1994 which was lodged by the superseded managing committee against whom the accused and other members of the staff had filed a complaint to the Delhi Administration attributing mismanagement of the school. It is on record that in response to the enquiries made by the Deputy Commissioner of Police, East Zone, the District Basic Education Officer, Hardwar, by his letter dated December 9, 1994 informed the former that as per the experience certificate dated November 16, 1994 furnished by the Principal of the Sanjay Gandhi Children Academy, Ajitpur, Smt. Sadhna Sharma worked on an honorary basis to secure teaching experience. Along with the letter, experience certificate issued by the Principal duly counter-signed by the District Basic Education Officer, Hardwar, was enclosed. The English translation of the said certificate reads as follows :-
"SANJAY GANDHI SMARAK CHILDREN ACADEMY, AJITPUR Dist. Haridwar PRIMARY SCHOOL 16-11-1994 Smt. Sadhna Sharma was granted permission on her request for servicing in this School to get teaching experience on honorary basis as a totally ad hoc, irregular, without salary and out of record teacher. This information has been obtained on the basis of enquiries that she taught in this school in this way in sessions 1982, 1983 and 1984.
Sd/-
Principal Sanjay Gandhi Smarak Children Academy Ajitpur, Jiapota (Haridwar) Countersigned Sd/-
District Basic Education Officer, Haridwar
13. As per this letter, it is clear that Smt. Sadhna Sharma taught in the school from 1982 to 1984 for a period of three years. Thus, what was stated in the alleged fabricated certificate is factually correct. The Assistant Public Prosecutor relying upon the above said communication dated December 9, 1994 and the certificate dated November 16, 1994 and other material mentioned in the case came to the conclusion that it was in the interest of administration of justice to withdraw the case. At this stage it will be worthwhile to refer to the relevant paras of the application. They read as follows :-
xx xx xx It is worth mentioning here that the Hon'ble High Court of Delhi while granting anticipatory bail to Smt. Sadhna Sharma has observed that :
"Learned counsel for the State during the course of arguments admitted that on verification the genuineness of the certificate filed by the petitioner has been confirmed. Considering the above facts and circumstances I think present case is a fit case for bail. - Hon'ble Justice Mohd. Shamim."
xx xx xx It is also surprise to know that the Hon'ble High Court of Delhi in C.W.P. No. 2646 of 1994 in the matter of Preet Public School v. The Administration of NCT of Delhi, vide judgment dated 28-11-94 has held that, the Managing Committee of Preet Public Secondary School, the complainant in this case, was an illegally constituted body and merely a sham affair.
This illegally constituted managing committee of Preet Public School which is the complainant of the present case terminated the services of Smt. Sadhna Sharma three times but every time the Director of Education, disapproved her termination, being the competent authority. The Hon'ble High Court of Delhi in its judgment quoted above in C.W.P. 2646/94 dated 28-11-94 also observed that :
"Services of Smt. Sadhna Sharma had been terminated without prior approval of the Director of Education .... Nothing could be more grossly illegal than to deduct from the salaries of the teachers ......."
In view of the above facts and circumstances it is clear that the illegally constituted and now defunct managing committee lodged this false FIR as a matter of revenge and counterblast to the complaint lodged by Smt. Sadhna Sharma to the Director of Education regarding the gross mismanagement of the school as a consequence of which the Hon'ble Lt. Governor of Delhi was pleased to take over the administration of the school.
Smt. Sadhna Sharma is working as Headmistress of the school and performing her duties.
In view of the above facts and circumstances which have arisen after the filing of the FIR the Hon'ble Lt. Governor of the Government of NCT of Delhi also on administrative grounds has desired that the present case may please be ordered to be withdrawn in the interest of justice so that the accused lady, i.e., the victim, may not suffer in the hands of the defunct management who has managed to file a false case on the basis of forged manipulated documents and concocted the false story."
14. Thus, it is evident that the learned Assistant Public Prosecutor applied his mind to the facts of the case for moving the application under Section 321 of the Cr.P.C. Besides, the Assistant Public Prosecutor also took into consideration the certificate issued by Smt. Vijay Laxmi Bhardwaj, Principal of Sanjay Gandhi Smarak Children Academy, Haridwar, dated November 16, 1994 confirming the teaching experience of the accused. Therefore, as per the material which came to the notice of the Assistant Public Prosecutor, the accused had teaching experience of three years at the Sanjay Gandhi Smarak Children Academy apart from the other experience as detailed in her application to the Preet Public School. In view of these grounds, it cannot be said that the Assistant Public Prosecutor did not apply his mind before filing the application. Therefore, the Assistant Public Prosecutor cannot be faulted for making the application under section 321 of the Code even if the assumption that the FIR filed by the erstwhile managing committee was a false one because the Court cannot go into the merits of the case and Judge whether or not the certificate dated February 2, 1984 was a fabricated one. Learned counsel for the complainant submitted that the learned Assistant Public Prosecutor was not right in stating that the complaint was false as there was an opinion of the C.F.S.L. which supported the case of the prosecution that the initial certificate filed by the accused was fabricated and this opinion was not taken into consideration by the Assistant Public Prosecutor. The submission of the learned counsel does not appeal to me. Just because in the application he did not make a reference to the C.F.S.L. report regarding the signatures on the certificate dated 2nd February, 1984 it cannot be said that the Assistant Public Prosecutor did not apply his mind to the material on record. It needs to be pointed out that besides this report of the C.F.S.L., there was another report of a handwriting expert which found the certificate dated 2nd February, 1984, to be signed by the Manager of the Sanjay Gandhi Smarak Children Academy. As already pointed out, even where a prima facie case is made out, a Public Prosecutor can make an application for withdrawal of the prosecution on any of the grounds mentioned above. The trial Court while deciding the matter failed to keep the principle in view. It seems to have attached no importance to the grounds as highlighted by the Assistant Public Prosecutor that the erstwhile managing committee had lodged the FIR to wreak revenge on account of complaint lodged the teacher to the authorities as a consequence of which the management of the school was taken over and that the accused had suffered three orders of the erstwhile managing committee of the school terminating her services. The trial Court ought to have considered the fact that the accused could not be made to suffer endlessly, a prosecution which according to the Assistant Public Prosecutor was product of spite.
15. The learned counsel for the petitioner argued that the action of the Assistant Public Prosecutor in filing the application was illegal as he had received instructions from the Lt. Governor to withdraw from the prosecution. It needs to be pointed out that there is a serious misconception in this view. In fact a Public Prosecutor cannot file an application under section 321 of the Code without the instructions of the State which retains him to conduct prosecutions on its behalf. He cannot act on his own in making the application for withdrawal of the prosecution. At the same time it must be clarified that the State can only commend the withdrawal of the prosecution but it cannot command the Public Prosecutor to do so. After receiving the instructions, the Public Prosecutor is not to act as a rubber stamp or a post office or a mouth piece of the Government in the matter of filing of the application for withdrawal from prosecution. Before filing the application under section 321 of the Code, he is required to, apply his mind dispassionately and independently as a free agent to the question of the advisability to the withdrawal of the case. In case he finds that the withdrawal of the prosecution would be in the interest of justice, he is justified in making the application under Section 321 of the Code. In Sheonandan Paswan v. State of Bihar (supra) the Supreme Court has also clearly held that the Public Prosecutor cannot act under section 321 of the Code of Criminal Procedure without the instructions of the Government. But at the same time it was clarified that before filing the application for seeking permission of the Court to withdraw prosecution, the Public Prosecutor must apply his mind to the facts of the case. After examining the case, the Public Prosecutor can either agree or disagree with the view of the Government.
16. Similarly, in Rajender Kumar Jain v. State through Spl. Police Establishment, (supra) it was held by the Apex Court that it was not for the Court to say that the initiative came from the Government and, therefore, the Public Prosecutor cannot be said to have exercised a free mind in filing the application under section 321 of the Code. At this stage it is convenient to refer to the following observations of the Supreme court to fully appreciate the legal position (at page 1091, of Cri LJ) :-
"Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal. Rightly too, because the independence of the judiciary so requires it, as we have already mentioned. Now, the Public Prosecutor is an Officer of the Court. He sets the criminal law in motion in the Court. He conducts the prosecution in the Court for the people. So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. But, where such large and sensitive issues of public policy are involved, he must, if he is right minded, seek advice and guidance from the policy-makers. His sources of information and resources are of a very limited nature unlike those of the policy-makers. If the policy-makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advice the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore, the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words. If ill-informed but well meaning bureaucrats those to use expressions like "the Public Prosecutor is directed" or "the public Prosecutor is instructed", the Court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy. The Court, in such a situation is to make an effort to elicit the reason for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons."
17. Thus, if a Public Prosecutor after, receiving instructions of the Government to make an application for withdrawal of a prosecution, is satisfied that good and relevant reasons exist for withdrawal from the prosecution, the trial Court cannot blame the Public Prosecutor to have made an application at the command of the Government and not as a free agent. In the instant case, as the contents of the application under Section 321 of the Code of Criminal Procedure clearly reveal, the Assistant Public Prosecutor applied his mind independently to the material on record for moving the application. Therefore, the submission of learned counsel for the complainant in this regard must be rejected.
18. For the foregoing reasons, the revision is accepted and the order of the trial Court dated January 6, 1996 is set aside and the application of the Assistant Public Prosecutor under section 321 of the Code of Criminal Procedure is allowed.
Criminal Misc. (Main) 724/97 and Cri Misc. No. 1284 & 1842 of 1996.
19. In view of the separate order passed today in Crl. Revision No. 114 of 1996, this petition has become infructuous and the same is disposed of as such.
20. Order accordingly.