Allahabad High Court
State Of U.P. vs Awadhesh Kumar Srivastava & 2 Others on 5 July, 2013
Author: S.C. Agarwal
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Criminal Misc. Writ Petition No. 9510 of 2013 State of U.P. ........... Petitioner Versus Awadhesh Kumar Srivastava & 2 Others ........... Respondents Hon'ble S.C. Agarwal,J.
The State of U.P. has filed the present writ petition under article 226 of the Constitution of India for quashing of judgment and order dated 13.02.2013 passed by Session Judge, Basti dismissing thereby Crl. Revision No.3 of 2013 filed by proforma respondents no.2 & 3 Uma Shankar Patwa & Daya Shankar Patwa (Annexure 7) as well as order dated 30.11.2012 of C.J.M., Basti refusing to grant permission to withdraw prosecution against the proforma respondents no. 2 & 3 in case crime no.1525/10, u/s 302, 120-B IPC, P.S. Kotwali Basti (Annexure 5).
In brief, the facts are that the respondent no.1 Awadhesh Kumar Srivastava lodged a written report at P.S. Kotwali, District Basti on 26.6.2010 at 22:15 hrs. with the allegations that on 26.6.2010 at 8:30 P.M., his brother Avnish Kumar Srivastava was starting his motorbike after taking Betel / Gutkha from a shop near Rauta Chauraha, two unknown persons shot at him. On receiving the information, the first informant reach the spot and took his seriously wounded brother to hospital where he was declared brought dead. On the basis of said written report, Kotwali police registered a case u/s 302 IPC, vide crime no.1525/10 against two unknown accused.
During investigation, it came to the fore that during election for M.L.C., the deceased was Media Incharge for contesting candidate Smt. Firoza Patwa wife of proforma respondent no.3 Daya Shankar Patwa, who showered utmost generosity and benevolence on him by presenting a 'Honda City' Car and a bullet motorbike to the deceased. It also surfaced from the investigation that the deceased was a colorful man and had established deep relations with Smt. Firoza Patwa. The deceased had also made some nude and semi nude SMS & MMS of Smt. Patwa. In nutshell, the picture that emerged from investigation made out a case of illicit liaison between Smt. Firoza Patwa and the deceased Avnish Kumar Srivastava and feeling ashamed and dishonoured, Uma Shankar Patwa & Daya Shankar Patwa planned to liquidate Avnish Kumar Srivastava and employed Guddu Mishra & Rakesh Pathak to translate the plan in to reality. Section 120-B IPC was added in the already registered case. On 27.7.2010, the name of co-accused Umesh Shukla figured as main shooter whom Guddu Mishra & Rakesh Pathak had hired to execute the plan.
The investigation further revealed (CD No.27 dated 23.8.2010) that about a week ago Uma Shankar Patwa & Daya Shankar Patwa had come to the house of the first informant to offer Rs.50 lacs to hush-up the matter or be prepared to meet the same fate as his brother. In supplementary CD No.6 dated 22.12.2010, the police subjected Chandra Prakash Srivastava to further examination and this time he stated that on 26.6.2010, just after the murder, he getting scared, ran away into a lane where Uma Shankar Patwa & Daya Shankar Patwa met him and confessed their involvement.
On the basis of above said evidence, police laid charge sheet u/s 302, 120-B IPC against Guddu Mishra, Rakesh Pathak, Umesh Shukla and the proforma respondents Uma Shankar Patwa & Daya Shankar Patwa.
On receiving the charge sheet, the learned Magistrate took cognizance thereon and registered Criminal Case No.5207 / 10 State of U.P. Vs. Uma Shankar Patwa & others u/s 302, 120-B IPC.
On the representation of proforma respondents, the Deputy Inspector General of Police, on 8.1.2012, ordered further investigation into the case which was carried out by a gazetted officer Sri Ram Vyas Rai, Circle Officer, Basti. The copy of the order dated 8.1.2012 and 9.1.2012 of DIG have been appended as Annexure 2 to the writ petition.
The Circle Officer, Basti further investigated the case and found that on many dates on which the prosecution witnesses claimed the presence of proforma respondents no.2 & 3 at Basti all the time involved negotiating with the co-accused and giving shape to their plan, they were, in fact, not in Basti rather were at Mumbai where the two brothers had settled and were running their business. The investigating officer collected evidence about the presence of proforma respondents at Mumbai, and from 13.8.2010 to 4.9.2010, Daya Shankar Patwa was not even in the country and was in USA and even on 26.6.2010, Uma Shankar Patwa & Daya Shankar Patwa had visited Home Minister of Maharashtra Government and the Police Commissioner, Mumbai Police, in connection with threats being received by them. The entire evidence against them collected during earlier investigation got falsified and was found to be untrustworthy, hence having no other option but to give a clean chit to the proforma respondents, the Circle Officer submitted report u/s 169 Cr.P.C. on 10.2.2012 and requested that C.J.M., Basti to release proforma respondent no.2 Uma Shankar Patwa from custody.
All the evidence collected during investigation and further investigation has been appended with the counter affidavit filed by counsel for the proforma respondents which has already been taken on record.
On receipt of the report under section 169 Cr.P.C., the learned C.J.M. vide order dated 14.2.2012 ordered the same to be kept on record along with the charge sheet.
The State Government vide Government Order No.258-WC/7-Nyay-5-2012-185 WC/2012 dated 23.11.2012 ordered in public interest to withdraw prosecution against the proforma respondents and directed the District Magistrate, Basti to ensure compliance thereof. The District Magistrate, Basti vide his office memo no.85/Nyay-dated 27.11.2012 requested the Public Prosecuting Officer to move the Court for withdrawal of prosecution as per the Government Order and to report.
The Asst. Prosecuting Officer on thoughtful consideration of the facts and circumstances found it to be a fit case for withdrawal and moved application (Annexure 4 to the writ petition) dated 29.11.2012 under section 321 Cr.P.C. before C.J.M., Basti with a request to grant permission to the withdrawal of prosecution against the proforma respondents.
The learned C.J.M., Basti vide order dated 30.11.2012 dismissed the application on the ground that application merely speaks about withdrawal of prosecution in public interest but it has not been spelled out in the said application as to how the public at large would be served and benefitted by withdrawal of prosecution against the proforma respondents.
Feeling agrrieved by and dissatisfied with the order of C.J.M., Basti, the proforma respondents preferred criminal revision in the Sessions Court, Basti which too was dismissed by impugned judgment and order dated 13.2.2013.
Heard Sri Vinod Kant, learned A.G.A. for petitioner - State of U.P., Sri Ravindra Sharma for proforma respondents no.2 & 3 and also Sri Gaurav Kumar Shukla, the counsel for respondent no.1 - the first informant of the case.
Having heard counsel for the parties at length, the writ petition is finally disposed of at the admission stage itself as the counsel for the proforma respondents has already filed a short but very voluminous counter affidavit annexing therewith copy of case diary and supplementary case diary and the learned counsel for the respondent no.1 did not wish to file any counter affidavit, hence no useful purpose is going to be achieved by keeping the petition pending.
I have gone through the writ petition, the counter affidavit filed by proforma respondents, application moved under section 321 Cr.P.C. for permission of withdrawal, the case diary and all other material placed before me.
The learned counsel for the State has assailed the impugned judgment and orders on various grounds and has argued that the C.J.M., Basti and revisional court have passed wholly illegal and arbitrary orders without understanding the scope of section 321 Cr.P.C. and the function of the court in such matters.
The counsel for the State argued that the State Govt. having regard to all the facts and circumstances of the case, ordered the Public Prosecuting Officer to withdraw prosecution against the proforma respondents. It is within the exclusive domain of the State to withdraw any prosecution at any stage and the legislature has given very wide, unfettered power and full freedom to the State in this regard and that is why no criteria or grounds have been enunciated in the section on which prosecution can be withdrawn. The function of the court is merely supervisory just to see whether the Public Prosecuting Officer has independently applied his mind; whether the application has been moved for some extraneous consideration and to satisfy itself whether the Public Prosecutor has acted in good faith. The courts below have totally ignored these most vital aspects and have also not examined the matter from the point of view of meagerness of evidence and possibility of conviction as well. The courts below have transgressed the powers conferred upon them by virtue of section 321 Cr.P.C. and, therefore, the impugned judgment and orders suffer from manifest illegalities and are liable to be quashed.
The section 321 Cr.P.C. runs as under -
Section 321 Cr.P.C. - 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 anyone 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 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.
The learned counsel for State and for proforma respondents have placed reliance on numerous decisions of the Apex Court rendered in the cases of State of Bihar Vs. Ram Naresh Pandey AIR 1957 SC 389, Baladin & others Vs. State of U.P. AIR 1958 SC 181, The Public Prosecutor High Court of Andhra Pradesh Vs. Paga Pulla Reddy & another 1977 Cr.LJ 2013 SC, Sheo Nandan Paswan Vs. State of Bihar AIR 1987 SC 877, Abdul Karim Vs. State of Karnataka 2001 (1) JIC 447 (SC), Ayub Vs. State of U.P. 2002 (1) JIC 696 SC, K. Pandurangan Vs. SSR Velusamy & another 2004 SCC (Crl) 48, N. Natrajan Vs. B.K. Subba Rao 2003 SCC 76, Ghanshyam Vs. State of MP & others 2006 SCC (Crl) 602.
I have carefully gone through the aforesaid decisions.
It has been argued by learned counsel that in view of the outcome of further investigation carried out by a gazetted officer, no conviction of the proforma respondents is possible in view of landmark decision of three judges bench of Hon'ble Supreme Court in State of Bihar Vs. Ram Naresh Pandey (supra) inasmuch as insufficiency or meagerness of evidence can also be taken into consideration while granting sanction u/s 321 Cr.P.C. (S. 494 of the old code). It has been held in paragraph no.16 of the said judgment -
"Now; on this material, we find it difficult to appreciate why the opinion arrived at by both the trial court and the Sessions Court that the view taken of that material by the Public Prosecutor, viz., that it was meager evidence on which no conviction could be asked for, should be said to be so improper that the consent of the Court under section 494 of the Code of Criminal Procedure has to be withheld. Even the private complainant, who was allowed to participate in these proceedings in all its stages, does not, in his objection petition, or revision petitions, indicate the availability of any other material or better material. Nor, could the complainant's counsel, in the course or arguments before us inform us that there was any additional material available. 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".
It has also been held in paragraphs 5 & 6 of the said judgment that "The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. 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 s. 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 do is only to give its consent and not to determine any matter judicially."
Paragraph 6 - "A large number of cases from the various High Courts have been cited before us. We have carefully gone through them. All of them recognise that the function of the Magistrate in giving consent is a judicial one open to correction. But in some of them there is no sufficient appreciation of the respective positions of the Public Prosecutor and the Court, in the discharge of their functions under s. 494 as we conceive them to be. There is, however, a general concurrence - at least in the later cases - that the application for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecution. (See The King v. Moule Bux [A.I.R. 1949 Pat. 233 (F.B.).] and The King v. Parmanand [A.I.R. 1949 Pat. 222, 226 (F.B.).].) If so, it is clear that, what the Court has to determine, for the exercise of its discretion in granting or withholding consent, is not a triable issue on judicial evidence."
In the case of Ghanshyam Vs. State of M.P. (supra) the Hon'ble Supreme Court has laid down as under -
"The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. 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 peace and tranquility. The High Court while decided the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations."
In the case of Ayyub Vs. State of U.P. (supra) the Hon'ble Supreme Court relying upon the decision in State of Bihar Vs. Ram Naresh Pandey ruled as under -
"This Court in State of Bihar vs Ram Naresh Pandey and Anr. AIR 1957 SC 389 had made following observations while dealing with an application under Section 494 of the old Cr. P.C., which enabled the prosecution to withdraw from the prosecution. Section 321 of the new Cr.P.C. is similarly worded with slight modifications. This Court observed as follows:-
"The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. 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 function of the Court, therefore, in granting its consent may well be taken to be a judicial function. 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, Criminal P.C. 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 do is only to give its consent and not to determine any matter judicially.
The judicial function, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally 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."
In State of Orissa vs. Chandrika Mohapatra and Others AIR 1977 SC 903, P.N. Bhagwati, J., as he then was speaking for the three Judge bench regarding withdrawal from the prosecution, said:
"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 the 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."
"We are of the view that the learned Designated Judge should have accepted the application for withdrawal from prosecution as against the offences charged against the appellants under the TADA Act. Therefore, we allow that application and the appellants shall stand acquitted under Section 321(b) of Cr. P.C of all the charges framed against them under the TADA Act."
In the case of N. Natrajan Vs. B.K. Subba Rao (supra), the Hon'ble Supreme Court has held that the Public Prosecutor has full freedom to function effectively, independently and fearlessly. On one hand, he can ask the court for framing charge against the accused whereas on the other hand, on same evidence, he can request the court for dropping the proceedings.
The learned counsel for the proforma respondents has cited decision of this Court in the case of Ashraf Ali Vs. State of U.P. 2004 (2) JIC 201 (All) wherein this Court allowing the petition under section 482 Cr.P.C. filed against the refusal of the C.J.M., Jalaun to grant sanction u/s 321 Cr.P.C. observed that "The court's function is to give consent. This section does not obligate the court to record reasons before consent is given. 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."
Per contra, learned counsel for respondent no.1 vehemently opposing the writ petition, argued that no public interest is going to be served by withdrawal of prosecution against the proforma respondents involved in a serious case like murder; they are the mastermind behind killing of an innocent person; there is ample evidence against them warranting their conviction under section 302 / 120-B IPC and lastly that the State Govt. cannot stifle a legitimate prosecution in such manner, hence the writ petition is liable to be dismissed with cost. However, the learned counsel for respondent no.1 could not dispute the meagerness of evidence as well as the evidence collected during further investigation.
The impugned orders do not reflect proper application of mind on the part of courts below and they seem to have swayed by extraneous considerations and do not make any reference as to the Government Order dated 23.11.2012 or the material collected during further investigation.
I have examined the matter from the point of view of meagerness of the evidence also and I find substance in the submission of the learned counsel for the State that all the prosecution witnesses examined during initial investigation cannot be relied upon to record conviction of the proforma respondents as compared to the infallible and unimpeachable evidence collected during further investigation. I have carefully examined the evidence collected during further investigation appended with the counter affidavit filed on behalf of the proforma respondents. The presence of the proforma respondents to be in Mumbai and in USA has been confirmed by Mumbai Police on the material dates on which the prosecution witnesses allege them to be in Basti. I have perused the copies of Ministry entry pass, the passport and visa etc. appended with the counter affidavit, which have not been disputed by the counsel for respondent no.1.
The courts below have not recorded any such finding that the Public Prosecutor did not act in good faith or did not apply his mind or the application was moved on some extraneous considerations. Considering the result of further investigation and insufficiency of evidence, the State Govt. decided to withdraw the case against the proforma respondents no.2 & 3. The case against main shooter and other conspirators will continue. Consequently, the application u/s 321 Cr.P.C. was moved by Asst. Prosecuting Officer after application of mind and in good faith. Refusing to give consent merely for not spelling out in the application, the nature of public interest, does not seem to be justified and proper, hence the impugned orders suffer from non-application of mind, illegality and cannot be sustained.
In view of the above discussion, the writ petition is allowed. The impugned judgment and order dated 13.2.2013 passed by Sessions Judge, Basti and order dated 30.11.2012 passed by C.J.M., Basti are hereby quashed. The application u/s 321 Cr.P.C. is allowed. In result, the proforma respondents no.2 & 3 shall stand discharged in Case Crime No.1525/10 under sections 302, 120-B IPC, P.S. Kotwali, Basti. The proforma respondent no.2 who is in custody, if not involved in any other case, may be forthwith released.
Dtd./- : 5th July, 2013.
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