Bhupender Singh vs Iiird Addl. Sessions Judge Haridwar on 11 January, 2017

[Cites 43, Cited by 0]

Uttarakhand High Court

Bhupender Singh vs Iiird Addl. Sessions Judge Haridwar on 11 January, 2017

Bench: Rajiv Sharma

                                              Reserved Judgment
  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


     Criminal Misc. Application No.899 of 2016
                    (under Section 482 Cr.P.C.)



Bhupender Singh                                       ....... Applicant


                                  Versus

State of Uttarakhand through
Principal Secretary, Home, Government
of Uttarakhand.                      .....Respondent


Mr. S.P.S. Panwar, Senior Advocate assisted by Mr. Sachin Panwar,
Advocate for the applicant.
Mr. P.S. Saun, Dy. Advocate General for the State.


                                          Reserved on :17.12.2016
                                          Decided on :11.01.2017


Hon'ble Rajiv Sharma , J.

This application, under Section 482 Cr.P.C., is instituted against the judgment and order dated 02.07.2016, rendered by learned 3rd Additional Sessions Judge, Haridwar in Criminal Revision No.224 of 2016.

2. Key facts necessary for adjudication of this petition are that applicant had applied for the post of constable in Uttarakhand Police on 31.08.2001. He submitted an application in prescribed proforma to the Senior Superintendent of Police, Haridwar. He participated in the selection process and undergone the physical test. The written test was also conducted by the department. The applicant was also directed to report in 2 the office of Senior Superintendent of Police, Haridwar on 10.10.2001. One Sri Sitaram S/o Sri Nathuram, resident of Village Simli Mal Godam Road, Laksar, Police Station Laksar filed a complaint against the applicant. The gist of the complaint was that a case was pending against the applicant before the court of learned Ist Additional Sessions Judge, Haridwar under Sections 147, 148,452 & 304 of IPC. Thus, the applicant has sworn a false affidavit at the time of his recruitment to the post of Constable. Consequently, the first information report was registered against the applicant under Sections 420, 468 & 471 of IPC, at Police Station Ranipur, District Haridwar. The matter was investigated and the challan was put up against the applicant.

3. The applicant had also approached this Court seeking quashing of summoning order dated 10.06.2002 passed by Chief Judicial Magistrate, Haridwar in Criminal Case No.1919 of 2002 by way of filing Misc. application No.561 of 2005 under Section 482 Cr.P.C., which was rejected by this Court vide order dated 23.09.2011.

4. Thereafter, an application was filed before learned Chief Judicial Magistrate, Haridwar under Section 321 Cr.P.C. by Public Prosecutor seeking permission to withdraw the prosecution against the applicant on the basis of letter/Government order dated 03.07.2015. The application was rejected by learned Chief Judicial Magistrate, Haridwar vide order dated 19.03.2016. Against the said order, a Criminal Revision was preferred by the applicant before 3rd Additional 3 Sessions Judge, Haridwar bearing No.224 of 2016. Learned 3rd Additional Sessions Judge, Haridwar also dismissed the same on 02.07.2016. Hence, the present petition.

5. The Court has gone through both the orders dated 19.03.2016 & 02.07.2016 and material brought on record carefully.

6. It has come on record that when applicant has sought recruitment in Uttarakhand Police to the post of Constable, he has sworn an affidavit that no criminal case was pending against him. However, the fact of the matter is that the case was pending against him under Sections 420, 467, 468 and 471 of IPC. It also appears that he was also charged under Section 302 IPC as per record.

7. The case of the applicant in a nutshell is that he was made to sign on the blank proforma. The fact of the matter is that proforma was attested by the notary public. The applicant has signed the same. He made a specific declaration that he was not involved in any criminal case, though he was facing the trial.

8. Applicant has sought recruitment in a disciplined force. He should have disclosed about the pendency of criminal case against him. He was required to supply the correct information at the time of making declaration. His subsequent acquittal is of no consequence.

9. This Court is also required to see, how the permission has been accorded to withdraw the prosecution against the applicant, against whom FIR was registered under Sections 420, 468 and 471 of IPC. The withdrawal of the case against the applicant/accused would be against the public interest. Public Prosecutor should apply his independent mind before submission of the application under Section 321 Cr.P.C. He cannot be dictated by orders of the State Government to withdraw the case without any justification. Public Prosecutor discharges statutory duties and his role is to maintain rule of Law. Learned Public Prosecutor should have realized that applicant has sought employment that too in disciplined force by concealing the material facts at the time of his recruitment by swearing a false affidavit.

10. No reasons have been spelt out why the case was recommended to be withdrawn against the accused.

11. The Court has also summoned the record of trial court. The proforma is on record, though a photocopy. It was notarized by notary public and signed by the applicant. What would be the effect of this document would be seen during the course of trial.

12. Their Lordships of Hon'ble Supreme Court in AIR 1957 SC 389 while interpreting Section 494 Cr.P.C. (old) have held that the section gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution subject to the consent of the Court, which may be determined on may possible grounds. The judicial functions, therefore, implicit in the exercise of the judicial 5 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. Their Lordships have held as under:-

"3 . Section 494 of the Code of Criminal Procedure runs as follows:

"Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases 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."

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. There can be no doubt, however, that the resultant order, on the granting of the consent, being an order of "discharge" or "acquittal" would attract the applicability of correction by the High Court under Sections 435, 436 and 439 or 417 of the Code of Criminal Procedure. 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 6 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 of the Code of Criminal Procedure 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. As the Privy Council has pointed out in Faqir Singh v. Emperor1 "It (Section 494 of the Code of Criminal Procedure) gives a general executive discretion (to the Public Prosecutor) to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds". 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 this context it is right to remember that the Public Prosecutor (though an executive officer as stated by the Privy Council in Faqir Singh v. Emperor1) is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly-considered view and the Court is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated that in this country the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the executive authorities. Once information of the commission of any such offence reaches the constituted authorities, the investigation, including collection of the requisite evidence, and the prosecution for the offence with reference to such evidence, are the functions of the executive. But the Magistrate also has his allotted functions in the course of these stages. For instance, in the course of investigation, a 7 person arrested must be brought before him within 24 hours (Section 61 of the Code of Criminal Procedure). Continuance of the arrested person in detention for purposes of investigation from time to time has to be authorised by him (Section 167 of the Code of Criminal Procedure). A search can be conducted on the issue of warrant by him (Section 94 of the Code of Criminal Procedure). Statements of witnesses and confessions may be recorded by him (Section 164 of the Code of Criminal Procedure). In an appropriate case he can order investigation or further investigation [Sections 155(2) and 202 of the Code of Criminal Procedure]. In all these matters he exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is his. His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 of the Code of Criminal Procedure requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme, than 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 a triable issue. For instance the discharge that results therefrom need not always conform to the standard of "no prima facie case" under Sections 209(1) and 253(1) of the Code of Criminal Procedure or of "groundlessness" under Sections 209(2) and 253(2) of the Code of Criminal Procedure. 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.

4. 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 Section 494 of the Code of Criminal Procedure, 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 King v. Moule Bux AIR 1949 Pat 233 (FB) (B) and King v. Parmanand AIR 1949 Pat 222 at p.226 (FB (c) . 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.

5. Learned counsel for the respondents has strenuously urged before us that while this may be so where the consent is applied for on other grounds, or for other reasons, the position would not be the same, where the application for consent is made on the ground of no evidence or no adequate or reliable evidence. It is urged that in such a case, the Court can exercise its judicial function, only with reference to judicially recorded evidence as in one or other of the appropriate situations contemplated by the Code for judicial inquiry or trial. If this argument means anything it must mean that in such a situation the Court before granting consent must hold a kind of preliminary inquiry into the relevant evidence in much the same way as, for instance, when a Magistrate acting under Section 202 of the Code of Criminal Procedure may direct or it must mean that no consent can at all be given on such a ground and that the Court must proceed with the prosecution, and either discharge or acquit under one or other of the other sections in the Code enabling thereunto. It appears to us that this would be engrafting on the wide terms of Section 494 of the Code of Criminal Procedure 9 an exception or a proviso limited to such a case. In our opinion, this would not be a permissible construction of the section. We are, therefore, unable, with great respect, to subscribe to the view taken by the learned Chief Justice whose judgment is under appeal, that where the application is on the ground of inadequacy of evidence requiring judicial consideration, it would be manifestly improper for the Court to consent to withdrawal before recording the evidence and taking it into consideration. We are not to be understood, however, as implying that such evidence as may already have been recorded by the time the application is made is not to be looked into and considered in such cases, in order to determine the impropriety of the withdrawal as amounting to abuse or an improper interference with the normal course of justice.

In the instant case also, there is no material placed on record why the prosecution case against the accused should be withdrawn. The withdrawal of the prosecution must be reasonable for proper administration of justice. The Public Prosecutor in exercising his power should apply his mind to withdraw the prosecution and the reasons must be bonafide in the larger public interest. The Court has gone through the letter dated 03.07.2015 which is on record of the trial court. No reason has been assigned by the State Government why criminal case against the applicant should be withdrawn. Letter dated 03.07.2015 is outcome of non application of mind.

13. Their Lordships of Hon'ble Supreme Court in AIR 1972 SC 496 in the case of M.N. Sankaranarayanan, Nair Vs. P.V. Balakrishnan and others have held that the power contained in Section 494 Cr.P.C. gives a general executive direction to 10 withdraw from the prosecution subject to the consent of the Court which may be determined on many possible grounds. Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence. Their Lordships have held as under :-

"5. The Appellant's Advocate later during the course of the argument conceded that there is no force in the first of his contentions namely that the Public Prosecutor cannot either be asked by the State Govt., to consider the filing of a petition under Section 494 nor would it be proper for him if he was of the opinion that the prosecution ought not to proceed to get the consent of the Government to the filing of a petition under that Section for obtaining permission of the Court to withdraw from the prosecution. Section 494 which empowers the Public Prosecutor with the consent of the Court to withdraw from the prosecution is as follows :

Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases 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, 11 he shall be acquitted in respect of such offence or offences.

The power contained in the Section gives a general executive direction to withdraw from the prosecution subject to the consent of the Court which may be determined on many possible grounds and is therefore wide and uncontrolled by any other provision in the Code nor is it in pari-materia with Section 333 which enables the Advocate General at any stage in a Trial by the High Court and before the return of the verdict to inform the Court if he thinks fit on behalf of the Government that he will not further prosecute the Defendant upon the charge and on such information being given the case against the accused comes to an end. This power of entering a nolle prosequi under Section 333 Criminal Procedure Code is not dependent upon any permission of the Court. A reading of Section 494 would show that it is the Public Prosecutor who is incharge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal of even before the Judgment is pronounced. The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission. Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. Nonetheless it is the duty of the Court also 12 to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest. A large number of cases have been referred to but it is unnecessary to consider them except for a few as typifying the approach in cases where permission to withdraw from the prosecution was sought on grounds extraneous to and not germane to the maintenance and enforcement of the law and which permission though given by the Trial Court was quashed by the High Court.

8. It appears to us that the wide and general powers which are conferred under Section 494 on the Public Prosecutor to withdraw from the prosecution though they are subject to the permission of the Court have to be exercised by him in relation to the facts and circumstances of that case in furtherance of, rather than as a hindrance to the object of the law and justified on the material in the case which substantiate the grounds alleged, not necessarily from those gathered by the judicial method but on other materials which may not be strictly on legal or admissible evidence. The Court also while considering the request to grant permission under the said Section should not do so as a necessary formality-the grant of it for the mere asking. It may do so only if it is satisfied on the materials placed before it that the grant of it sub-serves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain.

In the instant case also, it cannot be said that the withdrawal of the case against the accused would be in 13 the interest of administration of justice. Rather, it would be against the public interest to withdraw the prosecution against the accused.

14. Their Lordships of Hon'ble Supreme Court in AIR 1977 SC 903 in the case of State of Orissa Vs. Chandrika Mohapatra and others have held 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 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 futhered by going on with the prosecution. Their Lordships have also held that paramount consideration for granting consent to withdrawal the case is interest of administration of justice. Their Lordships have held as under :-

"6. It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and 14 that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.

7. Now in the present case it is clear that according to the prosecution, the evidence collected during investigation was not sufficient to sustain the charge against the respondent and the learned Magistrate was satisfied in regard to the truth of this averment made by the Court Sub-Inspector. It is difficult for us to understand how the High Court could possibly observe in its order that the Magistrate had not perused the case diary when in terms the learned Magistrate has stated in his order that he had read the case diary and it was after reading it that he was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill-founded. Then again it is difficult to comprehend how the High Court could possibly say that the learned Magistrate accorded consent to the withdrawal of the prosecution on the ground that it was inexpedient to proceed with the case, when, in so many terms, the learned Magistrate rejected that ground and granted consent only on the second ground based on inadequacy of evidence. There is no doubt that the learned Magistrate was right in granting consent and the High Count committed a manifest error in setting aside the order of the learned Magistrate. We accordingly allow Criminal Appeal No. 208 of 1975, set aside the order of High Court and restore that of the learned Magistrate.

10. We have already discussed the principles which should govern cases of this kind where an application is made by the Public Prosecutor for grant of consent to the withdrawal of prosecution under Section 494 of the Criminal Procedure Code. We have pointed out that the paramount consideration in all those cases must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in 15 the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice. Now, in the present case, the application made by the Public Prosecutor clearly shows that the incident had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking. In these circumstances, the State felt that it would not be conducive to the interest of justice to continue the prosecution against the respondents, since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking. We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution. We are, therefore, of the view that in the present case the learned Sessions Judge was right in granting consent to the withdrawal of the prosecution and the High Court was in error in setting aside the order of the learned Sessions Judge."

15. Their Lordships of Hon'ble Supreme Court in (1976) 1 SCC 421 in the case of Bansi Lal Vs. Chandan Lal and others have held that the request to grant permission under Section 494 should not be accepted "as a necessary formality", "for the mere asking", but the court must be satisfied "on the materials placed before it" that the grant of permission would serve the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the 16 executive organs are duty bound to further and maintain. Their Lordships have held as under :-

4. Section 321 of the Code of Criminal Procedure, 1973 which corresponds to Section 494 of the earlier Code of 1898 and is in identical terms empowers the Public Prosecutor to withdraw with the consent of the court from the prosecution of any person either generally or in respect of any one or more of the offences for which he is being tried. Section 494 of the Code of 1898 has been construed by the different High Courts in a number of cases. This Court in M.N. Sankarayarayanan Nair v. P.V. Balakrishnan explaining the well-established legal position as to the scope and ambit of the powers granted by Section 494 has observed that though the section "does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution, the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice...."

Though it is not possible to catalogue all the circumstances in which this power can be exercised, by way of illustration M.N.S. Nair case mentions a few instances where the Public Prosecutor would be apparentlyjustified in seeking such permission, as in a case where the prosecution "will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances." It is added that the request to grant permission under Section 494 should not be accepted "as a necessary formality", "for the mere asking", but the court must be satisfied "on the materials placed before it" that the grant of permission would serve the administration of justice and that "permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain."

5. In the case before us the prosecution has only reached the stage of framing charges against the accused and no occasion for the defence to make out a case has yet arisen. It is not clear where the Additional Sessions Judge found the case made which he calls the defence case. It is not to be found in the material that was before him. Counsel for the respondent, State of U.P., drew our attention to an order dated October 18, 1973 passed by the Allahabad High Court on a revision petition filed by the State seeking to stay further proceedings of this case when it was pending before the Additional District Magistrate (Judicial), Etawah. It appears from this judgment that an application for stay of the proceedings was made before the Additional District Magistrate (Judicial) on the ground that the case required to be investigated further. The Additional District Magistrate rejected the application and the Sessions Judge, Etawah, confirmed that order. The High Court on October 18, 1973 dismissed the revision petition made against the order refusing the prayer for stay and directed the Additional District Magistrate to dispose of the proceedings before him expeditiously and in accordance with law. As stated already, the case was committed to the Court of sessions on May 22, 1974. Therefore when the Additional Sessions Judge made the impugned order, there was no material before him to warrant the conclusion that sufficient evidence would not be forthcoming to sustain the charges or that there was any reliable subsequent information falsifying the prosecution case or any other circumstance justifying withdrawal of the case against the respondents. Consenting to the withdrawal of the case on the view that the attitude displayed by the prosecution made it "futile" to refuse permission does not certainly serve the administration of justice. If the material before the Additional Sessions Judge was considered sufficient to enable him to frame the charges against the respondents, it is not possible to say that there was no evidence in support of the prosecution case. The application for stay of the proceeding made before the committing Magistrate cannot also be said to falsify the prosecution case. If the prosecuting agency brings before the court sufficient material to indicate that the prosecution 18 was based on false evidence, the court would be justified in consenting to the withdrawal of the prosecution, but on the record of the case, as it is, we do not find any such justification. In our opinion the High Court was in error in dismissing in limine the revisional application made against the order of the Additional Sessions Judge."

16. Their Lordships of Hon'ble Supreme Court in (1977) 4 SCC 448 in the case of Balwant Singh and others Vs. State of Bihar have held that the statutory responsibility for deciding upon withdrawal squarely vests in the public prosecutor. The consideration which must weigh with him is whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. The Court has to be vigilant when a case has been pending before it and not succumb to executive suggestions. Moreover, the State should not stultify the Court by first stating that there is a true case to be tried and then make a volte face to the effect that on a second investigation the case has been discovered to be false. Their Lordships have held as under :-

2. The sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is the larger factor of the administration of justice -- not political favours nor party pressures nor like concerns. Of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. For instance communal feuds which may have been amicably settled should not re-

erupt on account of one or two prosecutions pending. Labour disputes which might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution. Other instances also may 19 be given where public justice may be served by withdrawal even apart from the merits of the case. In the present case, the situation is totally different. Here is an ordinary criminal case where the first informant gave information to the police, investigation followed and charge- sheet was filed. Thereafter, the learned Magistrate who tried the case framed charges. Somehow -- by a suspiciously mysterious process -- the State Criminal Intelligence Department went into the veracity of the prosecution story by a second investigation. At that time the criminal case was already pending and the Magistrate was seized of the case. There was no reason for the police to start off on a second investigatory course. Moreover, the District Magistrate, on a report from the Superintendent of Police examined the matter and satisfied himself that the second investigation was truer than the first and therefore came to the conclusion that the case which the police brought before the Court was a false one and directed the Public Prosecutor to withdraw from the case. The statutory responsibility for deciding upon withdrawal squarely vests on the public prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the public prosecutor and he has to guide himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. As we have already explained, public justice may be a much wider conception than the justice in a particular case. Here, the Public Prosecutor is ordered to move for withdrawal. This is not proper for a District Magistrate to do. Indeed, it is not proper to have the public prosecutor ordered about. It is entirely within the discretion of the public prosecutor. It may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to him to consider whether the prosecution should be withdrawn or not. He cannot command where 20 he can only commend. In this case, the facts clearly bring out that the Public Prosecutor obeyed and not acted, and therefore the statutory responsibility vested in him was not properly exercised. If he comes to the conclusion, on the materials passed on to him that the case deserves to be withdrawn, he may initiate action in that behalf. Likewise, the Court's order in this case is a puzzle to us. The order says that records have been perused by the Court; the District Magistrate has directed the Public Prosecutor; the Public Prosecutor has duly obeyed and the District Magistrate has also mentioned that the Superintendent of Police has reported to him "to withdraw the case". The independent judgment brought to bear on the desirability or otherwise of according permission is nil. What is curious is that the Public Prosecutor says that the Court encores that public policy is not involved in this case for the administration of justice. That must be a reason why the law must run its course. For justice ordinarily demands that every case must reach its destination, not interrupted en route. If some policy consideration bearing on the administration of justice justifies withdrawal, the Court may accord permission; not if no public policy bearing on the administration of justice is involved. We think that surrender of discretion by the Public Prosecutor and the Magistrate are unfortunate. The Court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal with a bunch of papers tacked on. Moreover, the State should not stultify the Court by first stating that there is a true case to be tried and then make a volte face to the effect that on a second investigation the case has been discovered to be false. In these circumstances, we refuse leave.

Public Prosecutor as well as Court has to exercise the power in general public interest while granting withdrawal of the prosecution.

17. Their Lordships of Hon'ble Supreme Court in (1983) 1 SCC 438 in the case of Sheonandan Paswan Vs. State of Bihar and others have held that the withdrawal from the prosecution is an executive function of the Public Prosecutor. The Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. Their Lordships have also held that the function of the court under Section 321 is a limited one and intended only to prevent abuse. It is, however, a judicial function. It, therefore, becomes necessary for the court before whom the application for withdrawal is filed by the Public Prosecutor to apply its mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as a matter of course. Their Lordships have also held that the exercise of the power to accord or withdraw consent by the court is discretionary which it has to exercise judicially. The power is judicial to the extent that the court, in according or refusing consent, has to see (i) whether the grounds of withdrawal are valid and (ii) whether the application is bonafide or is collusive. So the court cannot merely accede to the request to withdraw without applying its own mind to the case. Their Lordships have held as under :-

72. Section 321 of the Code enables the Public Prosecutor or Assistant Public Prosecutor in charge of a case to withdraw from the prosecution with the consent of the court. The appellant submits, in our opinion correctly, that before an application is made under Section 321 of the Code, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any 22 outside influence; and secondly, that the court before which the case is pending cannot give its consent to withdraw without itself applying its mind to the facts of the case. But it cannot be said that a Public Prosecutors action will be illegal if he receives any communication or instruction from the Government.

89. The next question for examination is whether the permission was given by the Special Judge in violation of law as laid down by this Court in this regard. We have already referred to the decisions cited by the appellant. The law laid down by this Court in the series of decisions referred to above, inter alia, is (1) that the withdrawal from the prosecution is an executive function of the Public Prosecutor and that the ultimate decision to withdraw from the prosecution is his; (2) that the Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so; (3) that not merely inadequacy of evidence, but other relevant grounds such as to further the broad ends of public justice, economic and political; public order and peace are valid grounds for withdrawal. The exercise of the power to accord or withdraw consent by the court is discretionary. Of course, it has to exercise the discretion judicially. The exercise of the power of the court is judicial to the extent that the court, in according or refusing consent, has to see (i) whether the grounds of withdrawal are valid; and

(ii) whether the application is bona fide or is 23 collusive. It may be remembered that the order passed by the court under Section 321 of the Code, either according or refusing to accord consent, is not appealable. A mere perusal of the impugned order of the Special Judge shows that he has applied his mind to the facts of the case and also applied his mind to the law laid down by this Court in George Fernandes case4 that has summarised the entire law on the point, and correctly applied them to the facts of this case. It is therefore not correct to say that the decision of the Special Judge was contrary to the law laid down by this Court.

115. In this country the scheme of criminal justice places the prime responsibility of prosecuting serious offences on the executive authority. The investigation, collection of requisite evidence and the prosecution for the offences with reference to such evidence are the functions of the executive. The function of the court in this respect is a limited one and intended only to prevent the abuse. The function of the court in according its consent to withdrawal is, however, a judicial function. It, therefore, becomes necessary for the court before whom the application for withdrawal is filed by the Public Prosecutor to apply its mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as a matter of course but has applied its mind to the grounds taken in the application for withdrawal by Public Prosecutor.

18. Their Lordships in (2014) 10 SCC 380 in the case of Bairam Muralidhar Vs. State of Andhra Pradesh have held that it is the obligation of the Public Prosecutor to state what material he has considered. It has to be set out in brief. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. Their Lordships have held as under :-

"18. The central question is whether the Public Prosecutor has really applied his mind to all the relevant materials on record and satisfied himself that the withdrawal from the prosecution would subserve the cause of public interest or not. Be it stated, it is the obligation of the Public Prosecutor to state what material he has considered. It has to be set out in brief. The court as has been held in Abdul Karim case10, is required to give an informed consent. It is obligatory on the part of the court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the court to weigh the material. However, it is necessary on the part of the court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The court 25 cannot give such consent on a mere asking. It is expected of the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the court is obliged to see is whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the Public Prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the court as well as his duty to the collective."

In the instant case, power is exercised by the State in malafide manner. The Public Prosecutor has not applied his mind independently. He is required to peruse the material placed on record before forming his independent opinion. Government order is not binding upon the Public Prosecutor. Letter dated 03.07.2015 has not been issued in good faith. In this case, the Courts below have rightly considered that the application was 26 not filed in good faith rather it was against the public interest.

19. Their Lordships in 2006 CRI. L.J. 148 in the case of S.P. Shukla & others Vs. State of U.P. & others have held that the Public Prosecutor in withdrawal from prosecution cannot act like a post box or act on the dictate of the State Governments. He has to act objectively as he is also an officer of the Court. At the same time Court is also not bound by that. The Courts are also free to assess whether the prima facie case is made out or not. Their Lordships have held as under :-

"33. This petition is filed against the order passed by the State Government dated 29-8-2003 whereby the Public Prosecutor was directed to withdraw the POTA cases against the accused persons. An application was moved by the Public Prosecutor for withdrawal of theses cases before the Special Judge, though no order was passed permitting withdrawal of these cases. However, in view of our finding in SLP (Crl.) No. 5609 of 2004, we cannot affirm the order of the State Government for withdrawal of these cases and consequential application made by the Public Prosecutor for withdrawal of these cases. The order passed by the Government dated 29-8-2003 as well as the application moved by the Special Public Prosecutor before the Special Judge, Kanpur Nagar cannot be sustained and accordingly the order passed by the State Government and the application moved by the Special Public Prosecutor before the Special Judge at Kanpur, both are rejected. In this connection our attention was invited to Sheonandan Paswan v. State of Bihar2, Rajender Kumar Jain v. State3, R.M. Tewari v. State (NCT of Delhi)4, Ayyub v. State of U.P.5 In these cases it has been laid down that the Public Prosecutor has to shoulder a greater responsibility for withdrawal of the cases under Section 321 CrPC. In Sheonandan Paswan v. State of Bihar2 it was held: (SCC p. 440) 27 "The settled law laid down by the Supreme Court has been that the withdrawal from the prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from the prosecution is his. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so.

However, 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, since a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is appointed by the Government 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.

If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with the instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition. In the latter event the Public Prosecutor will have to return the brief and perhaps to resign, for, it is the Government, not the Public Prosecutor, who is in the know of larger interest of the State."

(emphasis supplied) 28 The Public Prosecutor cannot act like a postbox or act on the dictates of the State Government. He has to act objectively as he is also an officer of the court. At the same time the court is also not bound by that. The courts are also free to assess whether a prima face case is made or not. The court, if satisfied, can also reject the prayer. However, in the present case we have examined the matter and found that there is a prima facie case to proceed against the accused persons under Section 4(b) of the Act and the other provisions of the Explosives or Arms Acts, therefore, the sanction granted by the Government and application moved by the Public Prosecutor for withdrawal of the cases cannot be sustained. Hence Writ Petitions Nos. 132-34 of 2003 are accordingly allowed and the order of the State Government dated 29-8-2003 withdrawing the cases against the accused persons is quashed, likewise direction to the Public Prosecutor for withdrawing the cases from the court.

20. The Full Bench of Hon'ble Kerala High Court in AIR 1970 Kerala 158 in the case of Dy. Accountant General (Admn.) Office of the Accountant General, Kerala, Trivandarum Vs. State of Kerala and others have held that power to withdraw the prosecution must be exercised in the light of his own judgment by the Public Prosecutor and not at dictation of some other authority, however, so high. Their Lordships have held as under :-

"5. The order made by the State Government on the 24th December, 1968 runs thus:

"Consistent with the policy of Government in relation to mass agitation and strike, it has been decided to withdraw with the leave of the court the cases registered in connection with the Central Government Employees strike on. the 19th September, 1968 except those involving 29 serious personal violence or destruction of property. It is ordered accordingly.

The Inspector-General of Police will take immediate action for the withdrawal of the cases accordingly through the Public Prosecutors concerned,"

This order, it seems to us, shows scant respect for the law and is in disregard of the duty and the responsibility of the State Government to enforce the law. It must be remembered that the Public Prosecutors in these cases are not independent members of the legal profession but full time Government servants working under the immediate control and direction of the District Collectors, themselves subordinates of the Government. In all the applications for withdrawal, this order of the Government was mentioned as a ground for withdrawal--to many of them a copy of the order was appended--and we are sure that, in the circumstances, every one of the Public Prosecutors must have felt himself bound by the order to withdraw from the prosecution irrespective of his own views in the matter, the only matter left for his decision being whether the case involved "serious personal violence or destruction of property", whatever might be meant by the qualification, "serious".

6. The State Government does not appear to have appreciated that there can be no question of executive policy in a region covered by the law. The only valid policy, if policy it can be called and therefore the only relevant policy, is the policy of the law. The law must be enforced whatever be the views the executive might entertain. The policy, such as it is, disclosed by the State Government's order is clearly opposed to the law. The law, namely. the Essential Services Maintenance Ordinance, 1968, makes certain acts, whether they do or do not involve personal violence or distruction of property, punishable. Its very purpose is to prevent strikes in essential services by prohibiting them on threat of penalty. That a strike is the result of mass agitation is obviously an aggravating 30 rather than an extenuating factor, for, in such a case, the greater would be the harm which the law seeks to prevent. Mass agitation is not a cover for all sins; on the contrary, it often makes the sin more harmful; and to say that it is the policy of the Government in relation to mass agitation and strikes that, for no other reason than that the offences were committed in the course of a mass agitation or a strike, offenders against the law should not be proceeded against -- and that is what the withdrawal of the cases against them amounts to--except in cases involving serious personal violence or destruction of property, is nothing but a defence of the law. It is little use exclaiming (apparently with reference to material that has not been placed before us) that the Central Government was also guilty of like defiance when, it is said, it directed that important public men or leaders of political parties should not be arrested for offences against the Ordinance notwithstanding that the Ordinance, by Section 7 thereof, makes such offences cognizable.

8. The State Government's order, it is clear, discloses no legitimate ground for the withdrawal of the cases. The applications for withdrawal made in these cases, though made by different persons, are in substance the same. We shall set out in full the application in Cr. R. P. No. 205 of 1969, which it is agreed, makes out the best case, if case there be, fora withdrawal:

"1. Application made by the Assistant Public Prosecutor, Grade I, Trivandrum. under Section 494 of the Crl. P. C. for consent of the court to withdraw from the prosecution of the above case.

2. I am in charge of the prosecution of the accused in the above case.

3. The accused, 39 in number, have been charge-sheeted by the Central Crime Police under Section 5 of the E. S. M. Ordinance, 1968.

4. The allegation In the charge-sheet is that on 19-9-1968 at 10 a.m. the accused assembled in front of the main gate of the Accountant General's Office and obstructed the loyal officers who came for work. The accused also struck work and Instigated and incited the other workers to strike work as a part of their, agitation against the Central Government,

5. The strike was organised and resorted to by large section of Central Government employees for the purpose of getting their service conditions improved in terms of a charter of demand placed before the Central Government by various unions of the Central Government employees.

6. Due to lapse of time and change of attitude of the Central Government on the one hand and the employees on the other during the interval understanding and good-will have been considerably restored and the situation has become more or less normal. The Central Government also have expressed its view to consider the position of its employees favourably.

7. It appears that the restoration of peace and good feelings between the employees and the Central Government will be promoted by the withdrawal of the case not involving serious personal violence or destruction of property.

8. The Government of Kerala also has considered the matter and have expressed their view that cases arising in connection with the strike on 19-9-1968, except those involving serious personal violence or destruction of property be withdrawn.

9. A reading of the charge will convince that the accused have not committed any offence (on the date of occurrence) Involving any destruction of property or any personal ' violence against C. Ws. 1 and 2. Now they have called off their strike. For the existence of much more peaceful atmosphere and friendship between the employees in the office the 32 withdrawal from the prosecution of this case at this stage seems to be necessary.

10. 1 have examined all the aspects in particular the facts of this case and being the person in charge of the prosecution of this case I am of the view that considering all the circumstances in particular the absence of any features which may render withdrawal of the case objectionable in law, interest of justice require that this case be withdrawn.

11. To the best of my knowledge there is no material on record in the case or any other grounds which stand in the Way of the court in according permission to withdraw from the prosecution of the above case.

12. for the reasons stated above, It is humbly prayed that the court may be pleased to grant permission to me to withdraw from the prosecution of the above case.

9. It is difficult to formulate a general principle for determining the grounds on which a Public Prosecutor may legitimately seek withdrawal, or, looked at from another angle, the grounds on which the Court can properly grant or withhold its consent The only general test we can think of, namely, that consent should be withheld if the withdrawal would tend to further the mischief the law seeks to prevent and that it should be granted if it is likely to have the opposite effect, is too general to be of much use in practice. But, as in most such matters, there might be no great difficulty in reaching a decision on the facts of a particular case there is none here. The court gives its consent in the exercise of its judicial discretion and before granting consent, it, must be satisfied that the grounds stated for the withdrawal are proper grounds, grounds which, if true, would make the withdrawal a furtherance of, rather than an hindrance to, the object of the law. Further, that there is material to substantiate the grounds alleged, though not necessarily material gathered by the judicial method.

10. One of the well-established grounds on which a withdrawal can properly be based is that there is no evidence in the case which would warrant a conviction. In such a case it would certainly not further the object of the law to harass the accused and waste the tune of the court, the witness, the prosecution and the defence by going on with the case. But in none of the cases we are here considering is the withdrawal based on such a ground.

17. We might perhaps state that our attention has been drawn to some decisions which say that considerations of State policy are relevant on the question of grant of consent under Sec. 494 of the Code. Apparently, the purpose is to show that the State Government's order of the 24th December, 1968 is an order based on policy considerations. We have already shown that the policy set out therein being a policy opposed to the law cannot be taken into consideration. It only remains to add that the word, "State" as used in those decisions is not to be confused with, "State Government". It is used in the sense of the sovereign power; and the State policy referred to is the policy of that limb of the sovereign power whose duties and responsibilities are affected by the mischief to prevent which the law has created the offence. In relation to the offences under the Indian Penal Code it might well be that the limb is the State Government; but, in relation to the offences under the Essential Services Maintenance Ordinance and the Indian Telegraph Act, there can be no doubt that the limb is the Central Government."

The order of State Government/letter dated 03.07.2015 does not disclose any legitimate ground to withdraw the prosecution against the applicant. The application has been filed by the Public Prosecutor seeking permission to withdraw the case from trial court in very-very mechanical manner and that too at the dictation of the State Government.

21. Learned Single Judge, in 1998 CRI. L.J. 4437 in the case of Tariq Riyaz Vs. State of Madhya Pradesh has held that 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. Learned Single Judge has held as under :-

"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 35 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 36 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."

22. Learned Single Judge, in 2001 CRI. L.J. 3193 in the case of Sheshrao Bhagwanji Hirulkar and etc. vs. State of Maharashtra has held that Public Prosecutor has to independently apply his mind to all relevant material and reach his own satisfaction regarding need for withdrawal from prosecution in good faith. He cannot act merely on instructions of the Government. Learned Single Judge has held as under :-

"14. Besides this, the proposition that it is incumbent upon the Public Prosecutor to make an application to the Court under Section 321 of the Criminal procedure Code for withdrawal of the prosecution cannot be said to be good law in the light of the judgments of the Apex Court in Sheonandan Paswan v. State of Bihar:

1983CriLJ348 (supra) and Abdul Karim v. State of Karnataka : 2001CriLJ148 (supra). In Sheonandan Paswan v. State of Bihar (supra), it is held that withdrawal from prosecution is an executive function of the Public Prosecutor for which statutory discretion is vested in him and the authority with whom the discretion is vested must genuinely address itself to the matter before it, must not act under the dictates of another body, must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. It is further pointed out therein that Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The withdrawal from prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from prosecution is his. The Government may suggest to Public Prosecutor that a particular case may not be proceeded with but nobody can compel him to do so. There is no doubt that the learned A.P.P. has to take instructions from the Government. However, in case of withdrawal even when there are instructions of the Government there is duty cast on the Public Prosecutor to apply his mind independently and come to his own conclusion. If he does not apply his mind and bows down to the dictates of the Government, it may not be a proper way of exercising statutory discretion vested in him. In Abdul Karim v. State of Karnataka: 2001CriLJ148 (supra) also, it is laid down that Public Prosecutor must independently apply his mind to all relevant 38 material and reach his own satisfaction regarding need for withdrawal from prosecution in good faith. He cannot act merely on instructions of the Government but he must independently apply his mind. In these circumstances, I am of the opinion no directions can be given to Public Prosecutor to file an application for withdrawal nor the proceedings can be quashed as prayed by the applicants.

23. Letter dated 03.07.2015 issued by the State Government is not bonafide. The grounds for withdrawal of the case against the applicant are not valid. The Public Prosecutor was required to apply his independent mind before forming his opinion. He cannot act on the instruction of the State Government blindly.

24. Accordingly, there is no merit in the petition and the same is hereby dismissed. Trial court is directed to conclude the trial within a period of six months from today.



                                 (Rajiv Sharma, J.)
JKJ                                       11.01.2017

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