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Showing contexts for: section 321 crpc in State Of Sikkim Through Vigilance ... vs Asal Kumar Thapa And Ors on 6 November, 2020Matching Fragments
6. Heard Dr. Doma T. Bhutia, learned Public Prosecutor for the Revisionist and Mr. Ajay Rathi, learned counsel for the respondents.
7. The learned Public Prosecutor submitted that a perusal of the impugned order would reveal that the learned Special Judge had failed to consider whether the learned Special Public Prosecutor applied his independent application of mind and acted in good faith and in public interest, which is a sine qua non of section 321 Cr.P.C. Dr. Doma further submitted that the learned Special Judge ought to have considered that the petition was also supported by the instructions from the Secretary (Protocol), Home Department, that the State Government had taken a decision to withdraw the case in accordance with section 321 Cr.P.C. It was urged that the learned BHASKAR BHASKAR RAJ RAJ PRADHAN PRADHAN Date: 2020.11.06 16:47:37 +05'30' Special Public Prosecutor had opined that it would be expedient to withdraw from prosecution as the materials placed on record by the State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others investigation would not lead to successful trial causing wastage of the court's precious time as well as unnecessary sufferings of the accused persons. Thus, it was contended that the impugned order was unreasonable and unsustainable in law and deserved to be set aside in the interest of justice and in public interest. It was the case of the learned Public Prosecutor that saving the precious time of the court could also be considered public policy or public interest. Dr. Doma referred to and relied upon the judgment of the Supreme Court in Sheonandan Paswan vs. State of Bihar & Ors.4, in which it was held that when an application under section 321 Cr.P.C. is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal.
12. The Constitutional Bench of the Supreme Court in Sheonandan Paswan (supra) examined, inter alia, the provision of section 321 Cr.P.C. The majority dismissed the appeal preferred by Sheonandan Paswan. It was held that section 321 Cr.P.C. needs three requisites to make an order under it valid: (1) the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal, (2) he must be in charge of the case and (3) the application should get the consent of the court before which the case is pending. A perusal of the impugned order leads one to conclude that it was only the third requisite, i.e., the consent of the court before which the case was pending, which was not fulfilled.
13. The Supreme Court also held that the impugned order giving consent under section 321 Cr.P.C. was a revisable order and that the revisional court considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence. It was further held that since section 321 Cr.P.C. does not give any guidelines, the grounds on which a withdrawal application can be made, such guidelines have to be ascertained with reference to decided cases under the section as well as its predecessor's section 494. It was held that State of Bihar vs. BHASKAR by BHASKAR RAJ RAJ PRADHAN Date: 2020.11.06 PRADHAN 16:50:27 +05'30' Ram Naresh Pandey6 is a landmark case which has laid down the law on the point with precision and certainty. In the said judgment, while discussing the role of the court, the Supreme Court observed:
28. The last ground taken was that the State Government desired that the present case be withdrawn. In Abdul Karim (supra), it has been clearly held that the law is, though the government may have ordered, directed or asked the public prosecutor to withdraw from prosecution, it is for the public prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that public interest will be served by his withdrawal from the prosecution. The petition filed by the learned public prosecutor does not record the satisfaction of the learned Special Public Prosecutor having examined the relevant material and in good faith, being satisfied that a public interest would be served by his withdrawal from the prosecution. The petition filed by the learned Special Public Prosecutor records only his opinion that because of certain lacunae, the prosecution would be rendered futile. The materials placed do not even remotely indicate to BHASKAR RAJ BHASKAR PRADHAN RAJ PRADHAN Date: 2020.11.06 17:03:56 +05'30' this Court that the petition under section 321 Cr.P.C. was made in good faith or in the interest of public policy and justice. The learned Special Judge has examined the materials and opined that the statement of witnesses recorded by the prosecution gives an altogether State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others different picture than what was suggested by the learned Special Public Prosecutor and in such circumstances, has declined to grant consent. The facts reveal that after an elaborate investigation, charge- sheet had been filed against the public servants for criminal misconduct and other offences. The purpose for the enactment of the PC Act, 1988 is to eradicate corruption and provide deterrent punishment when criminal culpability is proven. That is the paramount public interest in corruption cases. In Niranjan Hemchandra Sashittal (supra), it has been held by the Supreme Court that an attitude to abuse the official position is an anathema to the basic tenets of democracy, for it erodes the faith of the people in the system and creates an incurable concavity in the rule of law. Sans the mandatory averment of the learned Special Public Prosecutor as required under section 321 Cr.P.C. and as held above, it is difficult to hold that the proposed withdrawal by the learned Special Public Prosecutor would not stifle or thwart the process of law or cause manifest injustice. In Sheonandan Paswan (supra), the Supreme Court held that the power of the public prosecutor to withdraw from prosecution under section 321 Cr.P.C. is not absolute and unrestricted and that it has to be controlled and guided power or else it will fall foul of Article 14 of the Constitution of India. It was further held that once prosecution is launched, its relentless course only be halted on sound consideration germane to public justice and it is not left to the sweet will of the state or the public prosecutor to withdraw from prosecution.