Rais Ahmad v. State — 1979 DIGILAW 529 (ALL)

JUDGMENT P. N. Bakshi, J. 1. These are three connected Criminal revisions. Criminal Revision No. 515 of 1979 has been filed by Rais Ahmad. Criminal Revision No. 536 of 1979 has been filed by Satish Kumar Gupta, Babu Lal and Vinod Kumar Arya, and Criminal Revision No. 539 of 1979 has been filed by Shri Ram. Against all these applicants Sessions Trial No. 73 of 1977 is pending before the Additional Sessions Judge, Gyanpur. The public prosecutor applied to that court on 3-8-1979 and again on 8-2-1979 for obtaining consent to withdraw the prosecution against the applicants. These applications were rejected by the Assistant Sessions Judge, Gyanpur, vide his order dated 2nd March, 1971. Hence these revisions. 2. The facts of the case are that the Sub-Divisional Magistrate Sri Fateh Bahadur Singh along with other officials had gone in the evening of 29th October, 1974 to Gopiganj in a Jeep. When he entered the town some persons including Satish Kumar Gupta came in front of the Jeep. They surrounded it and started shouting slogans. The Jeep proceeded to the Government Dispensary Gopiganj to join the farewell function which was to be held on the eve of transfer of Dr. A. N. Singh. The prosecution case is that after the farewell party was over about 150-200 persons including the accused applicants came there and started making exhortations and shouting slogans. They entered the compound of the Government Hospital and shouted "Saley ko jan say mardalo". Thereafter they started throwing pieces of stones on the persons who had assembled there and also on the Jeep and the government building. It was a moon-lit night. A patromax was burning. Satish Kumar Gupta son of Panna Lal Chairman, Vinod Kumar, Rais Ahmad, Bachcha, Shiva Ram Gupta and Sri Ram Jaiswal were recognised. Babu Lal was arrested on the spot. As a result of the pelting of stones, several persons were injured and parts of the Jeep damaged. Laudhar, a peon of the Sub-Divisional Magistrate, constable Ram Prasad Singh, Daya Shankar Srivastava, Accountant Government Hospital Gopiganj and Siya Ram Dubey received injuries. They were medically examined. Constable Ram Prasad Singh had two injuries on his forehead. Siya Ram Dubey received injuries on his upper right face and on his right eye. Daya Shanker Srivastava also received injuries on his head. A report of the incident was lodged at police station Gopiganj. They were medically examined. Constable Ram Prasad Singh had two injuries on his forehead. Siya Ram Dubey received injuries on his upper right face and on his right eye. Daya Shanker Srivastava also received injuries on his head. A report of the incident was lodged at police station Gopiganj. The names of the seven accused applicants including the applicants, were mentioned in the report and also the names of the witnesses, who had seen the occurrence and recognised the culprits. After investigation charge- sheets were submitted against the five accused persons, who had filed the instant revision applications in this court. On 28th September, 1977 the Judicial Officer, Gyanpur committed the case to the court of Sessions against the applicants who are standing their trial for offences under Secs. 147, 333, 336, 452, 307, 308 and 427 IPC. 3. It appears that Sri Radhey Shyam Srivastava, Asstt. District Government Counsel (Criminal) filed an application on 27th July, 1978 seeking consent of the court for withdrawal of the prosecution. Paragraph 2 of this application was to the effect that the District Government Counsel (Criminal) had been directed by the Government to withdraw the prosecution since it has been commenced due to political bickerings. In obedience of the orders of the Government he filed this application. It appears from the impugned order that the Government Counsel had also applied on two earlier occasions for granting in time to secure instructions of the Government regarding withdrawal of the case. It appears that subsequently Sri Badri Prasad Yadav was specially appointed Assistant Government Counsel (Criminal) and he filed another application on 8-2-1979 in which he detailed the reasons on the basis of which it was prayed that consent of withdrawal for prosecution be accorded. I have carefully perused this application. In Paragraph 4 it is mentioned that except for Satish no parentage or address of the accused have been mentioned in the first information report. In Para 5 it is mentioned that Dr. A. N. Singh has mentioned in his statement under Section 161 CrPC that he did not know the name of any person mentioned in the First Information Report. In Para 6 it is mentioned that Shiva Ram and Bachcha have not been challenged by the police of Gopiganj. In Para 5 it is mentioned that Dr. A. N. Singh has mentioned in his statement under Section 161 CrPC that he did not know the name of any person mentioned in the First Information Report. In Para 6 it is mentioned that Shiva Ram and Bachcha have not been challenged by the police of Gopiganj. Para 7 is to the effect that the arrest of the accused except Satish Chand and Babu Lal seems to be based on pressure and imagination. Para 8 runs to the effect that no offence under Section 307 is made out because all the injuries are simple in nature. Paragraph 9 states the absence of motive. Paragraph 10 mentioned that it is not clear from the First Information Report that the crowd had intention of murder. Then thereafter in Para 11 it is mentioned that there is no reasonable possibility of the accused being convicted of the charges. Para 12 states that the evidence collected during investigation is meagre and most of the witnesses would not be able to support the prosecution case. Para 13 is to the effect that it would not be in the interest of administration of justice to proceed with the case. These circumstances which have been mentioned in the application dated 8/2/1979 have been considered by the Additional Sessions Judge, Gyapur. He has come to the following conclusion : "In the instant case an officer in charge of a sub-division was tried to be made the victim and in an attempt to commit his murder the huge mob had thrown stones etc. Admittedly, one of the accused persons was arrested on the spot and the others were recognised. The government property was damaged. I am unable to understand as to what was the politics involved in making these assaults. I do not consider the evidence as given in the case diary meagre or insufficient. The injuries are on vital parts of the body. In my opinion his does not appear to be a fit case for allowing the Public Prosecutor to withdraw the case." 4. The principles which guide 'the discretion of the Court to give consent for withdrawal of prosecution under Section 494 CrPC (old) equivalent to Section 321 CrPC (new) has been the subject matter of a number of cases of the Supreme Court. The principles which guide 'the discretion of the Court to give consent for withdrawal of prosecution under Section 494 CrPC (old) equivalent to Section 321 CrPC (new) has been the subject matter of a number of cases of the Supreme Court. In The State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389 Hon'ble Jagannadhadas, J. of the Supreme Court has observed as follows : "The section is an enabling one and vests in the public prosecutor the discretion to apply to the Court for its can- sent 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 Criminal PC. 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.......... 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.......... 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..... 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..... 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 State of Orissa v. Chandrika Mahapatra, AIR 1977 SC 903 , Justice P. N. Bhagwati of the Supreme Court observed as follows :- "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 that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn. The paramount consideration in all these 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 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 an peaceful atmosphere prevailed in the industrial undertaking. 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 an 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." In Balwant Singh v. State of Bihar, AIR 1977 SC 2265 it was observed by Justice V. R. Krishna Iyer of the Supreme Court as follows : "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 interest of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation........................He cannot command where he can only commend ............................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 if application for withdrawal with a bunch of papers tacked on. 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 if 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." 5. After a careful perusal of the aforesaid decisions of the Supreme Court two broad principles appear to emerge for granting consent for the withdrawal of the prosecution. The first principle is that it should be in the interest of administration of justice and the second, which is more factual, is that the evidence already on the record is not sufficient for the continuance of the prosecution. In the instant case learned counsel for the applicant has argued factual questions with great vehemence. He has submitted that it will be futile to continue the prosecution as the material on record is meagre, and therefore, it will not be in the administration of justice to proceed with the case. Learned counsel has placed reliance on paragraphs 4 to 14 of the affidavit (Annexure II) filed along with the revision application in support of his contention, the details of which, I have already mentioned above. Before I express my own view with regard to this point involved, it would be pertinent at this stage to refer to the remarks of the Sessions Judge, Gyanpur, who had the advantage of perusing the case diary. The learned Judge has observed as follows:- "I have looked into the case diary of this case. Dr. A. N. Singh, supported the prosecution case, but he was unable to name any person. Sri Fateh Bahadur Singh S. D. M. is unfortunately dead. Paras Nath Pandey, driver, has named all the accused persons. Daya Shanker Srivastava and other witnesses recognised Satish, Vinod and others. Paras Nath Pandey, driver, has also stated about the arrest of Babu Lal. Pandit Gulabdhar Misra has stated about having recognised the son of Panna Lal and about the arrest of Babu Lal. Ramkhelawan Singh has said that he had recognised Satish, Vinod Kumar and other persons. Daya Shanker Srivastava and other witnesses recognised Satish, Vinod and others. Paras Nath Pandey, driver, has also stated about the arrest of Babu Lal. Pandit Gulabdhar Misra has stated about having recognised the son of Panna Lal and about the arrest of Babu Lal. Ramkhelawan Singh has said that he had recognised Satish, Vinod Kumar and other persons. He stated about the arrest of Babu Lal. Siya Ram, Shyam Narain Singh and Laudhar have named all the accused persons. They have stated that they had recognised the accused persons. Sri Fateh Bahadlur Singh, S. D. M. had also named all the seven accused persons. The fact that the case given in the written report and the case diary would show that out of a huge crowd one person was arrested on the spot and some seven persons were recognised. At least four persons named as witnesses had recognised all the seven persons. The others had recognised one or two accused persons. It cannot, therefore, be said that there is paucity of evidence." 6. These observations of the trial court are entitled to great weight. They completely set at naught this allegations which have been made in paragraphs 4 to 14 of the affidavit (Annexure 2), which has formed the basis of the arguments on behalf of the applicants. As a matter of fact, even in para 8 of this affidavit, referred to above, the only allegation is that no offence under Sec. 307 IPC is made out,, because all the injuries are simple in nature. If the injuries are simple, the offence might ultimately turn out to be less serious than the one covered by Section 307 IPC. But that does not mean that no offence is made out at all. As a matter of fact, one person has been arrested on the spot. Seven persons have been recognised by at least four witnesses. Injuries on four persons belonging to the Police party have been proved from the medical evidence on record. All these facts are obvious from the case diary, which has been thoroughly scrutinised by the trial court, as mentioned above. In this set of circumstances, the argument on behalf of the applicants that the prosecution would fail because the evidence is meagre appears to me to be more fanciful than factual. All these facts are obvious from the case diary, which has been thoroughly scrutinised by the trial court, as mentioned above. In this set of circumstances, the argument on behalf of the applicants that the prosecution would fail because the evidence is meagre appears to me to be more fanciful than factual. As a matter of fact, it is clear from Annexure 'I' which is an application filed by Radhey Shiam Srivastava, Assistant District Government Counsel on 27th July, 1978 that in applying for a withdrawal of the case he has merely obeyed the orders of the Government. He has not exercised his independent discretion at all on the facts and merits of the case. The relevant portion of the application runs thus :- "Yeh ki Shasan dwara mujhey suchit kiya gaya hai ki uprokt muqadama rajnitik bhawana say prayrit hoker chalaya gaya hai aur isi sandarbh mein mujhay shasan dwara abilabh muqadma uthanay ki karyawahi karnay ka aadesh mila hai." The Supreme Court cases which I have referred to above clearly depricate making of such application by the public prosecutor where instead of exercising his own discretion on the material on record he acts as a mere mouth piece to carry out the directives of the Government for withdrawing the prosecution. The sole consideration which should weigh with the public prosecutor when he decides to withdraw from a prosecution is the larger factor of the administration of justice. Political favours, party pressures and governmental coercion are not his concern. The interest of justice is the paramount consideration. As has been observed above justice ordinarily demands that every case must reach its destination, not interrupted en route. In the Supreme Court case reported in AIR 1977 SC 903 the position was that the incident in question had arisen out of a 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. No such grounds of expediency have either been alleged nor do they exist in the present case. No such grounds of expediency have either been alleged nor do they exist in the present case. Even the Special Assistant Public Prosecutor, who moved the application on 8-2-1979 about six months after the first application moved in this connection referred to above, has not mentioned any such ground of expediency in his application, as was considered by Hon'ble Justice P. N Bhagwati in the Supreme Court of mentioned above. In my opinion, it would not be in the interest of administration of justice to throttle the prosecution of the applicants on such flimsy and frivolous grounds which cannot stand the test of scrutiny on the evidence already an record. 7. Having regard to all these circumstances, the application for withdrawal appears to be malafide and motivated by considerations which cannot be judicially sustained in the interest of fair and impartial administration of justice. 8. Another very significant circumstance which must be noticed in this connection is that the Assistant Public Prosecutor, who had applied for the withdrawal of the prosecution in the case in the court of the Sessions Judge has not filed any revision in this court from the impugned order passed by the said court rejecting the application for withdrawal, The State of U. P. has been impleaded as the opposite party in each of these three revisions. There can be no doubt from a perusal of Section 321 CrPC that the Public Prosecutor or the Assistant Public Prosecutor incharge of a case is the only person authorised to apply to a court for obtaining its consent for withdrawal of the prosecution. If he is aggrieved by the order passed adverse to him, he is the proper person to file a revision in this court for setting aside the order. The fact that no revision has been filed so far by the Public Prosecutor on behalf of the State indicates that he is satisfied with the impugned order passed [by the Additional Sessions Judge, Gyanpur, Varanasi. In this view of the matter also, I am of the view that the applicant is not entitled to any relief. For the reasons given above, I am of the opinion that Additional Sessions Judge, Gyanpur, Varanasi has rightly refused permission to the Public Prosecutor for withdrawal of the case pending against the applicants and no interference is called for by me in the exercise of my revisional jurisdiction. 9. For the reasons given above, I am of the opinion that Additional Sessions Judge, Gyanpur, Varanasi has rightly refused permission to the Public Prosecutor for withdrawal of the case pending against the applicants and no interference is called for by me in the exercise of my revisional jurisdiction. 9. These revision applications have no force and are hereby dismissed. Since the incident had taken place more than four years ago it is expedient in the interest of justice that the Additional Sessions Judge, Gyanpur, be directed to proceed expeditiously with Session Trial No. 73 of 1977. I order accordingly. Revision dismissed.