Virendra Kumar Singh v. State of M. P. — 1990 DIGILAW 309 (MP)

ORDER Gulab C. Gupta, J. -- 1. Criminal Case No. 1541 of 1979 (State v. Balkrishan Pathak and others) was started in the Court of Chief Judicial Magistrate, Ambikapur on a complaint lodged by the applicant. Since the aforesaid prosecution has been dropped and accused persons acquitted by an order dated 29.4.1981, the applicant challenged the legality thereof by filing a revision under section 397 Cr P C, which was decided by Shri S.K. Mishra, 2nd Additional Sessions Judge, Ambikapur on 15.5.1989 (Cr, Rev. No. 79/81) dismissing the revision and upholding the order of the learned Magistrate. The applicant is not satisfied with the same and has moved this Court by filing this application under section 482 Cr P C. 2. It appears that the applicant had lodged a report on 8.3.1979 to the effect that one Nandu had stabbed Kapoor at about 7.00 p.m. and, therefore, he had gone to the Police Station with the said Kapoor to lodge the report. Kapoor was thereafter sent for medical examination. He also accompanied the said Kapoor to the hospital. While he was waiting outside, non-applicants Balkrishan Pathak, Ajay Kumar Agarwal and Rajkumar Singh came on the spot and started assaulting him with an iron rod. As a result of this assault, he sustained injuries at several places all over his body. As soon as these persons assaulted him, he ran away to save himself. He made several other grievances against these non-applicants. It appears that he was medically examined on that very date and at least four injuries found on his person. The police investigated the aforesaid complaint and ultimately filed a charge-sheet on 2.11.1979 against non-applicants 2, 3 & 4 alleging commission of offences under sections 148, 149, 325, 323, 452 and 427 IPC. The non-applicants 2 to 4 were also produced before the learned Chief Judicial Magistrate and released on bail pending trial. The matter thereafter remained pending up to 29.4.1981. On 29.4.1981, the Assistant Public Prosecutor (APP), the non-applicant No.5, filed an application purporting to be under section 321 Cr.P.C. stating that the District Magistrate, Surguja by his letter dated 8.4.1981 had informed him that it was not in public interest to proceed with this prosecution. A prayer was accordingly made to withdraw the same. The letter of the District Magistrate does not seem to have been filed. A prayer was accordingly made to withdraw the same. The letter of the District Magistrate does not seem to have been filed. The learned Chief Judicial Magistrate accepted this request and discharged the non-applicants 2 to 4. The applicant challenged the legality of this order in the revision, which remains dismissed, as noticed earlier. That is how the matter is in this Court for consideration. 3. Section 321 Cr P C permits a Public Prosecutor or Assistant Public Prosecutor, incharge of the case, to withdraw from the prosecution of any person either generally or in respect of anyone or more of the offences for which the said person is tried, at any time, before the judgment is pronounced, but with the consent of the Court. Once the Court trying the case gives its consent, the consequences mentioned in this provision follow. Question for consideration is whether the learned Chief Judicial Magistrate has rightly consented to the withdrawal of prosecution against these non-applicants. A fair reading of this provision would indicate that it is the discretion of Assistant Public Prosecutor to take initiative in the matter and the obligation of the Court is to give its consent to the same. The use of the word 'may' in the provision vests a discretion in the Public Prosecutor or Assistant Public Prosecutor to apply for withdrawal of the case. The Legislature has not defined circumstances under which a withdrawal under this provision should be made and had, therefore, advisedly expressed powers in very general terms hoping that the same would be exercised in larger public interest taking into consideration all facts and circumstances of the case. In The State of Bihar v. Ram Naresh Pandey and another ( AIR 1957 SC 389 ) it was clarified that the power under this provision is wide and uncontrolled by any other provision in that Code. In M.N. Sankaranarayanan Naik v. P.V. Balakrishnan and others ( AIR 1972 SC 496 ) it was laid down that because of the general terms in which the power is expressed in this provision, it is not possible to lay down any hard and fast rule circumscribing the limits within which a withdrawal can be made. In M.N. Sankaranarayanan Naik v. P.V. Balakrishnan and others ( AIR 1972 SC 496 ) it was laid down that because of the general terms in which the power is expressed in this provision, it is not possible to lay down any hard and fast rule circumscribing the limits within which a withdrawal can be made. In Subhash Chander v. The State (Chandigarh Admn.) and others ( AIR 1980 SC 423 ), it was emphasised that the power to withdraw under this provision is given to the Public Prosecutor only and not to any outside agency howsoever high that may be. Earlier in Balwant Singh and others v. State of Bihar ( AIR 1977 SC 2265 ), it was clarified that withdrawal from prosecution is the exclusive power to Public Prosecutor. His decision must be independent and not in obedience to directions from District Magistrate or higher authorities and should be on germane grounds. In spite of it, it was recognised in M.N. Sankaranarayanan Nair's case (supra) that the Public Prosecutor, while deciding to exercise discretion in the matter, may consult the District Magistrate or other authorities. This, however, does not mean that he is not required to apply his mind and only act under directions of the District Magistrate. It can, therefore, be assumed that section 321 CrPC vests discretion in the Public Prosecutor or Assistant Public Prosecutor, incharge of the case, to decide whether to withdraw from the prosecution or not withdraw from it. Before taking a decision in the matter, the Public Prosecutor or Assistant Public Prosecutor may, if he so desires, consult the District Magistrate. He is, however, not bound by the advice of the District Magistrate, though he may accept the advice, if application of his own independent mind to the facts and circumstances of the case justifies such acceptance. In every case, the decision has to be that of the Public Prosecutor or Assistant Public Prosecutor, as the case may be. 4. Once the prosecutor has decided to seek consent of the Court to withdraw the prosecution, the Court has to apply its mind to the facts and circumstances of the case to decide whether to grant or withhold the consent. 4. Once the prosecutor has decided to seek consent of the Court to withdraw the prosecution, the Court has to apply its mind to the facts and circumstances of the case to decide whether to grant or withhold the consent. In The State of Bihar v. Ram Naresh Pandey and another (supra) it was clarified that the discretion given to the Court under this section should be exercised not arbitrarily, but judicially on sound legal principles, and it is not necessary that the Court should always grant the sanction. In State of Orissa v. Chandrika Meharotra and others ( AIR 1977 SC 903 ), it was held that while granting consent to the withdrawal from prosecution, the ultimate guiding consideration must always be the interest of administration of justice and that is the touch-stone on which the question must be determined whether the prosecution should be allowed to be withdrawn. In M.N. Sankaranarayanan Nair's case (supra), the Government had taken a policy decision to withdraw criminal cases relating to mass agitation and strike. In pursuance to the said decision, the Public Prosecutor prayed for the consent. While justifying refusal of consent in such a case, the Court held that the fact that the Public Prosecutor has merely acted under the directions or with the approval of the Government or that consistent with the policy of the Government in relation to mass agitation and strike, it has decided to withdraw the case in connection therewith, is no reason for the Magistrate giving his consent to such withdrawal. Indeed, in The State of Bihar v. Ram Naresh Pandey and another (supra), it was emphasised that the act of the Court in giving its consent to the withdrawal of the prosecution was a judicial act and has to be given after a judicial consideration of circumstances. Credible information to the Government as to the falsity of the prosecution evidence has been held to be the proper reason for according sanction, as would be clear from M.N. Sankaranarayanan Nair's case (supra). At the same time, where the Court is reasonably satisfied on the materials before it that even if evidence is actually taken, a conviction is not likely to result, it would be proper to exercise discretion to give the consent. At the same time, where the Court is reasonably satisfied on the materials before it that even if evidence is actually taken, a conviction is not likely to result, it would be proper to exercise discretion to give the consent. But, the fact that the trial has not taken, even though registered long before or that the prosecution would involve heavy expenditure is not a ground for permitting withdrawal. [See M.N. Sankaranarayanan Nair v. P. V. Balakrishanan and others (supra)]. 5. Since the power of the Court to grant or withhold consent is a judicial power, the question whether it is obligatory for the Court to give reasons has been a much debated question. In Satwarao Nagarao Natkar v. Kanbarao Bhasorao Natkar (AIR 1936 Nag. 334), it was held that it is not obligatory on the Court to record reasons for permitting or refusing to permit a withdrawal, but it is desirable that there should be some material on record to satisfy the High Court that there was good ground for the withdrawal of the case. In Purshottam 'Vijay' and another v. State and others ( 1983 MPLJ 694 ), this Court considered a case where the consent was granted, as it was in the public interest to permit the Public Prosecutor to withdraw the case. It was held that the term 'public interest' is vague and needed clarification. It was, therefore, the duty of the Judge granting consent to lay down facts constituting public interest. Merely because one of the accused persons was subsequently elected to the Legislative Assembly and the other accused being Municipal servants carrying out the orders of the Corporation, do not in themselves constitute public interest. On the aforesaid conclusion, the order withdrawing prosecution was quashed. It is, therefore, possible to hold that it is desirable that the order of the Magistrate granting or refusing consent, should contain reasons. Even if the order did not contain any reason, it should appear from the record of the case that there are good reasons for granting or refusing the consent. 6. Facts of the case may now be examined in the context of aforesaid legal principles to ascertain whether the impugned order suffers from any illegality. Even if the order did not contain any reason, it should appear from the record of the case that there are good reasons for granting or refusing the consent. 6. Facts of the case may now be examined in the context of aforesaid legal principles to ascertain whether the impugned order suffers from any illegality. As noticed earlier, the application of the Assistant Public Prosecutor dated 29.4.1981 only mentions that: ^^;g fd ftyk naMkf/kdkjh ljxqtk ds Kkiu Øekad d@LVsuks@82 vafcdkiqj fnukad 8 vizSy 1981 ds vuqlkj mijksDr izdj.k dks vkxs pyk;k tkuk lkoZtfud fgr esa ugha gSA** As noticed earlier, the memo of the District Magistrate dated 8.4.1981 does not seem to have been filed and is not available on record. This application only indicates that the prosecutor was only acting as the informant on behalf of the District Magistrate and was communicating his decision to the Court. The memo does not indicate that the prosecutor ever applied his mind to the facts and circumstances of the case and reached his own independent conclusion. This is impermissible. Apparently, the decisions of the Supreme Court in Dr. Jai Shankar (Lunatic) through: Vijay Shankar, Brother Guardian v. State of Himachal Pradesh ( AIR 1972 SC 2267 ) and Subhash Chander v. the State (Chandigarh Admn.) and others (supra) have not been kept in view either by the Assistant Public Prosecutor or the learned Magistrate. Since the mind has not been applied by the Assistant Public Prosecutor and no independent decision reached, section 321 CrPC would not be attracted and hence the question of withdrawal of prosecution should not arise. The learned Chief Judicial Magistrate seems to have written on the application itself that "Anumati Pradan" or consent granted. This order at the most would indicate that the learned Chief Judicial Magistrate concerned only for which was stated in the application and since the application contained the decision of District Magistrate, accepted the same. This clearly amounts to abdicating judicial function required to be performed under section 321 CrPC. The aforesaid order only indicates that the Chief Judicial Magistrate was too willing to get rid of the matter and, therefore, readily accepted the opinion of the District Magistrate and in that process did not even bother to apply his mind. This clearly amounts to abdicating judicial function required to be performed under section 321 CrPC. The aforesaid order only indicates that the Chief Judicial Magistrate was too willing to get rid of the matter and, therefore, readily accepted the opinion of the District Magistrate and in that process did not even bother to apply his mind. Indeed, this Court has tried to find some reason on record to ascertain whether the exercise of discretion was proper, but failed to find any. As noticed earlier, not even the memo of the District Magistrate has been placed on record and, therefore, it is not possible to ascertain how the Chief Judicial Magistrate acted in the matter. Apparently, the learned Chief Judicial Magistrate acted contrary to section 321 Cr P C and hence his order cannot be sustained. 7. In view of the discussion aforesaid, application succeeds and is allowed. The impugned order dated 29.4.1981 passed by the Chief Judicial Magistrate, Ambikapur in Criminal case No. 1541 of 1979 permitting withdrawal of the prosecution against non-applicants 2, 3 & 4 is hereby quashed. The learned Magistrate is directed to hold trial, in accordance with law.