STATE OF H. P. v. TARA SINGH — 1992 DIGILAW 58 (HP)

JUDGMENT V. K. Mehrotra, J.—In Dalhousie town there is a piece of land about 1500 square yards in area in respect of a part whereof there is dispute between Radha Swami Satsang, Beas (for brief, "the Satsang") and the Government High School, Dalhousie. The land, according to the Satsang, was part of its property. It is claimed by some local residents of Dalhousie that it was play-ground of the school. A demarcation was made by the Assistant Collector Second Grade on 19th October, 1981 on the basis whereof possession of 0.3590 acre of land is said to have been handed over by the Headmaster of the school, in compliance with an order of the Director of Education, Himachal Pradesh, dated 30th July, 1983, to one Madan Gopal Singh member of the Executive Committee of the Satsang on 8th August, 1983. The Satsang claims that it had effected fencing of the area by way of denoting a boundary line between the land of the Satsang and the school property. On 3rd July, 1984 Tara Singh, the Secretary of the Satsang, lodged a First Information Report at Police Station Dalhousie at 9.45 p. m. saying that respondent Nos 2 to 17 formed an unlawful assembly, removed the fencing and after marching into the land of the Satsang demolished the structure which was under construction and had come up almost to the slab level. They also set fire to 15 door and window frames as well as the timber kept for the construction of the shed at the site and drove away twelve labourers who were working there by pelting stones on them due to which they sustained injuries and had eventually to take shelter in Ellismere, a house belonging to the Satsang. The accused persons also broke the window panes by resorting to brickbatting and smashed the car of the Satsang which was parked nearby. This report was registered as F. I. R No. 53/83 for various offences under sections 147, 149, 448, 427, 435, 436, 506 and 323 etc. I. P. C. 2. The matter was investigated by the Police and a challan was put in against respondents 2 to 17 in Court i he case was committed to the Court of Sessions at Chamba, since the offence punishable under section 436, I. P. C. was triable exclusively by the Court of Sessions. I. P. C. 2. The matter was investigated by the Police and a challan was put in against respondents 2 to 17 in Court i he case was committed to the Court of Sessions at Chamba, since the offence punishable under section 436, I. P. C. was triable exclusively by the Court of Sessions. It was, however, transferred by this Court to the Court of Sessions Judge, Kangra at Dharamshala. On 7th January, 1986, after hearing parties, the Sessions Judge declined to frame a charge under section 436, I. P. C. and sent the case back to the Court of the Chief Judicial Magistrate, Chamba, for framing charge and then trying the offences as a warrant case instituted on a police report. On 15th January, 1986 the case was registered before the Chief Judicial Magistrate. The complainant, however, assailed the order of the Sessions Judge of 7th January, 1986 in this Court by filing a revision petition in which proceedings were stayed on 31st January, 1986. This petition was dismissed on 14th May, 1987 with the direction that the case should be taken up for disposal on priority basis. The record which had been received from the trial Court was directed to be sent back to it. 3. Meanwhile, an application under section 321, Cr. P. C, dated 12th May, 1986 had been filed by the Assistant Public Prosecutor, Chamba, in the Court of the Chief Judicial Magistrate, Chamba, seeking leave of the Court to withdraw the prosecution against the accused persons. The application was filed after receiving instructions from the State Government through Telex message dated 29th April, 1986 from the Under Secretary (Home) to the District Magistrate as well as District Attorney, Chamba, saying that the prosecution should be withdrawn. This application had remained pending as record of the case was before this Court. It was taken up, for consideration, by the Chief Judicial Magistrate after the record was received back in his Court. The application was rejected on 15th September, 1987. The State of Himachal Pradesh assailed that order in Criminal Revision No. 18 of 1987-1989, instituted by it on 21st September, 1987. The Additional Sessions Judge (1), Kangra at Dharamshala, dismissed the revision on 10th September, 1990 and upheld the order passed by the Chief Judicial Magistrate. Thereafter, the present revision was filed by the State of Himachal Pradesh in this Court on 27th June, 1991. The Additional Sessions Judge (1), Kangra at Dharamshala, dismissed the revision on 10th September, 1990 and upheld the order passed by the Chief Judicial Magistrate. Thereafter, the present revision was filed by the State of Himachal Pradesh in this Court on 27th June, 1991. In it, the orders of the Chief Judicial Magistrate and the Additional Sessions Judge (1), Kangra at Dharamshala, are assailed under section 482 Cr. P. C. 4. Shri H. S. Mattewal, Senior Advocate, has appeared on behalf of the Satsang (the first respondent), as instructed by S/Shri N S Grewal and R. C Bakshi. Advocates. The other respondents, who are accused persons, are represented by Shri Indar Singh. 5. An objection of a preliminary nature was taken by Shri Mattewal to the effect that the present petition is in the nature of a second revision petition by the State which is barred under section 397 (3), Cr P. C. This objection is sought to be met by Shri Indar Singh by saying that the present petition may be considered to be one under section 482, Cr. P. C. and not under section 397 (1), Cr. P. C. and that relief may be granted in favour of the State on that basis. Shri Mattewal urged, on the basis of a decision of the Supreme Court in Rajan Kumar Manchanda v. State of Karnataka, Cr Appeal No. 604 of 1987, decided on 3-11-1987, reported in 1988 (2) RCR 662, that merely saying that the jurisdiction of this Court under section 482, Ct. P. C. was being invoked did not entitle the State to file a second revision and, thus, over-come the statutory bar under section 397 (3), Cr. P. C. 6. The decision in Rajan Kumar was one in which it was not disputed on behalf of the State, which had filed the second revision before the Karnataka High Court, that the move before the High Court was really on application for revision of the order of the Magistrate which had been upheld by the Court of Sessions before which it had been assailed earlier by the State. The order of the High Court was set aside by the Supreme Court. 7. In Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, the principle recognized by the Supreme Court is that : "......The label of the petition filed by an aggrieved party is immaterial. The order of the High Court was set aside by the Supreme Court. 7. In Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, the principle recognized by the Supreme Court is that : "......The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter is an appropriate case under its inherent powers...." An instance can be a case where the situation brought about by the impugned order reveals an abuse of the process of the Court or it may be found necessary to intervene for the purpose of securing the ends of justice. The principle was reiterated in Raj Kapoor and others v. State (Delhi Administration) and others, AIR 1980 SC 258, where the Supreme Court said (in paragraph 10) that : "In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the courts jurisdiction. The limitation is self-restraint, nothing more." The same sentiments were expressed by the Supreme Court in the Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, AIR 1983 SC 67, when it said (in paragraph 6) : "......It may be noticed that section 482 of the present Code is the ad verbatim copy of section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts..... Thus, the scope, ambit and range of section 561 A (which is now section 482) is quite different from the powers conferred by the present Code under the provisions of section 397. It may be that in some cases there may be over-lapping but such cases would be few and far between.......the power being an extraordinary one, it has to be exercised sparingly.," 8. In a recent decision in H. K. Rawal and another v. Nidhi Prakash and another, 1990 Cri LJ 961, a Full Bench of the Allahabad High Court, ruled (in paragraph 19) that : "........Where an application under section 397, Cr. In a recent decision in H. K. Rawal and another v. Nidhi Prakash and another, 1990 Cri LJ 961, a Full Bench of the Allahabad High Court, ruled (in paragraph 19) that : "........Where an application under section 397, Cr. P. C. filed by any party in the Court of Sessions is decided against him it is open to that party to invoke the extraordinary jurisdiction of the High Court under section 482, Cr. P. C. only if the order of the Sessions Judge has resulted in the abuse of the process of the Court and/or calls for interference to secure the ends of justice as the bar under sections 397 (3) and 399 (3), Cr. P. C. is not applicable to the exercise of the inherent powers by the High Court under section 482, Cr. P. C. in such a case......." Coining to the merits :— "The State of Himachal Pradesh says that the order of demarcation of 19th October, 1981 was set aside by the Financial Commissioner on the recommendation of the Settlement Collector, Kangra, and fresh demarcation was ordered. This demarcation disclosed that the disputed land was part of the play-ground of the Government High School. The Settlement Collector Kangra Division affirmed the fresh demarcation by order of 19th May, 1985. The Divisional Commissioner affirmed it further on the revision petition filed by the Secretary of the Satsang. On 8th October, 1985 civil suit No. 77 of 1985 was instituted by the Satsang in this Court against the State of Himachal Pradesh seeking redress in the matter. The suit is still pending The plaintiff sought an interim order in the suit. An order was made directing parties to maintain status quo. It continues." 9. The application under section 321, Cr. P. C. of 12th May, 1986 says, inter alia, that : "2. That as per allegation it was huge procession including the children of the school although allegedly led by accused persons, it appears that the accused persons had no mens rea to commit the above said offences and they had gone on the spot simply to protect the Government property. 3. That the Government had also desired that the case may kindly be withdrawn from prosecution against the accused persons in the interest of public. 4. That the withdrawal of case against the accused person is in larger interest of the public. 5. 3. That the Government had also desired that the case may kindly be withdrawn from prosecution against the accused persons in the interest of public. 4. That the withdrawal of case against the accused person is in larger interest of the public. 5. That withdrawal of the case is also in the interest of administration of justice and maintenance of peace and public order in the area." And, prays : "It is, therefore, prayed that prosecution may kindly be allowed to withdraw from the prosecution of the above said case. Yours faithfully, Assistant Public Prosecutor Chamba." Counsel for the parties have stated to this Court that : "From the orders under challenge it does not appear that any material other than the application for withdrawal itself was placed before the trial Court or the Sessions Judge in revision... to support the grounds mentioned in the application or as to what was the material before the P. P ...to move the application..." 10. The learned Advocate General for the State of Himachal Pradesh was asked to produce the relevant record for the perusal of the Court. On 2nd April, 1992 this Court recorded in the order-sheet that : ".....The learned Advocate General has pointed out from file No. CBA-Peshi-30 (A)/85-446 of the office of Deputy Commissioner Chamba a letter dated January 16, 1986 addressed by the District Magistrate, Chamba to the Secretary (Home) Government of H. P., Shimla in which certain facts were detailed with a request that the Government should withdraw the prosecution as well as letter (of) April 25, 1986 by way of reminder containing some more facts of the case. He has also pointed out from the same file a Telex message dated April 29, 1986 for the Under Secretary (Home) to the District Magistrate as well as District Attorney, Chamba saying that the prosecution should be withdrawn. Learned Advocate General has told the Court that there is no other document on this file from which it may appear as to whether this file or any other material was placed before the Public Prosecutor before he made the application for withdrawal of the prosecution dated May 12, 1986...." The case was heard thereafter on two more dates and orders reserved on 30th April, 1992. No other material was, however, placed before the Court on behalf of the State in that regard. No other material was, however, placed before the Court on behalf of the State in that regard. Instead what was argued was this : "The Public Prosecutor can be asked and advised by the Government to move for the withdrawal from prosecution. Thereafter, without anything more he can move for withdrawal on the basis of facts in his personal knowledge without looking at the record or without indicating anywhere on the record except the recitals in the application as to what facts were before him when he moved the application." Reliance was placed, on behalf of the State, upon some observations made by the Supreme Court in Rajinder Kumar Jain v. State through Spl. Police Establishment and others, AIR 1980 SC 1510, and those made by it in Sheonantdan Paswan v. State of Bihar and others, ATR 1983 SC 194. Section 321, Cr. P. C. says : "321.- Withdrawal from prosecution.—The Public Prosecutor or Assistant Public in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried ; and upon such withdrawal— In respect of this provision the Supreme Court said in Rajender Kumar Jain fin paragraph 13) that: "Thus, from the precedents of this Court; we gather— 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tam many Hall enterprises. 6. The Public Prosecutor is an officer of the Court and responsible to the Court. 7. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tam many Hall enterprises. 6. The Public Prosecutor is an officer of the Court and responsible to the Court. 7. The Court performs a supervisory function in granting its consent to the withdrawal. 8. The Courts duty is not to re-appreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution." And, (in paragraph 14) that : ".....To persist with prosecutions. where emotive issues are involved in the name of vincicating the law may even be utterly counter-productive An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a clam which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched. In such matters who but the Government can and should decide, in the first instance, whether it should be baneful or beneficial to launch or continue prosecutions" Later, (in paragraph 15) : "......Now the Public Prosecutor is an Officer of the Court If the policy-makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind....." However, it also said (in paragraph 25) : ".....So we insist that Courts when moved for permission for with drawal from prosecution must be" vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the Government and thereafter apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should be allow himself to become anyones stooge." 11. In Sheonandan, AIR 1983 SC 194, it was observed (in paragraph 53) that: "......The Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any 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 ...... 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 instructions from the Government...." In that case the Supreme Court noticed (in paragraph 54) that a perusal of the application made by the Public Prosecutor showed that he had applied his mind to the facts of the case and had perused "the Case Diary and the relevant materials connected with the case", before making the application. He did not blindly quote from the Government letter, which contained the only one ground, namely, "inexpediency of prosecution for reasons of State and public policy". 12. The matter was considered by a Constitution Bench of the Supreme Court in Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877. What was said by the majority, first (in paragraph 44) was to reproduce the eight principles in Rajender Kumar Jain, AIR 1980 SC 1510, and then (in paragraph 75) it was observed that : "Since section 321 does not give any guideline regarding the grounds on which a withdrawal application can be made, such guide lines have to be ascertained with reference to decided cases under this section as well as its predecessor section 494. Ram Naresh Pandeys case reported in AIR 1957 SC 389, is a land mark case which has laid down the law on the point with precision and certainty...This decision was approved by this Court in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan, AIR 1972 SC 496, as is seen at page 501 of AIR : In the State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389, it was pointed out by this Court that though the section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for "illegitimate reasons or purposes....." The majority view, about the role of the Court when an application for consent is placed before it, has been so stated (in paragraph 71) : ".......When the Public Prosecutor makes the application for with drawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines consent...." (Emphasis mine) 13. The majority view clearly brings out that what is envisaged by section 321, Cr. P. C, as far as it relates to the Public Prosecutor, is that on being instructed by the State to withdraw from a prosecution he has a discretion in the matter and cannot surrender it to someone else and that he may withdraw from prosecution not only on the ground of paucity of evidence but also on other relevant grounds in order to further the broad ends of public justice, public order of peace. The Public Prosecutor should not feel compelled to withdraw from the prosecution merely because the Government has asked him to do so. 14. This would pre-suppose that apart from the instructions received from the Government the Public Prosecutor should be in possession of some material on the basis whereof he may apply his mind as a free agent, uninfluenced by irrelevant and extraneous considerations, to the question whether withdrawal would further the ends of public justice, order and peace or not. 14. This would pre-suppose that apart from the instructions received from the Government the Public Prosecutor should be in possession of some material on the basis whereof he may apply his mind as a free agent, uninfluenced by irrelevant and extraneous considerations, to the question whether withdrawal would further the ends of public justice, order and peace or not. The material taken into consideration by him should, be such which can be placed by the Public Prosecutor before the Court, while seeking its consent, for its perusal. Such material cannot be one which is only within the personal knowledge of the Public Prosecutor for such material cannot be placed for objective consideration before the Court. 15. The Court is not to re-appreciate the grounds which led the Public Prosecutor to request withdrawal from prosecution, yet, it should be in a position to consider whether there was application of mind by the Public Prosecutor to relevant material as a free agent or not. The court is to exercise its judicial discretion by considering the material which was taken into consideration by the Public Prosecutor and then gave its consent or decline to do so. The court is not to give its consent as a matter of course. This would imply existence of material de hors the personal know ledge of the Public Prosecutor which can be looked into by the Court before exercising its discretion either way. 16. If that be the true import of the ambit of powers under section 321, Cr. P. C, as I consider is to be, the submission made on behalf of the State that recitals made by the Public Prosecutor m the application seeking consent of the Court for withdrawal from the prosecution, founded upon facts in his personal knowledge, should be enough for exercise of discretion in favour of the grant of consent, when the Public Prosecutor is asked by the State to seek such consent, without anything more, appears untenable. 17. The grant or refusal by the Court of its consent for withdrawal being a matter in its discretion, the order made by the Court should not be lightly interfered with by the superior Court unless the exercise of discretion appears to be perverse in the sense that no reasonable person would take that view on the material before the Court. The grant or refusal by the Court of its consent for withdrawal being a matter in its discretion, the order made by the Court should not be lightly interfered with by the superior Court unless the exercise of discretion appears to be perverse in the sense that no reasonable person would take that view on the material before the Court. Or, an order passed by the Court in its discretion amounts to an abuse of the process of the Court or would lead to miscarriage of justice. That would, undoubtedly, depend upon facts of a particular case. 18. What has happened in the present case is that for good reasons mentioned in their orders both the Chief Judicial Magistrate and the Additional Sessions Judge have not considered, in their discretion, the present to be a fit case where consent for withdrawal from the prosecution should be granted. It is difficult to take the view that the exercise of discretion by them is perverse or that the failure to give consent for withdrawal from prosecution would lead to a miscarriage of justice or amounts to an abuse of the process of the Court. 19. What has been stressed in the present proceedings is that most of the respondents had no personal interest in the matter and could not be considered to have any mens rea when they proceeded to protect the property of the school from encroachment upon it by the Satsang. Also, that the question whether the Satsang was in possession of the property and had the right to do so has been agitated by it in the civil suit which is pending in this Court. As such, the continuance of the prosecution would not be in public interest. All this has been taken into consideration by the courts below. Also, that the question whether the Satsang was in possession of the property and had the right to do so has been agitated by it in the civil suit which is pending in this Court. As such, the continuance of the prosecution would not be in public interest. All this has been taken into consideration by the courts below. The conclusion of the Chief Judicial Magistrate, while refusing consent for withdrawing from the prosecution, is that the Assistant Public Prosecutor had not made the application in good faith by applying his independent mind in the interest of public policy and justice and appeared to have moved it at the instance of the State Government without considering any other material The Additional Sessions Judge has said that the accused persons clearly appeared to have the necessary mens rea in the allegations levelled against them and that it was not a ca e where they could be said to have gone bonafide to protect the Government property and further that there was no material to show that the Public Prosecutor had anything more before him than only the desire on the part of the State Government to move an application for withdrawal from prosecution. The learned Judge felt that the Chief Judicial Magistrate had rightly exercised his discretion and there was no infirmity in it. 20. An alternative plea made in this petition, and also emphasised before this Court, is that the criminal proceedings may be stayed till such time that a decision is reached in the civil suit pending in this Court. It has been urged that the question of possession over the property was crucial and to avoid a possible conflict about it in the decisions taken in the criminal proceedings and the civil suit, the criminal proceedings should be stayed. 21. The submission appears attractive but does not deserve acceptance in the circumstances of the present case. Judicial opinion leans in favour of the view, that criminal proceedings should normally get precedence Sohan Lal v. The State of Himachal Pradesh, AIR 1954 HP 46. And," to borrow the words of the Supreme Court in M. S, Sheriff and another v. State of Madras and others, AIR 1954 SC 397, when it said (in paragraphs 15 and 16) : "As between the civil and the criminal proceedings the criminal matters should be given precedence. And," to borrow the words of the Supreme Court in M. S, Sheriff and another v. State of Madras and others, AIR 1954 SC 397, when it said (in paragraphs 15 and 16) : "As between the civil and the criminal proceedings the criminal matters should be given precedence. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure ; that the guilty should be punished while the events arc still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just...." 22. The offences for which the accused persons are to be tried include those unrelated to the question of possession as well. The F. I. R was lodged in July, 1984 ; the case came to be filed in the Court of the Chief Judicial Magistrate initially in the month of June, 1985 and later, went back to it after the dismissal of the revision petition by this Court on 14th May, 1987. We are in the year 1992. Staying of proceedings till the disposal of the civil suit may lead to a situation where memories grow too dim to trust and everybody concerned forgets all about the crime. Staying of criminal proceedings would not be in public interest which demands that : "Criminal justice should be swift and sure ; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial....." (See M.S. Sheriff) To conclude : 23. I decline to intervene in the matter. I decline to intervene in the matter. The stay of proceedings in Criminal Case No. 8-1/86 and 4-II of 1986, State v. Y. V. Mehra and others, pending in the Court of the Chief Judicial Magistrate, Dalhousie, shall stand discharged The Court shall proceed with the trial forthwith in accordance with law. Order accordingly.