K. M. PANDEY, J. ( 1 ) THIS order shall govern all the four cases mentioned above. The undisputed I facts of the case are that all the aforesaid four cases t have arisen as a result of a criminal complaint filed by one Smt. Chitralekha, daughter of Sardar Angre, on 11/10/1983 in the Court of Special Judge, Gwalior against Madhav Rao Scindia and 14 others. The learned Judge, after recording the statements of five witnesses passed an order for g issuance of bailable warrants for Rs. 500/- against P each of the accused persons, on 20/11/1985. Aggrieved by the said order the accused persons filed a Criminal Revision No. 185/85 before this Court. An application under Section 482 of the Code of Criminal Procedure has also been filed by the petitioner namely Madhav Rao Scindia for quashing the proceedings of Criminal Case No. 145/85, pending in the Court of Shri Chandrika Prasad, Special Judge, Gwalior. Later on, in S. T. No. 86 of 1986 certain properties which were alleged to be properties of theft, in connection with Crime No. 135/82 of Police Station Jhansi Road, Gwalior were directed to be handed over to Scindia Museum vide order dated 24/1/1991 against which a Criminal Appeal (M. M.) No. 187/92, as mentioned above, has been filed by the appellant Shrimati Rajmata Vijaya Raje Scindia (hereinafter to be called as Rajmata ). The case went on, but later on, an application for withdrawal of the case (ST No. 86/86) was moved by the State Government and the learned Judge passed all order granting permission for withdrawal from the prosecution. This order dated 24/1/1991 has been challenged by the petitioner Mahendra Pratap Singh and is the subject-matter of decision in Criminal Revision No. 35 of 1991. ( 2 ) FOR a proper understanding of the case it would be proper to give the history of the criminal complaint filed by Smt. Chitralekha which has given rise to the present four petitions. One Smt. Chitralekha, daughter of Sardar Angre filed a criminal complaint under Sections 395, 397, 429, 452, 147, 148, 149,201 and 120b of the I. P. C. and under Sections 11 and 13 of the Dakaity Aur Vyapaharan Prabhavit Kshetra Adhiniyam 1981 alleging that there is a bunglow known as Hiranvan Kothi within the compound of Jai Vilas Palace, Gwalior. One Smt. Chitralekha, daughter of Sardar Angre filed a criminal complaint under Sections 395, 397, 429, 452, 147, 148, 149,201 and 120b of the I. P. C. and under Sections 11 and 13 of the Dakaity Aur Vyapaharan Prabhavit Kshetra Adhiniyam 1981 alleging that there is a bunglow known as Hiranvan Kothi within the compound of Jai Vilas Palace, Gwalior. It may be pointed out here that accused No. 1 Madhav Rao Scindia is the present Maharaja of Gwalior. He is the only son of the late Shrimant Jiwaji Rao Scindia who was the Maharaja of Gwalior. Smt. Chitralekha, the complainant alleged that her father Sardar Angre is the private secretary of Rajmata who is the mother of accused No. 1, Madhav Rao Scindia. It is further alleged that in the year. 1973 Rajmata gave the said Hiravan Kothi to her father Sardar Angre in the knowledge of Madhav Rao Scindia, for residence. Since then her father Sardar Angre and his family members have been residing in the said Kothi. The said building was handed over to Sardar Angre orally by Rajmata. Not only this, but in order to regularize the said oral transfer a rent note was executed on 4/9/1979 in the name of the complainant. The accused persons did not like this transfer of possession of the said building to the complainant and her father. The complainant, her father and other family members were residing in the said Kothi on the date of occurrence. On 13. 8. 1983 in between 5-6 p. m. the accused persons No. 2 to 16 alongwith others in order to forcibly take possession of the said Hiranvan Kothi forced their entry in the said Kothi and drove the inmates out of the premises at the point of gun. The complainant had kept 5 dogs also for the safety of thebuilding. On her return back the complainant found that only two dogs were present. The rest three, had been killed or taken away. It was further alleged by the complainant that accused No. 1 (Madhav Rao Scindia) wanted to take forcible possession of the Kothi. Besides, the articles of the complainant, several precious articles of the museum were also kept therein which the accused No. 1 wanted to take in his possession. Madhav Rao Scindia wanted to dispossess Sardar Angre and his family members any how from the premises. The accused Nos. Besides, the articles of the complainant, several precious articles of the museum were also kept therein which the accused No. 1 wanted to take in his possession. Madhav Rao Scindia wanted to dispossess Sardar Angre and his family members any how from the premises. The accused Nos. 1 and 2 at the instance of Madhav Rao Scindia wanted to take forcible possession over the Kothi and the antioues. For this act he had directed accused Nos. 2 and 3 to adopt any means to dispossess. On 11/8/1983 Rajmata proceeded for England. Shri Angre, her private secretary also proceeded for England on 12/8/1983. The family members of Shri Angre and the complainant also left for Delhi to see off Rajmata and Shri Angre. Only domestic servants were present at the house. It is further alleged that accused No. 1 is a member of ruling Congress Party and is also Member of Parliament on Congress ticket and he is in a position to influence the Government and its decision. The complainant received a telephonic message at Delhi on 13/8/1983. She proceeded by Air for Gwalior and reached Gwalior on 15th. A report was lodged at Police Station Jhansi Road, Gwalior also. The name of the accused persons were disclosed, to the police but they did not take any action. The complainant and Smt. Sushma Devi Singh who was the Administrator of Scindia Museum sent telegrams to the M. P. Government intimating them, the criminal activities committed in the palace. ( 3 ) ON the aforesaid ground and set of facts disclosed therein, the criminal complaint was filed against the accused persons. As stated earlier, the Special Judge, before whom the complaint was filed, recorded the statements of Chitralekha, the complainant, (2) Anjirabai w/o Shivaji Rao, (3) Jang Bahadur Singh sb Pancham Singh, (4) Ramesh Pathariya s/o Devilal Pathariya; and (5) Ganpathsingh s/o Prithvi Singh and (6) Narayan Krishna Shejwalkar sb Sri Krishna, Rao Shejwalkar. He directed that bailable warrants be issued against the accused persons. Aggrieved by the said order dated 20/11/1985 the accused persons filed the petition i. e. Criminal Revision No. 185/85. Besides this, a Misc. Criminal Case No. 1862/85 has also been filed u/s. 482 of the Code of Criminal Procedure, pending in this Court, for ouashing the original Criminal (Special) Case No. 145/185 and subsequent proceedings. Aggrieved by the said order dated 20/11/1985 the accused persons filed the petition i. e. Criminal Revision No. 185/85. Besides this, a Misc. Criminal Case No. 1862/85 has also been filed u/s. 482 of the Code of Criminal Procedure, pending in this Court, for ouashing the original Criminal (Special) Case No. 145/185 and subsequent proceedings. ( 4 ) THE circumstances and the facts which have been alleged in the petition under Section 482 Cr. P. C. for ouashing the original criminal case and the order thereon have been challenged on the ground that on analysis we find that the said complaint relates to a Kothi, situated in the campus of Jai Vilas Palace, which is known as Hiranvan Kothi. This Kothi has been said to have been handed over to Shri Angre by Rajmata, for his residential purposes. The said handing over of possession was formally regularized by a written document dated 4/9/1979 which contains the name of the complainant on nominal rent (not filed ). ( 5 ) ACCORDING to the complaint version, in the evening of 13/8/1983 non-petitioners (Accused Nos. 4 to 17) are said to have arrived and drove away the employees of the complainant from the Kothi. It is significant to note that nobody on the side of the complainant was injured. There was not even a scratch on the complainant or anybody. It is also of significance that in the complaint it has not been alleged that the petitioner/complainant was an eye witness or that she was herself present at the time of occurrence. The said complaint does not allege that accused No. 1 Madhav Rao Scindia was present on the spot or he participated in the commission of any crime under Sections 397, 429, 395, 452, 147, 148, 149 and 201 of the I. P. C. So far, the complaint against accused No. 1 Madhav Rao Scindia is concerned, it is only alleged that he entered into a criminal conspiracy with the other accused persons for getting possession over the said Kothi and taking away antioues. The ground upon which the order of the trial Court is challenged is that according to the complainants version and evidence en record there was nothing to show that the petitioner had given any direction to Jang Bahadur Singh for taking possession of the aforesaid Kothi or to help others in taking possession thereof. The ground upon which the order of the trial Court is challenged is that according to the complainants version and evidence en record there was nothing to show that the petitioner had given any direction to Jang Bahadur Singh for taking possession of the aforesaid Kothi or to help others in taking possession thereof. The father of the petitioner was Maharaja Shri Jiwaji Rao Scindia who was the Ruler of the Gwalior State. At the time of formation of Madhya Bharat, in 1948, the petitioners father was Rajpramukh of Madhya Bharat. It is further concerned that Maharaja Jiwaji Rao Scindia died in 1961 and the accused No. 1 is the only son of his father, and he had four sisters out of which one had died. The petitioner (Madhav Rao Scindia) is the Karta-Khandan and Rajmata is a female member of the said joint Hindu family. The criminal complaint and the orders passed thereon are further being challenged on the ground that Hiranvan Kothi was never partitioned and therefore, it continues to remain as a Joint Hindu Family property of which the petitioner (Madhav Rao Scindia) remains the owner. He was the Karta-Khandan. The said Kothi was well furnished arid the entire furnishings belong to the petitioner. His mother lived with him jointly till 1978. The petitioner is a member of the Indian National Congress since 1979. At present, the petitioner Madhav Rao Scindia represents Gwalior Constituency on Congress (I) Ticket and he was also Minister of State for Railways. ( 6 ) PETITIONERS mother was an active member of the Bhartiya Janata Party and she infact, was the Vice-President of All India Bhartiya Janta party. The political differences between the petitioner and his mother gradually became very actuate and Rajmata is said to have actively canvassed against the petitioner. The petitioner's mother Rajmata had filed a civil suit for partition against the petitioner for immovable properties and the said suit is pending in Bombay High Court. It is also said that Shri Angre had filed a criminal complaint against the petitioner and the petitioners wife Maharani Madhvi Raje Scindia at Bombay and he had also filed a criminal complaint for defamation u/s. 500 of the I. P. C. in the Court of Chief Judicial Magistrate, Gwalior against the petitioner. The aforesaid Hiranwan Kothi, according to the complainant version, was given to Shri Angre for residential purposes. The aforesaid Hiranwan Kothi, according to the complainant version, was given to Shri Angre for residential purposes. On 18th October, 1982 in compliance of the wishes of the petitioner (of Misc. Cr. Case No. 1862/85), Shri Angre vacated Hiranvan Kothi and handed over possession to one Shri D. P. Bhargav. It is further alleged that on the request of Shri Mandre, non-petitioner No. 3, the petitioner authorised him to live in Hiranvan Kothi vide letter dated 4/1/1983 (Atmexure-6 ). It was allotted to Shri Mandre. On 6/1/1983 Shri Mandre took possession of Hiranvan Kothi. A list of furnitures, electric fittings, carpets etc. , lying in the Kothi, was prepared. Annexure-10 is the copy of said list. ( 7 ) ACCORDING to the petitioner, Shri Mandre was continuously in possession of the said Kothi since 6/1/1983. The contention of the complainant that he was in possession of the said Kothi on 13/8/1983 is said to be false and incorrect. It has been vehemently argued before me that this Court be pleased to ouash the F. I. R. and the subsequent proceedings before the Court below as it has resulted in miscarriage of Justice and is unnecessarily lingering on. In support of this argument it has been said that the Court of Special Judge has failed to examine the case in its true perspective. Certain facts deserve notice. The complaint relates to a Kothi situated in Jai Vilas Palace compound and is known as Hiranvan Kothi. The complainant Smt. Chitralekha does not claim herself to be the owner of the said Kothi. No proprietory rights arc claimed therein by the complainant Smt. Chitralekha or her father Shri Angre. Shri Angre, father of the complainant alleges that he was private secretary to Rajmata. Rajmata is alleged to have given this premises for the residential purposes to Shri Angre and his family sometime, in 1973 and later on after six years, the possession was formalized by a written document dated 4. 9. 1979. Thus, it is crystal clear that while handing over possession of Hiranvan Kothi no formal document was executed by Rajmata. It was after six years on 4. 9. 1979 that a formal document of tenancy was executed saying it to be a rent note. It is, therefore, clear that at no point of time Smt. Chitralekha or Shri Angre acouired any right or title therein. It was after six years on 4. 9. 1979 that a formal document of tenancy was executed saying it to be a rent note. It is, therefore, clear that at no point of time Smt. Chitralekha or Shri Angre acouired any right or title therein. The status of Shri Angre was also no more than that a private secretary as is clear from the complaint filed by Smt. Chitralekha, the complainant herself. What was the status of Smt. Chitralekha and Shri Angre on the date of occurrence. The occurrence of dacoity and forcible possession is said to have taken place on 13. 8. 1983 between 5-6 P. M. At that time Smt. Chitralekha or Shri Angre had no legal status. All that is said is that Rajmata had orally given them possession of Hiranvan Kothi. They could only be a licensee or tenant. ( 8 ) LET us, therefore see as to who was in actual physical possession of the disputed premises on the alleged date of occurrence and with what right? It is said that accused persons 4 to 16 arrived armed with different weapons and drove away the employees of the complainants and forcibly took possession of the premises (Hiranvan Kothi ). There appears to be some force in the contention of Shri Madhav Rao Scindia that the entire incident has been concocted because if such a large number of persons had dispossessed the complainant and thrown them out of the premises then it was not possible that no injury would have been sustained by the inmates of the house when definitely force was used to dislodge them. Nobody on the side of the complainant (Smt. Chitralekha) was injured and nobody had even a scratch on his body which creates doubt in the prosecution case itself. There is yet another important fact to be noticed. The complainant herself does not say that Sri Madhav Rao Scindia had himself come on the spot or that he was present and participated in the commission of crime. His involvement, therefore, appears to be on reasons other than merit. It is alleged in the complaint that he entered into criminal conspiracy for the commission of the aforesaid offences. There is no allegation in the complaint itself that he gave any direction to anybody to take forcible possession of the premises, known as Hiranvan Kothi or that he committed dacoity. It is alleged in the complaint that he entered into criminal conspiracy for the commission of the aforesaid offences. There is no allegation in the complaint itself that he gave any direction to anybody to take forcible possession of the premises, known as Hiranvan Kothi or that he committed dacoity. There was no sufficient justification for the Special Judge to have directed the issuance of bailable warrant against him. ( 9 ) THERE is another aspect of the case. The father of Shri Madhav Rao Scindia was the Ruler of the then Gwalior State. On the formation of Madhya Bharat in the year 1948 he became Rajpramukh of Madhya Bharat. His father died in the year 1961 and Shri Madhav Rao Scindia happened to be the only son of his father. He had four sisters out of which one had died. The result is that Shri Madhav Rao Scindia, by operation of law, became the head of the family. Rajmata was just a female member of Joint Hindu Family. The premises, in question, namely, Hiranvan Kothi has also never been partitioned and consequently it continues to remain as a Joint Hindu Family property of which Shri Madhav Rao Scindia was the head and being head of the family and owner of the premises he could not have committed robbery or theft in respect of his own property which was situated therein. ( 10 ) IT has been argued before me that the entire furnishing and pieces of decoration and articles of antioues, belonged to him. Thus, his status was that of a co-owner in which Smt. Chitralekha or Shri Angre do not have any ownership right. Even Rajmata continued to live with Shri Madhav Rao Scindia jointly till 1978. Per chance, there arc deep political differences between Rajmata and Madhav Rao Scindia, Rajmata had filed a suit for partition in respect of immovable properties of the family. The said proceedings arc said to be pending in Bombay High Court and Shri Angre had also filed a complaint against Shri Madhav Rao Scindia and his wife at Bombay. The copy of said complaint is Annexure-4 (of Cr. Misc. Case No. 1862/85 ). Not only this. but Shri Angre had also filed a complaint for defamation against Shri Madhav Rao Scindia and the same is said to be still pending (Cr. The copy of said complaint is Annexure-4 (of Cr. Misc. Case No. 1862/85 ). Not only this. but Shri Angre had also filed a complaint for defamation against Shri Madhav Rao Scindia and the same is said to be still pending (Cr. Case No. 25.) Thus, it is crystal clear that the relations between the parties were strained mid cannot be said to be cordial. ( 11 ) JANGBAHADUR Singh Sb Panchamsingh was examined as P. W. 3 in the criminal case before the Special Judge. It is on his statement that process has been issued against Shri Madhav Rao Scindia. The said Jangbahadur Singh has been associated with Bhartiya Jansangh and now the Bhartiya Janta Party. He had taken part in several movements. He is said to have violated the order passed under Sec. 144 Cr. P. C. passed by the then Collector. Bhind on 18/9/1971 alongwith 295 other Jansangh workers. A case was registered against him under Sec. 188 I. P. C. and he was sentenced to seven days imprisonment. On 3/7/1972 he is also said to have started a Dharna in front of Vidhan Sabha against Shimla Accord and rising prices. On 1/8/1974 he actively participated in a public meeting in Bhind, organized by Bhartiya Jansangh. On 31/1/1977 he was nominated as an executive member of the party and on 29/1/1980 he is said have been nominated as member of executive Body of Gohad Mandal B. J. P. On 2. 5. 1981 he handed over purse of Rs. 25,000/- collected by him mid other B. J. P. members to the President of B. J. P. These allegations arc made in para 5 of Cr. Misc. Case No. 1862/85. They have not been rebutted. These facts have been introduced in the petition only to show that Jangbahadur Singh (P. W. 3) was not an independent witness and the Special Judge committed an error in placing reliance on his statement. Misc. Case No. 1862/85. They have not been rebutted. These facts have been introduced in the petition only to show that Jangbahadur Singh (P. W. 3) was not an independent witness and the Special Judge committed an error in placing reliance on his statement. Shri Madhav Rao Scindia would have never placed reliance on him and would never have asked for his assistance to throw out the complainant Smt. Chitralekha and Shri Angre: ( 12 ) IT was vehemently argued before me that Shri Jangbahadur Singh was actually a member of Jansangh or B. J. P. and he has been deliberately introduced as a witness in this case to support the complainant Smt. Chitralekha by presenting that Shri Jangabahadur Singh was actually a man of Madhav Rao Scindia. He has stated in the Court before the Judge that he was a man of Shri Madhav Rao Scindia who had taken him in confidence and wanted his help to take possession of the premises (Hiranvan Kothi ). There appears to be no force in it. Had he been the man of a confident of Madhav Rao Scindia he would not have tried to put him behind bars and supported the story of forcible dispossession. ( 13 ) THE premises (Hiranvan Kothi) is also said to have been given to Shri S. C. Angre by Shri Madhav Rao Scindia temporarily. On 18th October, 1982 in compliance of wishes of Shri Scindia he, vacated the premises and handed over possession to Shri O. P. Bhargav, the then Secretary to Shri Madhav Rao Scindia. It is said that on the request of Shri Mandre, non-petitioner No. 3, who was Manager of Usha Kiran Palace Hotel, Shri Madhav Rao Scindia authorised him to live in Hiranvan Kothi vide letter dated 4. 1. 1983 (Annexure-6) and the said -. premises was allotted to Shri Mandre vide Annexure-7 On 5. 1. 1983 Shri Mandre addressed a letter to Shri O. P. Bhargav in connection With this premises which is Annexure-8. Shri Bhargav had sent a letter to Shri Mandre directing him to get a detailed inventory of the articles of the Kothi prepared. Copy of that letter is Annexure-9. On 61. 1983 Shri Mandre took possession of Hi ran van Kothi and list of furnitures, electric fittings, carpets etc. lying in the Kothi was prepared, copy of which is Annexure-10. Shri Bhargav had sent a letter to Shri Mandre directing him to get a detailed inventory of the articles of the Kothi prepared. Copy of that letter is Annexure-9. On 61. 1983 Shri Mandre took possession of Hi ran van Kothi and list of furnitures, electric fittings, carpets etc. lying in the Kothi was prepared, copy of which is Annexure-10. Shri Mandre is said to be continuously in possession of the said Kothi since 6/1/1983. On 13. 3. 1983, the petitioner Shri Madhav Rao Scindia was in Delhi and had not come to Gwalior till that date. He could not have been present at Gwalior as he had met with a serious accident on 5. 7. 1982 and sustained a fracture in his right foot which remained plastered for about five weeks. He was under treatment of one Dr. Dave. Head of the Orthopaedies Department in All India Institute, at Delhi. Copy of the prescription prescribed on 12/8/1983 by the said doctor has been filed as Annexure-12. ( 14 ) SHRI Madhav Rao Scindia's private secretary came to know on 13/8/1983 that certain persons of Shri Angre were trying to take possession of the Hiranvan Kothi. He sent a letter informing the town inspector of Jhansi Road police station for police protection. Copy of this letter in Annexure 13. Shri Scindia, on the other hand had alleged that on 13. 8. 1983 Shri Angre had come alongwith 20-25 persons armed and they entered into the premises of the Kothi and started ransacking the same. Shri Mandre was present at thai time who immediately informed police station Jhansi Road, Gwalior at 5. 25 p. m. Police arrived at the spot. An, entry was made in the Sanha which is Annexure-15. Shri Mandre lodged a report with the police, copy of which is Annexure-16. ( 15 ) IN the complaint, Annexure-1 a reference is made to a report lodged by Smt. Sushma Devi Singh, step sister of Rajmata. This report was lodged by Smt. Sushma Devi on 14. 8. 1983 and Annexure-19 is the copy thereof. This report was made after 24 hours of the occurrence if any, had taken place and was made in writing. There is not even a suggestion about the presence of Madhav Rao Scindia being associated in any manner whatsoever. This report was lodged by Smt. Sushma Devi on 14. 8. 1983 and Annexure-19 is the copy thereof. This report was made after 24 hours of the occurrence if any, had taken place and was made in writing. There is not even a suggestion about the presence of Madhav Rao Scindia being associated in any manner whatsoever. This fact was withheld that Shri S. C. Muley had also lodged report with the police Jhansi Road on 14. 8. 1983. A copy of the said report is Annexure-21. In this report also the name of Shri Madhav Rao Scindia was not mentioned. This shows that his name was dragged subsequently without any basis. ( 16 ) POLICE Station Jhansi Road filed a case under Sections 145, 107 and 116 (3) of the Code of Criminal Procedure in the Court of Additional District Magistrate, Gwalior on 14. 8. 1983 regarding the dispute relating to Hiranvan Kothi. Annexure 22 is the copy thereof. All this shows that the entire dispute, if any, was of civil nature. It has been given a colour of criminal proceedings only to put pressure on Shri Madhav Rao Scindia. I have also no doubt in my mind that the entire dispute is of civil nature and has unnecessarily been given a criminal colour. ( 17 ) THERE are certain other facts which deserve notice and which will also throw light on the position of the claim by the respective parries. House tax of the aforesaid premises for the period 1/8/1981 to 21/3/1983 was paid by Shri Madhav Rao Scindia on 2/6/1983. A copy of the said receipt is Annexure-24. Likewise electricity connections in the premises were in the name of the private secretary of Shri Madav Rao Scindia, namely Mahendra paratap Sing, non-petitioner No. 4. Electricity charges payment receipts are annexure-25. Telephone connection was installed in the said buildings in the name of Rajpramukh. Telephone bills were paid by the petitioner Shri Madav Rao Scindia receipts of which are Annexure-24. So is the case with water connection installed in the said building which is in the name of the petitioner Madav Rao Scindia. Water charges payment were made by Shri Scindia receipts of which are cumulatively marked as Annexure-27. Telephone bills were paid by the petitioner Shri Madav Rao Scindia receipts of which are Annexure-24. So is the case with water connection installed in the said building which is in the name of the petitioner Madav Rao Scindia. Water charges payment were made by Shri Scindia receipts of which are cumulatively marked as Annexure-27. All the aforesaid documents referred above leave no room for doubt that essentially the entire dispute is of civil nature and can be properly and finally decided by the civil Court. For the reasons best known to the parties themselves it has been given a criminal colour and the only inference is that it was done to build pressure on the accused persons. ( 18 ) THE allegation that the antioues were loafed and tried to be smuggled out of the country from the museum of the palace also has not received proper attention. There is no document on record to show that these antioue articles were purchased or owned by Maharani Scindia. There is no doubt on this point that the articles have not been declared as antioues by the Central Government and they were found in the palace-museum. It is not surprising that antioues were found at the palace-museum, Gwalior is an old Princely State. There is no evidence to show that Shri Angre had stolen them or that he was trying to sell these antioues at different places, Rajmata, being the real mother of Shri Madhav Rao Scindia is residing in the palace in that capacity. Shri Madhav Rao Scindia appears to behead of the family. It is family dispute which unfortunately has been brought on the road and the allegations and counter allegations are being made to create ornamental disputes of criminal nature. Justice demands that the criminal complaint and the issuance of notice/warrants in respect thereof should be ouashed and that the parties may be allowed to live in peace and set their matters decided in the proper Court. Much water has also flown since the filing of the complaint. I therefore in the interest of Justice and to undo the wrong done of Shri Scindia, think it fit to ouash the complaint (Cr. Special Case No. 145/85) filed by Smt. Chitralekha against the accused persons and also to ouash the order dated 20. 11. Much water has also flown since the filing of the complaint. I therefore in the interest of Justice and to undo the wrong done of Shri Scindia, think it fit to ouash the complaint (Cr. Special Case No. 145/85) filed by Smt. Chitralekha against the accused persons and also to ouash the order dated 20. 11. 1985, passed by Special Judge, Gwalior in the aforesaid complaint, regarding issuance of bailable warrants against so called accused persons. Criminal Miscellaneous Case No. 1862 of 1985 and Criminal Revision No. 185 of 1985 are, therefore, allowed. The complaint filed by Smt. Chitralekha (Cr. Special Case No. 145/85) pending in the Court of Special Judge, Gwalior against Shri Madhav Rao Scindia and others is ouashed and the order dated 20. 11. 1985 passed in the said complaint for issuance of bailable warrant against the accused per sons, is also ouashed. ( 19 ) THE trial Court has given its consent vide order dated 24/1/1991 for withdrawal from the prosecution in S. T. No. 86 of 1986 against which Criminal Revision No. 35 of 1991 is also pending. The facts of the Tcase which give rise to the present revision (Criminal Revision No. 35 of 1991) are that on 5. 5. 1982 the petitioner, who also happened to be the private secretary of Shri Madhav Rao Scindia, lodged a complaint to the effect that Maharaja Shrimant Jiwaji Rao Scindia Museum, situate in the premises of Jai Vilas Palace, Gwalior is being run by Mannu Raje Public Charitable Trust. The articles which have been loaned and kept in the museum, belong to Shri Madhav Rao Scindia. It was alleged that in the year 1975-76 Shri Madhav Rao Scindia made a declaration to the Registration Authority. A Department of Archaeological and Museum, Government of India, which includes the articles of personal ownership, placed in the museum, for display. It was further alleged that on his visit to the museum he found that various articles are missing from the galleries of the museum. On 3. 6. 1982 in continuation of his previous complaint, the petitioner further complained that he has come to know from reliable source that Shri S. C. Angre and Shri Dhyanendra Singh are trying to sell the valuable and antioue articles which were removed from the museum in a clandestine manner to antioue dealers. On 3. 6. 1982 in continuation of his previous complaint, the petitioner further complained that he has come to know from reliable source that Shri S. C. Angre and Shri Dhyanendra Singh are trying to sell the valuable and antioue articles which were removed from the museum in a clandestine manner to antioue dealers. ( 20 ) IT was alleged that the articles were taken first to Delhi but as they are the only specimen of their, kind, available in the world, none in Delhi agreed to purchase them. Therefore, they were brought back to Gwalior and there was likelihood that respondent No. 2 (Sambhaji Rao Angre) will try to smuggle them out of the country. On the basis of the said complaint, a Criminal Case No. 135/82 was registered by respondent No. 1 under Sections 457, 380 and 120-B of the I. P. C. and Section 25 (1) of the Antiouities and Art Treasures Act, 1972 and Section 23 read with Sec. 29 of the M. P. Ancient Monuments And Archaeological Sites and Remains (Amendment) Act, 1970. ( 21 ) DURING investigation one Ashok Kumar son of Kishorilal was found to be as co-accused in the above mentioned offences. His statement was recorded before Judicial Magistrate First Class, Gwalior. During investigation the valuables which were stolen from the museum were seized from the accused persons and the same were kept in a locked room in Jai Vilas Palace, Gwalior. The Chief Judicial Magistrate, Gwalior registered a case (Criminal Case No. 3603/83) on 19. 3. 1984. The pardon was offered to the accused Ashok Kumar which was accepted and then after, the presentation of the challan, Ashok Kumar was again examined on 11. 3. 1984 and 2. 5. 1984 wherein he stated as to how and when offence was committed by the accused persons. The case was committed to the Court of Session by the Chief Judicial Magistrate, Gwalior on 5. 4. 1986. On 26. 6. 1986 the charges were framed against accused persons under Sections 120-B, 457 and 380 of the I. P. C. Section 25 (l) of the Antiouities And Art Treasures Act, 1972 and Section 23 (A) sub Sections (a), (b) and (c) of the Ancient Monuments and Archaeological Sites and Remains Act, 1970. Against the order of framing of the charge a revision (Criminal Revision No. 126/86) was also filed which was dismissed on 26. 8. Against the order of framing of the charge a revision (Criminal Revision No. 126/86) was also filed which was dismissed on 26. 8. 1983. Thus, so far the question of framing of charges under aforesaid offences are concerned, it was a closed chapter. Now it cannot be agitated before this Court. ( 22 ) HOWEVER, the prosecution engaged a senior Counsel Shri. J. P. Gupta as a Special Public Prosecutor and two other Counsels namely Shri L. K. Nanhore and Shri Rambabu Tiwari. After a change in the Government, the order of appointment of Shri J. P. Gupta was terminated. Likewise, appointments of Shri L. K. Nanhore and Shri Rambabu Tiwari were also terminated. On 3. 8. 1990 Kumari Shanti Shrivastava, Advocate appeared in the Court and informed the Court that no witness has turned up and the case may be adjourned. Kumari Shanti Shrivastava, Advocate was appearing as Assistant Public Prosecutor. Later on, Shri Mahipal Singh Bhadauriya appeared on behalf of the prosecution and submitted that Government has terminated the appointment of Special Public Prosecutor Shri J. P. Gupta with mala fide intention and, therefore, he be permitted to engage a lawyer through an Advocate of his confidence Shri M. P. S. Bhadauriya examined one of the important witnesses namely Ashok Kumar son of Kishorilal to support the version of the respondent and on that particular date Shri Dhyanendra Singh, Minister of Water Resources and Development in the Government of Madhya Pradesh at that time also remained present who otherwise always remained absent in Court. ( 23 ) ON 17. 1. 1991 Shri Bhadauriya moved an application under Section 321 of the Code of Criminal Procedure and requested the Court that in public interest he be permitted to withdraw the case. The learned Court heard arguments and fixed the case for orders on 24. 1. 1991 and on that date the petitioner moved an application and opposed the appointment of Shri M. P. S. Bhadauriya. The learned Judge allowed the application of Shri Bhadauriya and discharged the accused. The petitioner, therefore, has challenged validity of the said impugned order dated 24. 1. 1991 on the ground that the order passed under Section 321 of the Code of Criminal Procedure is totally without jurisdiction. Under Section 321 Cr. The learned Judge allowed the application of Shri Bhadauriya and discharged the accused. The petitioner, therefore, has challenged validity of the said impugned order dated 24. 1. 1991 on the ground that the order passed under Section 321 of the Code of Criminal Procedure is totally without jurisdiction. Under Section 321 Cr. P. C. in the proviso it is provided that if the offence (i) was against any law relating to a matter to which the executive power of the Union extends, or. . . . and the prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution. ( 24 ) IT was argued that the prosecutor, in charge of the case was not appointed by the Central Government and was not permitted by the Central Government to move such an application. In this case, the withdrawal of the case was moved on the following grounds: (a) The case is of the year 1982; (b) The statement of Ashok Kumar has been recorded by the Court wherein it has been stated that his statement has been recorded by the police forcibly and he has not supported the case of the prosecution; (c) The statement of Satyanarayan Gupta who happened to be an eye witness of the incident has also been recorded by the Court and he has not supported the story of the prosecution; and (d) The witness Vasudev Pande who was a witness of seizure, has already expired. The learned Judge after considering the application and hearing the parties granted the consent on the ground that:- (a) the case of the prosecution is pending since long; (b) the evidence which has come on record is a negative evidence; and (c) the prosecution has already spent a huge public money and time. The learned Judge after considering the application and hearing the parties granted the consent on the ground that:- (a) the case of the prosecution is pending since long; (b) the evidence which has come on record is a negative evidence; and (c) the prosecution has already spent a huge public money and time. ( 25 ) THE order of the learned Judge has been challenged on the ground that there were 84 witnesses cited in the list of prosecution witnesses out of which only two were examined and there was no occasion for the trial Court to come to the conclusion that because of the negative evidence of two witnesses there is no force in the prosecution case. The Judge has given reasons for granting his consent. It is significant to note that it is not the case of the petitioner that the Special Judge who has examined the witnesses and had framed charges had no right or jurisdiction to decide the case finally. The fact that out of 84 witnesses only two were examined besides the approver and charges were framed, shows that it was not necessary to examine all the witnesses. The Judge was satisfied that a prima facie case was made out after recording statements of the two witnesses and the approver. The order framing charges against the accused persons was challenged before the High Court in Criminal Revision No. 126/86 and that revision was rejected by the High Court. ( 26 ) THE result is that it is no longer open to the petitioners to say that the trial Court had not experted the list of all the witnesses. It was not necessary because after recording the statements of some witnesses and the approver the Court found a prima facie case made out and charges were framed. This order was challenged in the High Court which was confirmed. ( 27 ) RELIANCE was placed in a case reported in Balwant Singh v. State of Bihar. The Honble Supreme Court has held that the sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is larger factor of Administration of Justice. Not political favour nor party pressure nor like concerns. ( 27 ) RELIANCE was placed in a case reported in Balwant Singh v. State of Bihar. The Honble Supreme Court has held that the sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is larger factor of Administration of Justice. Not political favour nor party pressure nor like concerns. It is further held by the Hontble Supreme Court that 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. Again it was said that while deciding the application under Sec. 321 Cr. P. C. administration of Justice and public interest are paramount consideration. It was also vehemently argued before me that the provisions of Section 321 Cr. P. C. cannot be attracted in this case because of the first proviso that the offence was against Law relating to a matter to which the executive power of the Union extends and against the Judge (who) framed charges without exhausting the entire list of the prosecution witnesses and, therefore, the order granting consent was bad. The argument is attractive but not sound. In State of Orissa v. Chandrika Mohpatara and others, it was held that the interest of administration of justice is the touch-stone of the case. This Court cannot act as a Court of appeal. This Court can interfere only when there is an abuse of power by the public prosecutor and not function as an appellate Court. In The State of Bihar v. Ram Naresh Pandey and another it has been held that this function of giving the consent of the Court is a Judicial function. The Court must exercise Judicial discretion. This does not mean that the Court should decide the matter judicially. The Court has only to give its consent and not to determine the matter judicially. This Court will not function as a fact finding authority but if the Court finds that it is a case of abuse of power by the public prosecutor then the consent will not readily be granted. My attention was also drawn to Article 73 of the Constitution that the executive power of the Union extends to the matters to which Parliament has power to make laws and Article 246 (1) makes it clear that:. . ;. My attention was also drawn to Article 73 of the Constitution that the executive power of the Union extends to the matters to which Parliament has power to make laws and Article 246 (1) makes it clear that:. . ;. p246 (1) - Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I and in the Seventh Schedule (in this Constitution referred to as the Union List ). In answer to it, it was argued that the State Government was under an obligation to protect the monuments, or place or object of artistic or historic interest, declared by or under law made by Parliament to be a national importance. The obligation lies on the State Government to protect every monuments, its spoilation, disfigurement, destruction removal disposal or export as the case may be. Simply because nil Act has been passed by the Parliament does not take away the responsibilities of the State Government from discharging its duties under this Article. ( 28 ) IN the present case, there is no notification by Legislation to the effect that the articles concerned were of national importance and, therefore, it cannot be said to be included in Entry 12 of the II List (State List ). In the absence of any notification of Legislation the State Government is not competent to make any Acts under Entry 12 of the II List. It-was the State Government who was empowered to Legislate and take action in accordance with Sections 23 (A), (B) arid (C ). Under Entry 12 of the State List the State Government has power to make laws in respect of articles, in question, therefore, the executive power of the Union shall extend thereto. The Madhya Pradesh State has already enacted Act No. 12 of 1964 regarding Ancient Monuments and Archaeological Sites and Remains. Consequently, it cannot be said that Parliament was competent to make laws and, therefore, the provisions under Sec. 321 Cr. P. C. will not be attracted regarding withdrawal of the case. ( 29 ) IT shall be the obligation of the State to Protect every monuments or place or object of artistic or historic interest, declared by under law made by Parliament to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export. P. C. will not be attracted regarding withdrawal of the case. ( 29 ) IT shall be the obligation of the State to Protect every monuments or place or object of artistic or historic interest, declared by under law made by Parliament to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export. It was an obligation under Article 49 of the Constitution, and, therefore the public prosecutor was competent to make an application for withdrawal of the case. The salient articles may be 100 years old or more and fall within the definition of antiouity but it cannot be said to be of national importance under Entry 12 of the State List. The result is that the case is not covered under first proviso to Section 321 Cr. P. C. ( 30 ) THE specified offences are mentioned in Section 2 (f) of M. P. Dakaiti Aur Byapharan Prabhavit Kshetra Adhiniyam 1981. Special Courts are constituted in accordance with Section 6 of the Act. Sub-section (3 ). of Section 6 deals with the appointment of a Judge who will preside over the special Court and Section 8 provides the procedure and powers of the Special Courts. The procedure to be adopted by the Special Court is contained in Sub-section (2) of Section 8 and that is the procedure to be followed for trial in the Code of Criminal Procedure. ( 31 ) PENDING proceedings will not be affected by the deletion of any proviso subsequently. Gwalior district was withdrawn from the notification after 1984. Prospective operation will be given after the deletion, if the proceeding was pending it will not affect a pending case by virtue of Section 29 of the Code. The Amendment Act did not contain any saving clause with the result that only prospective operation can be given. ( 32 ) IF cognizance had been taken by the Court, the amendment in the notification for withdrawal of the Gwalior district will not make any affect as the provision has already come into operation. Retrospective operation can be given only in accordance with the substantive law. Only when retrospective operation is given by the statute then retrospective operation can be given and the statute itself has to show that a retrospective effect has been given to any provision. A new law regarding pending forum does not change the jurisdiction and, maintainability of the forum. Retrospective operation can be given only in accordance with the substantive law. Only when retrospective operation is given by the statute then retrospective operation can be given and the statute itself has to show that a retrospective effect has been given to any provision. A new law regarding pending forum does not change the jurisdiction and, maintainability of the forum. Thus, besides the specified offences the allied offences could also be taken care of by the Special Judge. ( 33 ) M. P. Dakaiti Aur Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 contains both parties of the law and consequently, the provisions of section 202 of the Code of Criminal Procedure are not attracted in this case. The offences under Act 36 of 1981 are triable by Special Judge as defined in Section 2 of the Act. Under Section 202 of the Code of Criminal Procedure, in its proviso the provisions are that the offences complained of should be triable exclusively by the Court of Session and it is only then when the Magistrate is reouired to call upon a complainant to produce his witnesses and examine them on oath. If the offence is not exclusively triable by the Sessions Judge then the Magistrate was not reouired to ask the complainant to exhaust the list of his witnesses. The offences if triable exclusively by the Sessions Judge will be covered under proviso-2 of Section 202. If the offence was triable by a Special Judge then he was a distinct authority other than the Sessions Judge and the provision of Section 202 will not be attracted. Therefore, the fact that the entire list of the witnesses was not exhausted by the Special Judge will not make any difference and will not make the order illegal. The list of entire set of witnesses is to be exhausted only when the case is triable by the Court of Session. Provisions of Section 203 of the Code of Criminal Procedure are not applicable in the case because the Special Judge himself referred to perform the functions of a Magistrate under Section 207 of the Cr. P. C. and proceed to try the case and, therefore, the proceedings under the Code of Criminal Procedure for the commitment of the case will not be attracted. P. C. and proceed to try the case and, therefore, the proceedings under the Code of Criminal Procedure for the commitment of the case will not be attracted. ( 34 ) IN view of what has been said above, I think the order granting permission to withdraw the case is not liable to be set aside and the case has already come to a close. The Criminal Revision No. 35 of 1991 is accordingly, dismissed. ( 35 ) IN S. T. No. 86 of 1986 the learned Judge on 24. 1. 1991 has ordered that the attached properties be returned to the Scindia Museum after the disposal of the appeal or revision. Feeling aggrieved against that the appellant has filed a Criminal Appeal (M. M.) No. 187 of 1992, under Sec. 454, of the Code of Criminal Procedure before this Court. The facts giving rise to this appeal are that on 5. 5. 1982, the petitioner of Cr. Revision No. 35/9. 1, namely Mahendra Pratap Singh who also happened to be the private secretary Of Shri Madhav Rao Scindia, lodged a complaint to the effect that Maharaja Shrimant Jiwaji Rao Scindia Museum, situated in the premises of Jai Vilas Palace, Gwalior, is being run by Marum Raje Public Charitable Trust. The articles which have been loaned and kept in the museum belonged to Shri Madhav Rao Scindia. It was alleged that in the year 1975-76 Shri Madhav Rao Scindia made a declaration to the Registration Authority. A Department of Archaeology and Museum, Government of India, which includes the articles of personal ownership, placed in the museum for display. It was further alleged that in his visit to the museum he found that various articles are missing from the museum. On 3. 6. 1982 in continuation of his previous complaint the complainant Mahendra Pratap Singh further complained that he has come to know from reliable source that Shri S. C. Angre and Shri Dhyanendra Singh are trying to sell the valuables and antioue articles which were removed from the museum, in a clandestine manner to antioue dealers. ( 36 ) IT was alleged that the articles were taken first to Delhi but as they were the only specimen of their kind, available in the world, none in Delhi, agreed to purchase them. Therefore, they were brought back to Gwalior and there was likelihood that respondent No. 2 (of Cr. Rev. ( 36 ) IT was alleged that the articles were taken first to Delhi but as they were the only specimen of their kind, available in the world, none in Delhi, agreed to purchase them. Therefore, they were brought back to Gwalior and there was likelihood that respondent No. 2 (of Cr. Rev. No. 35/91) will try to smuggle them out of the country. ( 37 ) ON the basis of the said complaint, a Criminal Case No. 135/82 was registered by P. S. Jhmlsi Road, Gwalior under Sections 457, 380 and 120-B of the I. P. C. Section 25 (1) of the Antiouities And Art Treasures Act, 1972 and Section 23 read with Sec. 29 of the M. P. Ancient Monuments and Archaeological Sites And Remains (Amendment) Act, 1970. The challan was filed in the Court and the C. J. M. Gwalior registered a Criminal Case No. 3603/83. The case was then committed to the Court of Sessions by the C. J. M. , Gwalior on 5/4/1986. The Addi. Sessions Judge has given its consent vide order dated 24/1/1991 for withdrawal from the prosecution in the case (S. T. No. 86/86) deciding the application under Section 321 of the Code of Criminal Procedure, moved on behalf of the State and in view of the discussions made above, that order of withdrawal of the case has been upheld by this Court. ( 38 ) THE learned Judge vide the same order dated 24/1/1991 had directed that the properties be returned to the Scindia Museum after the disposal of the appeal or revision; that has been done now (Criminal case filed against Shri Angre and others stands disposed of as a result of the withdrawal of the case by the State and the dismissal of the revision against the order of withdrawal ). Naturally, therefore, the articles have to be kept in the museum where they were kept from before. The Administration will see that those articles are safe and preserved in a proper manner. The impugned order dated 24/1/1991 does not need any modification. Several cases are pending between the parties. The articles shall be returned to the real owner after the decision. The Criminal Appeal (M. M.) No. 187 of 1992 filed under Section 454 of the Code of Criminal Procedure does not call for any interference and is, accordingly, dismissed. The impugned order dated 24/1/1991 does not need any modification. Several cases are pending between the parties. The articles shall be returned to the real owner after the decision. The Criminal Appeal (M. M.) No. 187 of 1992 filed under Section 454 of the Code of Criminal Procedure does not call for any interference and is, accordingly, dismissed. ( 39 ) AS a result of the discussion of evidence on facts and law out of the above four cases Criminal Misc. Case No. 1862 of 1985, u/s. 482 of the Code of Criminal Procedure and Criminal Revision No. 185 of 1985 stand allowed; and Criminal Revision No. 35 of 1991 and Criminal Appeal (M. M.) No. 187 of 1992 are dismissed. Revision dismissed. .