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1995 DIGILAW 116 (GAU)

Prabhat Kumar Bhuyan v. State of Assam

1995-06-13

B.N.SINGH NEELAM

body1995
This criminal revision petition is so filed under sections 397/401 read with section 482 of the CrPC against the order dated 11.12.91 passed by the learned Sessions Judge, Silchar in Criminal Revision No.24 (2)/90 by virtue of which he has reversed the order dated 19.4.90 passed by Assistant Sessions Judge, Silchar, by which he has rejected the prayer so made by the learned PP for withdrawal of the Sessions Case No.22 (S-S)/1988. Since the learned Sessions Judge vide his order dated 11.2.91 has set aside the order of the Assistant Sessions Judge by which premission for withdrawal of the sessions case was not accorded and since the learned Sessions Judge has held that the sessions case in question pending before the learned Assistant Sessions. Judge, is treated as withdrawal, this criminal revision petition is so filed with the prayer that the impunged order so passed-by the learned Sessions Judge be set aside and the order so passed by the learned Assistant Sessions Judge not giving the premission for withdrawal in the background to the circumstances discussed by the learned Assistant Sessions Judge be restored. 2. Mr.PG Baruah, learned counsel for the petitioner by pressing into service the grounds so taken in this revision petition for interference of the order of the learned Sessions Judge, has submitted that at the time of filing of the petition by the learned PP for withdrawal of the case, the PP did not apply his mind, the ground for withdrawal of the case is also not mentioned therein and mechanically the said petition was so filed and thus the learned Assistant Sessions Judge was perfectly justifying not according consent for withdrawal. On basing his findings on surmises which is thus fit to be set aside, in support of his contention the ' learned counsel for the petitioner Mr.Baruah has referred to some reported cases which are as follows : Subhash Chandra vs. State of Chandigarh Administration & others, (1980) 2 SCC 155 where it is pointed out that withdrawal under section 321 CrPC is justified only if it is based of pertinent consideration and actual application of mind by the PP or APP. The consent of the Court under section 321 of the CrPC is a condition for consideration which is so imposed as a check on the exercise of the PP's power. The consent of the Court under section 321 of the CrPC is a condition for consideration which is so imposed as a check on the exercise of the PP's power. In the instant case it is submitted that the learned PP has simply obeyed the decision of the Government without applying his mind and mechanically petition for withdrawal of the case so filed by him before the Assistant Sessions Judge which was rightly not accepted. He has referred to another decision in the case of Munindra Chandra Karamakar vs. State of Tripura (1987) 1 GLR 243. Mr.Baruah has further pointed out that this power is to be exercised with reference to material before the Court and not mechanically. In such case, the prosecution represented by the PP must show his application of mind giving reasons for such withdrawal in his petition so moved on behalf of the prosecution seeking the consent of the Court for the withdrawal which in the instant case has not been done. The third reported case which has been cited is reported in 1993 Criminal Law Journal 437, State of Orissa vs. Bijanaranjan Singh Bariha & others. Lastly Mr.Baruah has relied upon the decision of a recent case'(l994) 4 SCC 299, Achuthanandand Pillai vs. R. Halakrishna & others. By particularly referring to its paragraph 11, it is submitted that the administrative file of the State does not form part of the record of any case and any suggestion so coming from the State Government is to be looked into by the PP which is a material factor for his making a prayer for withdrawal of a particular case and in the instant case since there is no application of mind so made by the PP rather the petition be filed mechanically, the learned Assistant Sessions Judge had rightly not giving his consent for withdrawal of the case and the learned Sessions Judge as revisional Court has erred in taking different view. 3. Mr. JM Choudhury, learned counsel for the respondent has also conceded to this submission. By plain reading of the withdrawal petition so coming from the prosecution side it transpires that nowhere it has been incorporated therein that the learned PP has also applied his mind detailing the ground for withdrawal of the case. 4. 3. Mr. JM Choudhury, learned counsel for the respondent has also conceded to this submission. By plain reading of the withdrawal petition so coming from the prosecution side it transpires that nowhere it has been incorporated therein that the learned PP has also applied his mind detailing the ground for withdrawal of the case. 4. Taking into consideration the facts discussed above and after hearing the learned counsel for the parties and also keeping in mind the reported cases so cited on behalf of the petitioner, I hold the view that the impugned order so passed by the learned Sessions Judge in Criminal Revision No.24 (2)/90 dated 11.12.91 requires interference. The impugned order dated 11.12.91 is thus hereby set aside and the order so passed by the learned Assistant Sessions Judge which is dated 18.4.90 in Sessions Case No.22 (S-S)/88 not giving his consent of withdrawal of the case is restored. 5. This criminal revision petition is allowed and accordingly disposed of. However before parting with the order it is observed that the PP in any case is at liberty as to make a prayer for withdrawal of the case seeking the consent of the Court at any time before the judgment is so pronounced strictly accordingly to the provisions of section 321 of the CrPC.