Daya Nand Singh v. State of Bihar — 1996 DIGILAW 398 (PAT)

Judgment I.P. Singh, J. This application in revision under sections 397 and 401 of the Code, of Criminal Procedure (in short the ‘Code’) is directed against the order dated 1.3.1988 passed by Shri A.R. Ansari, Judicial Magistrate, 1st Class, Arrah in G.R. Case No. 689 of 1979 Tr. No.356 of 1988 (the State Vrs. Ram Awadhesh Singh and others) by which the learned Magistrate allowed a petition filed by the learned Assistant Public Prosecutor filed under section 321 of the Code as a result of which all the accused persons (Opposite Party nos. 2 to 7) were acquitted. The informant is the petitioner before me. 2. From the prosecution case it appears that the informant had submitted a written petition before the Officer Incharge Udwantnagar Police Station on 2.4.1979 alleging therein that on the same day at 6 A.M. while the petitioner was going towards his Khalihan to attend the call of nature be saw opposite party nos. 2 to 7 up rooting the gram crop from his field. When the petitioner protested opposite party no. 6 ordered to kill him. On this opposite party no. 2 fired his gun on the informant but the shot did not hit him. In the meantime, father of the informant reached the spot and he was also assaulted by opposite party no. 5 by the butt of the pistol. On the basis of the aforesaid statement police instituted a case under sections 147, 148, 149, 323 and 307 of the Indian Penal Code against opposite party nos. 2 to 7. After completing the investigations the police submitted the charge sheet under the aforesaid sections against opposite party nos. 2 to 7. 3. On 14.6.1979 opposite party nos. 2 to 7 tiled an application before the Chief Judicial Magistrate, Arrah stating therein that no case under section 307 of the Indian Penal Code was made out against them and, therefore, no cognizance against them should be taken under this section. The learned Chief Judicial Magistrate, however, rejected this prayer of opposite Party nos. 2 to 7 and by the order dated 18.8.1979 took cognizance against them under the aforesaid sections including section 307 of the Indian Penal Code. Thereafter opposite party nos. 2 to 7 filed a revision petition before the learned Sessions Judge, Bhojpur against the aforesaid older of the learned Chief Judicial Magistrate, Arrah. It was registered as Cr. 2 to 7 and by the order dated 18.8.1979 took cognizance against them under the aforesaid sections including section 307 of the Indian Penal Code. Thereafter opposite party nos. 2 to 7 filed a revision petition before the learned Sessions Judge, Bhojpur against the aforesaid older of the learned Chief Judicial Magistrate, Arrah. It was registered as Cr. Revision Case No. 338/1979 and was heard and disposed of by the learned 6th Additional Sessions Judge. Arrah who by his order dated 19.1.1981 modified the order of the learned Chief Judicial Magistrate dated. 18.8.1979 and held that no case under section 307 of the Indian Penal Code has been made out against the petitioners before him and therefore the cognizance against opposite party nos. 2 to 7 should be deemed to have been taken only under sections 147, 148 and 323 of the Indian Penal Code. 4. Against the aforesaid judgment of the learned 6th Addl. Sessions Judge. Arrah the present petitioner filed Cr. Rev. No. 402 of 1981 before this Court which was heard and disposed of by a learned Single Judge by the judgment and order dated 23.9.1981 in which the following observation was made: "At this stage I do not want to interfere with the order passed by the 6th Additional Sessions Judge although I do not agree with the views expressed by him for not framing charge under section 307 of the Indian Penal Code (emphasis supplied). However in view of the provision under section 323 of the Code of Criminal Procedure the Magistrate before whom the case is transferred for trial if it appears to him at any stage of the proceeding that the case should be tried by the Court of session, he is competent to commit the accused persons to the Court of session under the said provisions With the above observation this application is disposed of.” 5. The petitioner has further contended that in the year 1979 itself the original record of G.R. Case No. 689/1979 was sent to the court of the learned Sessions Judge but the same, however, could not be returned to the trial court before 18.4.1987. The petitioner has further contended that in the year 1979 itself the original record of G.R. Case No. 689/1979 was sent to the court of the learned Sessions Judge but the same, however, could not be returned to the trial court before 18.4.1987. On the receipt of the record, while the matter was pending before the court of Shri D.P. Verma, Judicial Magistrate, Arruh the learned Assistant Public Prosecutor filed a petition on 20.6.1987 before him under section 321 of the Code for permission to withdraw the aforesaid G.R. Case No. 689 of 1979 in the light of the Government (Law Department) letter no. 1791 dated 30.3.1986 (in short the 'letter'). However, the learned Judicial Magistrate by his order dated 19.10.1987 rejected the aforesaid petition of the learned APP filed under section 321 of the Code on the ground that the withdrawal of the case can not be allowed in view of the order dated 23.9.1981 passed in Cr. Rev. No. 402 of 1981 by this Court, according to which the Magistrate was directed to proceed with the trial and if on the basis of the evidence adduced before him he would find the case to be one also under section 307 of the Indian Penal Code, the taking recourse to section 323 of the Code, he could commit the case to the court of sessions. In the aforesaid order dated 19.10.1987 the learned Magistrate observed that since the aforesaid order of this Court was yet to be complied with the withdrawal of this case at this stage would amount to be a clear violation of the order of this Court and therefore the same could not be allowed. Apart from this another ground that was taken by the learned Magistrate for rejecting the prayer of the Assistant Public Prosecutor was that since this case was also under section 149 of the Indian Penal Code which was not covered by the aforesaid letter, the prayer could not be allowed. Accordingly the Assistant Public Prosecutor was directed to produce the evidence. 6. Against this order dated 19.10.1987 passed by the learned Judicial Magistrate opposite nos. 2 to 7 filed Cr. Misc. Accordingly the Assistant Public Prosecutor was directed to produce the evidence. 6. Against this order dated 19.10.1987 passed by the learned Judicial Magistrate opposite nos. 2 to 7 filed Cr. Misc. No. 10873 of 1987 before this court which was heard and disposed of by the order dated 29.12.1987 by which the order of the learned Magistrate dated 19.10.1987 was quashed and the learned Magistrate was directed to consider this petition of the Assistant Public Prosecutor on merit in accordance with law. On the receipt of the record of this case the learned Judicial Magistrate heard the parties on the petition dated 20.6.1987 filed Under section 321 of the Code by the learned Assistant Public Prosecutor and by his order dated 1.3.1988 he allowed the same and acquitted opposite party nos. 2 to 7 under section 321 (b) of the Code. This order of the learned Magistrate has been challenged before me on the ground also that section 149 of the Indian Penal Code was not covered by the aforesaid letter. 7. It was further contended that the impugned order is bad in law and wrong on facts. It has been passed against the materials on record. The learned Magistrate tailed to take into consideration that the delay in disposal of this case was not due to the fault of the prosecution or the informant or even the trial court but simply because of the fact that the record of this case was not made available to the trial court for about 8 years and was received back by the learned Magistrate from the court of sessions only on 18.4.1987, Hence for this delay in its disposal neither the prosecution nor the accused, not even the trial court could be held responsible. On these grounds amongst others it bas been contended that the impugned order be set aside and the case be restored to the file. 8. The parties have been heard at length in this case. Since some important questions of law are involved in this case I would like to examine in detail the various question raised by parties in this connection. 9. In this connection I will firstly refer to the judgment of the learned 6th Additional Sessions Judge, Arrah in Cr. Revision No.338 of 1979. Since some important questions of law are involved in this case I would like to examine in detail the various question raised by parties in this connection. 9. In this connection I will firstly refer to the judgment of the learned 6th Additional Sessions Judge, Arrah in Cr. Revision No.338 of 1979. 1t was in this judgment that it was held that no prima facie case under section 307 of the Indian Penal Code was made out against opposite party nos. 2 to 7 on the ground that no body on the side of the prosecution did receive any injury which was sufficient to cause death. According to the prosecution opposite party no. 2 had fired his gun on the informant (the present petitioner) but the same did not hit him since the shot missed the target. It is precisely on this ground that the learned Additional Sessions Judge came to the conclusion that no case under section 307 of the Indian Penal Code was made out. It is obvious that this finding of the learned Additional Sessions Judge can not stand the scrutiny of law. Section 307 of the Indian Penal Cede clearly provides as follows :- “307. Attempt to Murder :- Whoever does any Act, with such intention or knowledge, and under such circumstances that, if he by that Act, caused death, he 1tould guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and caused to any person by such Act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. 10. From this it becomes obvious that in order to constitute an offence under section 307 of the Indian Penal Code it is always necessary to cause any injury to any person. In order to constitute an offence under this section it is sufficient under the law to show that an Act, with intention or knowledge and under such circumstance was committed that if it caused death the person concerned would be guilty of murder. Then again under this section a distinction has been made in such cases in which any hurt is caused. If no hurt is caused the punishment would be imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Then again under this section a distinction has been made in such cases in which any hurt is caused. If no hurt is caused the punishment would be imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. If, however, any hurt is caused the offender would be liable for imprisonment for life. In case the death is caused it will amount to murderpunishble under section 302 of the Indian Penal Code. In view of this clear provision of law it is not clear how the learned Additional Sessions Judge could hold that, .prima facie, no offence under section 307 of the Indian Penal Code was made out simply because no hurt was caused to any body specially when there was a clear allegation made in the F.I.R. that opposite party no. 2 had opened fire from his gun on the present petitioner which, however, could miss the target. This wrong finding of the Addl. Sessions judge has created a lot of confusion as will be presently seen. 11. It appears that against this judgment of the learned Additional Sessions Judge Cr. Revision No. 402/1981 was filed before this Court in which R.P. Sinha, J clearly observed that he did not agree with the views expressed by the learned Addl. Sessions Judge for not framing the charge under section 307 of the Indian Penal Code but at that stage he did not want to interfere with order in view of the provisions of section 323 of the Code and the Magistrate was asked to assess; on the basis of the evidence adduced before him; that if a case under section 307 of the Indian Penal Code was made out he should commit it to the court of session. From this finding of the learned Single Judge of this Court it appears that he also did not agree with the tinting of the learned Addl. Session Judge to the effect that no case under section 307 of the Indian Penal Code was made out. In other words he was of the view that a case under this section was made out. Session Judge to the effect that no case under section 307 of the Indian Penal Code was made out. In other words he was of the view that a case under this section was made out. However, he left the matter in the hands of the trial court on the ground that if the learned Magistrate found; on the basis of the evidence adduced before him, that a case under section 307 of the Indian Penal Code was made out it was open to him to commit the accused persons to the court of sessions on the strength of section 323 of the Code, From the earlier order dated 19.10.1987 passed by the learned Magistrate it appears that it was precisely for this reason that the withdrawal petition of the learned Additional Public Prosecutor was rejected since if the withdrawal was to be allowed it would be a clear case of violation of the order of this Court passed in Cr. Rev. No. 402/1981. 12. I will next proceed to consider the withdrawal petition filed by the learned Assistant public Prosecutor Under section 321 of the Code. In this petition even the case number in which it was being filed has not been mentioned. It was also not stated under which sections of Indian Penal Code the case was pending. A perusal of this petition clearly shows that it is a vague and general petition which was filed without application of mind by the Assistant Public Prosecutor. The law is very clear on this point that the prosecutor must apply his mind to the various reasons of withdrawal and it is only when he is satisfied that the withdrawal would further the ends of justice that he should file any such petition. This withdrawal petitioner dated 20.6.1987 runs as follows :- "To, The Court of Shri D.P. Verma, Judicial Magistrate 1st Class, Arrah State Vors. Awadhesh Singh. Sir, Humble petition on behalf of the prosecution ; (1) That no public policy is involved in this case. (2) That the State do not want to proceed with the case in view of the Bihar Government (Law Department) letter no. 1791 dt. 30.3.1986 (3) It is, therefore, prayed that you, Honour may be pleased to permit the State to with-draw the case and the case may kindly be withdrawn under section 321 of the Code of Criminal Procedure. Sd/-Illegible A.P.P. 20.6.1987" 13. 1791 dt. 30.3.1986 (3) It is, therefore, prayed that you, Honour may be pleased to permit the State to with-draw the case and the case may kindly be withdrawn under section 321 of the Code of Criminal Procedure. Sd/-Illegible A.P.P. 20.6.1987" 13. This petition of the learned Assistant Public Prosecutor has to be examined in the context of the provision of section 321 of the Code which runs as follows :- 321. Withdrawal from prosecution - The Public Prosecutor or Assistant Public Prosecutor incharge of a case may, with the consent of the court, tit any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of anyone or more of the offence for which he is tried; and, upon such withdrawal,- (a) if it is made before a charge has been framed the accused shall be discharged in respect of such offence or offences: (b) if it is made after a charge has been framed or when under this code no charge is required he shall be acquitted in respect of such offence or offences. 14. From the perusal of section 321 of the Code it becomes clear that it is the Public Prosecutor or the Assistant Public Prosecutor who can withdraw himself from the prosecution of a case pending before the court. Neither of them can withdraw the case itself as is the common misconception in the minds of many. All that they can do is to withdraw themselves from the prosecution of the case with the consent of the court. Another important thing to be noted in this connection is that the State has got no role to play in the withdrawal of the case pending before a court. It may be that the Public Prosecutor or the Assistant Public Prosecutor may be acting under the advice/direction of the State Government but the law clearly provides that the final decision to withdraw a case would be only of the Public Prosecutor/Assistant Public Prosecutor. From the aforesaid petition of the learned Assistant Public Prosecutor the following appear : (a) The State did not want to proceed with the case in view of the aforesaid letter. (b) No public policy is involved in this case. (c) As per this petition the learned Assistant Public Prosecutor has not sought permission of the court to withdraw himself from the prosecution of the case. (b) No public policy is involved in this case. (c) As per this petition the learned Assistant Public Prosecutor has not sought permission of the court to withdraw himself from the prosecution of the case. On the other hand he has stated that the State be permitted to withdraw the case and the same may kindly be withdrawn under section 321 of the Code. What is missing in this petition is that the learned Assistant Public Prosecutor has not expressed his opinion as to whether he deemed it to be a fit case for withdrawal or not, or that, he is not withdrawing the case but he is withdrawing himself from the prosecution of the case and is seeking the consent of the court for this purpose. 15. In the case of State of Orissa Vrs. Chandrika Mohapatra and others reported in (1976) 4 SCC 250 1976 SCC (Cri) 584 it was held that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because, inter alia, the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn or not. 16. As stated above the law clearly provides that the State Government can not withdraw any case pending before any court. Even the Public Prosecutor can not do so. All that he can do is to withdraw himself from the prosecution with the consent of the court from which certain consequences are to follow. The purpose for the withdrawal should always be to further the ends of justice and not for any exterior consideration. It should certainly not be under executive fiat but would always be based on the principles of justice and its furtherance. The purpose for the withdrawal should always be to further the ends of justice and not for any exterior consideration. It should certainly not be under executive fiat but would always be based on the principles of justice and its furtherance. In the case of M.N. Sankaranarayan ( AIR 1972 SC 496 ) it bal been held that :it is the duty of the court also to see in furtherance of justice that permission is not sought on the grounds extraneous to the interest of justice or the offence against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under Jaw, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest. As stated above the withdrawal petition dated 20.6.87 filed by the Additional Public Prosecutor manifestly suffers from the defects pointed out above and therefore, it could not have been allowed. 17. The Jaw on this point appears to be well settled. In this connection a reference may also be made to the case of Subbash Chander V. The State (Chsndigarh Admn) and ors. ( AIR 1980 SC 423 ) it has clearly been held in this case that when a case is pending in a criminal court, its procedure and progress are governed by the Criminal procedure code or other relevant statute. To intercept and recall an enquiry or trial in a court, save in the manner and to the extent provided for in the law is itself a violation of the law. Whatever needs to be done must be done in accordance with the law. The function of administering justice, under our constitutional order belongs to those entrusted with judicial power. One of the few exceptions of the uninterrupted flow of the court's process is S. 321, Cr. P.C. But even here it is the Public Prosecutor and not any executive authority, who in entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the Court. The consent of the Court under S. 321 as a condition for withdrawal is imposed as a check on the exercise of that power. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. The consent of the Court under S. 321 as a condition for withdrawal is imposed as a check on the exercise of that power. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. That is the essence of the nolle prosequi jurisprudence. Invested by the statute with a discretion to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so be acts as a limb of the judicative process, not as an extension of the executive. The decision to withdraw must be of the public Prosecutor not of other authorities, even not of those where displeasure may affect his continuance in office. It was accordingly held that the withdrawal from the prosecution is exclusive power of the Public Prosecutor and his decision must be independent and not at the direction from the District Magistrate or higher authorities. 18. I would like to briefly refer to Annexure 1 which is letter dated 30.3.1986 from the Secretary to the Government of Bihar addressed to all the District Magistrate's From this letter it would appear that a policy decision was taken by the State Government according to which all those cases which were pending disposal since more than 5 years and in which punishment prescribed was also not more than 5 years may be allowed to be withdrawn if no public policy was involved therein Various sections of the Indian Penal Code have been mentioned in its paragraph 2. Section 307 does not find mention in this paragraph. As stated above in the order dated 23-9-1981 passed in Cr. Rev. No. 402/81 this Court had clearly indicated that it did not agree with the order of the learned Additional Sessions Judge passed in Cr. Revision No. 338 of 1979 that no prima facie case under section 307 of the Indian Penal Code was made out. From this observation of this Court it would become clear that making out a prima facie case under section 307 of the Indian Penal Code on the basis of the evidence to be adduced in the court was not ruled out. Since no further evidence (except PW. 1) was adduced it is clear that the trial court was still to any conclusion whether a case under section 307 of the Indian Penal Code was made out or not. Since no further evidence (except PW. 1) was adduced it is clear that the trial court was still to any conclusion whether a case under section 307 of the Indian Penal Code was made out or not. As pointed out earlier, the delay in examination of the witnesses was due to the fact that the record of the case was received by the trial court on 18.4.1987 for a long period of 8 years the record was not available with the trial court. 19 From the order of the learned Judicial Magistrate dated 19.10.1987 it appears that he held that section 149 of the Indian Penal Code is not covered by this letter. This obviously appears to be a mistake which the learned Magistrate has corrected in the subsequent order dated 1.3.1988 which is under challenge. Obviously section 149 of the Indian Penal Code is covered by the aforesaid letter. However in the impugned order a reference has been made to Cr. Revision No. 402 of 1981 according to which this Court had directed that in case the evidence adduced makes out a case under section 307 of the Indian Penal Code it should be committed to the court of sessions. It was on this ground also that by the earlier order dated 19.10.1987 the prayer for withdrawal of the Additional public Prosecutor was rejected since it was felt that the compliance with the aforesaid order of this Court was necessary in the ends of justice. 20. In this connection a reference may be made to the order dated 23.12.1987 passed by this Court in Cr. Misc. No. 10873 of 1987 according to which the record of the Case was lent back to the Magistrate for considering the application of the learned Additional Public Prosecutor filed under section 321 of the Code. Earlier a mention has been made in this order that there has been inordinate deejay in examining the witness by the court. It was, however, submitted before me that for this delay neither the prosecution nor the accused was responsible. As a matter of fact the record of this case was sent to the learned Sessions Judge in the year 1979 and was received back from his office as late as on 18.7.1987. It was, however, submitted before me that for this delay neither the prosecution nor the accused was responsible. As a matter of fact the record of this case was sent to the learned Sessions Judge in the year 1979 and was received back from his office as late as on 18.7.1987. Unfortunately there has been get at delay in disposal of this case on account of non receipt of the record of this case for 8 years from the court of the learned Sessions Judge. However, for this delay neither the informant (the present petitioner) nor the accused persons (O.P. Nos. 2 to 7) can be held responsible. The law will have to be allowed to take its own course notwithstanding the great delay in concluding the trial which was due to the circumstances beyond the control of the parties as also of the trial court. Even in the order dated 23.12.1987 while noticing this delay this Court in Cr. Misc. No. 10873 of 1987 has not stated that on the ground of this delay this withdrawal petition would be allowed or the accused persons be acquitted. On the other hand by this order the Magistrate was directed to see whether a case under section 307 of the Indian Penal Code is made out or not. 21. I have carefully perused the impugned order dated 1.3.1988 passed by the learned Judicial Magistrate. In this order the leaned Magistrate has observed that though an order by this Court was passed on 23.9.1931 in Cr. Rev. No. 402 of 1981 but except for examining for P.W. 1 no other witness could be examined. It was, however, pointed out before me that the record of this case was sent to the court of sessions in 1979 and was received back by the learned Magistrate as late on 18.4.1987. The learned Magistrate while passing the impugned order should have taken notice of this fact which have been borne out from the records of the case before him. It, however, appears that be has not taken any notice for the same. 22. From the detailed discussions made above it becomes clear that the impugned order can not be allowed to continue since it is evidently against law as pointed above and therefore, can not be sustained. It, however, appears that be has not taken any notice for the same. 22. From the detailed discussions made above it becomes clear that the impugned order can not be allowed to continue since it is evidently against law as pointed above and therefore, can not be sustained. The petition of withdrawal filed by the learned Assistant public Prosecutor under section 321 of the Code also can not be sustained. 23. In the result this criminal revision application in allowed and the impugned order is quashed. The learned Magistrate is directed to proceed in the case according to law. He should proceed in the trial from the stage from where it was left out. It is ordered accordingly. Since this case has become very old; trail Court is directed to hear this case on day today basis if possible. Application allowed.