Research › Browse › Judgment

Madras High Court · body

1997 DIGILAW 700 (MAD)

K. MURUGAVEL v. STATE

1997-07-16

R.BALASUBRAMANIAN

body1997
Judgment : ( 1 ) IN this revision, the petitioner is challenging the order dated 13-6-1989 in c. C. No. 403 of 1989 on the file of the Judicial Magistrate, Uthamapalayam, permitting the withdrawal of the case under Section 321 (b) of the Code of criminal Procedure. Bare minimum facts are necessary to be set out here under to decide the correctness of the order questioned in this revision. ( 2 ) THE petitioner gave a complaint to the first respondent police on 17-7-1986 alleging that on 14-7-1986 13 named accused and some unknown persons kidnapped him while he was on his way to duty in a mill where he was working. This complaint was registered in Cr. No. 231 of 1986 by the first respondent for offences under Sections 147, 342, 365 and 384 of the Indian Penal Code. The accused mentioned in the complaint and who were later on put up for trial along with three more people are the co-workers of the revision petitioner in the very same mill. The complaint discloses that when the revision petitioner was on his way to the mill to attend to his work, the named accused and other unnamed accused intercepted him and told him "you have been told not to go to employment - still you are going for work-if you are beaten, then only you will become alright". Saying so, the complaint proceeds that the revision petitioner and his companion who was also going to attend to his work were kidnapped and taken to a distant place and kept there in a room under lock and key. This case, after the final report was filed by the police, was taken on file as C. C. No. 403 of 1989 by the lower Court. ( 3 ) WHEN the case was pending, the Magistrate came to pass an order on a memo and the memo reads as follows:-"the Government of Tamil Nadu has decided to withdraw the case registered against labourer as a gesture of goodwill. It has been ordered in g. O. Ms. No. 827 dated 17-5-89 of Public (Law and Order-C) department to withdraw Bodi Town Ps. Cr. No. 231/86 u/s. 147, 242, 365 and 506 (II) IPC in c. C. No. 403/89. I request that the above case may kindly be withdrawn as ordered by the government". It has been ordered in g. O. Ms. No. 827 dated 17-5-89 of Public (Law and Order-C) department to withdraw Bodi Town Ps. Cr. No. 231/86 u/s. 147, 242, 365 and 506 (II) IPC in c. C. No. 403/89. I request that the above case may kindly be withdrawn as ordered by the government". This memo is signed by the Sub-Inspector of Police (Law and Order), Bodi Town police Station. At the foot of this memo, there is an endorsement as follows: "submitted :- The above case may be withdrawn". The Assistant Public Prosecutor has signed this. On this, the Court passed the order permitting the withdrawal of the case and acquitting the accused under section 321 (b) of the Code of Criminal Procedure. The memo extracted above refers to G. O. Ms. No. 827 dated 17-5-1989 on the file of the Public Department. The Government Order is also produced before me and I have perused it. The first paragraph of the Government order is extracted hereunder:-"the superintendent of Police, Special Branch C. I. D. , has furnished the particulars of pending cases filed by the Police against labourers in connection with labour agitation in the State. Out of a total of 59 of such cases, 8 cases are under investigation by the police" (Emphasis supplied by me)A reading of this Government Order to my mind makes one aspect very clear and that is as follows: Pending cases filed by police, against labourers in connection with labour agitation in the State was in the mind of the Government when this Government Order came to be passed. "cases against labourers in connection with labour agitation" could only mean that the cases filed by police against labourers when the labourers went on agitation against the management and not in any other aspect. In other words, the offences/f committed by labourers not in any way directly connected with their agitation against the management cannot come within the class of cases mentioned in this government Order. ( 4 ) I have carefully perused the complaint filed by the petitioner before the police. Though, it is a complaint for offences arising between one co-worker and other coworkers under the same management, yet it may not on the face of it come as a case filed against labourers in connection with labour agitation. ( 4 ) I have carefully perused the complaint filed by the petitioner before the police. Though, it is a complaint for offences arising between one co-worker and other coworkers under the same management, yet it may not on the face of it come as a case filed against labourers in connection with labour agitation. In other words, when the Government had "gesture of good will" in its mind, "furthering broad ends of public justice, public order and piece" should alone loom large in its mind. In the decision in Balwant Singh vs. State of Bihar it has been held as follows: "the sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is the larger factor of the administration of justice, not political favour nor party pressure nor like concerns; of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation". ( 5 ) SINCE I am of the view that the decision of the Government as reflected in g. O. Ms. No. 827 dated 17-5-1989 did not cover by the case of the type on hand, the Assistant Public Prosecutor could have applied his mind before ever moving the Court for withdrawal under Section 321 of the Code of Criminal procedure and a reading of the memo filed before the lower Court makes it very clear that the Assistant Public Prosecutor has not on his own made a request to the Court, but, he made an endorsement on the memo filed by the Sub-Inspector of Police. It is apparent on record that the Assistant Public Prosecutor had not applied his mind either to the Government Order or to the memo signed by the sub-Inspector of Police and mechanically he has made an endorsement for the withdrawal at the foot of the memo. Therefore, it is clear that the conduct of the assistant Public Prosecutor bristles with non-application of mind. As has been held in various decisions by the Supreme Court of India and also by this Court namely in Maulana Basha vs. State it has been held as follows:-"the Public Prosecutor is an officer of Court and therefore responsible to it. It shall be the duty of the Court to apprise itself of the reasons which prompted the Public Prosecutor to withdraw from the prosecution. It shall be the duty of the Court to apprise itself of the reasons which prompted the Public Prosecutor to withdraw from the prosecution. The court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its Minister of Justice. Both have a duty to protect the administration of Criminal Justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321, cr. P. C. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case". ( 6 ) IN Balwant Singh vs. State of Bihar it has been held as follows:"where in an ordinary criminal case, the Public Prosecutor is ordered by the District Magistrate to move for withdrawal and the Public Prosecutor obeys and not acts, and no public policy bearing on the administration of justice is involved the Court will refuse to accord permission". The present action of the learned Assistant Public Prosecutor in the light of the judgment referred to above, clearly shows that he has not applied his mind and he has simply obeyed the Government Order referred to above. In Rajendra kumar vs. State it has been held as follows: "it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its minister of Justice. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321, criminal Procedure Code". ( 7 ) GESTURE of goodwill may be a relevant consideration as far as the government is concerned which ground has been considered as a valid ground in the decision in Rajendra Kumar vs. State (3 supra ). But, on facts, I have noticed that the Government Order will not apply to the case on hand. ( 7 ) GESTURE of goodwill may be a relevant consideration as far as the government is concerned which ground has been considered as a valid ground in the decision in Rajendra Kumar vs. State (3 supra ). But, on facts, I have noticed that the Government Order will not apply to the case on hand. Unfortunately, neither the Assistant Public Prosecutor who moved for the withdrawal in the court had applied his mind to the Government Order itself, nor the Magistrate and he had also allowed the application under Section 321 of the Code as a routine matter. The reasons given by the learned Magistrate in the order, viz. , "case pending from 15-10-1987; there are totally 16 accused who have been regularly appearing; till date no witnesses have been examined and no useful purpose would be served in continuing the case any more", would not be a reason that could be brought under Section 321 of the Code to permit withdrawal of the case. It may be a good reason for the Magistrate to acquit the accused under some other sections enumerated under the Code of Criminal procedure. ( 8 ) AFTER a careful consideration of the impugned order, the Government order and the memo filed by the Assistant Public Prosecutor, I am of the firm view that non-application of mind bristles in this case at all places and at all levels and therefore, the impugned order cannot be sustained. Accordingly, this revision is allowed and the order dated 13-6-1989 in C. C. No. 403 of 1989 on the file of the Judicial Magistrate, Uthamapalayam, is set aside. ( 9 ) I have stated the correct position of law in this case arising out of section 321 of the Code of Criminal Procedure. The occurrence is stated to have taken place on 14-7-1986 and exactly 11 years have elapsed by now. The present situation prevailing in the area where the occurrence is stated to have taken place might have cooled down and calm and peace would have descended on all parties concerned. Under these circumstances, I feel that no useful purpose would be served by ordering a re-trial of the case. Therefore, while setting aside the order of the learned Magistrate, I direct that no re-trial need be conducted that too after a lapse of 11 years.