Ashique Ansari v. State Of Bihar — 1999 DIGILAW 932 (PAT)

Judgment G.S.Chaube, J. 1. The petitioners herein are accused in Sessions Trial No. 69 of 1995 arising out of Nimiaghat P.S. Case No. 102 of 1990 and have approached this Court for quashing and setting aside the order dated 30-4-1998 of the First Addl. Sessions Judge, Giridih, declining to permit the Public Prosecutor or for that matter, the Addl. Public Prosecutor of Giridih from withdrawing their prosecution in the case which is awaiting trial before him to pass appropriate order in the fact circumstances of the case. 2. The case has a chequered history. On 22-9-1990 at 10.00 a.m. petitioner No. 1 lodged FIR with Nimiaghat P.S. at the house of the Puran Nayak situated at village Sharanpur at a distance of 8 kms from Nimiaghat P.S. alleging that during the proceeding night he had gone to his pond situated at the same village as fish resided by him therein were going out due to overflow of water of the pond. A few others including Chote Nayak, son of Puran Nayak were present there from before and they had placed nets for preventing the fish from going out. At about midnight, co-villagers Hasimuddin, Jainul Abedin and Kamisan Ansari accompanied by eight to ten unknown persons arrived there and Hasimuddin fired a shot from a fire-arm hitting on the chest of Chhote Nayak who died at the spot. Abedin also aimed at the petitioner No. 1 his shot, but it did not hit him. He fled to the village raising alarm and came back subsequently with others and thereafter took away the dead body of Chote Nayak to his house. Next morning when the police arrived thereof. FIR No. 78 of 1990 of Nimiaghat P.S. was recorded and a case under Section 302 and other sections of Indian Penal Code was registered against Hasimuddin, Jainul Abedin, Ansari and other unknown persons. The investigation of the case was entrusted to a junior sub-inspector named R.P.Singh. However, in the midst of investigation, the then officer-in-charge of Nimiaghat P.S. took up the investigation reportedly at the behest of the Superintendent of Police of the district. In course of further investigation by him, complicit of petitioner the informant in Nimiaghat P.S. Case No.78/90 was suspected. The investigation of the case was entrusted to a junior sub-inspector named R.P.Singh. However, in the midst of investigation, the then officer-in-charge of Nimiaghat P.S. took up the investigation reportedly at the behest of the Superintendent of Police of the district. In course of further investigation by him, complicit of petitioner the informant in Nimiaghat P.S. Case No.78/90 was suspected. The father of the deceased suspected that, in all probability his son had been killed by petitioner No. 1 with a view to falsely implicate Hasimuddin with whom he was having long standing enmity. Two persons cited by the petitioner No. 1 in his FIR has eye-witnesses of the occurrence namely Fagu Singh and Ashari Singh also disclosed that they had accompanied petitioner No. 1 to the pond joined by the deceased. After some time, petitioner No. 1 asked them to go away to ascertain if any fish had been trapped in the nets placed by them. In the meantime, they heard two gun-shots and petitioner No. 1 fleeing away raising alarm. In other words, they did not support the story of petitioner that Hasimuddin and others had arrived there and in their presence the deceased had been shot dead by Hasimuddin. Consequently, the officer incharge of Nimiaghat P.S. drew another FIR on his own statement on the basis of which Nimiaghat P.S. case No. 102/90 dated 15-12-1990 was registered against these petitioners under Sections 302/201 read with Section 34 of Indian Penal Code and Section 27 of the Arms Act. After completion of the investigation, he submitted charge-sheet against the petitioners for commission of the offence referred to above, and accordingly, cognizance was taken. It appears that initially final report was submitted in Nimiaghat P.S. Case No.78/90 after completion of the investigation stating that the allegation against the accused-persons was false. However, on the intervention the Supdt. of Police of the district, the Chief Judicial Magistrate, Giridih, did not accept the final report and directed re-investigation. Subsequently, charge-sheet was submitted and on the basis thereof, the case was committed to the Court of Sessions giving rise to S.T. No. 161 of 1996. 3. In the meantime, petitioner No.1 having been denied bail by the Chief Judicial Magistrate, approached the Sessions Judge, Giridih for bail by filing an application under Section 439 of the Code of Criminal Procedure. 3. In the meantime, petitioner No.1 having been denied bail by the Chief Judicial Magistrate, approached the Sessions Judge, Giridih for bail by filing an application under Section 439 of the Code of Criminal Procedure. The learned District and Sessions Judge, Giridih while granting bail to petitioner No. 1 in connection with Nimiaghat P.S. Case No. 102/90 made some adverse comments on the conduct of the officer incharge of Nimiaghat P.S. and doubted manoeuvring on his part to falsely implication these petitioners, including petitioner before him, with a view to shield the accused-persons in Nimiaghat P.S. Case No. 78/90 instituted at the instance of petitioner No. 1 on the basis of the observations made by the District and Sessions Judge, the Supdt. of Police, Giridih, wrote to the District Magistrate for withdrawing the case arising out of Nimiaghat P.S. Case No.102/90. Before the District Magistrate could apply his mind to the request of the Supdt. of Police, the petitioner No. 1 presented an application before him for withdrawing the case instituted against him. Consequently, by his order dated 4-4-1994, the District Magistrate of Giridih directed the Public Prosecutor of the district to withdraw Nimiaghat P.S. Case No.102/90 which was still awaiting committal. Consequently, the Public Prosecutor made an application under Section 321 of the Code of Cr. Procedure before the Magistrate asking his permission to withdraw the case. Before any order could be passed on that application, Jainul Abedin one of the accused in Nimiaghat P.S. Case No.78/90 moved this Court by filing a writ application calling in question the legality and propriety of the order of the District Magistrate and the application filed by the Public Prosecutor on the basis thereof. That writ application was registered as Cr. W.J.C. No. 280 of 1994(R) and stood disposed of by a Division Bench of this Court on 28-11-1998 permitting the Public Prosecutor or Assistant Public Prosecutor Incharge of the case to seek permission of the Court for withdrawal of the prosecution without being influenced or guided by the order of the District Magistrate, if he was satisfied that the withdrawal necessary. In other words, the Public Prosecutor or the Assistant Public Prosecutor was required to exercise his own discretion in the matter of withdrawal. In other words, the Public Prosecutor or the Assistant Public Prosecutor was required to exercise his own discretion in the matter of withdrawal. It may be mentioned that aggrieved by the order of taking cognizance against them, the accused-persons of Nimiaghat P.S. Case No.102/90 initiated proceeding in this Court under Section 482 of the Code of Criminal Procedure for quashing the entire criminal proceeding including the order of taking cognizance against them. However, at a later stage, they withdraw their application and the case against them was committed to the Court of Session giving rise to S.T. No. 69/95. After the case was committed, the Public Prosecutor presented a fresh application under Section 321, Cr PC, seeking permission to withdraw from the prosecution of the accused-persons in that case. On such application having been filed, the Session Judge of Giridih permitted withdrawal of the prosecution and discharged the accused-persons in accordance with the provisions of Section 321(a) of the Cr PC, by his order dated 4-7-1995. 4. Against the said order of the Sessions Judge, Giridih, two of the accused-persons in Nimiaghat P.S.Case No. 78/90 namely Jainul Abedin and Hamsiuddin Ansari came to this Court invoking the revisional jurisdiction of the Court giving rise to Cr. Revision No. 84 of 1995(R). That revision application came to be heard by a single Judge of this Court, who by his order dated 19-1-1996 set aside the order of the learned Sessions Judge, Giridih permitting withdrawal and resultant discharge of the accused-persons. While disposing of the Cr. Revision No. 84/95(R) the learned Single Judge of this Court directed that in the interest of justice and fair play, it was necessary that the application under Section 321, Cr PC, be heard and decided afresh by the Court of Addl. Sessions Judge, Giridih considering the merits and circumstances appearing in both the cases registered in respect of the occurrence i.e., Nimiaghat P.S. Cases No. 78/90 and 102/90. The Addl. Distt. & Sessions Judge was also directed not to be influenced by the observations made by the District and Sessions Judge, Giridih, while disposing of the bail plea of the petitioner Ashique Ansari. The Addl. Distt. & Sessions Judge was also directed not to be influenced by the observations made by the District and Sessions Judge, Giridih, while disposing of the bail plea of the petitioner Ashique Ansari. Since the conduct of the Public Prosecutor in presenting the application seeking permission to withdraw the case was not found appreciable, it was also directed that for disposal of the application afresh, some Addl.P.P. in stead of P.P. shall be heard by the Addl. District and Sessions Judge. The Addl. P.P. was also cautioned not to be influenced by the observation made by the Sessions Judge, Giridih in bail matter of petitioner No. 1 as indicated above. Needless to say that the act of the learned Sessions Judge of Giridih in commenting on the merit of the two cases was not found justified. 4. (a) When the matter went back for re-consideration of the application under Section 321 of the Code of Criminal Procedure filed by the Public Prosecutor of Giridih, the First Addl. Sessions Judge, Giridih heard the Addl. Public Prosecutor, the Counsel for the accused-persons in the case as also the Counsel of the accused in S.T. No. 161/96 arising out of Nimiaghat P.S. Case No. 78 of 1990 and made the impugned order. While making the impugned order, the learned Addl. Sessions Judge perused the FIRs and the case diaries of both the cases in terms of the direction of this Court given in the order passed in Criminal Revision No. 84 of 1995 (R), vis-a-vis the statement made in the application filed by the Public Prosecutor seeking withdrawal and came to the conclusion that the Addl. Public Prosecutor or for that matter the Public Prosecutor failed to make any ground to show that the prosecution may not be able to procure sufficient evidence to sustain the charge against the accused-persons in the case and, that there were circumstance to indicate that advancement of the object of administration of justice was not the purpose behind filing the application. He also held that permission for withdrawal from the prosecution was sought on the grounds extraneous to the ends of justice. Consequentially, he declined to permit withdrawal of the case and rejected the application which had been filed on 26-4-1995. He also held that permission for withdrawal from the prosecution was sought on the grounds extraneous to the ends of justice. Consequentially, he declined to permit withdrawal of the case and rejected the application which had been filed on 26-4-1995. Against that order the accused-persons in the case (S.T. No. 69 of 1995) arising out of Nimiaghat P.S. Case No. 102 of 1990 have filed this application invoking the revision jurisdiction of this Court. 5. Mr. P.S. Dayal, learned Counsel for the petitioner submitted that while making observations in the penultimate paragraph of the impugned order, the learned Addl. Sessions Judge has failed to appreciate correctly the law on the point that the prosecution has failed to make out any case, that there was no chance of sufficient evidence being adduced for sustaining the charge and that the object of withdrawal is in the interest of administration of justice, although the withdrawal was not sought on any of those grounds. He has also submitted that the learned Addl. Sessions Judge has committed an error in entering into discussion of the evidence of the witnesses for discovering whether the case was to end in conviction or acquittal, because it is not permissible to the Court exercising merely supervisory jurisdiction to assess the evidence to find out whether ultimately, the case will and in conviction or acquittal. He has further submitted that in view of the fact that the Public Prosecutor had sought withdrawal on the ground that the accused-petitioners were implicated as a result of collusion between the then officer incharge of the police station and the accused-persons of Nimiaghat P.S. Case No. 78 of 1990, or for that matter, higher police officers who wanted to shield them, the application was fit to be allowed and permission granted. According to him, the authority to withdraw from the prosecution rests on the Public Prosecutor and it admits of no control open the ground seeking permission from withdrawal are found justifiable. He has further submitted that the learned Addl. Sessions Judge committed an error by examining the materials which did not form part of the record of the case concerned. 6. Mr. He has further submitted that the learned Addl. Sessions Judge committed an error by examining the materials which did not form part of the record of the case concerned. 6. Mr. T.R. Bajaj, who appeared on behalf of the accused-persons in Nimiaghat P.S. Case No. 78/90 and was permitted by this Court on 16-12-1998 to assist the Counsel of the State has raised a preliminary objection to the maintainability of the application apart from justifying the impugned order. According to him, in the facts and circumstances of the case, no public policy was involved in the case to punctuate the Public Prosecutor to withdraw from the prosecution under Section 321 of the Code of Criminal Procedure. Mr. T.R. Bajaj has submitted that the application under Section 321, Cr PC, is permissible only by Public Prosecutor or Assistant Public Prosecutor in charge of the case and, in fact, the withdrawal was sought by the Public Prosecutor. If his application for permission to withdraw from the prosecution was declined by the Court below, he was the aggrieved, person and not these petitioners who are accused in that case. Therefore, according to him, the petitioners have no locus standi to approach this Court in exercise of revisional jurisdiction. I find no substance in the contention. Indeed, the application under Section 321 of the Code of Criminal Procedure has been filed on behalf of the Public Prosecutor and when the prayer was declined, he was the aggrieved person. But at the same time, it has to be borne in mind that in the said order, the petitioner who are accused in that case are highly interested. If the application of the Public Prosecutor was allowed, they could have, certainly, been discharged and saved from further trial. Therefore, any adverse order of the trial Court affecting them certainly provides a locus to them to approach this Court in exercise of revisional jurisdiction. According to Section 397 of the Code of Criminal Procedure, this Court has got power to call for records of any inferior Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed or as to the regularity of any proceeding in such inferior Court. If this Court can suo motu exercise the revisional jurisdiction, it can certainly act on any information regarding such illegality or irregularity, etc. If this Court can suo motu exercise the revisional jurisdiction, it can certainly act on any information regarding such illegality or irregularity, etc. by any other person or party thereto when he is affected by that order. 7. Now adverting to the merits of the application presented by the Public Prosecutor in the Court below for permission to withdraw from the prosecution of the accused-persons, namely, these petitioners it has been settled by judicial pronouncements that the prosecution of an offender is primarily the responsibility of the executive and withdrawal from prosecution is an executive function and a prerogative of the Public Prosecutor, albeit with express consent of the Court before which the prosecution in question is pending. In other words the power of withdrawal vested in the Public Prosecutor is not absolute and arbitrary. In exercise of his such prerogative, the Public Prosecutor is to be guided by his own conscience punctuated primarily by consideration of furtherance of broad ends of public justice, public order and peace. In the process of withdrawal the Government may commend the Public Prosecutor, but cannot commend to secure Withdrawal of the case. The Public Prosecutor being an officer of the Court is responsible to it and none else, in the matter pertaining to prosecution and its withdrawal. While granting or withholding permission for withdrawal from prosecution, the Court has to consider whether the Public Prosecutor has applied his mind as a free agent uninfluenced by any irrelevant and extraneous consideration, and if it is satisfied that in seeking withdrawal from prosecution, the Public Prosecutor is not punctuated by consideration of furthering ends of justice broadly in pubic interest, but by extraneous consideration of helping or shielding the accused, it must decline permission being the ultimate repository of the legislative confidence in this regard. It is in this perspective that the application of the Public Prosecutor filed in the Court below under Section 321 of the Code of Criminal Procedure and order made thereon has to be considered. 7.(a) After stating the facts under which that application was filed in the Court below the Public Prosecutor has given as many as to grounds which punctuated him to withdraw from the prosecution. In the process, he has tried to dwell upon the materials which were collected by the investigating officer in course of the investigation of Nimiaghat P.S. Case No. 78 of 1990. In the process, he has tried to dwell upon the materials which were collected by the investigating officer in course of the investigation of Nimiaghat P.S. Case No. 78 of 1990. He has specifically referred to the names of the witnesses whose statements were recorded by the first investigating officer R.P. Singh supporting the allegation made by petitioner No. 1 against the accused-persons of that case. In Para 3 he was also stated that those statements appear to him to be most cogent, convincting and the witnesses also appear to be trustworthy, reliable and without any scope and reasons to disbelieve them. In Para 4 and subsequent paragraphs, the Public Prosecutor has stated the manner and the circumstances under which the then officer incharge of Nimiaghat P.S. namely C.K. Jha took up the investigation. He has stated that in the case diary, Sri C.K. Jha had made an endorsement that he had received a wireless massage from the Supdt. of Police, Giridih to take up investigation from R.P. Singh and investigate the case himself. The learned Public Prosecutor even questioned the jurisdiction and authority of the Supdt. of Police to give such direction. That simply betrayed the ignorance of law on the part of the learned Public Prosecutor. In para 6, he commented on the act of the Officer incharge of the Nimiaghat P.S. in getting recorded under Section 164, Cr PC, the statement of the most important witnesses like Puran Nayak (sic), the father of the deceased, and Fagu Singh, one of the eye-witnesses cited in the FIR lodged by petitioner No. 1. He even went to the extent of accusing the officer incharge of Nimiaghat P.S. of being influenced by the main accused of that case namely Hasimuddin. In the application, he has also referred to the observations made by the Sessions Judge, Giridih, while disposing of the bail petition No. 145/91 in connection with Nimiaghat P.S. Case No. 102/90. While commending the case instituted at the instance of the petitioner No. 1 for the murder of Chhotte Nayak, he condemned the case that was instituted at the instance of the officer incharge of the police station against these petitioners for the same murder and on that ground alone, he sought permission of the Court to withdraw from the prosecution. While commending the case instituted at the instance of the petitioner No. 1 for the murder of Chhotte Nayak, he condemned the case that was instituted at the instance of the officer incharge of the police station against these petitioners for the same murder and on that ground alone, he sought permission of the Court to withdraw from the prosecution. In the penultimate paragraph of the application, he stated that under the facts and circumstances stated by him in earlier part of the said application and in the interest of administration of justice, he was satisfied that it was redundant to drag Nimiaghat P.S. Case No.102/90 which, according to him, is apparently an after-thought story and the defence version of the accused-persons of Nimiaghat P.S. Case No.78/90. 8. In the impugned order, the learned Addl. Sessions Judge has extensively referred to the evidence collected by the prosecution in both the cases. Mr. Dayal has submitted that while disposing of the application under Section 321, Cr PC, the learned Addl. Sessions Judge had no a authority to do so in exercise of his supervisory jurisdiction in the matter of withdrawal. However, one finds that the Addl. Sessions Judge had been given specific direction in this regard by this Court in its order dated 19-1-1996 while disposing of Cr. Revision No. 84 of 1995(R). Therefore, the Addl. Sessions Judge had no option but to comply with the direction of this Court while making the impugned order. Moreover, once the Public Prosecutor himself embarked upon displaying the merits of the case as against the demerits of the other to convince the Court of the futility of the proceeding with the latter, the Court was duty-bound to appriase itself of the facts and circumstances of the case for deciding whether or not the prayer of the Public Prosecutor should be granted. 9. In the present, case facts and circumstances are somewhat very peculiar. For the murder of one person two cases were registered, investigated, final form submitted and, ultimately, committed to the Court of Session for trial. One case was instituted at the instance of none else than petitioner No. 1 in which he stated that the accused-persons of Nimiaghat P.S. Case No. 78/90 were involved in the murder. He had cited, at least, three persons including his brother, besides himself, as eye-witnesses. One case was instituted at the instance of none else than petitioner No. 1 in which he stated that the accused-persons of Nimiaghat P.S. Case No. 78/90 were involved in the murder. He had cited, at least, three persons including his brother, besides himself, as eye-witnesses. Two of them repiled and made statements under Section 164, Cr PC, that at the crucial time when the deceased was shot at, they had been asked by petitioner No. 1 to leave the place where the murder was committed, on some pretext. There appeared some other circumstances including shooting of the deceased from a point blank range, or, at least, from a very close range, falsifying the story of petitioner No. 1 that the fatal shot was actually aimed at him, but it hit the deceased accidentally. The father of the deceased specifically suspected petitioner No. 1 having killed his son. He also stated that he was actually cultivating land of Hasimuddin, the main accused in Himiaghat P.S. Case No. 78/90, and that the latter had no animus to kill his son ; whereas petitioner No. 1 had some. It was because of these circumstances that the officer incharge of the police station filed another FIR implicating the petitioners for the murder of the deceased and for trying to cause disappearance of the evidence. In the impugned order the learned Addl. Sessions Judge has maintained as many as 18 circumstances to show that the needle of suspicion was pointing towards petitioner No. 1 and other accused-persons. Since the learned Public Prosecutor had commended Wimiaghat P.S. Case No.78/90 and condemned that instituted against these petitioner it was but essential that while disposing of the application for permission to withdraw from the prosecution of the petitioner, the merits of both the cases should be taken into consideration. Only ground left to the Public Prosecutor to seek permission for withdrawal was paucity of evidence to sustain the charge against the petitioners and strong evidence to support the allegation made by petitioner No. 1 against the accused-persons of Nimiaghat P.S. Case No. 78/90. No public policy was involved. Only ground left to the Public Prosecutor to seek permission for withdrawal was paucity of evidence to sustain the charge against the petitioners and strong evidence to support the allegation made by petitioner No. 1 against the accused-persons of Nimiaghat P.S. Case No. 78/90. No public policy was involved. It has been consistent practice of Courts that if respecting a particular occurrence, there are two versions giving rise to the separate cases, both the cases should be tried, if necessary, by the same Court, so that after trial the Court comes to the conclusion which of the two versions is true. In the present case, respeqting the murder of one person, two versions have been propounded, one by petitioner No. 1 said to have been supported by none else than his own brother (petitioner No. 2) and the other propounded by the officer incharge of Nimiaghat P.S. based on circumstantial evidence indicating that the murder might have been committed by petitioner No. 1 himself for falsely implicating the accused of the other case. If by prejudging the merits of both the cases, the Public Prosecutor decided to withdraw the case which is against the petitioners implicitly recommending trial of the other case, certainly, he was not advancing the cause of justice. As Mr. Bajaj rightly pointed out, the language and tenor of the application under Section 321 of the Code of Criminal Procedure are such as no Public Prosecutor would have made. An application calling in question even the authority of the Supdt. of Police in directing the officer incharge to take up investigation himself from the junior officer of the station who was investigating the same is not expected from an independent Public Prosecutor. The language of the application only betrays his mind, and bias. 10. Therefore, in view of the facts stated above, I find that there is absolutely no infirmity in the order of the learned Addl. Sessions Judge of Giridih declining permission to the prosecutor to withdraw from the prosecution of the petitioners who are accused in Sessions Trial No. 69 of 1995 arising out of Nimiaghat P.S. Case No. 102/90. Cause of justice demands that both the cases instituted for the murder of an innocent person be tried simultaneously by the same Court to ascertain which of the two versions is true, so that the real culprit gets punished. 11. Cause of justice demands that both the cases instituted for the murder of an innocent person be tried simultaneously by the same Court to ascertain which of the two versions is true, so that the real culprit gets punished. 11. In the result, this application fails and is dismissed.