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Karnataka High Court · body

2000 DIGILAW 726 (KAR)

PUSHPA SHEDTHL v. P. DEVADAS SHETTY

2000-11-08

MOHAMED ANWAR

body2000
MOHAMED ANWAR, J. ( 1 ) HEARD the arguments of learned Counsel for both sides. ( 2 ) THE petitioner was one of the three accused in C. C. No,11022/97 disposed of on the file of the JMFC, II Court, Mangalore, vide its order dated 27-09-96 passed allowing the application under Section 321 Cr. P. C of the Assistant Public Prosecutor filed seeking permission for withdrawal of the said criminal case. The said order dated 27-09-1996 of the learned Magistrate permitting the prosecution to withdraw the case on the said application of A. P. P. , and closing further criminal proceeding against the accused therein was challenged in revision before the District and Sessions Judge, O. K. , mangalore in Criminal R. P No. 44/97, by respondent No. 1 herein who was the informant (complainant) and on whose complaint, the case for offences under Sections 506, 448 read with Section 34 i. P. C. was booked by the jurisdictional police in Crime No. 172/92 of that Police Station and on completion of investigation, charge sheet against petitioner and other two accused for the said offences was laid by the learned Magistrate. On consideration of the contents of the said application of the prosecutor and also the impugned order dated 27-09-1996 of the learned Magistrate, the learned Sessions judge reached his conclusion that the said order of the learned magistrate cannot be sustained in law and in the larger interest of public Justice. Therefore, by his detailed order dated 22-07-1998, learned Sessions Judge allowed the complainant's said revision. By setting aside the impugned order dated 27-09-1996 of the learned magistrate directing him to proceed further in the said C. C. No. 11022/ 92 in accordance with law. Aggrieved by that order the petitioner accused has challenged its legality and correctness in this revision. ( 3 ) LEARNED Counsel for petitioner, Mr. Holla, assailing the legalityand validity of the impugned order, argued that the same is vitiated on the ground that once the complaint given by respondent to police resulted in full fledged investigation and submission of charge sheet against petitioner and two others in the said C. C No. 11022/97 for the said offences, the complainant gets no locus-standi to challenge the said order dated 27-07-1996 of the learned Magistrate by which the prosecution was permitted to withdraw the case. Besides, that order was not tainted with any material legal infirmity as such and, therefore, there was no sufficient legal justification for the learned sessions Judge to disturb it and order directing the Magistrate to proceed further with the trial of the accused. Reliance was placed by petitioner's learned Counsel Mr. Holla on the decision of the supreme Court in SHEO NANDAN PASWAN vs STATE OF BIHAR and on a Single Bench decision of Calcutta High Court in ABDUR karim vs STATE and of this Court in T. ANANDARAO vs STATE of KARNATAKA. ( 4 ) PER contra, learned Counsel for Respondent-complainantargued in support of the impugned order of the leamed Sessions judge. Learned S. P. P. for respondent No. 2-State sailed with the argument of learned Counsel for petitioner submitting that the complainant State was well within its powers to seek withdrawal of the said case. ( 5 ) THEREFORE, the question which calls for my determination iswhether the learned Sessions Judge was legally justified in interfering with the said impugned order dated 27-07-96 of the learned magistrate. ( 6 ) AS indicated, the prosecution was launched by the Stateagainst petitioner and two others in the Court of the learned magistrate in C. C. No. 11022/92 for the offences punishable under sections 448 and 506 read with Section 34 I. P. C. on the complaint of Respondent No. 1. The certified copy of the order sheet in C. C. No. 11022/92, produced along with the petition, indicates that on 06-10-1995 charge for the said offences was levelled against petitioner and two other accused and their plea of not guilty thereto was recorded and then the case was adjourned from time to time till 27-09-1996 for prosecution evidence. It was oh 27-09-1996, an application under Section 321 Cr. P. C. was made by the learned A. P. P. seeking permission of the learned Magistrate for withdrawal of the prosecution case instead of leading prosecution evidence, in support of the said charge against accused. Learned Magistrate, on the same day, i. e. , 27. 09. 96, passed the impugned order on that application as follows. "the case is advanced at the request of learned A. RP. Heard and perused the records. Application filed under Section 321 of cr. P. C. is allowed. Permission is granted. The accused are no more required and hence they are acquitted and set at liberty. 09. 96, passed the impugned order on that application as follows. "the case is advanced at the request of learned A. RP. Heard and perused the records. Application filed under Section 321 of cr. P. C. is allowed. Permission is granted. The accused are no more required and hence they are acquitted and set at liberty. The proceedings closed. " ( 7 ) THE said impugned order dated 27-09-1997 of the learnedmagistrate has considered at length by the learned Sessions Judge in the light of relevant legal aspects and the decisions of the Supreme court, and he found that it was passed by the learned Magistrate without application of mind and without consideration of the relevant material. Therefore, he allowed the revision of Respondent No. 1- complainant by order dated 22-07-1998 directing him to proceed with further trial of the other accused according to law. ( 8 ) FOR proper and correct appreciation of the rival contentionscanvassed before me by learned Counsel on both sides, it is essential to advert to the contents of said application of the prosecution filed under Section 321 Cr. P. C. The xerox copy of that application was furnished to the Court by learned Counsel for respondent No. 1. It bears the date 5. 8. 1996. This application is in kannada. Therefore, learned Counsel for petitioner produced the true copy of this application in English. The translated contents of the same are not in dispute. The contents of the said application filed by learned A. P. P. are reproduced below. "in this proceeding, the accused have been charged of offence under Section 448, 506 r/w 34 I. P. C. The State Government as per its order bearing No. DE. 40:9:mob. 9 dated 10-05-1996 has directed to withdraw the complaint in the public interest. They, further directed that an application under Section 321 Cr. P. C. be made to withdraw the complaint with the permission of the Court. Therefore, it is prayed that leave be granted to withdraw the complaint and the complaint closed. "a perusal of the contents of the said application filed by learned a. P. P shows that the only reason given therein by him seeking permission for withdrawal from prosecution is that the State government by its order dated 10-05-96 directed him to withdraw the case from the prosecution, in the public interest. "a perusal of the contents of the said application filed by learned a. P. P shows that the only reason given therein by him seeking permission for withdrawal from prosecution is that the State government by its order dated 10-05-96 directed him to withdraw the case from the prosecution, in the public interest. ( 9 ) A Bench of five Judges of the Supreme Court in the case of SHEO NANDAN PASWAN vs STATE OF BIHAR (supra) has considered and discussed the various legal aspects pertaining to withdrawal of a criminal case from its prosecution by the State and the grant of requisite permission by the trial Magistrate, when an application for the purpose was made by the prosecutor incharge of the case. In that case of Sheo Nandan Paswan, the former Chief minister of the State of Bihar Dr. Jagannath Mishra and others were prosecuted for an offence of forgery under Section 466 I. P. C. and for an offence under Section 5 (1) (d) of the Prevention of Corruption act, 1947 by the jurisdictional Court of Chief Judicial Magistrate. During the pendency of that criminal case, accused-Jagannath Mishra again became Chief Minister of the State of Bihar, then the decision was taken by the cabinet of the State of Bihar to withdraw the said criminal case from the prosecution. Then, an application under section 321 Cr. P. C. was made by the learned- prosecutor incharge of the criminal case, seeking permission of the learned Judicial magistrate to withdraw the prosecution case on the following four grounds stated in that application in support of the prosecution prayer for withdrawal of the case, were adverted to by Their Lordships of supreme Court at Paragraph-8 vide Page 886 of the decision :"1) Lack of prospect to successful prosecution in the light of evidence. 2) The implication of the persons as a result of political and personal vendetta. 3) Inexpediency of the prosecution for the reasons of the State and public policy, and 4) The adverse effects that the continuation of the prosecution will bring on public interest in the light of the changed situation. "apart from the above, further contents of that application indicated independent application of his mind made by the (earned prosecutor. That portion of the application runs:". . . . . . . . . . . . "apart from the above, further contents of that application indicated independent application of his mind made by the (earned prosecutor. That portion of the application runs:". . . . . . . . . . . . THAT I have therefore gone through the, case diary and the relevant materials connected with the case and have come the conclusion that in the circumstances prevailing at the time of institution of the case and the investigation thereof it appears that the case was instituted on the ground of political vendetta and only to defame the fair image of Dr. J. N. Mishra, who was then the leader of the opposition and one of the acknowledged leaders of the Congress' party in the country. The prosecution was not launched in order to advance the interest of public justice. I crave leave to place materials in support of the above submission and conclusion at the time of moving this petition. . . . . . . . . . "it was on consideration of that application which the learned trial magistrate in that case proceeded to pass the order as under:"it is a fit case in which prayer of the learned Special Public prosecutor to withdraw should be allowed and it is therefore allowed. " ( 10 ) IN the facts and circumstances of the case of Sheo Nandanpaswan, supra, the Supreme Court had pronounced its order declining to interfere with the orders of the Courts below that were impugned before it, with the result, the said order of the learned c. J. M. was confirmed. Thereafter, the Supreme Court was moved by the aggrieved party by an appeal under Article 136 of the constitution of India for review of its said order. It was then, which the same had been reviewed, dealt with and disposed of by a Bench of five Hon'ble Judges of the Supreme Court. It was noted by their lordships that in support of his said order, the learned Magistrate had not assigned any reasons. Learned Chief Justice Bhagwati, speaking for the minority view on the point of the locus standi of the party therein to question the order of the trial Magistrate granting permission to the prosecution for withdrawal, has said:"14. . . . . . . . Learned Chief Justice Bhagwati, speaking for the minority view on the point of the locus standi of the party therein to question the order of the trial Magistrate granting permission to the prosecution for withdrawal, has said:"14. . . . . . . . IT is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. it is for this reason that in A. R, Antulay vs R. S. Nayak, (1984} 2 SCC 500 : ( AIR 1984 SC 718 at P. 723), this Court pointed out that "punishment of the offender in the interests of the society being one of the objects behind penal statute enacted for larger good of society, the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi. " This Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiation of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. . . . . . . . . " ( 11 ) THIS proposition of law enunciated by the Supreme Courtfully answers the objection of the learned Counsel for petitioner herein that the complainant had no locus standi to challenge the order of the learned Magistrate dated 27. 9. 1996 before the lower appellate court. . . . . . . . . " ( 11 ) THIS proposition of law enunciated by the Supreme Courtfully answers the objection of the learned Counsel for petitioner herein that the complainant had no locus standi to challenge the order of the learned Magistrate dated 27. 9. 1996 before the lower appellate court. The decision of Calcutta High Court in Abdur Karim vs. The state, supra, relied on by him in support of the contrary view will pale into background as not a good law, in the light of the afprestated ruling of the Supreme Court. Shedding light on the scope of Section 321 Cr. P. C and the respective functional roles of the Public prosecutor or Assistant Public Prosecutor in charge of a criminal case as the case may be and that of the trial Magistrate, Khalid J, speaking on behalf of the majority and referring to the earlier decisions of the Supreme Court, made pertinent observations at paragraph-75 of the judgment which may usefully be recalled. the whole of this paragraph is reproduced below:"75. Since Section 321 does not give any guideline regarding the grounds on which a withdrawal application can be made, such guidelines have to be ascertained with reference to decided cases under this section as well as its predecessor Section 494 I do not propose to consider all the authorities cited before me for the reason that this Court had occasion to consider the question in all its aspects in some of its decisions. Suffice it to say that in the judgments rendered by various High Courts, public policy, interests of the administration, inexpediency to proceed with the prosecution for reasons of State and paucity of evidence were considered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other cases depending upon the peculiar facts and circumstances of the cases in those decisions. AIR 1932 Cal 699 (Giribala Dasi v Mader Gazi), AIR 1943 Cal Sind 161 (Emperor v. Sital Das), AIR 1936 Cal 356 (FB) (Harihar Sinha v Emperor), AIR 1949 Patna 233 (FB) (The kind vs Moule Bux), AIR 1952 Ra] 42 and AIR 1938 PC 266 are some of the cases which were brought to our notice. AIR 1932 Cal 699 (Giribala Dasi v Mader Gazi), AIR 1943 Cal Sind 161 (Emperor v. Sital Das), AIR 1936 Cal 356 (FB) (Harihar Sinha v Emperor), AIR 1949 Patna 233 (FB) (The kind vs Moule Bux), AIR 1952 Ra] 42 and AIR 1938 PC 266 are some of the cases which were brought to our notice. Ram Naresh Pandey's case reported in 1957 SCR 279 : ( AIR 1957 SC 389 ) is a land mark case which has laid down the law on the point with precision and certainty. In this decision the functions of the Court and the Public Prosecutor have been correctly outlined. While discussing the role of the Court, this court observed: "his discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the public prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of the triable issue. For instance the discharge that results therefrom need not always conform to the standard of "no prima facie case" under Sections 209 (1) and 253 (1) or of 'groundlessness' under sections 209 (2) and 253 (2 ). This is not to say that a consent is to be lightly given on the application of the public prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made. "this decision was approved by this Court in m. N. Sankaranarayanan Nair vs P. V. Balakrishnan (1972)2 SCR 599 : ( AIR 1972 SC 496 ) as is seen at page 606 (of SCR) (at p. 501 of AIR):". . . . . . . . . . . . . . "this decision was approved by this Court in m. N. Sankaranarayanan Nair vs P. V. Balakrishnan (1972)2 SCR 599 : ( AIR 1972 SC 496 ) as is seen at page 606 (of SCR) (at p. 501 of AIR):". . . . . . . . . . . . . . IN the State of Bihar vs Ram Naresh Pandey, 1957 SCR 279 ( AIR 1957 SC 389 ) it was pointed out by this Court that though the section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. . . . . " ( 12 ) ADVERTING to the nature of the order to be passed by the trialmagistrate under Section 321 Cr. P. C. granting permission to the prosecution for withdrawal, the Supreme Court, at paragraph-76 of its above stated judgment, laid down:"76. . . . . . . . When the Magistrate states in his order that he has considered the materials, it is not proper for this Court not to accept that statement The proper thing to do is to hold that the magistrate gave consent on objective consideration of the relevant aspects of the case. It would be acting. Against the mandate of section 321 to find fault with the Magistrate in such cases. Unless the order discloses that the Magistrate has failed to consider whether the application is made in good faith. In the interest of public policy and justice and not to thwart or stifle the process of law. " (Emphasis laid) ( 13 ) IN T. Ananda Rao vs State of Karnataka, supra, this Courthad an occasion to consider the legality and correctness of an order of the learned Magistrate according permission for withdrawal from prosecution to the State. Referring to the decision of Supreme Court in RAJENDER KUMAR JAIN vs STATE THROUGH SPL. " (Emphasis laid) ( 13 ) IN T. Ananda Rao vs State of Karnataka, supra, this Courthad an occasion to consider the legality and correctness of an order of the learned Magistrate according permission for withdrawal from prosecution to the State. Referring to the decision of Supreme Court in RAJENDER KUMAR JAIN vs STATE THROUGH SPL. POLICE establishment AND OTHERS, the following guiding principle enunciated therein, was quoted by this Court in the case of t. Anandarao, supra:" It sha 11 be the duty of the Public Prosecutor to inform the court and it shall be the duty of the court to appraise 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 bv resort to the provisions of Section 321 Criminal Procedure Code. " (Emphasis laid) ( 14 ) AGAIN for its guidance the teamed Judge in the case of T. Anandarao, referred to the test that was laid down by this Court in k. MOHAN RAO vs STATE in the matter of grant or refusal of his consent by the Magistrate for withdrawal from prosecution under section 321 Cr. P. C. The same is reproduced below:"while giving or refusing consent under Section 321 of the criminal Procedure Code for withdrawal from prosecution, the court exercises its Judicial discretion. While discharging the said judicial function the conscience of the court should be satisfied that giving of consent furthers the cause of justice and that permission is not sought on ground extraneous to the interests of justice or that offences against the state go unpunished. The reasons for withdrawal must satisfy the judicial conscience of the court and the court should record reasons for permitting withdrawal so that the High Court may see whether the discretion is properly used. " (Emphasis supplied) ( 15 ) FROM the above authorities of Supreme Court and of thiscourt the emerging crystalised legal position is that recording of reasons by the trial Magistrate/trial Judge in support of his order under Section 321 Cr. P. C according permission for withdrawal from prosecution of the case is not an imperative requirement, but then. " (Emphasis supplied) ( 15 ) FROM the above authorities of Supreme Court and of thiscourt the emerging crystalised legal position is that recording of reasons by the trial Magistrate/trial Judge in support of his order under Section 321 Cr. P. C according permission for withdrawal from prosecution of the case is not an imperative requirement, but then. It is obligatory on his part to apprise himself of the reasons which prompted the Public Prosecutor to apply for withdrawal from the prosecution of the criminal case and seek satisfaction of his judicial conscience after a careful and judicial scrutiny of the grounds on which the application for consent is made, in the light of the material on record, that it is not an attempt of the executive to prevent the course of criminal justice being taken to its logical end and the offence against the State be visited upon with legal punishment, for the reasons which are extraneous to the interest of justice and public interest at large. His order according consent, therefore, should contain an indication to this effect to enable the superior Court to see if this obligation has been properly discharged and that the discretion in this behalf is judiciously exercised by him. ( 16 ) HOWEVER, in the instant case, the contents of the applicationmade by the Assistant Public Prosecutor in charge of the said criminal case are self-speaking and they make it clear that the application was plainly made by him based on certain circular directions given by the State Government. It does not contain any other ground or reason, whatever, nor does it disclose that the A. P. P. independently applied his mind to the existence or otherwise of any justifying reasons for withdrawal from prosecution and that thereby he did not act as a mere mouth piece of the Government. The application made by him was totally a bald application. It did not furnish any reasons whatever, muchless the valid reasons or grounds seeking permission of the learned Magistrate for withdrawal of the case. Once the charge against petitioner and other accused for alleged offences was framed and their plea of not guilty was recorded by the Magistrate, it means that the prosecution material that was produced on record made out a prima facie case for the alleged offences against petitioners. Once the charge against petitioner and other accused for alleged offences was framed and their plea of not guilty was recorded by the Magistrate, it means that the prosecution material that was produced on record made out a prima facie case for the alleged offences against petitioners. In that view of the matter, it was all the more incumbent upon the learned Magistrate to satisfy himself as to the existence of the justifying and compelling reasons which made him to pass his impugned order. As has been, indicated in the aforequoted pronouncements of the Supreme Court and of this Court, grant or refusal of permission to the prosecution for withdrawal of the case s a judicial function of the learned Magistrate. It means, he is bound to exercise his judicial discretion and find justifying reasons for grant of the permission. Thus, justifying reasons must necessarily be in the interest of justice and not in stiffling the normal course of justice at the dictate of the Executive. It should be towards furtherance of administration of public justice and not to thwart the same. ( 17 ) I the instant case, we do not find on the record any validreason or ground providing sufficient justification for the learned magistrate to pass the order granting permission to the State for. withdrawal of prosecution of the case against accused. Therefore, no fault could be found with the impugned order of the learned sessions Judge made upsetting that order of Magistrate. ( 18 ) HENCE, for the reasons aforesaid, the revision is dismissed. --- *** --- .