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2002 DIGILAW 1129 (ALL)

GIRISH CHAND GUPTA ALIAS RAM BABU v. STATE OF U P

2002-08-28

S.S.KULSHRESTHA

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S. S. KULSHRESTHA, J. Heard Sri O. P. Singh learned Counsel for the applicant and learned A. G. A. 2. This application under Section 482 of the Code of Criminal Procedure which is hereinafter called as the Code) has been brought for quashing the prosecution of the applicant alleged to be involved in the offence under Section 3/7 Essential Commodities Act (which is hereinafter called as the Act), crime case No. 78/1992, State v. Girish Chand Gupta, Police Station Bhadohi, District Varanasi. It is said that Sri Balbhadra Upadhyay, Supply Inspector, Bhadohi, Varanasi lodged a report at the police station on 6-1- 1992 alleging the commission of offence by the accused applicant under Section 3/7 of the Act which was registered at Crime Case No. 7/1992. After investigation charge sheet has been submitted by the police against the accused applicant and trial commenced. After recording the statement of the witnesses the date has fixed for the statement of the accused under Section 313 of the Code. Thereafter, pursuant to the directions given by this Court in criminal Revision No. 27696/2000, Girish Chandra Gupta v. State of U. P. , the case was reopened for affording opportunity to the accused applicant to cross-examine the prosecution witnesses. In the meantime State Government had taken decision for withdrawing all pending cases lying in the criminal Courts arising out of the Act. In that regard orders/circular letters were also issued. On the premises of Government order, the Public Professor moved an application before the Special Judge (E. C. Act), Varanasi for the withdrawal of the prosecution against the accused applicant. That application was rejected on 26-2-2002. Feeling aggrieved from the aforesaid order the present application has been brought. 3. In order to facilitate the disposal of the application it shall be useful to refer the Government order No. 2574/29-7- 2001-M-11/94 dated 12-11-2001, which reads as under: "in continuation of the Government Order No. 6655/29- 7-2000 M- 11/94 dated 19-12-2000, the Government had taken decision that the new cases under the Act shall not be registered against the businessmen/traders and also the cases arising out of that Act pending of any stage in the Subordinate Courts shall be withdrawn. " 4. " 4. The accused applicant has filed the copy of the Government Order (Annexure-5) which is with regard to the making of forwarding endorsement on the G. O. No. 2574/29-7-2001 M-11/94 dated 30-10-2001 to the Commissioner (Food and Civil Supplies), District and also to other district authorities. Both the papers have been filed by the accused applicant with a view to show that the policy decision which was taken by the Government for the withdrawal of the cases arising out of the Act, had been communicated to all the District Magistrates and all concerned. It was on the basis of such Government order application (Annexure-6) was moved by the Addl. Public Professor for according consent on the withdrawal of the cases. This application was rejected by the Special Judge (E. C. Act), Varanasi with the observations that looking to the facts and circumstances and the nature of the case it would not be proper to permit the withdrawal of the case. It is said that the learned Magistrate was under obligation to have accorded consent for the withdrawal of the case particularly when the policy decision has been taken by the Government. 5. In this regard Section 321 of the Code, relevant to the extent may be extracted herein under: "321. Withdrawal from prosecution.-The Public Professor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from he prosecution of any person either generally or in respect of any one or more of the offences of which he is tried; and upon such withdrawal; (a) If it is made before charge has been framed, the accused shall be discharged in respect of such offence or offences: (b) If it is made a charge has been framed, or when under this Court no charge is required, he shall be acquitted in respect of such offence or offences: 6. Again in the decision in State of Bihar v. Naresh Pandey, AIR 1957 SC 389 : (1957 Cr. LJ 567) the Supreme Court has considered the rights of the Public Prosecutor in preferring application to withdraw from prosecution and has observed as follows: "his discretion in such matter has necessarily to be exercised with reference to such material as is by then available and if is not a prima facie judicial determination of any specific issue. LJ 567) the Supreme Court has considered the rights of the Public Prosecutor in preferring application to withdraw from prosecution and has observed as follows: "his discretion in such matter has necessarily to be exercised with reference to such material as is by then available and if is not a prima facie judicial determination of any specific issue. The Magistrates functions in these matters are not only supplementary at as 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 relating to inquires and (sic) by Court. " 7. In the decision in Bansi Lal v. Chandan Lal, AIR 1976 SC 370 : 1976 Cr. LJ 328, the Supreme Court has observed as follows (at page 330 of Cr. LJ): "this Court in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan, (1972) 2 SCR 599 : air 1972 SC 496 : (1972 Cr. LJ 301) explaining the well-established legal position as to the scope an ambit of the powers granted by Section 494 has observed that although the section does not circumstances the powers of the Public Prosecutor to seek permission to withdraw from the prosecution, the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice. It is added that the request to grant permission under Section 494 should not be accepted as a necessary formality for the mere asking, but the Court must be satisfied on the materials placed before it that the grant of permission would serve the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain. " 8. In the decision reported in Rajender Kumar v. State, AIR 1980 SC 1510 : 1980 Cri. LJ 1084, the Supreme Court has observed as follows (at page 1090-1091 of Cr. lj): "13. Thus, from the precedents of this Court, we gather: (1) Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. (2) The withdrawal from the prosecution is an executive function of the Public Prosecutor. lj): "13. Thus, from the precedents of this Court, we gather: (1) Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. (2) The withdrawal from the prosecution is an executive function of the Public Prosecutor. (3) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. (4) The Government may suggest to the Public Prosecutor that he may withdrawal from the prosecution but none can compel him to do so. (5) The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammany Hall enterprises. (6) The Public Prosecutor is an officer of the Court and responsible to the Court. (7) The Court performs a Supervisory function in granting its consent to the withdrawal. (8) The Courts duty is not to reappreciate the grounds which laid the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution. 9. Further in the case of Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877 : (1987 Cr. LJ 793) the Supreme Court has observed as follows (at page 831-832 of Cri. LJ): "70. The section gives no indication as to the grounds on which the Public Prosecutor may make the application or he considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. LJ): "70. The section gives no indication as to the grounds on which the Public Prosecutor may make the application or he considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. The judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. 71. The Courts function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court, exercise its judicial discretion by considering such material and on such consideration either gives consent or declines consent. The section should not be construed to mean that the Court has to give a detailed reasoned order when if gives consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the materials available, the order giving consent has necessarily to be upheld. 72. It would be useful to compare the scope of the Courts power under Section 321 with some other sections of the Code. There are some provisions in the Code which relate to the manner in which Courts have to exercise their jurisdiction in pending cases when applications are made for their withdrawal or when the Court finds that there is no ground to proceed with the cases. Sections 202, 227, 245, 257 and 258 are some such sections. Sections 203 of Criminal P. C. empowers a Magistrate to dismiss a complaint at the initial stage itself if he is of opinion that there is no sufficient ground for proceeding. But, before doing so, the Magistrate called upon to briefly record his reasons for so doing. Sections 202, 227, 245, 257 and 258 are some such sections. Sections 203 of Criminal P. C. empowers a Magistrate to dismiss a complaint at the initial stage itself if he is of opinion that there is no sufficient ground for proceeding. But, before doing so, the Magistrate called upon to briefly record his reasons for so doing. The section reads as follows: xxxx The section does not insist upon a reasoned order by the Magistrate while giving consent. All that is necessary to satisfy the section is to see that he Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper. " 10. It is thus clear that duty has been cast upon the Public Prosecutor to inform the Court for withdrawal of the prosecution and it shall be the duty of the Court to apprise itself of he reasons which promoted the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so the Public Prosecutor and the Court 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 of the Code. 11. From the perusal of the Government orders, referred above, it appears that the Government looking to the feeling and emotions of the businessmen had taken a policy decision for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a claim which has descended it. On the basis of that policy decision if the Public Prosecutor had been advised to withdraw from the prosecution it would be construed that the withdrawal has been moved by the Public Prosecutor by his freewill. Even in the case of M. N. Sankaranarayanan Nair v. P. V. Balakrishnan and others (supra) the directions which were given to the Public Prosecutor by the State Government to consider the filing of the petition for obtaining permission the Court to withdraw from prosecution was held valid. Here in this case the permission for the withdrawal of the case has been sought by the Public Prosecutor as per the orders of the State Government. Here in this case the permission for the withdrawal of the case has been sought by the Public Prosecutor as per the orders of the State Government. In this case the nature of the offence which is said to have been committed by the accused applicant is confined to the distribution of kerosene oil without having the orders from a competent officer. Such nature of the offence cannot be said to be valid ground for rejecting the application for the withdrawal of prosecution. It was the duty of the Court to have appreciated the grounds which prompted the Public Prosecutor to request for the withdrawal from the prosecution and should not have rejected the application merely looking the nature of the offence without caring to see its gravity. 12. In view of the aforesaid discussion the application deserves to be allowed. In the result of the proceedings of Crime Case No. 78/1992, State v. Girish Chand Gupta under Section 3/7 of the Act, Police Station, Bhadohi, District Varanasi Act are quashed. Application allowed.