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2002 DIGILAW 1350 (PNJ)

Ranjit Kaur v. Manwinder Singh

2002-12-04

S.S.SARON

body2002
Judgment S.S.Saron, J. 1. The present criminal revision petition has been filed for quashing the order dated 28.7.1990 passed by the learned Judicial Magistrate Ist Class, Kharar, whereby he allowed the Assistant Public Prosecutor to withdraw from the prosecution in terms of Section 321 of the Code of Criminal Procedure (in short Cr.P.C.). 2. The facts leading to the case are that the petitioner Ranjit Kaur was married to Manwinder Singh respondent No. 1 on 27.9.1982 at Mohali. It is alleged that her parents gave gifts in marriage as desired by Manwinder Singh respondent No. 1 and his parents respondent Nos. 2 and 3. After marriage, the behaviour of the respondents was not cordial and they had harassed the petitioner by coaxing her that she had brought inadequate dowry. They used to abuse and misbehave with her. When the respondent No. 1 suffered losses, the father of the petitioner gave him Rs. 30,000/-. However, the respondents were still not satisfied and went on increasing their demands. Demand for another sum of Rs. 20,000/- was raised by the respondents at the time of operation of Ram Kaur respondent No. 3 in March 1988. The petitioner and her parents were unable to fulfil this demand. Respondent No. 1 Manwinder Singh had gone out of station on a business tour on 16.9.1988. At that time respondent No. 3 Smt. Ram Kaur mother-in-law of the petitioner made an attempt to strangulate the petitioner by putting `dupatta (veil) around her neck. There are other allegations of maltreatment and it is on 8.10.1988, the petitioner was turned out of the matrimonial home in three clothes. After that she started living with her father at Mohali. On 6.8.1989 in the morning while she was alone and her parents were away, her husband Manwinder Singh (respondent No. 1) suddenly came and stated as to why she had not brought the demanded money. The petitioner replied that she was unable to meet the demand of dowry. Besides, respondent No. 1 also misbehaved with the petitioner. Manwinder Singh (respondent No. 1) pounced upon her, saying that he was out to get rid of her. He sat on her chest and started throttling her with the intention to kill her. She was however saved due to timely return and intervention of her parents. On seeing them coming, the accused ran away in his car. 3. Manwinder Singh (respondent No. 1) pounced upon her, saying that he was out to get rid of her. He sat on her chest and started throttling her with the intention to kill her. She was however saved due to timely return and intervention of her parents. On seeing them coming, the accused ran away in his car. 3. The petitioner filed a written complaint on the basis of which case FIR No. 68 was registered at Police Station Mohali on 6.8.1989 for the offences under Sections 498-A, 406, 307/34 Indian Penal Code (I.P.C. - for short). The dowry articles which are alleged to have been misappropriated by the respondents are mentioned in the complaint. 4. After completing the investigation, final report in terms of Section 173 Cr.P.C. was filed in the Court in Sub Divisional Judicial Magistrate, Kharar. However, before charges were framed, the Public Prosecutor moved an application dated 6.7.1990 (Annexure P-1) in terms of Section 321 Cr.P.C. seeking permission to withdraw from the prosecution case. In the application, it has been stated that on an application of the women residents of Sector 34, Chandigarh (neighbours of the accused party) made to the High Court Authorities and under the orders of DGP, Punjab, an enquiry was conducted by Shri Sukhchain Singh Bajwa, Deputy Superintendent of Police, CID, (Special Crime Branch), to conduct further investigations in the matter. The said Deputy Superintendent of Police, after recording the statement of as many as seven ladies, who are living in the adjoining houses of the accused persons in Sector 34, Chandigarh besides one statement of Head Constable Popinder Singh represented that as a result of reinvestigation, the case registered against the accused, was found to be totally false. The Assistant Public Prosecutor submitted that the above evidence was not on the police file when the challan had been shown to him for filing in the Court and he submitted a report on 21.5.1990 to the District Magistrate, Ropar, through proper channel. The entire record was then submitted to the State Government, which agreed with the report of the Deputy Superintendent Police and the opinion submitted by the Assistant Public Prosecutor through the District Magistrate, Ropar. The entire record was then submitted to the State Government, which agreed with the report of the Deputy Superintendent Police and the opinion submitted by the Assistant Public Prosecutor through the District Magistrate, Ropar. Thereafter, it has been stated by the Assistant Public Prosecutor that he had applied his mind being incharge of the case in the matter carefully, and was of the opinion that it would not be in the interest of justice and public policy to prolong the case and drag on the accused un-necessarily in view of the fresh evidence gathered by the C.I.D. Special Crime Branch. Thus it was prayed for withdrawing the case. 5. On the basis of the above said application, the learned Judicial Magistrate observed that the complainant has not come up to oppose the withdrawal. After feeling satisfied that the Assistant Public Prosecutor is not acting in an improper manner, the learned Magistrate allowed the withdrawal of the case in the interest of justice vide order dated 28.7.1990. It is against the said order that the present criminal Revision Petition has been filed. 6. I have heard the learned counsel for the parties and with their assistant gone through the records of the case. 7. The learned counsel appearing for the petitioner contended that the learned Judicial Magistrate Ist Class committed material illegality in allowing the learned Assistant Public Prosecutor to withdraw from the prosecution and that the same is liable to be set aside. 8. On the other hand learned counsel appearing for the respondents contended that there is no error of law or fact in the order of the trial Court allowing the Assistant Public Prosecutor to withdraw from the case, keeping in view the fresh evidence available and the opinion expressed by the Assistant Public Prosecutor. Besides, it is contended that the petitioner has settled abroad and, therefore, in any case, it is in the interest of justice that the proceedings are not allowed to continue at this belated stage after gap of so many years when the complainant herself is not interested. 9. The learned counsel for the petitioner did not deny that the petitioner has settled abroad and that considerable time has lapsed since the complaint was filed. 10. I have considered the respective submissions made on behalf of the parties. 11. 9. The learned counsel for the petitioner did not deny that the petitioner has settled abroad and that considerable time has lapsed since the complaint was filed. 10. I have considered the respective submissions made on behalf of the parties. 11. In order to appreciate the contention regarding the consent for withdrawing from the prosecution the provisions of Section 321 Cr.P.C. may be noticed, which read as under :- "321. Withdrawal from prosecution. - The Public Prosecutor 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 the prosecution of any person either generally or in respect of any one or more of the offences from 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 of offences; (b) if it is made after charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences : Provided that where such offence - (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Establishment under the Delhi Special Police Establishment Act, 1946 or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and that Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution." 12. The provisions of Section 321 Cr.P.C. were considered in the case of Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877, and it was observed that when an application under Section 321 Cr.P.C. is made, it is not necessary for the Court to assess the evidence or discover whether the case would end in conviction or acquittal. The provisions of Section 321 Cr.P.C. were considered in the case of Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877, and it was observed that when an application under Section 321 Cr.P.C. is made, it is not necessary for the Court to assess the evidence or discover whether the case would end in conviction or acquittal. Besides, the section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the 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 purpose. In para 71 of the report, it was held as follows :- "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 exercises its judicial discretion by considering such materials 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 it 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 material available, the order giving consent has necessarily to be upheld." 13. The above dictum of the Apex Court primarily requires that the Court while granting consent to the Public Prosecutor has to satisfy itself that his executive function has not been improperly exercised. Besides, the Court is not to assess evidence to discover whether the case would end in conviction or acquittal. The section does not obligate the Court to record reasons before the consent is given. Besides, the Court is not to assess evidence to discover whether the case would end in conviction or acquittal. The section does not obligate the Court to record reasons before the consent is given. Although, it does not mean that consent of the Court is a matter of course but when the Public Prosecutor moves for withdrawal after taking into consideration all the material before him, the Court exercise its judicial discretion by considering such materials and on such consideration either gives its consent or declines it. All that is necessary to satisfy Section 321 Cr.P.C. is to see that exercise of discretion by the Public Prosecutor is proper. 14. The Public Prosecutor in his application dated 6.7.1990 (Annexure P-1) has recorded reasons for withdrawal from the prosecution. An application was made by women residents of Sector 34, Chandigarh, who are the neighbours of the accused complaining to the higher authorities to conduct further investigation in the matter. An enquiry was conducted by Shri Sukhchain Singh Bajwa, Deputy Superintendent of Police, CID, (Special Crime Branch), who recorded the statements of as many as seven neighbours of the accused. The Deputy Superintendent of Police, as a result of the re-investigation, reported that the case registered against the accused was found to be totally false. The above evidence was not on the police file when the challan had been shown to the Assistant Public Prosecutor, Kharar, for filing in the Court. In view of the fresh material, the Assistant Public Prosecutor submitted his report on 21.5.1990 to the District Magistrate, Ropar, through proper channel. The entire record was then submitted to the State Government, and it agreed with the report of the Deputy Superintendent of Police and the opinion of the Assistant Public Prosecutor in charge of the case. It is specifically recorded in the application Annexure P-1 that the Assistant Public Prosecutor had applied his mind being in charge of the case carefully and he was of the opinion that it will not be in the interest of justice and public policy to prolong this case and drag the accused in view of the fresh evidence gathered. The above reasons recorded by the Public Prosecutor with the approval of the State Government satisfied the test laid down by the Honble Supreme Court in Sheo Nandan Paswans case (supra). The above reasons recorded by the Public Prosecutor with the approval of the State Government satisfied the test laid down by the Honble Supreme Court in Sheo Nandan Paswans case (supra). The learned Magistrate taking into consideration the material on record accorded its consent for withdrawal by the Assistant Public Prosecutor from the case. It is not shown that the Magistrate has exercised its jurisdiction, in a manner, which can be said to be illegal or improper. 15. Keeping in view the above circumstances and the fact that the learned counsel appearing to the petitioner has not disputed the position that the complainant has settled abroad and also that she is not likely to come to pursue the matter, the continuation of the criminal prosecution of the accused and that too after a lapse of about 13 years would be unjust and improper. For the foregoing reasons, the petition is dismissed.