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2003 DIGILAW 285 (UTT)

Khushal Singh Pipalia v. State of U. P.

2003-11-25

IRSHAD HUSSAIN

body2003
Judgment Irshad Hussain, J. This is criminal appeal against the judgment dated 31.5.1985 passed by the then Additional Sessions Judge, Nainital in Sessions Trial no. 229 of 1983. All these six appellants were convicted and sentenced to undergo rigorous imprisonment for one year under Section 147 IPC; to undergo rigorous imprisonment for five years under Section 449 IPC and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- each under Section 304 part-I read with Section 149 IPC. The substantive sentences were directed to run concurrently. 2. Brief facts are as follows: On 23.7.1983 at about 11:00 AM all these appellants, who were students of Government Polytechnic Institute, Nainital alongwith seven or eight other students manhandled and assaulted the Lab Instructor Mahipal Singh by entering into the lab and caused him injuries by lathies, clubs and stones. Later on, Mahipal Singh succumbed to his injuries. All these appellants were charge-sheeted for commission of the offence and were ultimately convicted and sentenced as aforesaid. 3. On 28.9.2002 learned Government Advocate sought permission to withdraw from the prosecution against all the six appellants by filing an affidavit of Additional Secretary, Ministry of Home, State of Uttaranchal, Sri M.K. Joshi with annexed Government order dated 15.3.2002 regarding the decision taken in that regard. The G.O. dated 15.3.2002 as well as the averment of the affidavit reveal that the decision had been taken keeping in view the attending circumstances of the case on the reference for withdrawal from the prosecution initiated by the District Magistrate, Nainital. Learned G.A. argued that provision of Section 321 of the Code of Criminal Procedure, 1973 (for short 'Code') enables the public prosecutor to make an application for withdrawal from prosecution and that the judgment of the public prosecutor cannot be lightly interfered with unless and until it is shown that the decision is not bonafide and the same is motivated by some extraneous consideration. Learned G.A. is admittedly the incharge of the appeal and is entitled to submit the application under Section 321 of the 'Code' for getting the consent of the court for withdrawal from prosecution. Section 321 of the 'Code' reads as under: "321. Learned G.A. is admittedly the incharge of the appeal and is entitled to submit the application under Section 321 of the 'Code' for getting the consent of the court for withdrawal from prosecution. Section 321 of the 'Code' reads 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 anyone or more of the offences for 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 or offences; (b) if it is made after a 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- " 4. From the above, it is evident that the public prosecutor may with the consent of the court, at any time before the judgment is pronounced, withdraw from the prosecution of any person. In this case, the withdrawal from prosecution has been sought in appeal. It is stated that appeal being a statutory right the trial courts verdict does not attain finality during the pendency of the appeal and for that purpose the trial is deemed to be continuing despite conviction (Akhtari Bi (Smt) Vs. State of M.P.; (2001) 4 Supreme Court Cases 355). Therefore, the application under Section 321 of the 'Code' is legally maintainable and this court can give consent for withdrawal from the prosecution of the appellants, provided it is found that the decision of the Government Advocate is bonafide and is based on rational application of the mind in this regard. 5. Various decisions of the Apex Court laid down guidelines for exercising jurisdiction by the courts in the matter of withdrawal from prosecution. The Apex Court in the State of Bihar Vs. Ram Naresh Pandey and another AIR 1957 Supreme Court Cases 389 had made following observations while dealing with an application under Section 494 of the old Cr. P.C. which enabled the prosecution to withdraw from the prosecution. Section 321 of the new Cr. P.C. is similarly worded with slight modification. The Apex Court in the State of Bihar Vs. Ram Naresh Pandey and another AIR 1957 Supreme Court Cases 389 had made following observations while dealing with an application under Section 494 of the old Cr. P.C. which enabled the prosecution to withdraw from the prosecution. Section 321 of the new Cr. P.C. is similarly worded with slight modification. The court observed as follows: "The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. 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 function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of Section 494, Criminal P.C. would be come considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. 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, therefore, 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 ?f 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 . 6. The decision had later on been followed in various cases by the Apex Court, including the case of Sheo Nandan Paswan Vs. State of Bihar and others AIR 1957 Supreme Court 877. The application in the present case therefore, need to be disposed of keeping in view the settled guidelines so that there may be proper exercise of judicial discretion. 7. State of Bihar and others AIR 1957 Supreme Court 877. The application in the present case therefore, need to be disposed of keeping in view the settled guidelines so that there may be proper exercise of judicial discretion. 7. As pointed out by the learned G.A., in the instant case the victim of the case had before the incident on 23.7.1983 lodged a report with the police against two students of the institute and the relations with the victim, an electrical instructor in the institute were far from cordial. It was the case of the prosecution that on the day of the occurrence about 250 students gathered in the campus and they made demand of withdrawal of the case against the students lodged at the instance of Mahipal Singh. After sometime about 14 students including six appellants went to the lab and assaulted the said victim' who sustained injuries and later-on died. Names of only six students were mentioned in the FIR although there were eight other also and there cannot be any dispute that it was a mob of students which manhandled and assaulted the victim. The learned trial Judge on the basis of the evidence and circumstances was of the opinion that the act was not premeditated and that the victim was not assaulted with the intention of causing such bodily injuries as would be sufficient to cause to death. The learned trial Judge inferred that Mahipal Singh had been beaten with the intention of causing such bodily injury as is likely to cause death and therefore the case was not found to be that of murder but punishable under Section 304 part-I IPC. There can be no gainsaying that the mob of students apparently did not intend to eliminate the said victim and even names of the large number of assailants could be known and FIR was got lodged against the six appellants. In other words, it could be said that students unrest was the cause of the crime and that in a surcharged atmosphere the students resorted to assault without foreseeing the outcome of their action. This apart, it is of significance that the appellants are facing trial since 1983 and for the last about 20 years they are in mental agony as to what will be the final outcome of the trial against them. This apart, it is of significance that the appellants are facing trial since 1983 and for the last about 20 years they are in mental agony as to what will be the final outcome of the trial against them. Considering all these aspects and also the manner of the incident and large number of alleged assailants not known, I am of the view that the decision for withdrawal from prosecution has been arrived at after rational approach and considering the attending circumstances of the case and the same is therefore, bonafide. It can also be said that the executive function by the Government Advocate has been properly exercised and that it is not an attempt to interfere with the normal course of justice for any extraneous consideration. 8. In view of the foregoing discussion, I am clearly of the opinion that on the facts of the present case the consent for withdrawal from prosecution of the appellants under Section 321 of the Code need to be and is given. The prosecution of the appellants for the charges against them is withdrawn and by setting aside the judgment dated 31.5.1985 they are acquitted of the charges leveled against them. They are on bail. Their bonds are discharged.