Kona Narsingh @ Baburao Hanmantrao Naidu v. State of Maharashtra
2005-04-19
A.H.JOSHI
body2005
DigiLaw.ai
Judgment ( 1 ) PETITIONERS herein are accused in Special Case No. 21/1999 initiated at the complaint of present Respondent No. 2, the case which is filed under Sections 294,506 of Indian Penal Code r/w Section 34 thereof and the provisions of Section 3 (1 ) (x) of the scheduled Castes and Scheduled Tribes prevention of Atrocities Act, 1989. The prosecution filed application Exh. 10 on 6-1- 2001 with averment and prayer as follows :- "2. The public interest at large is involved in this matter and hence, it is necessary to withdraw the matter from the Court. Pyarer : It is humbly prayed that, as the matter involved public interest, the Hon'ble special Judge may be pleased to grant permission to withdraw the matter in public interest. "the application was allowed by the learned judge granting the prayer. ( 2 ) THE respondent no. 2/complainant carried a revision application before the sessions Court which was registered as criminal Revision No. 20/2001. The learned sessions Judge, after hearing the parties, allowed the revision application. ( 3 ) THE grounds which were urged before the learned Sessions Judge are spelt out in Paragraph 12, which are mainly that: (I) the application is single line application and does not spell out, "as to how the withdrawal was in public interest"; (ii) the application of mind by the P. P. was not seen; (iii) the Government order of withdrawal of prosecution was not produced; and (iv) no application of mind by the Trial Court was revealed. ( 4 ) THIS order is taken to this Court by the present applicant. The learned P. P. has supported the petition by filing affidavit and avering in Para 6 which reads as follows :- "i state on oath that, I have carefully studied the entire, case papers of Spl. C. No. 21/99 state Vs. Kona Narsingh + 1. It is seen that there is no sufficient evidence against accused. There is no motive for the alleged incident. On the contrary, I personally feel that, law is being used and implemented with some ulterior motive or to take some personal veugauie. I, therefore, find personally, with due application of my mind, necessary to apply for withdrawal of this case and accordingly filed an application before the special Judge, Wardha, on 6-1- 2002 in Spl. Case No. 21/99.
On the contrary, I personally feel that, law is being used and implemented with some ulterior motive or to take some personal veugauie. I, therefore, find personally, with due application of my mind, necessary to apply for withdrawal of this case and accordingly filed an application before the special Judge, Wardha, on 6-1- 2002 in Spl. Case No. 21/99. "the Government thus suggest that there is no evidence on which the prosecution can be sustained. ( 5 ) THE learned Advocate for the petitioner advanced submissions contending that while it cannot be denied that the application for withdrawal of prosecution is required to be eloquent enough to spell out the reason, in the present case though the application for withdrawal is not eloquent, in fact there existed satisfactory grounds and those are spelt out in para 6 of the affidavit of Special Public prosecutor. The learned Advocate for the petitioner urged that if on this technicality of pleadings, in the event the judgment of Sessions court is upheld and prosecution is required to file fresh application which is otherwise maintainable, it will result in nothing but putting the entire process into motion once again resulting into waste of public time and money and loss of time of the Court as well, and that therefore petition be allowed. ( 6 ) THE learned Advocate for the petitioner also placed reliance on reported judgment of Calcutta High Court in Sk. Abdul karim Vs. State and Others, (1981 Cr. LJ. 219) contending that a revision application by a complainant challenging the order of sanction passed under Section 321 granting the permission for withdrawal could not be maintainable. The learned Advocate further relied upon reported judgment of Supreme court in AIR 1987 SC 877 , (Sheo Nandan paswan Vs. State of Bihar and others) in support of a plea that for an order under section 321 a detailed and reasoned order is not required since the jurisdiction under Section 321 is supervisory in nature and assessment or appreciation of evidence at that stage is not contemplated, and it shall be sufficient if the court should see that the application of mind was done by the State or the Prosecutor. ( 7 ) THE petition was opposed by the learned Advocate for the respondent relying on reported judgment in 2000 (8) SCC 710 (Abdul karim and others Vs. State of Karnataka and others ).
( 7 ) THE petition was opposed by the learned Advocate for the respondent relying on reported judgment in 2000 (8) SCC 710 (Abdul karim and others Vs. State of Karnataka and others ). In this case the father of the victim had carried revision against the decision for withdrawal of prosecution. The Lordships of the Supreme Court specifically observed in para 18 that: "what the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only a consent from the Court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. "thus, what is to be seen is that the application of mind, good faith and sufficient reasons as well as public interest are the factors which are required to be taken into account while examining the application under Section 321 and naturally the orders passed thereon. ( 8 ) IN the case on hand, it is clear being an admitted position that the application for withdrawal is worked out in most unappreciable manner. The terminology employed in para 2 of the application viz. "public interest at large" is most commonly and negligently used terminology. As a matter of fact when the prosecution has gathered evidence on which the prosecution could not sustain the charge i. e. there was no sufficient evidence in support of the case, this fact alone constitutes not only sufficient ground for withdrawal but also a ground of 'public interest' leading to withdrawal, since continuing such prosecution shall not serve "public interest". In absence of appropriate pleadings, the complainant at whose behest the case is investigated, cannot have a periscope to view as to whether withdrawal is on proper grounds. ( 9 ) IN absence of such required narration in application, the Court is also deprived equipment of supervisory jurisdiction that is exercisable while granting application under Section 321.
In absence of appropriate pleadings, the complainant at whose behest the case is investigated, cannot have a periscope to view as to whether withdrawal is on proper grounds. ( 9 ) IN absence of such required narration in application, the Court is also deprived equipment of supervisory jurisdiction that is exercisable while granting application under Section 321. ( 10 ) THIS situation generates the result that the present petition does not call for interference, while it does not take away the right of prosecution to file fresh application incorporating therein all required details. In the result, the petition does not call for any interference. Rule is discharged, with above clarification as to liberty to State to file proper application. Petition dismissed.