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Rajasthan High Court · body

2006 DIGILAW 1429 (RAJ)

Rajesh Malhotra v. State of Rajasthan

2006-05-01

HARBANS LAL

body2006
JUDGMENT 1. - The instant misc. petition under Section 482 Criminal Procedure Code seeks quashing of the proceedings of Cr. Case No. 1/05 pending before the Judicial Magistrate (Ist Class), Sikrai, District Dausa for offences under Sections 332 and 353 Indian Penal Code arising out of F.I.R. No. 466/04 P.S. Manpur, District Dausa along with order dated 30.11.2005 passed by the aforesaid court whereby, he has rejected the application under section 321 Criminal Procedure Code for withdrawal of the aforesaid cr. cases against the petitioners. 2. Briefly stated the relevant facts necessary for the disposal of this petition are that one Richpal Singh lodged a report on 26.12.2004 at P.S. Manpur regarding an incident which allegedly took place on the same day whereupon, FIR No. 466104 at PS Manpur was registered and after investigation a charge-sheet was filed. During the pendency of the trial, Special Secretary Home (Law) Department issued letter No. F.19(17) Home-10/05 dated 6.9.2005 informing the District Magistrate Dausa that the State Govt. has taken a decision to withdraw the prosecution against the petitioners in the present case. It was also stated that the Govt. had taken into consideration the circumstances under which the alleged incident had occurred and also the fact that there was no such intention of the petitioners to commit any offence and no public loss has been caused. On the receipt of the letter dated 6.9.2005, the District Collector Dausa wrote a letter to the Assistant Collector (Prosecution) Department, Dausa asking him to issue directions to the concerned A.P.P. to take necessary steps to withdraw the prosecution lodged against the accused persons whereupon, the learned A.P.P. moved an application under section 321 Criminal Procedure Code on 10.11.2005 before the learned trial court for permission to withdrawn the prosecution against the petitioners which application was however disallowed on 30.11.2005 by the learned trial court and the case was fixed for framing of charges against the petitioners. The petitioners have, therefore, invoked the inherent jurisdiction of this Court, as indicated above. 3. Learned counsel for the petitioners has contended that the Hon'ble Apex Court in the case of State of Bihar Vs. Ram Narash Pandey and anr. AIR 1957 SC 389 . The petitioners have, therefore, invoked the inherent jurisdiction of this Court, as indicated above. 3. Learned counsel for the petitioners has contended that the Hon'ble Apex Court in the case of State of Bihar Vs. Ram Narash Pandey and anr. AIR 1957 SC 389 . while dealing with Section 494 of the Old Code of Criminal Procedure (Section 321 of the New Code of Criminal Procedure) is similarly worded with slight modification) which enabled the prosecution to withdraw from the prosecution has observed as under "Section 494 is an enabling one and vests in the Public Prosecutor the discretion to apply to Court for the 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 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 Procedure Code, would become 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 section gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds. The judicial functions, 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 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." 4. In the case of State of Orissa Vs. Chandrika Mohapatra and ors. (1976) 4 SCC 250 . In the case of State of Orissa Vs. Chandrika Mohapatra and ors. (1976) 4 SCC 250 . , the Division Bench of the Hon'ble Apex Court has observed as under : "The paramount consideration in all these cases must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice." 5. In the case of Sheonandan Paswan Vs. State of Bihar (1983) 2 SCR 61 . , the Hon'ble Apex Court reiterated, as under:- "From the aforesaid enunciation of the legal position governing of the proper exercise of the power contained in Section 321, three or four things become amply clear. In the first place though it is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the Court's supervisory function. In fact being an executive function it would be subject to a judicial review on certain limited grounds like any other executive action, the authority with whom the discretion is vested 'must genuinely address itself to the matter before it, must nor act under the dictates of another body, must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and must not act arbitrarily or capriciously.....These several principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power." 6. In the instant case, the facts as disclosed from the FIR indicate that Richpal Constable No. 908 Outpost Balaji was on duty on 26.12.2004 along with Constable Hariom and Head Constable Gopiram No. 137 at the temple of Balaji to control the crowd collected there to have darshan of Balaji. They were trying to line-up the people collected there. In the instant case, the facts as disclosed from the FIR indicate that Richpal Constable No. 908 Outpost Balaji was on duty on 26.12.2004 along with Constable Hariom and Head Constable Gopiram No. 137 at the temple of Balaji to control the crowd collected there to have darshan of Balaji. They were trying to line-up the people collected there. At about 12 Noon, petitioners came there and tried to enter inside the temple out of turn breaking the. line whereupon, the police personnels asked them to come in the line but they were enraged and caught hold of the complainant. One of them snatched away the batten from Hariom and struck the complainant at his head as a result of which he started bleeding. Then the other police personnels intervened. 7. The State Govt. has considered the entire facts of the case and has decided to withdraw the prosecution against the petitioners for the reason that the occurrence has taken place all of a sudden and in a fit of anger without there being any intention on the part of the petitioners to cause harm to any police personnel or to challenge their authority or to deter them from discharging their duties as public servants. They appear to have tried to have the darshan of Balaji before others and out of turn. 8. In my well considered view, withdrawal from such prosecution in the light of the guidelines laid down by the Hon'ble Apex Court in this behalf appears to be in administration of justice and there does not appear to be any valid and cogent reason to refuse to grant permission to withdraw from the prosecution. There does not appear any oblique motive on the part of the Assistant Public Prosecutor or for that matter on the part of the State Government for withdrawing from the prosecution against the petitioners. 9. Therefore, the order of the court below seems to be unsustainable and deserves to be set-aside. 10. In the result, this misc. petition under Section 482 Criminal Procedure Code, is allowed. The order dated 30.11.2005 passed by the learned Judicial Magistrate 1st Class, Sikrai, District Dausa in Cr. Case No. 1/2005 is hereby quashed and set-aside. 9. Therefore, the order of the court below seems to be unsustainable and deserves to be set-aside. 10. In the result, this misc. petition under Section 482 Criminal Procedure Code, is allowed. The order dated 30.11.2005 passed by the learned Judicial Magistrate 1st Class, Sikrai, District Dausa in Cr. Case No. 1/2005 is hereby quashed and set-aside. The matter is remitted back to him to pass fresh appropriate order on the application under Section 321 Criminal Procedure Code filed by the learned APP keeping in view the observation made hereinabove and the guidelines laid down by the Hon'ble Apex Court.Appeal Allowed. *******