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2008 DIGILAW 131 (CHH)

State of Chhattisgarh v. Govind Lal Vora

2008-05-09

L.C.BHADOO

body2008
Judgement ORDER :- The aforesaid petitions filed under Section 482 of the Code of Criminal Procedure (for short "the Cr. P.C.") are being disposed of by this common order, as both these petitions are arising out of the same order dated, 11th August, 2005 passed by 3rd Additional Sessions Judge, Raipur, in Criminal Revision No. 65/2005. 2. Brief facts leading to filing of these petitions by the State, Govind Lal Vora and one Ajay Tiwari are that petitioner Govind Lal was the President of Shiksha Pracharak Samiti, Raipur (for short "the Samiti") during the period 1995 to 1998. During that period without any resolution of the Samiti or without seeking approval of any office bearer or the member of the Samiti he issued cheque Nos. 828685 and 828686 in favour of Pragati Prakashan on 4-4-1998 amounting Rs. 2,50,000/- and Rs. 50,000/-. The said amount of Rs. 3,00,000/- was deposited in the account of Pragati Prakashan of which Govind Lal Vora was Managing Director. He got entries effected from the employee of Samiti that the said amount of Rs. 3,00,000/- has been advanced as loan to Pragati Prakashan. However, an amount of Rs. 50,000/- was deposited back by Govind Lal Vora through cheque in the account of Samiti on 13-7-1998. When Moti Lal Tripathi became President of the said Samiti, he filed a complaint in the Court of Judicial Magistrate against Govind Lal for commission of offence under Sections 406, 409, 420 and 467 of the Indian Penal Code (for short "the I.P.C."). The said complaint was forwarded under Section 156(3) of the Cr. P.C. to Police Station Kotwali for registration of criminal case and investigation. After registration of the case and investigation, charge-sheet was filed against Govind Lal Vora in his absence in the year 2002. On 23-1-2003 District Prosecution Officer M. M. Chaturvedi filed an application under Section 321 of the Cr. P.C. for withdrawal of the prosecution, against which complainant Moti Lal Tripathi filed an objection against the said application. 3. After hearing learned counsel for the parties vide order dated 16-12-2004 learned Chief Judicial Magistrate rejected the application of the District Prosecution Officer on the ground that since the complaint has been filed by Moti Lal Tripathi, without his consent the District Prosecution Officer is not entitled to withdraw the prosecution. 4. 3. After hearing learned counsel for the parties vide order dated 16-12-2004 learned Chief Judicial Magistrate rejected the application of the District Prosecution Officer on the ground that since the complaint has been filed by Moti Lal Tripathi, without his consent the District Prosecution Officer is not entitled to withdraw the prosecution. 4. Being aggrieved by the said order, the Public Prosecutor filed a criminal revision before the Sessions Judge, Raipur, who transferred the said revision to the 3rd Additional Sessions Judge, Raipur, the same was registered as Criminal Revision No. 65/ 2005. Learned Additional Sessions Judge also dismissed the revision vide order dated 11-8-2005 holding that it has not been mentioned in the application that as to what offence was committed by the accused and under which Section he was prosecuted. It has also not been mentioned that under which law and rule the prosecution is being withdrawn and whether it is in the public interest to withdraw the prosecution, thereby it does not appear that the Public Prosecutor has applied his mind. It appears that the Public Prosecutor has filed the said application merely on the directions of the State Government. Therefore, intention of Section 321 of the Cr. P.C. is not fulfilled and ultimately dismissed the revision. Against the said order these petitions under Section 482 of the Cr. P.C. have been filed by the State as well as Govind Lal Vora and one Ajay Tiwari claiming himself to be the Secretary of Shiksha Pracharak Samiti, Raipur. 5. Notice on M.Cr.C. No. 187/2006 was issued to respondent No. 2 Moti Lal Tripathi on 1st September, 2006. A report was received on the said notice that Moti Lal Tripathi had already died on 19-10-2004 and a death certificate to that effect was also annexed with the unserved notice. 6. Mr. Rajeev Shrivastava, Advocate representing respondent No. 2 Moti Lal Tripathi, filed an application I.A. No. 1/2008 on behalf of Ajay Tiwari claiming himself to be the Secretary of the Society. It has been mentioned in the application that after the death of Moti Lal Tripathi, who was President of the Society, the Society has passed a resolution authorizing Ajay Tiwari, Secretary of the Society, to represent the Society in this matter in place of Moti Lal Tripathi. Therefore, this I.A. was allowed and the name of Ajay Tiwari was replaced in place of Moti Lal Tripathi. 7. Therefore, this I.A. was allowed and the name of Ajay Tiwari was replaced in place of Moti Lal Tripathi. 7. Having heard learned counsel for the parties, I have perused the record and the impugned orders. 8. The scope of Section 482 of the Cr. P.C. has been examined by the Apex Court in the matter of K.L.E. Society v. Siddalingesh, 2008 AIR SCW 1993 : (AIR 2008 SC 1702) arid the Apex Court held that exercise of power under Section 482 of the Code of Criminal Procedure, 1973 is an exception and not a rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Court. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justifiae to do real and substantial justice for the administration of which alone Courts exist. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justifiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 9. Therefore, in order to exercise jurisdiction under Section 482 of the Cr. P.C. the High Court has inherent power to prevent abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. 10. As far as the power under Section 321 of the Code of Criminal Procedure, 1973, which provides for withdrawal from prosecution by the Public Prosecutor, is concerned, after considering all the relevant judgment on the point, in the matter of Rahul Agarwal v. Rakesh Jain, (2005) 2 SCC 377 : (2005 Cri LJ 963), the Apex Court held that the law regarding withdrawal of prosecution has been explained in detail in a series of decisions rendered by this Court. 11. In State of Bihar v. Ram Naresh Pandey. 1957 SCR 279 : AIR 1957 SC 389 : 1957 Cri LJ 567 the Apex Court held (SCR p. 284 (para 3 of Cri LJ). "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. 1957 SCR 279 : AIR 1957 SC 389 : 1957 Cri LJ 567 the Apex Court held (SCR p. 284 (para 3 of Cri LJ). "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." 12. In State of Orissa v. Chandrika Mohapatra, (1976) 4 SCC 250 : 1976 SCC (Cri) 584 : (1977 Cri LJ 773), the three Judge Bench of the Apex Court observed (SCC p. 255 para 10) (para 10 of Cri LJ) : "(T)he paramount consideration in all those 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." 13. In Balwant Singh v. State of Bihar, (1977) 4 SCC 448 : 1977 SCC (Cri) 633 : AIR 1977 SC 2265 : (1977 Cri LJ 1935), the Apex Court observed : (SCC p. 450, para 2) : The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor. It is non-negotiable and cannot be bartered away favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution." 14. In Abdul Karim v. State of Karnataka, (2000) 8 SCC 710 : 2001 SCC (Cri) 59 : (2001 Cri LJ 148) relying on the earlier decision of the Constitution Bench in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 : 1987 SCC (Cri) 82 : (1987 Cri LJ 793) the Apex Court made the following observations regarding withdrawal of case under Section 321, Code of Criminal Procedure : (SCC pp. 728-29, para 18) (Para 18 of Cri LJ) : "What the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The Court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the Court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline 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 the upheld. Section 321 contemplates consent by the Court in a supervisory and not an adjudicatory manner. 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 by 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." 15. The law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the Court must consider all relevant circumstances and find out wether the withdrawal of prosecution would advance trie cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the Court may permit withdrawal of the prosecution. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the Court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the Court may allow the withdrawal of prosecution. The discretion under Section 321, Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same. 16. Therefore, while granting permission or consent to withdraw the prosecution, the Court is required to ensure and see that the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. For that purpose before granting consent, the Court is required to consider all the material, facts and circumstances and that the application has been properly made by the Public Prosecutor, after independent consideration and in furtherance of public interest. 17. In the matter of Ghanshyam v. State of M. P., (2006) 10 SCC 473 the Apex Court while interpreting Section 321 of the Cr. P.C. held that discretion to withdraw from prosecution is that of Public Prosecutor and none else, he may withdraw from prosecution not merely on ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. 18. Applying the above principle, if we look into the facts and circumstances of the present case, no doubt Govind Lal Vora, at the relevant time i.e in the year 1995-98, was working as President of Shiksha Pracharak Samiti, Raipur and while working so an amount of Rs. 18. Applying the above principle, if we look into the facts and circumstances of the present case, no doubt Govind Lal Vora, at the relevant time i.e in the year 1995-98, was working as President of Shiksha Pracharak Samiti, Raipur and while working so an amount of Rs. 3 lakhs through two cheques was transferred in favour of Pragati Prakashan. Allegations are that without consent or approval of the Samiti or its members, Govind Lal Vora being President of the Samiti transferred the amount in favour of Pragati Prakashan of whom also he was the Managing Director. It is also admitted fact that an amount of Rs. 50,000/-was returned to the Samiti by Govind Lal Vora, immediately, however, the remaining amount along with interest was deposited by him after the complaint was filed, thereby the Samiti has not suffered any financial loss. The Public Prosecutor after considering all the relevant facts moved an application under Section 321 of the Cr. P.C. for withdrawal of the prosecution. Pragati Prakashan has already returned the whole amount. Moreover now, the Samiti whose amount was transferred in the account of Pragati Prakashan, by Govind Lal Vora, has passed a resolution on 4-3-2006 that if the prosecution is withdrawn against Govind Lal Vora, then the Samiti has no objection. By another resolution dated 5-5-2008, the Samiti has authorized Ajay Tiwari to deal with the matter after the death of Moti Lal Tripathi and Mr. Rajeev Shrivastava, counsel for appearing for Ajay Tiwari and the Samiti, has categorically stated that if the prosecution is withdrawn, then they have no objection. Even Ajay Tiwari has filed a petition under Section 482 of the Cr. P.C. bearing Cr. M.P. No. 436/2007 for quashment of the impugned order whereby the application of the Public Prosecutor has been rejected. Therefore, it will not be in the interest of public policy and justice to prosecute the matter further as such, it will be appropriate to withdraw the prosecution. 19. In View of the above facts, in the first instance, the Samiti itself has given consent for withdrawal of the prosecution, therefore, there is no chance of success of the complaint filed by Moti Lal Tripathi, the then President of the Samiti. Moreover, the whole amount with interest has already been deposited by Govind Lal Vora. 19. In View of the above facts, in the first instance, the Samiti itself has given consent for withdrawal of the prosecution, therefore, there is no chance of success of the complaint filed by Moti Lal Tripathi, the then President of the Samiti. Moreover, the whole amount with interest has already been deposited by Govind Lal Vora. Therefore, continuation of the prosecution based on the complaint filed by the then President of the Samiti will be unnecessary, it will not only waste the Court's time but it will be a futile exercise and unnecessary harassment of the accused, wastage of time of the Court. Public Prosecutor and the witnesses. 20. Looking to the totality of the facts and circumstances of the case, in order to further the cause of justice, the Court below ought to have granted consent for withdrawal of the prosecution, more particularly, because after passing order by the trial Court and the revisional Court the Samiti has passed a resolution authorizing Ajay Tiwari, Secretary of the Samiti, and a statement has been made by their counsel that they have no objection if the prosecution against Govind Lal Vora is withdrawn. In the circumstances, I am of the considered opinion that it would be in the interest of justice as also to further the cause of justice to set aside the orders passed by the trial Court and the revisional Court exercising inherent power under Section 482 of the Cr. P.C. and to remit the matter back to the learned Chief Judicial Magistrate. 21. In the result, the order impugned dated 11th August, 2005 passed by the 3rd Additional Sessions Judge, Raipur in Criminal Revision No. 65/2005 is quashed. Consequently, the order dated 16th December, 2004 passed by the Chief Judicial Magistrate, Raipur in Criminal Case No. 2390/ 2002 is also quashed. The Chief Judicial Magistrate, Raipur, to pass order in accordance with law. 22. In terms of the above order, M.Cr. C. No. 187/2006 and Cr. M.P. No. 436/2007 stand disposed of. Order accordingly.