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2008 DIGILAW 170 (GAU)

Learned Public Prosecutor, In re. v. .

2008-02-27

P.K.MUSAHARY

body2008
1. Heard Mr. A. Ghosh, learned Addl. Public Prosecutor, Govt. of Tripura for the petitioner. 2. This application has been filed under section 482 of the Code of Criminal Procedure for exercising inherent power of this Court and allow the prosecution to withdraw in respect of two accused persons namely, Matilal Debbarma and Ranjit Debbarma who were implicated in GR 395 of 2003 which is pending in the Court of learned Judicial Magistrate 1st Class, Dharmanagar, North Tripura. 3. It is stated at the Bar that an application was filed before the learned Judicial Magistrate 1st Class, Dharmanagar, North Tripura by the Assistant Public Prosecutor to withdraw from the prosecution against the aforesaid two accused persons and the same was rejected by the learned Judicial Magistrate 1st Class by an order dated 25.11.2005. Against the aforesaid order of rejection another application was filed before the learned Additional Sessions Judge, North Tripura, Dharmanagar by the learned Addl. Public Prosecutor and the said application was registered as Criminal Revision No. 2(1) of 2007. After hearing the learned Addl. Public Prosecutor, the learned Addl. Sessions Judge passed judgment on 28.3.2007 rejecting the aforesaid application. The present petition has been filed before this court against the aforesaid order of the Addl. Sessions Judge, Dharmanagar, North Tripura. 4. It is submitted by Mr. Ghosh, learned Addl. P.P. that the learned Addl. Sessions Judge failed to appreciate the purpose for which the application for withdrawal was preferred by the Addl. Public Prosecutor and failed to apply his judicial mind in rejecting the said application. Drawing attention to the memorandum of tripartite settlement dated 17.2.2004 (Annexure-A to the petition) signed amongst the Central Government, the State of Tripura and leadership of the NLFT (NB), Mr. Ghosh submits that the members of the NLFT(NB) have agreed to come overground and surrender all their weapons by 25th December, 2004 to permanently abjure the path of violence, join the mainstream and abide by the Constitution of India. The Government of India after considering all aspects, assured special economic development package for the overall development of tribal people of Tripura. The purpose behind such agreement was to bring peace, tranquility and social harmony in the society. It is provided in the tripartite agreement that all the criminal cases except the crimes against the women against the NLFT (NB) leaders and cadres would be withdrawn. In pursuance of the aforesaid agreement Govt. The purpose behind such agreement was to bring peace, tranquility and social harmony in the society. It is provided in the tripartite agreement that all the criminal cases except the crimes against the women against the NLFT (NB) leaders and cadres would be withdrawn. In pursuance of the aforesaid agreement Govt. of Tripura took positive steps and in the meantime, a large number of NLFT (NB) members numbering 153 have already surrendered before the authority, a list of which has been annexed as Annexure-B to this petition. There has been further surrender of more members of the NLFT (NB) subsequently on various occasions in pursuance of the said agreement. 5. According to Mr. Ghosh, learned Addl. Public Prosecutor, there is a public policy behind signing of such agreement and there is a mass support towards the same. Moreover, the court has to take notice that there is a popular Government elected by the people and, therefore, the State Government can adopt such public policy for the interest of the State and national integration. This aspect should not lose sight of the presiding judge of the court and it must be respected and carried out to the fullest extent. 6. Public Prosecutor is, undoubtedly, an officer of the court and he is assigned with public duty to assist the court. The Public Prosecutor is required to be properly informed by the State Government and in this case it is evidently clear that the learned Public Prosecutor was well informed about the aforesaid agreement and also the policy of the Government and accordingly, the Public Prosecutor was directed to approach the appropriate court to withdraw from the prosecution. That was sincerely done by the Public Prosecutor before the courts below and there was no irregularity or infirmity in the steps taken by the learned Public Prosecutor. 7. That was sincerely done by the Public Prosecutor before the courts below and there was no irregularity or infirmity in the steps taken by the learned Public Prosecutor. 7. Let us peruse the provision under section 321, Cr.P.C. A plain reading of the provision under the aforesaid Section makes it abundantly clear that the learned 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 for which he is tried; and upon such withdrawal if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences. The only consideration to be made is whether the Public Prosecutor or Assistant Public Prosecutor who has filed the application for withdrawal is the person who has been assigned to conduct the particular case. It is submitted by Mr. Ghosh that the learned Public Prosecutor/Assistant Public Prosecutor who filed the petitions before the learned courts below were the persons assigned with the particular case. 8. The next question to be considered is whether the learned Public Prosecutor while making the application has properly apprised the court concerned. In this case, since the learned Public Prosecutor laid bare all the material facts like signing of tripartite agreement and the policy adopted by the State Government, there was no lapse on the part of the learned Public Prosecutor in apprising the court in a desired manner. 9. There are instances in our country that Public Prosecutor had withdrawn from prosecution in cases arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest, etc. There is no denying the fact that in the State of Tripura also a public upsurge took place by a section of tribal people and they took arms in their hands. They have come forward by surrendering the arms and joined the mainstream. In such cases, the wisdom of the popularly elected Government cannot be questioned in adopting such policy to withdraw the cases pending against the members of the NLFT(NB) who have surrendered in pursuance of the aforesaid agreement. The Govt. of Tripura has taken the decision for the benefit of the society and greater public interest. 10. In such cases, the wisdom of the popularly elected Government cannot be questioned in adopting such policy to withdraw the cases pending against the members of the NLFT(NB) who have surrendered in pursuance of the aforesaid agreement. The Govt. of Tripura has taken the decision for the benefit of the society and greater public interest. 10. In a case of Rajender Kumar v. State, AIR 1980 SC 1510 it is held by the Apex Court that under the Criminal Procedure Code it is the Public Prosecutor that has to withdraw from the prosecution and it is the court that has to give its consent to such withdrawal. It is further observed that the Public Prosecutor is an officer of the court and he sets the criminal law in motion in the court. He conducts the prosecution in the court for the people. So it is he who is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. The hon'ble Supreme Court further held if the policy makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the court to say that the initiative came from the Government and therefore, the Public Prosecutor cannot be said to have exercised a free mind. 11. In another case of Subhash Chander v. The State (Chandigarh Admn.), AIR 1980 SC 423 , it is held by the Apex Court that all public power is a public trust, and the Public Prosecutor cannot act save in discharge of that public trust, a public trust geared to public justice. The consent of the court under section 321 as a condition for withdrawal is imposed as a check on the exercise of that power. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. 12. In the light of the ruling of the hon'ble Supreme Court, I am clearly of the opinion that in this case the learned Public Prosecutor has persuaded the matter in proper perspective and the withdrawal from prosecution has been sought in the larger sense for promotion of larger social interest and by such action no public purpose would be subverted. In the light of the ruling of the hon'ble Supreme Court, I am clearly of the opinion that in this case the learned Public Prosecutor has persuaded the matter in proper perspective and the withdrawal from prosecution has been sought in the larger sense for promotion of larger social interest and by such action no public purpose would be subverted. I am also of the opinion that the learned Public Prosecutor applied his mind in making the application for withdrawal from the prosecution taking into account all the facts and circumstances and also the public policy adopted by the Government. 13. I am constrained to observe that the learned courts below have been oblivious of the material facts placed by the learned Public Prosecutor at the time of hearing the matter and passing the impugned orders without applying their judicial mind. In any case the application for withdrawal from prosecution, if found to be properly placed with proper instruction and authority, should not be rejected by the court. 14. An additional affidavit has been filed by the learned Addl. Public Prosecutor stating that the two accused persons namely, Matilal Debbarma and Ranjit Debbarma are involved in Pecharthal P.S. Case No. 48 of 2003 under sections 120(B)/396/307/326, IPC and chargesheet has been laid vide C.S. No. 10/2004 dated 17.3.2004 under sections 396/307/326/325, IPC read with section 27 of Arms Act. From this it is clear that the aforesaid two persons are not involved in crime against the women. 15. Having considered all aspects of the matter and upon hearing the learned Addl. Public Prosecutor, I am satisfied that sufficient and reasonable grounds have been made out for allowing the Public Prosecutor to withdraw from the prosecution, particularly, the aforesaid case namely, Pecharthal P.S. Case No.48 of 2003 under sections 120(B)/396/307/326, IPC. Accordingly, it is allowed. The impugned order dated 28.3.2007 passed by the learned Addl. 'Sessions Judge, North Tripura, Dharmanagar in Criminal Revision No. 2(1) of 2007 is set aside. 16. This Crl. Petition is allowed accordingly.