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2014 DIGILAW 1747 (ALL)

Lalji v. State of U. P.

2014-05-28

ARVIND KUMAR TRIPATHI II

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JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. 1. Heard Sri Khaleeq Ahmad Khan, learned counsel for the revisionist, Sri Sharad Dixit, learned AGA for the State respondent and Shri I.P. Shukla-II, learned counsel for opposite party no.2. 2. This criminal revision has been filed challenging the order dated 6.8.2001 passed by Additional Sessions Judge, Court No.10 Sitapur in Sessions Trial No.1470 of 1997 by which application moved by A.D.G.C. (Criminal) for withdrawal of the prosecution pending against the revisionist. 3. The fact in short is that (Shri Mahadev brother of the revisionist) had lodged a first information report dated 22.2.1996, under Section 302 against his brother-in-law regarding murder of revisionist's sister. On 26.2.1996 Ram Gopal was apprehended by the revisionist and he was handed over to the police at Police Station-Kotwali, Sitapur. Investigation was transferred to Police Station-Rampur, District- Sitapur. Ram Gopal had died in the intervening night of 26/27.2.1996. While in custody Police Station-Rampur. Munna Lal brother of deceased Ram Gopal moved an application on 2.6.1996 before the Chairman, Human Rights Commission, New Delhi and on the direction of Chairman of Human Rights Commission, the matter was investigated by Crime Branch Criminal Investigation Department and a case under Section 302 IPC was registered on 29.11.1996 against the revisionist, his two brothers namely Sunder Lal and Mahadev, his sister Gangajali and then Station House Officer, Police Station Rampur Shri G.P. Bharti and three unknown police constables. After investigation a charge-sheet under Section 302 IPC was submitted. During investigation by C.B.C.I.D revisionist was not found revisable for the death of Ram Gopal and the State Government vide letter dated 30.6.2000 issued instructions to the District Magistrate and Superintendent of Police, Sitapur for taking appropriate steps for withdrawal of the prosecution against the revisionist in public interest relating to Sessions Trial No.1470 of 1997 under Sections 302 and 328 IPC (State Vs. Lalji and Others), Police Station-Rampur, District-Sitapur. 4. An application was moved by Additional Government Counsel (Criminal) on 13.7.2000 before the learned Additional Sessions Judge concerned praying for granting permission for withdrawal of the prosecution against the revisionist, this application was rejected by the court below, hence this criminal revision. 5. Lalji and Others), Police Station-Rampur, District-Sitapur. 4. An application was moved by Additional Government Counsel (Criminal) on 13.7.2000 before the learned Additional Sessions Judge concerned praying for granting permission for withdrawal of the prosecution against the revisionist, this application was rejected by the court below, hence this criminal revision. 5. It was submitted by learned counsel for the revisionist that the impugned order was passed and application for withdrawal was rejected on technical ground, cognizance of the case has been taken against the revisionist on the basis of charge-sheet submitted by the police just for the sake of protecting the police officer and police constables. It was further submitted that continuation of proceeding of Session Trial amongst abuses of process of law as there is ample evidence on record to indicate that revisionist is innocent. Learned Court below has committed manifest error of law by observing that Learned A.D.G.C. (Criminal) has not moved application for withdrawal of prosecution after applying their mind. 6. It was also submitted from the side of revisionist that while deciding the application under Section 321 Cr.P.C. for withdrawal, the court below is not required to pass reasoned order in order to assist the evidence that the case would end in conviction of acquittal. 7. It was further submitted that it is the duty of the trial court to see that the grounds of withdrawal are legally valid, and application made by the prosecutor is bona fide, and is not collusive. It was further submitted that the duty of the High Court is to see that the considerations by the trial court on the application under Section 321 Cr.P.C. was not misdirected, and the grounds of withdrawal are legally valid. 8. Learned counsel appearing for opposite party no.2 relying upon the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877 argued that the impugned order is perfectly justified, and there is no need for interference in this order. 9. 8. Learned counsel appearing for opposite party no.2 relying upon the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877 argued that the impugned order is perfectly justified, and there is no need for interference in this order. 9. In the case of Abdul Karim v. State of Karnataka, (2000) 8 SCC 710 relying on the earlier decision of the Constitution Bench in Sheonandan Paswan v. State of Bihar, 1987 (1) SCC 299, following observations were made regarding withdrawal of case under Section 321 Cr.P.C.: - ".....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 so 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 before him, 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 the consent has necessarily to be 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 to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by consent from the court on a consideration of the material before it. What is necessary to satisfy is to see that the Public Prosecutor has acted in good faith and exercise of discretion by him is proper." 10. The Apex Court in the case of Sheonandan Paswan v. State of Bihar and others, 1983 SCC (Crl.) 224 has given certain guidelines, which would be material for the purposes of instant case: - "1. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 2. The Apex Court in the case of Sheonandan Paswan v. State of Bihar and others, 1983 SCC (Crl.) 224 has given certain guidelines, which would be material for the purposes of instant case: - "1. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 2. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 3. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 4. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but no other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic. 5. The Court performs a supervisory function granting its consent to the withdrawal. 6. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution." 11. The Apex Court has, in the same decision, held that since the trial court's supervisory power of either granting, or refusing to grant permission is judicial function, the same is liable to correction by the High Court under its revisional power. Both, under the old, as well as present Cr.P.C. 12. The Apex Court in Rajendra Kumar Jain v. State through Special Police Establishment, (1980) 3 SCC 435 = AIR 1980 SC 1510 set the same legal proposition from Section 321 of the Cr.P.C., which has been adapted in the case of Sheonandan Paswan v. State of Bihar and others, 1983 SCC (Crl.) 224. 13. These principles clearly lay emphasis on the independent application of mind by the Public Prosecutor. This clearly goes to show that if the Public Prosecutor has independently applied its mind, and comes to the conclusion that it is the case, which is suitable to be withdrawn, then the court cannot re-appreciate the grounds. 13. These principles clearly lay emphasis on the independent application of mind by the Public Prosecutor. This clearly goes to show that if the Public Prosecutor has independently applied its mind, and comes to the conclusion that it is the case, which is suitable to be withdrawn, then the court cannot re-appreciate the grounds. The court has only to consider whether the Public Prosecutor has applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. 14. In the instant case application filed by the prosecuting officer is on record which is Annexure 4 and read as follows: - ---Hindi--- 15. Grounds mentioned in the application is that he has been directed to move application for withdrawal. A careful perusal of the above application reveals that the public prosecutor has not applied his judicial mind, regarding guideline no.4 by Apex Court in Sheonandan Paswan's Case (supra). 16. Ram Naresh Pandey's case reported in 1957 SCR 279 is a land mark case which has laid down the law on the point with precision and certainty. In this decision the functions of the Court and the Public Prosecutor have been correctly outlined. While discussing the role of the Apex Court has observed: "His discretion in such matters has necessarily to be exercised with. reference, to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the public prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of the triable issue. For instance the discharge that results therefrom need not always conform to the standard of "no prima facie case" under Sections 209(1) and 253(1) or of 'groundlessness' under Sections 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the public prosecutor, without]a careful and proper scrutiny of the grounds on which the application for consent is made." 17. This is not to say that a consent is to be lightly given on the application of the public prosecutor, without]a careful and proper scrutiny of the grounds on which the application for consent is made." 17. This decision was approved by Apex Court in M.N. Sankaranarayanan Nair v. P.V. Balakrishnan & Ors., [1972] 2 SCR 599 as is seen at page 606: " .....In the State of Bihar v. Ram Naresh Pandey, 1957 SCR 279 it was pointed out by this Court that though the Section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must none-the-less satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes ..... "" (para 75) 18. From the discussion made above the order passed by the court below is perfectly justified. The criminal revision is liable to be dismissed and is hereby dismissed.