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Madhya Pradesh High Court · body

2015 DIGILAW 594 (MP)

Pushpa Dharwal v. State Of M. P.

2015-05-15

SUBHASH KAKADE

body2015
ORDER : This petition under section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to as 'the Code' has been filed by the petitioners invoking extraordinary jurisdiction of this Court being aggrieved by the order dated 17-12-2012, passed in Criminal Revision No. UR/2012, by the learned 15th Additional Sessions Judge, Jabalpur, arising out of order dated 19-11-2011, passed in Criminal Case No. 18749/2008, by the Judicial Magistrate First Class, Jabalpur, whereby the application preferred by A.D.P.O. (the prosecutor) under section 321 of the Code has been allowed and the respondent No. 2 has been acquitted from the charges punishable under sections 341, 294 and 323, Indian Penal Code. 2. The facts of the case in brief are that the petitioner No. 2 Ku. Parbeen lodged an FIR at Police Station Cantt, Jabalpur against the respondent No. 2 Ravindra Singh stating that on 25-10-2008 at about 11.45 a.m. the respondent No. 2 has committed Marpeet with her and her family members the petitioner No. 1 Ku. Pushpa and the petitioner No. 3 Smt Thakri Devi and tried to disrobe to outrage her modesty. On the basis of said report the Police have registered a Crime No. 377/2008, for the offence punishable under sections 341, 294 and 323, Indian Penal Code. 3. Admittedly, with regard to this incident counter FIR has also been lodged by the respondent No. 2 against the petitioners. On the basis of the said report the Police have registered the Crime No. 378/2008, for the offence punishable under sections 341, 294, 506, 323 and 34, Indian Penal Code. After investigation, both the parties were charge-sheeted before the competent Court and after framing the charge, trial of these cross cases has been commenced and both the cases have been fixed for evidence before learned trial Court for 30-11-2011. 4. In between, on dated 19-11-2001 an application under section 321 of the Code has been moved by the A.D.P.O. who was prosecuting the case on behalf of the respondent No. 1-State before learned trial Court seeking permission to withdraw the Criminal Case No. 18749/2008, pending against the respondent No. 2. Learned trial Court allowed this application on the same day and acquitted the respondent No. 2. 5. The petitioners have preferred a revision against the aforesaid order dated 19-11-2011 along with an application for condonation of delay of 10 months 20 days. Learned trial Court allowed this application on the same day and acquitted the respondent No. 2. 5. The petitioners have preferred a revision against the aforesaid order dated 19-11-2011 along with an application for condonation of delay of 10 months 20 days. The learned Revisional Court has dismissed the revision on the ground of delay as well as non-maintainability vide order dated 17-12-2012, hence, the petitioners before this Court. 6. Shri Vikalp Soni, learned counsel for the petitioners submits that the orders passed by the Courts below are erroneous, perverse and bad in the eyes of law. There was sufficient material against the respondent No. 2 to register the crime for the offence punishable under section 354, Indian Penal Code but the Police intentionally not registered the same because the respondent No. 2 is a Police Head Constable. Learned trial Court have failed to appreciate that the permission sought by the A.D.P.O. to withdraw the case should not be granted because the cross case regarding the same incident was still pending. The learned Revisional Court erred in holding that the revision filed by the petitioners is not maintainable because there is a provision of appeal against acquittal. It is also pointed out that learned Revisional Court has erred in dismissing the revision on the ground of delay because the delay caused in filing the revision was bona fide and not intentional. Learned counsel concludes his arguments submitting that permission of withdrawal of case can be granted only in the interest of justice and for valid reasons. It may be granted in a case which is likely to end in acquittal and continuance of case will cause severe harassment to the accused. 7. Shri R. S. Dubey, learned Panel Lawyer justified and supported the impugned orders passed by the Courts below. 8. None present on behalf of the respondent No. 2 even after directions dated 10-11-2014 of the Court. 9. Having heard learned counsel present for the parties, going through the record, particularly impugned orders passed by the Courts below carefully. SECTION 321 0F THE CODE, GENERAL 10. In understanding and applying the provisions of section 321 of the Code two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor. And the trial Court has to do is to give its consent. SECTION 321 0F THE CODE, GENERAL 10. In understanding and applying the provisions of section 321 of the Code two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor. And the trial Court has to do is to give its consent. But, the paramount consideration must always be the interest of administration of justice. 11. The principles justifying the regulating withdrawal from prosecution have been considered by the Supreme Court in a series of decisions. 12. In case of Rajendra Kumar Jain vs. State reported in AIR 1980 SC 1510 , the Apex Court culled out the principles applicable for invocation of section 321 of the Code as under :- (i) Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. (ii) The withdrawal from the prosecution is an executive function of the Public Prosecutor. (iii) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to some one else. (iv) The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. (v) The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, political purposes. (vi) The Public Prosecutor is an officer of the Court and responsible to the Court. (vii) The Court performs a supervisory function in granting its consent to the withdrawal. (viii) The Court's duty is not to re-appreciate 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. (ix) It shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. (ix) It shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of Criminal Justice against possible abuse or misuse by the Executive by resort to the provisions of section 361 Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. 13. In case of Rahul Agarwal vs. Rakesh reported in (2005) 2 SCC 377 , the Apex Court after consideration of a number of its earlier decisions, laid down the law as under : "... 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 whether the withdrawal of prosecution would advance the 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 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. 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. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished." FUNCTIONS OF THE PUBLIC PROSECUTOR 14. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished." FUNCTIONS OF THE PUBLIC PROSECUTOR 14. As to the role of the Public Prosecutor, it is specially laid down in case of Sheonandan Paswan vs. State, AIR 1983 SC 194 : 1983 Cri.L.J. 348, which is a leading case on the subject that the Public Prosecutor must apply his mind to the facts of the case independently without being subjected to any outside influence. 15. The Apex Court in catena of cases held that the power must be exercised by the public prosecutor and by no one else. 16. That the withdrawal from the prosecution is an executive function of the public prosecutor and that the ultimate decision to withdraw is his. 17. Public prosecutor actually conducting prosecution can apply for withdrawal otherwise not - State vs. Surjit, AIR 1967 SC 1214 . 18. Public Prosecutor cannot act merely as a "Post Box". The withdrawal application must be "reflective of a free and uninfluenced application of mind". 19. The power of public prosecutor to withdraw from prosecution is wide but should not be used as a "rubber stamp" - Rajendra Kumar Jain case (supra). 20. The decision to withdrawal must be of the public prosecutor, not of other authorities, even of those where displeasure may affect his continuance in office. In taking a decision for withdrawal the public prosecutor has to apply independent mind and exercise his discretion because he acts as a limb of the judicative process and not as an extension of the executive - Subhash Chander vs. State, AIR 1980 SC 423 . 21. That the Government may suggest to the public prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so. Receiving communication or instruction from the Government by the public prosecutor before filing application for withdrawal does not make the application illegal and he cannot be said to be under extraneous influence. 22. The Government may have ordered, directed or asked a public prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind and act in a way so that the public interest may be served. Abdul Karim vs. State, (2000) 8 SCC 710 . 23. 22. The Government may have ordered, directed or asked a public prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind and act in a way so that the public interest may be served. Abdul Karim vs. State, (2000) 8 SCC 710 . 23. In case of Rajendra Kumar Jain (supra), the Apex Court also mandates that the bureaucrat should be careful not to use peremptory language when addressing the public prosecutor, such as 'he is directed' or 'he is instructed', since it may give rise to an impression that he is coercing the public prosecutor to move in the matter. 24. The Public Prosecutor has to make out some ground for withdrawal from prosecution like want of sufficient evidence, case not well founded, object of administration of justice would not be advanced, etc. - State vs. Chandrika, AIR 1977 SC 903 . 25. Application for withdrawal may be made by public prosecutor for reasons other than judicial prospects of prosecution. 25-A. Public prosecutor can, with the consent of the Court, withdraw from prosecution a session's triable case at committal stage - State of Bihar vs. Ram Naresh, AIR 1957 SC 389 . 26. Application for withdrawal can be made at any time ranging between the Court taking cognizance till such time the Court actually pronounces the judgment. Even where reliable evidence has been adduced to prove the charges, the public prosecutor can seek consent of the Court to withdraw the prosecution - Md. Mumtaz vs. Nandini, AIR 1987 SC 863 . 27. Where complainant has filed the case and conducting the prosecution, the public prosecutor cannot file application for withdrawal - Surjit case (supra). 28. Hence it is crystal clear that the purpose of section 321 of the Code it is the opinion of the public prosecutor alone which is material and the ground on which he seeks permission of the Court for withdrawal of the prosecution alone has to be examined. FUNCTIONS OF THE COURT 29. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. FUNCTIONS OF THE COURT 29. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. The Court has to be satisfied that the executive function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the course of justice for illegitimate purpose. The consent of the Court under section 321 of the Code as a condition for withdrawal is imposed as a check on the exercise of that power. 30. The Court while granting or refusing consent under the section performs supervisory and not adjudicatory function. The exercise of the power to accord or withdraw consent by the Court is discretionary. Of course, it has to exercise the discretion judicially. The Court should satisfy itself that application for withdrawal is a bona fide and supported by reasons of State or public policy. The Court should 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. Ram Naresh case (supra). All that, 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. Discretion under section 321 of the Code should not be exercised to stifle the prosecution. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. 31. The Court is required to consider relevant circumstances so as to find out : (i) whether the withdrawal of prosecution would advance the cause of justice; (ii) whether the case is likely to end in an acquittal; (iii) whether continuance of the case would only cause severe harassment to the accused; (iv) whether withdrawal is likely to resolve the dispute and bring about harmony between the parties; (v) whether the grounds of withdrawal are valid; and (vi) whether the implication is bona fide or is collusive. Whether consent should or should not be granted for withdrawal is a question to be decided by the Magistrate in a judicial manner. Whether consent should or should not be granted for withdrawal is a question to be decided by the Magistrate in a judicial manner. The prayer for withdrawal from prosecution should not be refused merely on the ground that the case is at advance stage. 32. Chances of a likely failure is not per se a valid ground to withdraw from prosecution. 33. Magistrate can permit withdrawal for the reasons that the charges were not grave; the cases were pending for a very long time; and the other accused in the same case were acquitted. 34. It is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. 35. That not merely inadequacy of evidence, but other relevant grounds such as to further the broad ends of public justice, economic and political; public order and peace are valid grounds for withdrawal. 36. Offences exclusively triable by Court of Sessions, committing Magistrate is competent to give consent for withdrawal - Rajendra Kumar Jain (supra). LOCUS STANDI OF THE COMPLAINANT 37. The proposition that State is the dominus litis in criminal cases is not an absolute one. The society for its orderly and peaceful development is interested in the punishment of the offender and if the offence is against the society and not merely an individual wrong, any member of the society must have locus standi to initiate a prosecution as also to resist withdrawal of such prosecution if initiated - Union Carbide vs. Union of India, (1991) 4 SCC 584 . The complainant or any other person has locus standi to oppose withdrawal of a case involving offences of criminal breach of trust, cheating, forgery, etc. In case of corruption and criminal breach of trust any member of the society has locus standi to resist withdrawal. 38. It is undisputed on record that criminal case pending against the petitioner as Criminal Case No. 15867/2008 and this criminal case pending against the respondent No. 2 as Criminal Case No. 18749/2008 had arisen out of the same incident took place on 25-10-2008 before learned trial Court. In these circumstances, both cases were the cross cases. 39. It is pertinent to mention here that when learned trial Court passed initial order dated 19-11-2011, this Case No. 18749/2008 was not listed for hearing on this day. In these circumstances, both cases were the cross cases. 39. It is pertinent to mention here that when learned trial Court passed initial order dated 19-11-2011, this Case No. 18749/2008 was not listed for hearing on this day. Actually, this case was listed for dated 30-11-2011 for reordering of evidence along with Cross Case No. 15867/2008. In these circumstances it is manifestly clear that at the time of passing order dated 19-11-2011 none was present on behalf of the petitioners, who were complainant in the cross case which was very much pending for adjudication. 40. It is well established principle of law that in the trial of cross cases, it is imperative on the part of the trial Court to reach to the conclusion that out of two parties who was the aggressor in the incident and thereafter dispose of the cases on merit. Since, learned trial Court has failed to consider the aforesaid matter of fact, because of non-appearance on behalf of the petitioners and allowed the application under section 321 of the Code by A.D.P.O. for withdrawal from prosecution. 41. In a case charge-sheeted by police the complainant is competent to adopt proper course after Magistrate giving consent for withdrawal, on knowledge from any source. 42. Admittedly, arising out of the same incident two cross cases are pending. Simply because A.D.P.O. moved an application under the provisions of section 321 of the Code, permission for withdrawal of only one case is not proper. Such a step taken on behalf of A.D.P.O. cannot be said to be in the public interest or in the interest of justice, as required under the law. Compelling one of the two parties to face the trial and giving benefit to the other party while withdrawing the case pending against him ought not to be allowed when the nature of the offences under which the other party is being tried is not very different. Withdrawal is like to bury the dispute and bring about harmony between the parties and alike. But, in this case withdrawal of the prosecution created more tension between the parties. In view of all this, order dated 19-11-2011 passed by learned trial Court allowing the application was erroneous, that too, without giving opportunity to the petitioners/complainant, who were having locus standi to resist the withdrawal of prosecution. TECHNICAL GROUNDS 43. But, in this case withdrawal of the prosecution created more tension between the parties. In view of all this, order dated 19-11-2011 passed by learned trial Court allowing the application was erroneous, that too, without giving opportunity to the petitioners/complainant, who were having locus standi to resist the withdrawal of prosecution. TECHNICAL GROUNDS 43. From the perusal of the record it is apparent that the learned Revisional Court rejected the petitioner's revision petition, firstly, on the ground that the effect of the order dated 19-11-2011 was acquittal; therefore, the applicant wrongly filed this revision. 44. If withdrawal is allowed under the provisions of section 321 of the Code before framing of charge, the accused shall be discharged. But if charge has already been framed in that case the effect of withdrawal would be acquittal of the accused. There can be no doubt that the resultant order on the granting of the consent, being an order of 'discharge' or 'acquittal', would attract the applicability of correction by the High Court under various provisions of the Code. The function of the Court may well be taken to be a judicial function. When a party is adopted wrong forum for his relief, it is the duty of the Court to apprise the party regarding his mistake. 45. In case in hand, the revision was filed after lapse of 10 months 20 days and this was the second ground of dismissal of the revision. Length of delay is not a matter, but acceptability of the explanation alone is the criterion. If the explanation does not show any mala fide or the same is not put forth in dilatory part of tactics, then the Court should show utmost consideration to the applicant. 46. An application for condonation of delay is moved in a criminal case, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice the Court should condone the delay. Learned Revisional Court failed to see this fact that cross case was pending when order dated 19-11-2011 passed by learned trial Court. 47. It is well settled principle of law that rules of limitation are not meant to destroy the rights of parties. Learned Revisional Court failed to see this fact that cross case was pending when order dated 19-11-2011 passed by learned trial Court. 47. It is well settled principle of law that rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. Furthermore, the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situation is not because on the expiry of such time a bad cause would transform into a good cause. Expression "sufficient cause" within the meaning of section 5 of the Limitation Act or any other similar provision, should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to party. Earlier also, in case of Collector, Land Acquisition, Anant Nag vs. Katiji, reported in AIR 1987 SC 1353 , it was held by the Supreme Court that ordinarily a litigant does not stand to benefit by lodging an appeal late and refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. The Supreme Court further held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It was also observed by the Supreme Court that it must be grasped that judiciary is respected not on account of its power to legalise injustice on technical ground but because it is capable of removing injustice and is expected to do so. 48. On going through the decisions in N. Balakrishnan vs. M. Krishnamurthy, reported in AIR 1998 SC 3222 : (1998) 7 SCC 123 , it is clear that the principles relating to the matter of condonation of delay are well settled. The Court is armed with power to condone the delay. The judicial power and the discretion are given to the Court to advance substantial justice. The Court is armed with power to condone the delay. The judicial power and the discretion are given to the Court to advance substantial justice. If the spirit behind the empowerment of discretionary power on the Court is taken note of it would be clear that the Court is required to adopt liberal approach in the matter of interpretation of the phrase "sufficient cause" as mentioned in section 5. This concept is adequately elastic to enable the Court to apply the law in a meaningful manner and the Courts are required to adopt rational, common sense and pragmatic approach. The substantial justice alone is to be preferred against technical flaws. Section 5 does not say that the discretion can be exercised only if the delay is within a certain limit. Length of delay is not a matter, but acceptability of the explanation alone is the criterion. If the explanation does not show any mala fide or the same is not putforth in dilatory part of tactics, then the Court should show utmost consideration to the applicant. While condoning the delay, the Court should not forget the case of opposite party altogether. 49. In various decisions, the Apex Court has held that the approach of the Court should be liberal and pragmatic when an application under section 5 of the Limitation Act or any other similar provision is placed for condonation of delay. The power to condone the delay must be liberally exercised and unless there is absolute negligence on the part of a party, the delay in filing the appeal must be condoned. Application may not be dismissed just on the technicality and the circumstances pointed out for condonation of delay need not be considered in a pedantic manner, rather provisions must be interpreted in a justice oriented way. 50. On these facts and in the circumstances of the case it is clear that learned Revisional Court by dismissing the revision taking a artificial and technical view that the revision is wrongly instituted as well as is time-barred has caused serious injustice to the appellant without going into the merits that learned trial Court committed gross error while passing order dated 19-11-2011, and the High Court should at least have given thoughtful consideration to the merits of the case when injustice was writ large on the face of the record. 51. 51. In light of above mentioned facts and in the circumstances of the case, the order passed by learned trial Court as well as by learned Revisional Court shall remain continued then it will amount to harassment to the petitioners and further amount to abuse of process of law. Thus, the present petition is allowed and the order dated 19-11-2011 passed by learned trial Court in Criminal Case No. 18749/2008 (State of Madhya Pradesh vs. Ravindra Singh) and the order dated 17-12-2012 passed by learned Revisional Court in criminal unregistered revision case are hereby set aside. It is directed to learned trial Court to restore the Criminal Case No. 18749/2008 to its original number and proceed further in accordance with law. It is also made clear that the Public Prosecutor, who will actually conduct this Criminal Case No. 18749/2008 may file a fresh application for withdrawal of the prosecution under the provisions of section 321 of the Code and after giving a full-fledged opportunity to the petitioners, the complainants in that case learned trial Magistrate is free to decide the same on its merits, without keeping the findings of this order. 52. It is further directed to the learned Chief Judicial Magistrate, Jabalpur if Cross Case No. 15867/2008 State of Madhya Pradesh vs. Pushpa Dharwal and another is pending in any Court under his jurisdiction, then this case be immediately transferred to that Court for analogous trial of both cases, which are cross cases to each other. 53. A copy of this order be sent to the learned Chief Judicial Magistrate, Jabalpur for compliance and necessary action. The ensuing summer vacation is going to start, therefore, the parties are directed to appear before the learned Chief Judicial Magistrate, Jabalpur on dated 13-7-2015. 54. A copy of this order also be made available to the Director Prosecution, Bhopal to circulate this order among the Public Prosecutor under his control as matter is of general importance.