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2015 DIGILAW 619 (KAR)

STATE OF KARNATAKA v. M. P. RENUKACHARYA

2015-06-12

A.N.VENUGOPALA GOWDA

body2015
ORDER The respondents are being prosecuted for the offences punishable under various sections of the Indian Penal Code. When the cases were at the stage of trial, the Public Prosecutor filed separate applications under S.321 Cr.P.C., proposing to withdraw the prosecution launched against the accused. Learned Magistrate, having passed an order of rejection, criminal petitions were filed. The same having been rejected, again applications were filed under S.321 Cr.P.C., before the learned Trial Judge, proposing to withdraw the prosecution. The applications having been rejected on 07.10.2011, these petitions were filed to quash the aforesaid orders and allow the prayer made in the applications moved by the prosecution. 2. Sri B. Visweswaraiah, learned HCGP, contended that there is failure on the part of the learned Magistrate to exercise jurisdiction vested in him. He submitted that the impugned orders being perverse are liable to be set aside. 3. Perused the impugned orders and considered the submissions made by the learned HCGP. The point for consideration is, whether the learned Magistrate has committed any error of law in rejecting the applications filed under S.321 Cr.P.C.? 4. In SHEONANDAN PASWAN Vs. STATE OF BIHAR AND OTHERS, (1987) 1 SCC 288, Apex Court has held as follows: “76. Section 333, which was deleted consequent on the discontinuance of original criminal trials in the High Court, has still a bearing, while considering the scope of Section 321 corresponding to Section 494 of the earlier Code and a comparative study of the two sections and their scope will be appropriate. Both the sections pertain to withdrawal of prosecutions though at different levels. A harmonious view should, in my view, prevail in the reading of the two sections. Section 333 does not give any discretion or choice to the High Court when a motion is made under it. Such being the case, Section 321 must also be construed, as conferring powers within circumscribed limits to the Court to refuse to grant permission to the Public Prosecutor to withdraw the prosecution. Section 333 does not give any discretion or choice to the High Court when a motion is made under it. Such being the case, Section 321 must also be construed, as conferring powers within circumscribed limits to the Court to refuse to grant permission to the Public Prosecutor to withdraw the prosecution. If such a harmonious view is not taken it would then lead to the anomalous position that while under Section 333, a High Court has to yield helplessly to the representation of the Advocate General and stop the proceedings and discharge or acquit the accused, the subordinate courts when moved under Section 321 Cr.P.C would have a power to refuse to give consent for withdrawal of the prosecution if it is of opinion that the case did not suffer from paucity of evidence. The legislature would not have intended to confer greater powers on the subordinate courts than on the High Court in the exercise of powers under Section 494 of the old Code and Section 333 respectively. It would, therefore, be just and reasonable to hold that while conferring powers upon the subordinate courts under Section 494 to give consent to a Public Prosecutor withdrawing the prosecution, the legislature had only intended that the courts should perform a supervisory function and not an adjudicatory function in the legal sense of the term. 77. Section 321 reads as follows: "321. Withdrawal from prosecution. The 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, (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. (Proviso omitted) This section enables the Public Prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced, but this application for withdrawal has to get the consent of the court and if the court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. It clothes the Public Prosecutor to withdraw from the prosecution of any person, accused of an offence both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is "at any time before the Judgment is pronounced". 78. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. 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 judicial function 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. 79. The court's function is to give consent. This section does not obligate the court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines 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 materials available, the order giving consent has necessarily to be upheld.” (emphasis supplied) 5. In R.M.TEWARI Vs. 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 materials available, the order giving consent has necessarily to be upheld.” (emphasis supplied) 5. In R.M.TEWARI Vs. STATE (NCT OF DELHI) AND OTHERS, (1996) 2 SCC 610 , Apex Court, while dealing with the justifiability of withdrawal from the prosecution has held as follows: “7. It is, therefore, clear that the Designated Court was right in taking the view that withdrawal from prosecution is not to be permitted mechanically by the court on an application for that purpose made by the public prosecutor. It is equally clear that the public prosecutor also has not to act mechanically in the discharge of his statutory function under Section 321 CrPC on such a recommendation being made by the Review Committee; and that it is the duty of the public prosecutor to satisfy himself that it is a fit case for withdrawal from prosecution before he seeks the consent of the court for that purpose. 8. It appears that in these matters, the public prosecutor did not fully appreciate the requirements of Section 321 Cr.P.C and made the applications for withdrawal from prosecution only on the basis of the recommendations of the Review Committee. It was necessary for the public prosecutor to satisfy himself in each case that the case is fit for withdrawal from prosecution in accordance with the settled principles indicated in the decisions of this Court and then to satisfy the Designated Court of the existence of a ground which permits withdrawal from prosecution under Section 321 CrPC.” (emphasis supplied) 6. In ABDUL KARIM AND OTHERS Vs. STATE OF KARNATAKA AND OTHERS, (2000) 8 SCC 710 , Apex Court, has held as follows: “19. The law, therefore, is that though 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 to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. The law, therefore, is that though 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 to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. 20. It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its permission, in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent. ***** ***** ***** 42. The satisfaction for moving an application under Section 321 CrPC. has to be of the Public Prosecutor which in the nature of the case in hand has to be based on the material provided by the State. ***** ***** ***** 42. The satisfaction for moving an application under Section 321 CrPC. has to be of the Public Prosecutor which in the nature of the case in hand has to be based on the material provided by the State. The nature of the power to be exercised by the Court while deciding application under Section 321 is delineated by the decision of this Court in Sheonandan Paswan v. State of Bihar & Ors. [(1987) 1 SCC 288]. This decision holds that grant of consent by the court is not a matter of course and when such an application is filed by the Public Prosecutor after taking into consideration the material before him, the court exercises its judicial discretion by considering such material and on such consideration either gives consent or declines consent. It also lays down that the court has to 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 or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. 43. True, the power of the court under Section 321 is supervisory but that does not mean that while exercising that power, the consent has to be granted on mere asking. The court has to examine that all relevant aspects have been taken into consideration by the Public Prosecutor and/or by the Government in exercise of its executive function.” (emphasis supplied) 7. In RAHUL AGARWAL Vs. RAKESH JAIN AND ANOTHER, (2005) 2 SCC 377 , Apex Court, while dealing with what should be the lawful consideration while considering the application for withdrawal, under S.321 of Cr.P.C., after survey of the case law on the subject, has held as follows: “10. From these decisions as well as other decisions on the same question, 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 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.” (emphasis supplied) 8. In the instant case, the Public Prosecutor, in the applications for withdrawal of the prosecution, having referred to the Government Order, mechanically sought permission of the Court. It is upon consideration of all the materials, learned Magistrate has passed the impugned orders. Learned Magistrate having applied his mind to the case of the prosecution and having found no valid reason to permit the withdrawal, has passed the orders of rejection. Hence, there is no merit in the contention that the impugned orders are perverse. The impugned orders have not been shown to be illegal by the learned HCGP. 9. The impugned orders being in consonance with the settled principles of law, as per the decisions of the Apex Court, noticed supra and S.321 of Cr.P.C., having conferred upon the learned Magistrate, the power to assess, whether a prima facie case is made out or not and being satisfied that the consent for withdrawal cannot be granted, the impugned orders have been passed. 10. Considering the reasons assigned in the impugned orders, the applications filed by the Public Prosecutor for withdrawal of the cases being untenable, have rightly been rejected. Hence, I do not find any justification to exercise the power under S.482 of Cr.P.C., and grant prayer in these petitions. 10. Considering the reasons assigned in the impugned orders, the applications filed by the Public Prosecutor for withdrawal of the cases being untenable, have rightly been rejected. Hence, I do not find any justification to exercise the power under S.482 of Cr.P.C., and grant prayer in these petitions. Consequently, the petitions being devoid of merit, are rejected. The learned Magistrate shall decide the cases independently and without being influenced by the orders on the applications filed under S.321 Cr.P.C.