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Madhya Pradesh High Court · body

2016 DIGILAW 353 (MP)

ANKIT s/o SURESHCHANDRA v. STATE OF M. P.

2016-04-29

S.C.SHARMA

body2016
JUDGMENT : 1. Mr. Virendra Patel along with Mr. Nilesh Manore, learned counsel for the applicants. Mr. Mukesh Kumawat, learned panel lawyer for the respondents State. Mr. Abhijeet Singh, learned counsel for the respondents No. 4 to 6. 2. The present petition has been filed before this Court under section 482 of the Criminal Procedure Code by which by the order dated 26-6-2015 passed by Additional Sessions Judge, Sardarpur, District Dhar in Criminal Revision No. 56/2014, by which the learned Judge has affirmed the order passed by the Judicial Magistrate First Class, Sardarpur in Criminal Case No. 781/2010 dated 30-11-2013. 3. The facts of the case reveal that on account of some incident a criminal case was registered against the present applicants as well as a second criminal case was registered against the respondents No. 4, 5 and 6. The criminal case which was registered against the respondents No. 4, 5 and 6 was arising out of a Crime No. 217/2010 and the Criminal Case number was 781/2010. The aforesaid case was registered for an offence under sections 294, 323, 506/34 of the Indian Penal Code, whereas against the present applicants a counter case was registered for an offence under sections 294, 323, 506/34 of the Indian Penal Code. 4. The State Government in its wisdom submitted an application under section 321 of the Code of Criminal Procedure for withdrawing the criminal case against the respondents No. 4, 5 and 6 and the learned Chief Judicial Magistrate, Sardarpur, District Dhar has allowed the application preferred by the State Government by order dated 30-11-2013. It is pertinent to note that no such application was filed in respect of counter case, which the present applicants are facing, though it is arising out of the same incident. Meaning thereby, the State Government was very kind to the other party for the reasons best known to the State Government and the case against the non-applicants No. 4, 5 and 6 was withdrawn, though both the cases were arising out of the same incident. 5. Meaning thereby, the State Government was very kind to the other party for the reasons best known to the State Government and the case against the non-applicants No. 4, 5 and 6 was withdrawn, though both the cases were arising out of the same incident. 5. Learned counsel for the applicant has vehemently argued before this Court that the action taken by the State Government is not in consonance with the statutory provisions as contained under the Code of Criminal Procedure and in all fairness if State Government was of the opinion that the withdrawal of the prosecution will bury the dispute and bring harmony between the parties, the State Government should have filed applications in both the cases. 6. Learned counsel for the applicants has placed reliance upon a judgment delivered in the case of Brijpal Singh vs. Pramod Kumar and another reported in 2013 Criminal Law Report (MP) 63 and his contention is that in similar circumstances where one case arising out of the same incident was withdrawn, this Court has set aside the order of withdrawal of prosecution and has directed the trial Court to try both the cases simultaneously. 7. On the other hand learned counsel for the respondents No. 4, 5 and 6 has placed reliance upon a judgment delivered in the case of Bairam Muralidhar vs. State of Andhra Pradesh reported in AIR (SCW)-2014-0-4533/Scale and his contention is that State Government is competent to file an appropriate application under section 321 i.e. withdrawal from prosecution and in light of the aforesaid judgment the application for withdrawal has rightly been allowed. Another judgment relied upon is in the case of Rahul Agarwal vs. Rakesh Jain reported in AIR (SCW) 2005-0-576 and the contention of the learned counsel is that the State Government can certainly file an application under section 321 for withdrawal of prosecution and such withdrawal of prosecution brings harmony between the parties. 8. This Court has carefully gone through the cases relied upon by the learned counsel for the respondents No. 4 to 6 and in both the cases before Apex Court the issue was not in respect of two cases arising out of the same incident. 8. This Court has carefully gone through the cases relied upon by the learned counsel for the respondents No. 4 to 6 and in both the cases before Apex Court the issue was not in respect of two cases arising out of the same incident. There was no such counter case, infact, if the judgment relied upon by the learned counsel for the Respondents No. 4 to 6 is taken into account, then the withdrawal of one case against one party and non-withdrawal of one case against the other party will certainly not at all bring any harmony between the parties and, therefore, judgment relied upon are of no help to the respondents No. 4 to 6. 9. Learned counsel for the State Government has supported the arguments canvassed by the learned counsel for the respondents No. 4 to 6. 10. In the case of Brijpal Singh vs. Pramod Kumar and another (supra) in paragraphs 7 to 10 the Court has held as under : “7. It is undisputed on record that criminal case pending against the petitioner as criminal case No. 1259/2004 and criminal case pending against the respondent No. 2 as criminal case No. 604/2004 had arisen out of the same incident took place on 21-9-2004. In these circumstances, both cases were the cross cases. 8. 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, Courts below have failed to consider the aforesaid matter of fact and allowed the application under section 321 of Criminal Procedure Code of A.D.O.P. for withdrawal from prosecution. It is also pertinent to note that co-ordinate Bench of this Court in Ramnaresh Tyagi’s case (supra) was of the view that by compelling one of the two parties to face the trial and given benefit to the another party while withdrawing the cases pending against him cannot be said to be in public interest. 9. In these circumstances, I am of the view that if the order passed by the Courts below shall remain continued then it will be amount to harassment to the petitioner and further amount to abuse of process of law. 9. In these circumstances, I am of the view that if the order passed by the Courts below shall remain continued then it will be amount to harassment to the petitioner and further amount to abuse of process of law. Thus, the present petition is allowed and the order passed by the Courts below in Criminal Case No. 604/2004 (State of Madhya Pradesh vs. Pramod Kumar), is hereby set aside. It is directed to the trial Court to restore the criminal case No. 604/2004 to its original number and proceed further in accordance to law. It is further directed to Chief Judicial Magistrate, Beohari if criminal case No. 1259/2004 is not pending in the Court of Additional Chief Judicial Magistrate, Beohari then this case be immediately transferred to the Court of Additional Chief Judicial Magistrate, Beohari for analogous trial of both cross cases in the light of observation made in this order. 10. A copy of this order be sent to the learned Chief Judicial Magistrate, Shahdol and Additional Chief Judicial Magistrate, Beohari for compliance and necessary action.” 11. A similar view has been taken by this Court in the case of Ramnaresh Tyagi and another vs. Arjun Mohan Singh and others reported in 2008 (3) M.P.L.J. 96, in paragraphs 4 to 6 reads as under : “4. In this regard, the observation of the Apex Court in para 10 of its judgment in Rahul Agrawal vs. Rakesh Jain and anr., 2005(1) SCC 168, will also be required to be perused which goes as under : 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 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. 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. Similar view has been quoted by the Apex Court in paragraph 5 of one another case of R. M. Tiwari vs. State (NCT of Delhi) and ors., 1996 SCC (Crimes) 361, from the case of State of Orissa vs. Chandrakar Mohapatra. 5. It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn. Keeping in view the above quoted observation of the Apex Court, on perusal of the text of the application filed on behalf of the Assistant Public Prosecutor and quoted herein above, it appears that the Govt. in public interest has taken a decision to withdraw the cases of simple nature and upon receiving the communication from the Govt. the application has been filed. The required satisfaction of the Public Prosecutor does not appear. That apart, had it been a single case, arising out of the incident in question, the public interest would have not been questioned. But, admittedly, arising out of the same incident two cross cases are pending. Simply because the offences being slightly different, calling one case of a simple nature and another not of a simple nature, does not appear justified. Such a step taken on behalf of the learned Public Prosecutor cannot be said to be in the public interest or in the interest of justice, as required under the law. It tantamount in the interest of one out of the two parties of the case. Such a step taken on behalf of the learned Public Prosecutor cannot be said to be in the public interest or in the interest of justice, as required under the law. It tantamount in the interest of one out of the two parties of the case. Compelling one of the two parties to face the trial and giving benefit to the other party while withdrawing the case pending against it, in my considered opinion ought not to be allowed. The nature of the offences under which the other party is being tried is not very different. There appears difference of the offence punishable under section 325, Indian Penal Code against one party and section 326, Indian Penal Code against the another. Although, offence under section 326, Indian Penal Code is of a serious nature in comparison to other offence punishable under section 325, Indian Penal Code. But nature cannot be said to be very different. In one case, grievous hurt is caused by hard and blunt object, while in other by sharp, shooting, stabbing or by a dangerous object. That apart, the other requirements as highlighted in various observations of the Apex Court quoted and emphasized herein above and also do not appear, that the prosecution is likely to end in acquittal or the continuance of the case is only causing severe harassment to the accused withdrawal is like to bury the dispute and bring about harmony between the parties and alike. But on the contrary, while withdrawal of the prosecution of one of the parties will create more tension between them. In view of all this, the impugned order, allowing the application appears erroneous. 5. Learned Senior Advocate, Shri V. K. Saxena on behalf of the respondent has submitted that in such cases instead of rejecting the application out rightly, a direction ought to be given to the State to file fresh application for withdrawal from the prosecution against the respondent. Shri Saxena still does not argue that a direction is required to file two applications or the Public Prosecutor is required to consider filing applications for withdrawal from both the cases. In support Shri Saxena has drawn attention at the observation of the Apex Court in the case of R. M. Tiwari (supra). The relevant paragraphs 10 to 12 of the judgment are as under : 10. In support Shri Saxena has drawn attention at the observation of the Apex Court in the case of R. M. Tiwari (supra). The relevant paragraphs 10 to 12 of the judgment are as under : 10. The observations in Kartar Singh have to be understood in the context in which they were made. It was observed that a review of the cases should be made by a High Power Committee to ensure that there was no misuse of the stringent provisions of the TADA Act and any case in which resort to the TADA Act was found to be unwarranted, the necessary remedial measures should be taken. The Review Committee is expected to perform its functions in this manner. If the recommendation of the Review Committee, based on the material present, is, that resort to provisions of the TADA Act is unwarranted for any reason which permits withdrawal from prosecution for those offences, a suitable application made under section 321, Criminal Procedure Code on that ground has to be considered and decided by the Designated Court giving due weight to and opinion formed by the Public Prosecutor on the basis of the recommendation of the High Power Committee. 11. It has also to be borne in mind that the initial invocation of the stringent provisions of the TADA Act is itself subject to sanction of the Government and, therefore, the revised opinion of the Government formed on the basis of the recommendation of the High Power Committee after scrutiny of each case should not be lightly disregarded by the Court except for weighty reasons such as mala fides or manifest arbitrariness. The worth of the material to support the charge under the TADA Act and the evidence which can be produced, is likely to be known to the prosecuting agency and, therefore, mere existence, of prima facie material to support the framing of the charge should not by itself be treated as sufficient to refuse the consent for withdrawal from prosecution. It is in this manner an application made to withdraw the charges of offences under the TADA Act pursuant to review of a case and the Review Committee has to be considered and decided by the Designated Courts. 12. It is in this manner an application made to withdraw the charges of offences under the TADA Act pursuant to review of a case and the Review Committee has to be considered and decided by the Designated Courts. 12. The applications made under section 321, Criminal Procedure Code not having been decided on the basis indicated above, fresh applications made in all such cases pursuant to the recommendations of the Review Committee or the revised opinion of the Government have to be considered and decided by the Designated Courts in the manner indicated above. On perusal of this observation of the Apex Court, it appears that in that case, charges under TADA Act were to be tried, for which the initial invocation of the stringent provisions of TADA Act was subject to sanction of the government and, therefore, the revised opinion of the government, formed on the basis of the recommendation of the high-power committee, after scrutiny of each case was not to be lightly discarded. In those circumstances, the direction for filing fresh application in pursuance of the recommendations of the review committee or the revised opinion of the government was directed. The present case is not based on charges related to TADA Act. Hence, the contention of Shri Saxena does not deserve to be sustained. 6. In view of the above, the impugned order appears erroneous and an abuse of the process of the Court. Hence, the petition is allowed. The impugned order is set aside.” 12. In light of the aforesaid judgments in the considered opinion of this Court the State cannot be permitted to pick and choose and withdraw the case of a party to whom favour has to be shown. Either both of the cases should have been withdrawn or none of the case should have been withdrawn as they were arising out of the same incident. 13. Resultantly, the petition preferred under section 482 of the Criminal Procedure Code stands allowed. The order passed by the learned Judicial Magistrate First Class Sardarpur, District Dhar in Crime Case No. 781/2010 dated 30-11-2013 as well as order dated 26-6-2015 passed in Crime Revision No. 56/2014 are hereby set aside and the trial Court is directed to try both the cases, simultaneously. 14. With the aforesaid, the application preferred under section 482 of the Criminal Procedure Code stands allowed. 15. No order as to costs. 14. With the aforesaid, the application preferred under section 482 of the Criminal Procedure Code stands allowed. 15. No order as to costs. Certified copy as per rules.