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Madhya Pradesh High Court · body

2016 DIGILAW 383 (MP)

Adesh Jain v. State of M. P.

2016-05-09

M.K.MUDGAL

body2016
ORDER 1. The petitioner/injured has filed this petition invoking extraordinary jurisdiction of this Court under section 482 of CPC being aggrieved by the Order dated 15.12.2012 passed by the Lok Adalat in Case No.62 of 2009 for withdrawing the prosecution under section 321 of CrPC. 2. Learned counsel for the petitioner submits that the petitioner lodged an FIR bearing Crime No.901 of 2008 at PS Ganjbasoda against the respondents No.2 to 5 for the offences under sections 323, 294 and 506B/34 of IPC and after investigation, the charge-sheet was filed against the respondents No.2 to 5 on 31.12.2008. One cross case bearing Crime No.900 of 2008 was also registered at the same PS on the basis of the FIR lodged by the respondent No.2. After investigation, the charge-sheet was filed against the petitioner and other six persons. The cross case filed against the petitioner and the other six persons has been pending in the Court of JMFC Basoda bearing Case No.30 of 2009 but the cross case which was filed against the respondents No.2 to 5 was withdrawn by the Government submitting an application under section 321 of CrPC and in this regard, the impugned order was passed in the Lok Adalat without application of mind. The counsel contends that when the criminal cases of the same incident have been filed against both the parties, one case which was pending against the respondents No.2 to 5 could not have been withdrawn by the Government. The application filed by the respondent/state under section 321 of CrPC was without any sufficient cause and no cause of public interest was shown in the application filed under section 321 of CrPC for withdrawal of the prosecution. The said application was mala fide and learned trial Court without applying it’s mind in the facts and circumstances of the case, permitted the respondent/state to withdraw the criminal case vide impugned order. 3. The counsel further argued that on perusal of the impugned order, it is apparent that the said order is in cyclostyle form which indicates that it was not properly considered by the Court that where two cases were pending against each other, why one case was withdrawn by the respondent/State and so the permission granted by the trial Court is not just and proper because, it affects the rights of the petitioner/complainant as well as the other respondents i.e. co-accused. Learned counsel placed reliance upon the judgment in the case of Brijpal Singh v. Pramod Kumar and another [(2013)CRLR (MP)63], and Bairam Muralidhar v. State of Andhra Pradesh [(2015)SCC (Cri)42], has prayed for setting aside the impugned order. 4. Learned PP and the counsel for the respondents No.2 to 4 opposing the submissions have prayed for rejection of the petition stating that the order passed by learned trial Court is just and proper and there is no reason to interfere in the said order. The counsel further submits that the original record of the trial Court might be eliminated because, the impugned order was passed on 15.12.2012. 5. Heard the arguments at length of both the parties and perused the record. 6. On perusal of the record, it appears that two criminal cases were registered against both the parties and after investigation, both the charge-sheets were filed before the trial Court against them. One case was registered against the respondents No.2 to 5 bearing Criminal Case No.62 of 2009 for the offence under sections 323, 294 and 506B/34 of IPC and another criminal case bearing Criminal Case No.30 of 2009 was filed against the petitioner and this case is still pending before the trial court and the case is fixed for defence evidence and further date is fixed on 10.5.2016. When two criminal cases were filed about the same incident, both should have been decided by the court simultaneously. In the said circumstances, it can be concluded that the order passed by the trial Court permitting withdrawal of Criminal Case No.62 of 2009 cannot be held to be proper because, the petitioner and other co-accused are deprived of their defence evidence in the cross case which is pending against them. On perusal of the impugned order, it also transpires that the said order has been passed by the Lok Adalat without application of mind as it has not been considered by the trial Court as to why the one case was being permitted to be withdrawn by the Court and why other case was kept to be continued by the prosecution against the petitioner and other coaccused. In the case of Brijpal Singh (Supra), in paras 8 and 9 it has been held as under : œ“8. In the case of Brijpal Singh (Supra), in paras 8 and 9 it has been held as under : œ“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 CrPC of ADOP 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. Thus, the present petition is allowed and the order passed by the Courts below in Criminal Case No.604 of 2004 (State of M.P. v. Pramod Kumar) is hereby set aside. It is directed to the trial Court to restore the Criminal Case No.604 of 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 of 2004 is not pending in the Court of ACJM, Beohari then this case be immediately transferred to the Court of ACJM, Beohari for analogous trial of both cross cases in the light of observation made in this ordera.” Further, the Hon’ble apex Court in the case of Bairam Muralidhar (supra), in paras 17 and 18 has held as under : œ“17. The obtaining fact situation has to be tested on the anvil of aforesaid enunciation of law. As is demonstrable, the State Government vide G.O. Ms. No. 268 dated 23rd May, 2009 enumerated certain aspects which are reproduced hereinbefore. The reproduction part requires slight clarification. The obtaining fact situation has to be tested on the anvil of aforesaid enunciation of law. As is demonstrable, the State Government vide G.O. Ms. No. 268 dated 23rd May, 2009 enumerated certain aspects which are reproduced hereinbefore. The reproduction part requires slight clarification. In the order passed by the State Government, the third reference refers to the representation of Shri B. Muralidhar, Sub-Inspector of Police, Kamareddy Town P.S. dated 5.8.2007 and the fourth reference refers to the communication from the Director General, Anti Corruption Bureau, Andhra Pradesh, Hyderabad dated 12.10.2007. Thereafter, the State Government has given its opinion why the case required to be withdrawn. The learned public prosecutor in his application for withdrawal of the prosecution has referred to the Government order and sought permission of the Court. What the public prosecutor has stated is that he has perused the Government order, the material evidences available on record and has applied his mind independently and satisfied that it was a fit case for withdrawal. 18. The central question is whether the public prosecutor has really applied his mind to all the relevant materials on record and satisfied himself that the withdrawal from the prosecution would subserve the cause of public interest or not. Be it stated, it is the obligation of the public prosecutor to state what material he has considered. It has to be set out in brief. The Court as has been held in Abdul Karim case, is required to give an informed consent. It is obligatory on the part of the Court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the Court to weigh the material. However, it is necessary on the part of the Court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A Court while giving consent under section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The Court cannot give such consent on a mere asking. It is expected of the Court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. The Court cannot give such consent on a mere asking. It is expected of the Court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the Court is obliged to see whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the Court as well as his duty to the collective. In the case at hand, as the application filed by the public prosecutor would show that he had mechanically stated about the conditions-precedent. It cannot be construed that he has really perused the materials and applied his independent mind solely because he has so stated. The application must indicate perusal of the materials by stating what are the materials he has perused, may be in brief, and whether such withdrawal of the prosecution would serve public interest and how he has formed his independent opinion. As we perceive, the learned public prosecutor has been totally guided by the order of the Government and really not applied his mind to the facts of the case. The learned trial Judge as well as the High Court has observed that it is a case under the Prevention of Corruption Act. They have taken note of the fact that the State Government had already granted sanction. It is also noticeable that the Anti-Corruption Bureau has found there was no justification of withdrawal of the prosecution.” 7. The learned trial Judge as well as the High Court has observed that it is a case under the Prevention of Corruption Act. They have taken note of the fact that the State Government had already granted sanction. It is also noticeable that the Anti-Corruption Bureau has found there was no justification of withdrawal of the prosecution.” 7. Considering the aforesaid facts and circumstances of the case, this Court deems it fit to allow this petition and set aside the impugned order because, no sufficient cause has been shown by the respondent/State in the petition filed by the same under section 321 of CrPC as to why the withdrawal of the one case was necessary and was in public interest. Therefore, the impugned order is hereby set aside. The trial Court is directed to decide both the cases simultaneously because, both have arisen out of the same incident being cross cases, it should be decided on the same date. The judgment of the Criminal Case No.62 of 2009 is held up till the proceedings of the another Criminal Case No.30 of 2009 is concluded. It is further ordered that the original record so eliminated, be reconstructed with the help of the petitioner as well as the prosecution. 8. The petition is hereby disposed of as above.