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2016 DIGILAW 776 (UTT)

Chattar Singh v. State of Uttarakhand

2016-10-28

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition is instituted for setting aside the Government Orders dated 08.07.2015 and 10.08.2015 passed by the Government of Uttarakhand and also to set aside order dated 06.06.2016 passed by learned Sessions Judge in revision petitions no.31 of 2015 and no.15 of 2015. 2. Key facts, necessary for adjudication of this petition, are that the petitioner had gone to Shiva Resort with his wife, member of Zila Panchayat, on 16.01.2013. By-election for the Zila Panchayat, District Bijnor was scheduled for 21.01.2013. On 17/18.01.2013 at around 02:30 AM, when the petitioner was at the Resort, a mob came at the spot. The panchayat members along with the petitioner were pushed into the waiting cars and kidnapped and taken to an isolated place without their consent. F.I.R. dated 18.01.2013 was registered under Sections 452, 365, 342, 504, 506, 323 and 34 of IPC. Charge sheet was filed on 26.05.2014. Supplementary charge sheet was also filed on 07.02.2015. On 07.06.2014, the learned Chief Judicial Magistrate, in criminal case no. 445 of 2014, has taken the cognizance against the accused and summons were issued. However, the accused did not appear before the court. Thereafter, on 25.04.2015, cognizance was taken by the learned Chief Judicial Magistrate against the accused in criminal case no.230 of 2015. Both the cases, i.e., criminal case no.445 of 2014 and criminal case no.230 of 2015 were clubbed together. The fact of the matter is that the State Government vide G.O. No.183/XX-3/08(2014) dated 08.07.2015 issued directions for withdrawing the case titled as “State vs. Amit Chauhan”. Copy of the G.O. is Annexure-5. Thereafter, the learned Assistant Public Prosecutor filed an application to withdraw the case instituted against accused Amit Chauhan. 3. According to the averments made in the petition, the accused is a son of the Minister of U.P. The withdrawal application was rejected by the learned Chief Judicial Magistrate, Pauri Garhwal, on 12.08.2015. Thereafter, the State Government issued another Government Order being No.713/XX-3-2015-08(104)2014 dated 10.08.2015 to withdraw the crime no.2 of 2013 against the accused persons in public interest, modifying the earlier Government Order dated 08.07.2015. Thereafter, the Assistant Public Prosecutor filed an application being no.35-B to withdraw the case against the accused in criminal case no.445 of 2014. The learned Chief Judicial Magistrate, vide order dated 21.09.2015, rejected the said application. Thereafter, the Assistant Public Prosecutor filed an application being no.35-B to withdraw the case against the accused in criminal case no.445 of 2014. The learned Chief Judicial Magistrate, vide order dated 21.09.2015, rejected the said application. Thereafter, the learned District Government Counsel moved a revision petition before the learned Sessions Judge, Pauri Garhwal. Vide order dated 06.06.2016, the learned Sessions Judge allowed the revision. It would be relevant at this stage to mention that the learned Sessions Judge had issued notice to the S.H.O. Police Station Laxmanjhula in the revision petition. The S.H.O. appeared before the court and filed his written submissions and opposed the withdrawal of the case against the accused. The copy of the written submissions is Annexure-13. The petitioner herein also has filed objections against the withdrawal of the case. However, his objections were not considered by the learned Sessions Judge. The learned Sessions Judge, in his judgment dated 06.06.2016, while allowing the revision petition no.31/2015, has stated that there was no gravity of offence as both the parties were of the same place and belong to different political parties thus, the public interest at large would not be affected. He set aside the impugned order dated 21.09.2015 and permitted the prosecution to withdraw the case no.445 of 2014, and in the revision petition no.15/2015, he set aside the summoning order dated 25.04.2015 passed in criminal case no.230 of 2015. 4. According to Section 321 of Cr.P.C., the Public Prosecutor or Assistant Public Prosecutor, in-charge of the 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. 5. In Rahul Agarwal vs. Rakesh Jain and another reported in AIR 2005 Supreme Court 910, their Lordships of Hon’ble Supreme Court have held that the permission to withdrawal of prosecution can only be granted only in interest of justice and for valid reasons. Discretion should not be exercised to stifle prosecution at instance of aggrieved parties. Even if Government directs public prosecutor to withdraw prosecution, Court must consider all relevant circumstances and find out whether withdrawal would advance cause of justice. Paragraph-10 of the judgment is reproduced as under: “10. Discretion should not be exercised to stifle prosecution at instance of aggrieved parties. Even if Government directs public prosecutor to withdraw prosecution, Court must consider all relevant circumstances and find out whether withdrawal would advance cause of justice. Paragraph-10 of the judgment is reproduced 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. 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.” 6. In S.K. Shukla vs. State of U.P. reported in AIR 2006 Supreme Court 413, their Lordships of Hon’ble Supreme Court have held that the public prosecutor cannot act on dictate of the State Government. He has to act objectively being officer of Court. Courts are also free to assess whether prima facie case is made or not. Paragraph33 of the judgment is reproduced as under: 33. This petition is filed against the order passed by the State Government dated 29.08.2003 whereby public prosecutor was directed to withdraw the POTA case against the accused persons. He has to act objectively being officer of Court. Courts are also free to assess whether prima facie case is made or not. Paragraph33 of the judgment is reproduced as under: 33. This petition is filed against the order passed by the State Government dated 29.08.2003 whereby public prosecutor was directed to withdraw the POTA case against the accused persons. An application was moved by public prosecutor for withdrawal of these cases before Special Judge, though no order was passed permitting withdrawal of these cases. However, in view of our finding in SLP (Crl) 5609 of 2004, we cannot affirm the order of the State Government for withdrawal of these cases and consequential application made by the public prosecutor for withdrawal of these cases. The order passed by the Government dated 29.8.2003 as well as application moved by the special public prosecutor before the Special Judge, Kanpur Nagar cannot be sustained and accordingly the order passed by the State Government and the application moved by the special public prosecutor before the Special Judge at Kanpur, both are rejected. In this connection our attention was invited to 1983(1) SCC 438 , 1980 (3) SCC 435 , 1996(2) SCC 610 , 2002(3) SCC 510 . In these cases it has been laid down that the public prosecutor has to shoulder a greater responsibility for withdrawal of the cases under Section 321 Cr.P.C. In Sheonandan Paswan v. State of Bihar and others, 1983 (1) SCC 438 , it was held, that the settled law laid down by the Supreme Court has been that the withdrawal from the prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from the prosecution is his. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. 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. However, Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before his files an application under that section. If the Public Prosecutor received such instructions, he cannot be said to act extraneous influence. However, Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before his files an application under that section. If the Public Prosecutor received such instructions, he cannot be said to act extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government, since a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Unlike the judge, the Public Prosecutor is not an absolutely independent Officer. He is appointed by the government for conducting in court any prosecution or other proceedings on behalf of the Government concern. So there is a relationship of a counsel and client between the Public Prosecutor and the Government. If the Government gives instruction to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition. In the latter event the Public Prosecutor will have to return the brief and perhaps to resign, for, it is the Government, not the Public Prosecutor, who is in the know of larger interest of the State”. The Public Prosecutor cannot act like a post box or act on the dictate of the State Government. He has to act objectively as he is also an Officer of the Court. At the same time court is also not bound by that. The courts are also free to access whether the prima facie case is made out or not. The court, if satisfied, can also reject the prayer. However, in the present case we have examine the matter and found that there is a prima facie case to proceed against the accused persons under Section 4(b) of the Act and other provision of the Explosive or Arms Act, therefore, the sanctioned granted by the Government and application moved by the Public Prosecutor for withdrawal of the cases cannot be sustained. Hence Writ Petitions Nos. Hence Writ Petitions Nos. 132-134 of 2004 is accordingly allowed and the order of the State Government dated 29.8.2003 withdrawing the cases against the accused persons is quashed, likewise directions to the public prosecutor for withdrawing the cases from the Court. 7. In the instant case, the incident has taken place on 17/18.01.2013. The F.I.R. was registered. Charge sheet was filed. Summoning order dated 25.04.2015 was issued after appraisal of the material placed before the learned trial court. The State Government has issued the Government Order on dated 08.07.2015 and has further issued another Government Order on dated 10.08.2015 modifying the earlier Government Order dated 08.07.2015 to withdraw the cases against the accused. Thereafter, the learned Assistant Public Prosecutor has moved the application before the learned trial court, which was dismissed on 21.09.2015. A revision was preferred against the order dated 21.09.2015 by the Assistant Public Prosecutor before the learned Sessions Judge. The Assistant Public Prosecutor has not applied his independent mind. He has acted on the dictates of the State Government while seeking permission to withdraw the cases. The learned Sessions Judge has allowed the revision. It was necessary for the learned Sessions Judge to look into the matter judiciously as to whether prima facie case is made out or not. The order has been passed by the learned Sessions Judge on 06.06.2016 in a mechanical manner. The accused were involved in a heinous crime. The S.H.O. Police Station Laxmanjhula has opposed the withdrawal. He has filed his written submissions. The withdrawal of the case was against the public interest. It would give wrong signals to the society. The learned Sessions Judge has given a new twist to the facts while allowing the revision by stating that the accused have only gone to see the person residing in the resort. The learned Sessions Judge has also taken into consideration that the parties are of the same place but belong to different political parties. Merely that the parties were of the same place but belong to different political parties cannot be a ground to withdraw the cases. There is no material on record to substantiate the plea of A.D.G.C. (Criminal) that the case was politically motivated. Accordingly, the C-482 petition is allowed. The order rendered by the learned Sessions Judge, Pauri Garhwal dated 06.06.2016, is set aside. There is no material on record to substantiate the plea of A.D.G.C. (Criminal) that the case was politically motivated. Accordingly, the C-482 petition is allowed. The order rendered by the learned Sessions Judge, Pauri Garhwal dated 06.06.2016, is set aside. The accused now shall face the trial of the offences charged with in criminal case no.445 of 2014 and criminal case no.230 of 2015.