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2017 DIGILAW 580 (MP)

Sukha Dhakad v. State of M. P.

2017-05-01

VIVEK AGARWAL

body2017
ORDER 1. Petitioner has filed this writ petition being aggrieved by the order dated 8.3.2013 passed by the learned Sessions Judge, Shivpuri in Criminal Revision No.15/2013, whereby the revision filed by the present petitioner was dismissed, which was filed being aggrieved by the order dated 15.12.2012 passed by the Judicial Magistrate First Class, Kolaras in Case No.992/2009, whereby JMFC Kolaras had permitted withdrawal of Case No.992/2009, which was permitted to be withdrawn under the provisions of sections 341, 294, 323 and 506 (Part-II), IPC on an application moved by the Public Prosecutor under the provisions of section 321, CrPC; whereas it is petitioner's case that on the same date, respondent Karan Singh had lodged a report against him under the provisions of sections 451, 294, 323 and 506 (Part-II), IPC and Criminal Case No.1070/2009 was under consideration, yet despite there being cross-case, the State only permitted withdrawal of one case leaving another case to continue. Revision was dismissed by the learned Sessions Judge on the ground that it is the prerogative of the Public Prosecutor to move an application for withdrawal of the very prosecution and the Court is to be satisfied that the reasons for withdrawal are germane and correct. 2. Petitioner had filed a petition under section 482, CrPC being aggrieved by this very order dated 8.3.2013, which was registered as Miscellaneous Criminal Case No.2909/2014 and the same has been dismissed by the order dated 17.4.2017, wherein it has been held that since the case was withdrawn in Lok Adalat and the special award made by Lok Adalat is final and binding on all the parties to the dispute and since no appeal lies to any Court against the award, therefore, the criminal revision, which was filed against the order dated 15.12.2012 passed in the Lok Adalat, has rightly not been interfered in the criminal revision by the learned Sessions Judge. After dismissal of this petition under section 482, CrPC, the present writ petition has been filed by the petitioner. 3. It is the petitioner's contention that the cross-case, as was filed against the petitioner, ought to have been withdrawn along with the complaint case and in this regard he has drawn attention of this Court to the provisions contained in section 210, CrPC, wherein procedure to be followed has been prescribed when there is a complaint case and police investigation in respect of the same offence. 4. 4. Petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Nathi Lal and others v. State of U.P. and another, as reported in 1990 (Suppl) SCC 145, wherein it has been held that in case of cross-cases procedure to be followed by the trial Court has been indicated. It has been held that each case to be decided on the basis of evidence placed on record in that particular case without being influenced by the evidence or arguments urged in cross-case. In view of the said judgment, it is apparent that this decision of the Hon'ble Supreme Court is of no avail to the petitioner inasmuch as the application under section 321, CrPC was filed by the Public Prosecutor for withdrawal of one of the cases namely Criminal Case No.992/2009 and that was decided on its own merits and since no application was filed for withdrawal of very prosecution in the pending Case No.1070/2009, no arbitrariness can be attributed to the withdrawal of one case. 5. Learned counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of V.L.S. Finance Limited v. S.P. Gupta and another, as reported in (2016)3 SCC 736 , wherein in para 37, relying on the judgment of Hon'ble the Supreme Court in the case of Sheonandan Paswan v. State of Bihar, as reported in (1987)1 SCC 288, it has been held that section 321, CrPC enables the Public Prosecutor, incharge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced, but the 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”. 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”. It has been observed that 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. 6. In view of the said judgment of the Hon'ble Supreme Court and the law laid down in the case of Rahul Agarwal v. Rakesh Jain and another, as reported in (2005)2 SCC 377 , wherein it has been held that the law is very clear that the withdrawal of prosecution can be allowed in the interest of justice, this Court is of the view that the reasons given by the trial Court and the revisional Court are sufficient to not bring the case of the petitioner within the purview of section 321, CrPC specially when Miscellaneous criminal case filed by the petitioner seeking indulgence of the Court under its inherent jurisdiction under section 482, CrPC has been declined to be exercised, and after dismissing of such petition under section 482, CrPC, this writ petition is not maintainable even otherwise. Accordingly, this petition fails and is hereby dismissed.