Tekchand & ANR Vs. Tekchand,
Supdt. Of Police & Ors  INSC 252 (28 November 1986)
MISRA RANGNATH MISRA RANGNATH OZA, G.L. (J)
CITATION: 1987 AIR 349 1987 SCR (1) 376 1986
SCC Supl. 533 JT 1986 943 1986 SCALE (2)906
Withdrawal of Prosecution--Chances of
conviction farfetched and bleak and evidence not forthcoming as per the report
under section 173(8) of the Criminal Procedure Code--Whether the grant of
permission for nolles prosequi under section 321 of the Code in order.
In respect of certain incident dated
2.4.1974, the First Information Report has been registered suo motu by the
Police after 3 1/2 years, on the basis of the report of Commission of Inquiry.
The victims of the injuries were also accused of criminal offences said to have
taken place at the same point of time who were produced before the Judicial
Magistrate of Bhiwani on 2.4.74 and were also medically examined. They did not
file any private complaint, though released on bail. Based on the report of the
Investigating Agency under section 173(8) of the Code of Criminal Procedure
Code, the Public Prosecutor filed an application under section 321 of the Code
for withdrawal of the prosecution case which was granted by the Chief Judicial
Magistrate, Bhiwani. The High Court also affirmed the said order. Hence the
Special Leave Petitions.
Dismissing the petitions, the Court,
HELD: In the facts and circumstances of the
case, it is in public interest that the Prosecution should not proceed with the
prosecution. A report under section 173(8) of the Code of Criminal Procedure by
the investigating agency indicated that adequate evidence has not been
forthcoming to support the prosecution which was commenced suo motu on the
basis of a report of the Commission of Inquiry on whose finding no conviction
can lie. The victims themselves who were the accused of criminal offences said
to have taken place at the same point of time did not complain before the
Magistrate concerned and did not file private complaints.
The pica that one of the accused persons was
the son of a political figure wielding influence did not deter the Magistrate
in ordering release the victims in the earlier case.
Further chances of conviction are too
far-fetched and bleak.
CRIMINAL APPELLATE JURISDICTION: Special
Leave Petition (Crl). Nos. 1682 And 3120 of 1983.
377 From the Judgment and Order dated
12.4.1983 of the Punjab and Haryana High Court in Crl. Revision No. 1427 &
1428 of 1980.
Govind Mukhoty and Sarva Mitter for the
M.C. Bhandari, Harbans Lal, Dr. Y.S. Chitale,
C.V. Subba Rao, S.K. Bisaria, Ravindra Bana and N.S. Das Bahl for the
The Order of the Court was delivered by These
two special leave petitions and a writ petition were filed for a common
purpose--the writ petition questioning the vires of section 321 of the Code of
Criminal Procedure of 1973 and these two special leave petitions questioning
the correctness of the order of the (High Court by which it affirmed the order
of the Chief Judicial Magistrate of Bhiwani, according permission under the
same section 321 for withdrawal of a prosecution against the respondents excepting
the State of Haryana. We have already dismissed the writ petition and now
proceed to dispose of the special leave applications. As lengthy arguments were
advanced we propose to make a brief but speaking order.
Having heard learned counsel for the parties
we are inclined to think that the order of the learned Chief Judicial
Magistrate was perhaps not appropriate in law. The High Court did go into the
question afresh in its revisional jurisdiction but there could also be some
arguments possible with reference to what the High Court has said. We are,
however, definitely of the view that no useful purpose will be served in setting
aside the order of the Chief Judicial Magistrate as affirmed by the High Court
and in directing the prosecution to proceed as there is, in our opinion, no
chance of ultimate conviction. Allowing such a prosecution to proceed will only
be harassment to the parties and wastage of public time. Now we briefly
indicate some features to justify this conclusion of ours.
The incident is dated 2.4.1974. The First
Information Report has been registered suo motu by the police in November
1977--after a gap of more than 3 1/2 years. The victims of the injuries were
also accused of criminal offences said to have taken place at the same point of
time and were produced before the Judicial Magistrate of Bhiwani on 3.4.1974.
The Judicial Magistrate enlarged them on bail and finding injuries on their
persons directed them to be medically examined. There is no material before us
to show that the victims had complained to the learned Judicial Magistrate that
the present accused persons were the authors of the injuries on them. We gave
an opportunity to the petitioners to produce such material but with no result.
For the first time, 378 witnesses to the occurrence were examined towards the
end of 1977 and beginning of 1978 during investigation.
The learned counsel drew our attention to the
fact that one of the accused persons happens to be the son of a political
figure wielding influence. We find that this fact did not deter the Judicial
Magistrate in ordering release of the victims who had been produced before him
as accused persons.
The learned Magistrate also made an order for
their medical examination and that was carried out. There is no justification
as to why a private complaint was not made contemporaneously and the matter had
to wait for 3 1/2 years for investigation on the basis of the First Information
The learned counsel also pointed out that
Emergency had intervened and during that period a situation prevailed where the
victims could not open their mouths. A period of more than 14 months intervened
between the occurrence and the promulgation of emergency.
A Commission was set up after the emergency
had ended and holding a fresh elections, a different political party had come
to power. Following the report of the Commission this prosecution had been
launched. The petitioners' learned counsel did not dispute the position that
the finding of the Commission is not evidenced and no conviction can lie on the
conclusion either. In these circumstances, chances of conviction are too
far-fetched and bleak. We do not think it is in public interest that the
prosecution should proceed. We may add that in a report under section 173(8) of
the Code, the investigating agency has also indicated that-adequate evidence
has not been forthcoming to support the prosecution. It is thus not necessary
to examine the legal aspect canvassed in the special leave petitions and argued
during hearing. Both the petitions are dismissed.
S.R. Petitions dismissed.