Rahul Agarwal
Vs. Rakesh Jain & Anr [2005] Insc 40 (18 January 2005)
K.G.Balakrishnan
& B.N. Srikrishna K.G. Balakrishnan, J.
The
appellant herein challenges the order passed by the learned Single Judge of the
High Court of Madhya Pradesh whereby he allowed the withdrawal of a case
pending against the first respondent herein before the Judicial First Class
Magistrate, Katni, Madhya Pradesh. The appellant herein is the de-facto
complainant in the police-charged case. The appellant's case is that he purchased
an extent of 1.30 acres of land in 1987 in the name of his mother, Lacchu Nai.
The first respondent and one Dinesh Chaudhary had settled rights over this
property and they, according to the appellant, manipulated certain village
records.
Appellant's
father filed a civil suit through the appellant, who was a power of attorney
holder. An order of injunction was passed in favour of the plaintiff in the
suit and the same was confirmed by the Additional District Judge. The appellant
further contended that the first respondent and Dinesh Chaudhary along with
20-25 persons came to the suit property and removed a shed constructed there
and caused damage to the boundary wall. It was also alleged that in December
1992, the first respondent and his friend Dinesh Chaudhary assaulted the
appellant and held a revolver against the chest of the appellant and threatened
him.
The
appellant filed a complaint and on that basis a case was registered.
After
investigation, the police filed a final report alleging the commission of
offences under Section 341, 294 and 506(2) read with Section 34 of the Indian
Penal Code.
On the
appellant's side, five witnesses were examined and the case was posted for
examination of the accused. Then the Assistant Public Prosecutor moved an application
for withdrawal of the prosecution. The Magistrate dismissed that application
and a revision was filed by the first respondent. The Additional Sessions Judge
dismissed the revision whereupon the first respondent moved the High Court and
by the impugned judgment the learned Single Judge allowed the withdrawal of the
prosecution.
We
heard the appellant's learned counsel and the learned counsel for the
respondents.
Not
many reasons are given in the impugned order as to why the court allowed the
withdrawal of the prosecution under Section 321 Code of Criminal Procedure. It
is only stated that looking at the facts and circumstances of the case,
permission should have been granted for withdrawal as the petitioner therein
had been harassed mentally and suffered continuously for seven years during the
trial. The fact that the trial was not over and the case was posted for the
examination of the accused was not noticed by the High Court. In the
application filed by the Public Prosecutor, the only reason given for
withdrawal of the prosecution was that the accused was not a habitual criminal
and, therefore, the prosecution must be withdrawn.
The
order passed by the High Court permitting the withdrawal of the prosecution is
not legally sustainable. The reasons given in the impugned order are either
irrelevant or incorrect. The learned Single Judge did not verify the facts and
also did not make any inquiry as to why the case was pending for over seven
years. It may be noticed that after the appellant filed the complaint, police
took about three years to file a final report. Though the appellant had been
cooperating with the completion of the prosecution, the case was being
adjourned from time to time and ultimately when the prosecution evidence was
about to be over at any point of time, the withdrawal of the prosecution at the
instance of the Public Prosecutor had been rightly rejected by the Magistrate
as well as the Sessions Court and the High Court should not have interfered
with such an Order. The law regarding withdrawal of prosecution has been
explained in detail in a series of decisions rendered by this Court.
In
State of Bihar v. Ram Naresh Pandey AIR 1957 SC
389, this Court held:- "The function of the court, therefore, in granting
its consent may well be taken to be a judicial function. It follows that in
granting its consent may well be taken to be a judicial function. It follows
that in granting the consent the court must exercise a judicial discretion. But
it does not follow that the discretion is to be exercised only with reference
to material gathered by the judicial method. " In State of Orissa v. Chandrika Mohapatra (1976) 4 SCC
250, P.N. Bhagwati, J., as he than was, speaking for the three-Judge Bench,
observed:- "The paramount consideration in all those cases must be the
interest of administration of justice. No hard and fast rule can be laid down
not can any categories of cases be defined in which consent should be granted
or refused. It must ultimately depend on the facts and the circumstances of
each case in the light of what is necessary in order to promote the ends of
justice, because the objective of every judicial process must be the attainment
of the justice." In Balwant Singh v. State of Bihar, AIR 1977 SC 2265, it was observed:
"The
statutory responsibility for deciding upon withdrawal squarely vests on the
public prosecutor. It is non-negotiable and cannot be bartered away in favour
of those who may be above him on the administrative side. The Criminal
Procedure Code is the only master of the public prosecutor and he has to guide
himself with reference to Criminal Procedure Code only. So guided, the
consideration which must weigh with him is whether the broader cause of public
justice will be advanced or retarded by the withdrawal or continuance of the
prosecution." 710, relying on the earlier decision of the Constitution
Bench in made the following observations regarding withdrawal of case under
Section 321 Code of Criminal Procedure:
".What
the court has to see is whether the application is made in good faith, in the
interest of public policy and justice and not to thwart or stifle the process
of law. The court, after considering the facts of the case, has to see whether
the application suffers from such improprieties or illegalities as would cause
manifest injustice if consent was given. When the Public Prosecutor makes an
application for withdrawal after taking into consideration all the material
before him, the court must exercise its judicial discretion by considering such
material before him, the court must exercise its judicial discretion by
considering such material and, on such consideration, must either give consent
or decline consent. The section should not be construed to mean that the court
has to give a detailed reasoned order when it gives consent. If, on a reading
of the order giving consent, a higher court is satisfied that such consent was
given on an overall consideration of the material available, the order giving
the consent has necessarily to be upheld.
Section
321 contemplates consent by the court in a supervisory and not an adjudicatory
manner. What the court must ensure is that the application for withdrawal has
been properly made, after independent consideration by the Public Prosecutor to
withdraw from the prosecution of any accused. The discretion exercisable under
Section 321 is fettered only by consent from the court on a consideration of
the material before it. What is necessary to satisfy is to see that the Public
Prosecutor has acted in good faith and the exercise of discretion by him is
proper." 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.
In the
instant case, the reason given by the learned Single Judge in the impugned
order is not correct, and when the case was about to be over the same should
not have been allowed to be withdrawn by holding that the trial had been
pending for over seven years.
In the
result, we set aside the impugned order and direct the Judicial First Class
Magistrate, Katni, to restore the case to the file, proceed in accordance with
law and dispose of the same on merits at an early date.
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