Ghanshyam
Vs. State of M.P. & Others [2006] Insc 630 (29 September 2006)
S.B.
Sinha & Dalveer Bhandari
[Arising
out of SLP (Cr.) Nos.185-186 of 2006] Dalveer Bhandari, J.
Leave
granted.
This
appeal is directed against the judgment dated 08.8.2005 passed in Writ Petition
No.1356 of 2004 by the M.P. High Court of Judicature at Jabalpur, Bench at Gwalior,
M.P.
Brief
facts which are necessary to dispose of the appeal are recapitulated as under:
A writ
petition was filed by respondent no.3 Surya Prasad son of Hariram, aged about
82 years, in which he had complained about the inaction on the part of the
police authorities of the police station, Morar in not registering his
complaint and taking action against the persons who had caused injuries to him
and his sons. It was stated in the writ petition that on 8.11.1986, respondent
no.3 and his sons were attacked. They sustained injuries and thereafter
respondent no.3 was medically examined. In spite of filing the complaint, the
police authorities of the Morar police station neither registered any case nor
took any action against the accused but in fact the police people protected the
accused persons. In the writ petition, he had prayed that justice be done to
him and the accused be punished.
Learned
Single Judge of the High Court after considering the facts and circumstances of
the case, issued notice in the writ petition and directed the Director General
of Police, Madhya Pradesh, Bhopal to
appoint a senior officer from the Police Headquarter to conduct an enquiry into
the matter. Accordingly, the Deputy Inspector General of the Central
Intelligence Department, Gwalior (for short "DIG, CID")
conducted an enquiry and submitted a report. Respondent no.3 herein (petitioner
in the writ petition) submitted an objection indicating that instead of getting
the matter inquired from the Police Headquarter, the respondents improperly had
got the investigation carried out from the local police officer. The learned
Single Judge held that once it was established that respondent no.3 had
sustained injuries in the incident and injuries on his person were confirmed on
the medical examination, the police authorities of the Morar police station
ought to have registered a case and taken appropriate steps in accordance with
law. On the basis of the final report of the inquiry, the learned Single Judge
directed the Superintendent of Police, Gwalior to register a case in the Police Station of competent jurisdiction and
take action in accordance with law.
The
appellant had filed an application bearing M.C.C. No.473 of 2005 for recalling
of an order dated 08.8.2005 passed by the learned Single Judge in the writ
petition no.1356 of 2004 whereby respondent no.2, the Superintendent of Police,
Gwalior, M.P. was directed to register a case and conduct investigation. After
hearing the appellant, the learned Single Judge arrived at definite finding
that there was no ground to recall the order and dismissed the petition.
Being
aggrieved by the order dated 08.8.2005 passed in the Writ Petition No.1356 of
2004 and the order dated 23.9.2005 passed in M.C.C. No.473 of 2005, the
appellant has preferred this appeal.
According
to the appellant, he was residing in the house situated at Company Bagh Road, Morar, Gwalior, as a tenant since the time of the
grandfather of respondent no.3. Now, the landlord of the house is respondent
no.3. According to the appellant, respondent no.3 attempted to illegally evict
the appellant from his rented house with the help of anti-social elements who
came to his house armed with weapons on 8.11.1986.
Respondent
No. 3 along with his men started dismantling the house of the appellant without
prior permission and/or notice to him. The appellant was seriously injured when
he tried to obstruct them from dismantling the house. The appellant lodged an
FIR No.654/86 under Section 147/307 IPC against respondent no.3 and his men. A
charge-sheet was filed against respondent no.3 and his men under Section
147/307 IPC and then the trial commenced.
It may
be pertinent to mention that after some time the Public Prosecutor filed an
application under Section 321 of the Code of Criminal Procedure for the
withdrawal of the prosecution. The learned Additional Sessions Judge granted
permission to withdraw the prosecution on the application filed by the Public
Prosecutor. It was urged by the appellant that respondent no. 3, being a former
Member of Parliament, managed to get an order from the government directing the
Public Prosecutor to withdraw the criminal prosecution.
The
appellant is aggrieved by the order of withdrawal of the prosecution against
respondent no. 3.
The
appellant's main grievance is that respondent no. 3, after a lapse of number of
years, had filed a writ petition before the High Court and obtained an order by
which the Court directed the Superintendent of Police, Gwalior to take action for registering the
case and conduct an enquiry/investigation in accordance with law.
It may
be pertinent to mention that the appellant had preferred a criminal revision
petition before the High Court against the order passed by the learned
Additional Sessions Judge, Gwalior
granting consent for withdrawal of the prosecution on the application of the
Public Prosecutor under section 321 of the Code of Criminal Procedure. Section
321 of the Code of Criminal Procedure reads as under:
"321.
Withdrawal from prosecution.
The
Public Prosecutor or Assistant Public Prosecutor in charge of a 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; and upon such
withdrawal, -
-
If it is made
before a charge has been framed, the accused shall be discharged in respect of
such offence or offences;
-
if it is made
after a charge has been framed, or when under this Code no charge is required
he shall be acquitted in respect of such offence or offences:
Provided
that where such offence-
-
was against any
law relating to a matter to which the executive power of the Union extends, or
-
was investigated
by the Delhi Special Police Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or
-
involved in the
misappropriation of destruction of, or damage to, any property belonging to the
Central Government, or
-
was committed by
a person in the service of the Central Government while acting or purporting to
act in the discharge of his official duty, and the prosecutor in charge of the
case has not been appointed by the Central Government he shall not, unless he
has been permitted by the Central Government to do so, move the Court for its
consent to withdraw from the prosecution and the Court shall, before according
consent, direct the Prosecutor to produce before it the permission granted by
the Central Government to withdraw from the prosecution."
According
to the scheme of section 321 Cr.P.C., the Public Prosecutor at any stage before
the judgment can move the Court for withdrawal of prosecution. The High Court
was not oblivious of the fact that an application under Section 321 Cr.P.C. had
to be carefully scrutinized and ensured that no extraneous consideration had
prevailed in moving such an application. The High Court also took note of the
fact that the proceedings under section 107 Cr.P.C. were initiated between the
parties. In the criminal revision petition, relevant observations of the High
Court are reproduced as under:- "Now coming back to the given case, the
complainant and the accused party both were also proceeded against by the State
as the preventive action was taken under Section 107 Cr.P.C., therein, the
petitioners statement on oath was recorded as quoted above which does not
attribute the act of causing of injuries to accused non- petitioners and
further shows that injuries were received accidentally and in his version,
there is also no explanation of the injuries, received in the same incident by
the accused party, and in such circumstances if the Prosecution was sought to
be withdrawn, it cannot be said that any favour was shown to any accused, or
that such proposal came because the non-petitioner has been a Congress (I)
Member of Parliament. If the non-petitioner has been a Member of Parliament, a
people's representative, that should not put him to disadvantageous position. If
on merits, the case deserved withdrawal, it could not be continued merely
because amongst the accused one has been a Member of Parliament and that such
withdrawal may be meant or taken as a favour to accused." In the revision
petition, the High Court observed as under:
"In
the instant case the prosecutor himself has made reference to the Government
letter, the copy of which has been filed on record and having perused it, I am
satisfied that letter is only advisory in character and there is nothing to show
that the Public Prosecutor was directed by the Government to move for
withdrawal. A fair reading of the application for withdrawal shows that the
Prosecutor applied his mind before moving the Court for withdrawal as he has so
stated in the application, that :- 'In the totality of the circumstances and in
the interest of general public, I deem it proper and necessary that the
prosecution be withdrawn from the Court'.
Therefore,
he made the prayer for the Court's consent. From the above it is clear that the
Prosecutor applied his mind to the issue, considered all the circumstances and
came to the conclusion that prosecution be sought to be withdrawn,
notwithstanding, that an accused has been a Member of Parliament, i.e., a
people's representative." On careful scrutiny of the impugned judgment of
the High Court passed in the criminal revision petition No. 84 of 1989, it is
abundantly clear that the court was not oblivious of its supervisory duty while
adjudicating the application under section 321 Cr.P.C. filed by the Public
Prosecutor. The relevant observations of the court are as under:
"There
are social and economic reasons behind every crime. However, if the Public
Prosecutor feels that withdrawal of prosecution fulfills the social purpose
completely, then it will be proper to accept the application for withdrawal of
prosecution. It is also to be seen that Public Prosecutor is not misusing his
wisdom while withdrawing the case for prosecution." The discretion to
withdraw from the prosecution is that of the Public Prosecutor and none else,
and so, he cannot surrender that discretion to any one. The Public Prosecutor
may withdraw from the prosecution not merely on the ground of paucity of
evidence but on other relevant factors as well in order to further the broad
ends of justice, public order, peace and tranquility. The High Court while
deciding the revision petition clearly observed that the material already
available on record was insufficient to warrant conviction. The flow of facts
and the possible result thereof as noticed by the Public Prosecutor and
appreciated by the Courts below, constituted the public interest in the
withdrawal of the said prosecution. The High Court clearly came to the
conclusion that the application for withdrawal of the prosecution and grant of
consent were not based on extraneous considerations.
The
appellant aggrieved by the order by which the court's approval was granted for
withdrawal of the prosecution, preferred a criminal revision petition in the
High Court. The High Court by a detailed and comprehensive judgment on
28.9.1991 dismissed the revision petition. The said judgment of the High Court
became final and binding on the parties because the appellant had never
challenged that judgment. In other words, the appellant had no further
surviving grievance against respondent no.3.
It is
relevant to mention that only when respondent no.3, Surya Prasad filed a writ
petition in the High Court in the year 2004 in which he had complained of
inaction on the part of the police authorities in not registering a case
against the accused who had caused serious injuries to him and his sons, the
High Court on the basis of the report of the Deputy Director General,
Intelligence of the Central Intelligence Department, Gwalior, M.P. and averments
incorporated in the writ petition, directed the Superintendent of Police, Gwalior
to take action for registration of the case and conduct the investigation and
inquiry in accordance with law.
The
appellant obviously was aggrieved by the said order of the High Court because
he feared that now a case would be instituted against him, therefore, he had
moved the High Court for recalling of the order dated 8.8.2005 passed in Writ
Petition No. 1356 of 2004. The said application for recalling the order was dismissed
by the High Court. The appellant is now seriously aggrieved by the judgment and
order passed in the writ petition and thereafter in the application for recall
respectively, has preferred these appeals before this Court.
According
to the appellant, the High Court ought not to have passed any direction in the
writ petition filed by respondent no. 3 because it was filed after undue delay.
The
appellant urged that the High Court did not consider the incident which had
taken place in the year 1986 in the proper perspective. He also contended that
respondent no.3 himself was involved in a case emanating from the FIR No. 654
of 1986 under Section 307 I.P.C. registered against the respondent. In the
backdrop of the case, according to the appellant, the impugned order of the
High Court is unsustainable.
It
would be appropriate to mention at this juncture that the Additional Sessions
Judge permitted withdrawal of the prosecution on an application moved by the
Public Prosecutor under section 321 Cr.P.C. The appellant had moved a criminal
revision petition before the High Court.
The
order of the High Court was passed in the year 1991 and the appellant never
challenged that order in the last 15 years before this Court. Therefore, the
appellant is wholly unjustified in making any grievance in respect of the
prosecution which had already been withdrawn against the respondent no.3 a long
time ago and the said order was affirmed by the High Court and no proceedings
were taken against the said judgment of the High Court.
It may
be pertinent to mention that the order of the High Court was primarily based on
the report of the DIG, CID, Gwalior who
had conducted the inquiry at the instance of the Court and submitted the
report. On the basis of the inquiry report, the High Court directed the
Superintendent of Police, Gwalior to
take action for registration of the case and conduct the investigation and
inquiry in accordance with law.
We
have carefully examined the impugned judgment of the High Court and heard the
learned counsel for the parties at length. We do not find any infirmity in the
order dated 8.8.2005 passed in Writ Petition No. 1356 of 2004 and the order
dated 23.9.2005 in MCC No. 473 of 2005 passed by the Madhya Pradesh High Court
of Judicature at Jabalpur, Bench of Gwalior.
In the
backdrop of the peculiar facts and circumstances of the case, no interference
is called for.
These
criminal appeals are accordingly dismissed being devoid of any merit.
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