Dharam Pal vs Hem Chand Gupta Advocate

Madan Mohan Punchhi, J.

At the behest of the Public Prosecutor, the Chief Judicial Magistrate, Kurukshetra, allowed the withdrawal of the former from the prosecution of case in which the petitioner was the complainant. Challenging the said order, he is in revision.

Facts as culled out from the prosecution case are these : The petitioner had filed a preemption suit/suits in the civil Courts at Kurukshetra and had, for the purpose, engaged Hem Chand Gupta, respondent No. 1, as his Advocate. Rati Ram, respondent No. 2, was a Clerk who was working with the said Advocate. Allegedly, a sum of Rs. 19000/ was handed over by the complainantpetitioner to the respondentAdvocate for depositing the same as onefifth of the preemption money in the said suit/suits. The said money was allegedly not deposited. When confronted with that situation, the respondentAdvocate allegedly admitted having converted the said money to his own use and promised to pay it later. When repeatedly asked for making the payment, he allegedly turned turtle and said that he would not make any payment. Broadly on these allegations, the complainant lodged an F.I.R. and, after police investigation, a police report was filed in Court. The learned Chief Judicial Magistrate, having perused the police report, the evidence and the other material, as also having heard the prosecution and the accused, framed charge against the Advocate and his Clerk, respondents. The matter was at the evidence stage when an application was filed by the Public Prosecutor seeking permission to withdraw from the prosecution against the respondentAdvocate alone while letting the case against the respondentClerk to continue. On the date itself of the filing of the application, the impugned order was passed by the Chief Judicial Magistrate, aggrieved against which the petitioner is in this Court.

The Public Prosecutor, in his application, stated as follows :

"I have gone through the evidence of the case carefully and I am of the opinion that it is not in the interest of administration of justice to proceed with the prosecution of this case against Hem Chand Gupta accused.

The material collected during the investigation of the case is not sufficient to warrant the prosecution of Hem Chand Gupta, accused in this case."

The learned trial Magistrate accorded permission observing as follows :

"The Public Prosecutor has mentioned in the application that it is in the interest of administration of justice that the case be withdrawn as regards Shri Hem Chand Gupta and that during investigation the prosecution also could not collect sufficient evidence against him. So, in view of the request by the Public Prosecutor, the case against Hem Chand Gupta, is allowed to be withdrawn. He is acquitted of the charge."

A plethora of precedents has sprung up towards interpretation of section 494 of the Old Code of Criminal Procedure, 1973. A number of precedents have been cited by the parties'' counsel as aids to their respective claims; the petitioner wanting the impugned order to be upset and the respondent pleading for its maintenance. There can be no doubt that if the Court grants permission under section 321, Criminal Procedure Code, the resultant order being an order of `discharge'' or `acquittal'', would attract the applicability of correction by this Court under its appellate and original powers. The function of the Court, thus, in granting its constant has been taken to be a judicial function. The initiative for withdrawal from a prosecution is that of the Public Prosecutor, and what the Court has to do is only to give its consent and not to determine any matter judicially. The judicial function and the exercise of judicial discretion in the context normally means that the Court has to satisfy itself that the executive function of the Public Prosecutor, has not been improperly exercised, or that it does not attempt to interfere the normal course of justice for illegitimate reasons and purposes. The Public Prosecutor in doing so acts as a limb of the adjudicative process, not as an extension of the executive. The consent of the Court under section 321, Crl.P.C., as a condition for withdrawal, is imposed as a check in the exercise of his power.

In Sheonandan Paswan v. State of Bihar and others, A.I.R. 1983 Supreme Court 194, the Supreme Court in explaining the judicial function of the Court has taken the view that it becomes necessary for the Court to apply its mind so that the appellate Court may examine and satisfy that the Court has not accorded its consent as a matter of course but has applied its mind to the grounds taken in the application for withdrawal by the Public Prosecutor. Now, it has to be seen whether the Court, in the instant case, applied its judicial mind within the spirit of Sheonandan Paswan''s case (supra). My answer to this is that it has not. Hereafter are my reasons.

In its application, the Public Prosecutor had pleaded that it is in the interest of administration of justice not to proceed with the prosecution case against Hem Chand Gupta accused. The said reason has been taken into account by the learned Chief Judicial Magistrate. In strict sense that is no reason at all, for it is on this functional axis alone that the jurisprudential principle of nolle prosequi comes to play its part. The second reason given by the Public Prosecutor was that the material collected during the investigation of the case was not sufficient to warrant the prosecution of Hem Chand Gupta. It can legitimately be assumed that the material collected during the investigation forms part and parcel of the police report which has been presented in the Court and, on that material, the Court had already applied its mind and framed charge against the said accused. However, the correlative second reason given by the Chief Judicial Magistrate was that, as stated in the application, the prosecution could not collect sufficient evidence against Hem Chand Gupta during the investigation. This was not the case of the Public Prosecutor in the application that sufficient evidence could not be collected during the investigation. Rather his case was that the evidence collected was not sufficient to warrant the prosecution. Now, here the Court was not required to judicially determine any issue as to whether the material on the record was sufficient to lead to the conviction of Hem Chand Gupta or not. It had just to examine the request of the Public Prosecutor in the context whether the material already on the record was rightly not sufficient to prosecute Hem Chand Gupta, more so when on the same material, the prosecution was still to continue against the other accused. As it seems to me, the discretion herein was exercised by the Chief Judicial Magistrate rather perfunctorily, the impugned order not satisfying the tests laid down in Sheonandan Paswan''s case (supra). Thus, there is no option left but to set aside the impugned order.

Resultantly, this petition is allowed, the impugned order of the Chief Judicial Magistrate is set aside and it is directed that he should apply his judicial mind to the application of the Public Prosecutor and pass an appropriate order thereon in accordance with law.

The parties through their counsel are directed to put in appearance before the Chief Judicial Magistrate on 5th September, 1983.