Ishwar Singh and another vs State of Haryana and others

D.S. Tewatia, J.—These three Criminal Revision Petitions No. 37, 38 and 39 of 1979, involve common question of law and therefore, common judgment is proposed. However, where reference to facts or documents is necessary, the same are taken from Criminal Revision No. 37 of 1979.

The respondents excepting the State to these revision petitions were either medical students or doctors studying or serving in Medical College, Rohtak, at the relevant time when they are alleged to have committed the offences alleged against them. They are said to have given beating to the complainants who were also either medical students or the doctors studying or serving in the same medical college The accused respondents are said to have committed the offences against the complainants as they assumed that the complainants were against and not joining the strike of the students and doctors going on in the Medical College On 18-9-1978, Public Prosecutor Shri. Siri Chand made the following statement which is substantially similar in all the three cases before the Chief Judicial Magistrate, Rohtak, who was trying the criminal cases from which the three revision petitions herein have arisen: --

In the interest of Justice and public policy as well as in the public interest because the accused are doctors, I may kindly be permitted to withdraw from the prosecution of the case against the accused as instructed by the Haryana Government.

On the basis of the said statement, the learned Chief Judicial Magistrate passed the following order which is identical in all the three cases:--

In view of the above statement of the P.P. of the State, I hereby grant permission to the P.P. to withdraw from the prosecution of the case against the accused in the public interest and ends of justice. The accused stand discharged. The file be consigned to the records.

It is this order which has been impugned in this revision petition by the complainants on two grounds:--

(i) that the Public Prosecutor had not applied his independent mind and had acted at the behest of the State Government: and

(ii) that the learned Magistrate before permitting the Public Prosecutor to withdraw from the prosecution should have given an opportunity to the complainants to have his say in the matter.

Admittedly, the Public Prosecutor did not move any application before the Court giving any reasons spelling out the public interest or the public policy. His statement already reproduced is also innocent of any material from which one could judge that the withdrawal from the prosecution by the Public Prosecutor was either in the public interest or would have advanced the cause of administration of justice. The statement of the Public Prosecutor disclosed only two facts; (i) that the accused are doctors, and (ii) that he had been instructed by the Haryana Government to withdraw from the prosecution.

The Supreme Court in a number of decisions while interpreting the provisions of Section 321, Criminal Procedure Code or corresponding provision in the old Criminal Procedure Code has held that the Public Prosecutor acts at the limb of the adjudicative process and not as representative of the executive while requesting the Court to be permitted to withdraw from prosecution He has to apply his independent mind to facts and then make up his mind as to whether be should withdraw from the prosecution or not The Public Prosecutor is not to act at the behest of the State Government or any of its functionary. In this regard following illuminating observations of Krishna Iyer, J. in Subhash Chander Vs. State (Chandigarh Administration) and Others, may be noticed with advantage --

When a crime is committed in this country the assessment of guilt and the award of punishment or, alternatively the discharge or acquittal of the accused are part of the criminal justice process administered by the Courts of the land. It is not the function of the executive to administer criminal justice and in our system, judges are not fungible, as Justice Douglas in Chandler v. Judicial Council of the Tenth Circuit of the U S. (1970) 398 US 74 asserted:

Judges are not fungible they cover the constitutional spectrum; and a particular judge''s emphasis may make a world of difference when it comes to rulings on evidence, the temper of the court room, the tolerance for a proffered defence, and the like Lawyers recognize this when they talk about "shopping" for a Judge. Senators recognize this when they are asked to give their ''advice and consent'' to judicial appointments laymen recognise this when they appriase the quality and image of the judiciary in their own community.

When a case is pending in a criminal court its procedure and progress are governed by the Criminal Procedure Code or other relevant statute To intercept and recall an enquiry or trial in a court say in the manner and to the extent provided for in the law, is itself a violation of the law. Whatever needs to before must be done in accordance with the law. The function of administering justice, under our constitutional order, belongs to those entrusted with judicial power. One of the few exceptions to the uninterrupted flow of the court''s process is S. 321, Cr.P.C. But even here it is the Public Prosecutor, and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the Court. We repeat for emphasis. To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is law less-ness The even course of criminal justice cannot be thwarted by the Executive, however, high the accused, however sure Government feels a case is false, however, unpalatable the continuance of the prosecution to the powers-that be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration. Justicing, under our constitutional order, belongs to the judges. Among the very few exceptions to this unintersepted flow of the court process is S. 494, Cr.P.C. Even here the Public Prosecutor-not any executive authority is entrusted by the Code with a limited power to withdraw from a prosecution, with the Court''s consent whereupon the case comes to a close. What the law has ignited, the law alone shall extinguish.

Although skeletal, the conditions for such withdrawal are implicit in the provision, besides the general principles which have been evolved through precedents. Once a prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. All public power is a public trust, and the Public Prosecutor cannot act save in discharge of that public trust, a public trust geared to public justice. The consent of the Court under S. 321 as a condition for withdrawal is imposed as a check on the exercise of that power Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. That is the essence of the nolle prosequi jurisprudence

We wish to stress, since impermissible influences occasionally infiltrate into this forbidden ground that court justice is out of bounds for masters and minions elsewhere. We do not truncate the amplitude of the public policy behind S. 494, Cr.P.C. But warn off tempting adulteration of this policy, taking the public prosecutor for granted. May be the executive for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotoched. The fact that broader considerations of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a faction millieu, or halting a flase and vexatious prosecution in a Court, persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister. The concurrence of the Court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceedings as is alleged in this case, may well be a relevant ground for withdrawal. For the court should not be misused to continue a case conclusively proved to be a counterfeit. This statement of the law is not exhaustive but is enough for the present purpose and indeed, is well grounded on precedents.

The promotion of law and order is an aspect of public justice. Grounds of public policy may call for withdrawal of the prosecution. A prosecution discovered to be false and vexatious cannot be allowed to proceed The grounds cover a large canvass. But the power must be cautiously exercised and the statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District Magistrate or other executive authority. Finally, the consent of the Court is imperative. The law was explained by this Court in M.N. Sankarayarayanan Nair Vs. P.V. Balakrishnan and Others, --

A reading of Sec. 494 would show that it is the Public Prosecutor who is in charge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal or even before the judgment is pronounced The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission. Though the section is in general terms and does not circumscribe the powers from the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. Nonetheless it is duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest.

The position was confirmed in Bansi Lal Vs. Chandan Lal and Others, and Balwant Singh and Others Vs. State of Bihar, . The law is thus well settled and its application is all that calls for caution In the special situation of this case, two principles must be hammered home The decision to withdraw must be of the Public Prosecutor, not of other authorities, even of those whose displeasure may affect his continuance in office. The court is monitor, not servitor, and must check to see if the essential of the law are not breached, without of course, crippling or usurping the power of the Public Prosecutor. The two matters which are significant are (a) whether the considerations are germane, and (b) whether the actual decision was made or only obeyed by the Public Prosecutor.

The two circumstances that the accused are doctors and the Haryana Government had instructed the Public Prosecutor are totally irrelevant to the requirement of the provision in question and the power exercisable by Public Prosecutor thereunder

Mr. Kansal, counsel appearing for the accused-respondents, however, contended that the strike had been withdrawn by the accused and the other striking students and doctors of the said college and since that must have been done on an understanding that the cases against the accused shall be withdrawn so it must be for that reason that the Public Prosecutor must have come to the conclusion that withdrawing from the prosecution would serve the public interest So far as the file is concerned, that does not indicate as to when the strike ended. The Public Prosecutor in his statement gives no indication of any such fact and, therefore, the action of the Public Prosecutor cannot be justified on non-existant facts even if for the sake of argument and without finally pronouncing thereon, it is assumed that the existence of the facts mentioned by Mr. Kansal may have persuaded the Public Prosecutor to consider the withdrawal of prosecution in the public interest.

For the reasons aforementioned, the impugned order of the learned Chief Judicial Magistrate suffers from total lack of application of mind. In this case the learned Chief Judicial Magistrate ought to have insisted upon the Public Prosecutor to place on the record more material so that he could then judge as to whether on the material so supplied, one could objectively come to the conclusion that withdrawal from prosecution of the Public Prosecutor would be in the public interest or would advance the cause of administration of justice. Accordingly, the impugned order is set aside and the trial Court is directed to proceed in accordance with law. All the three Criminal Revision Petitions are allowed.

Before parting with the judgment, it may be observed that against respondent No. 2 in Cr. Rev. 37 of 1979 and Respondents Nos. 2, 3, 5, 6, 9, 32, 19, 20, 24, 36 in Cr. Rev. 38 of 1979 these revision petitions had already been dismissed vide order dated 22-7-1982 of Punchhi J., on the ground that the petitioners had not supplied the correct addresses of the respondents and therefore, they could not be served. In view of the above, this judgment will cover only the remaining private respondents.