Jit Kaur vs State of Haryana and others

B.S. Yadav, J.

The facts leading to this revision petition are that the present respondents No. 2 to 22 were being prosecuted in the Court of Chief Judicial Magistrate, Sirsa, on the basis of a chargesheet submitted by the police, for having committed offences under sections 395, 397, 307 read with section 149 and under section 148, Indian Penal Code.

On 29.10.1979, the learned Public Prosecutor presented an application, stating;

"It is submitted that I have been directed by the Govt. to withdraw from the prosecution of the abovenoted case. I may be allowed to withdraw from the prosecution of the case and all the accused be charged."

On that application, the learned Chief Judicial Magistrate passed the following order :

"....... In this case the accused persons were challenged under section 395, 397, etc. IPC by the Police of P.S. Pania. Today, the learned Public Prosecutor has moved an application that he has been directed by the Government to withdraw from the prosecution of this case as such he be allowed to withdraw the case. The case file be consigned to the record room."

By this petition the above order is being challenged.

Learned counsel for the petitioner argued that in the application made by the Public Prosecutor for withdrawing from the prosecution of the case, no reasons had been given except that it was so desired by the Government. It was also urged that in view of section 321 of the Code of Criminal Procedure, the Public Prosecutor has to exercise his discretion independently of the instructions which he might receive from the Government and he could not act as an agency of the Government''s desire to withdraw the case. He further pointed out that the learned Chief Judicial Magistrate has not given any reason permitting the Public Prosecutor to withdraw from the prosecution of the case except that he has mentioned in the impugned order the relevant portion of the application of the Public Prosecutor He argued that the case is still at the stage of framing of charge and there was no material before the Magistrate on the basis of which he granted the permission in question. He argued that the permission to withdraw from the prosecution should not be granted to the Public Prosecutor for the mere asking. In support of his contention he has cited Bansi Lal v. Chandan Lal and another, AIR 1976 SC 370, Balwant Singh and ors. v. State of Bihar, AIR 1977 SC 2265 and Subhash Chander v. The State (Chandigarh Admn.) and ors., AIR 1980 SC 423. In Subhash Chander''s case (supra) it was remarked;

"The functionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosecutor. The Public Prosecutor is not the executive, nor a flunkey of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive."

Learned counsel appearing for the State has, on the other hand cited Rajender Kumar Jain v. State Through Spl. Police Establishment and others, AIR 1980 SC 1510 where it was remarked :

"Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal. Rightly too, because the independence of the judiciary so requires it, as we have already mentioned. Now, the Public Prosecutor is an Officer of the Court. He sets the criminal law in motion in the Court. He conducts the prosecution in the Court of the people. So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. But where such large and sensitive issues of public policy are involved, he must, if he is rightminded, seek advice and guidance from the policymakers. His sources of information and resources are of a very limited nature unlike those of the policymakers. If the policymakers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advice the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words. If illinformed but well meaning bureaucrats chose to use expressions like "the Public Prosecutor is directed" or "the Public Prosecutor is instructed", the Court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy. The Court, In such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good an relevant reasons."

Learned counsel for the petitioner argued that in this vary case, their Lordships of the Supreme Court had asked the Court to remain vigilant when application is filed by the Public Prosecutor for withdrawing from the prosecution. He pointed out the following remarks made by their Lordships :

"If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of the law will be lost. So we Insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the Government and thereafter apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should be allow himself to become anyone''s stooge."

He argued that in the present case there was no material before the Court to come to a finding that it was in the public policy on interests of justice to permit the Public Prosecutor to withdraw from the case.

To meet the above argument of the learned counsel for the petitioners, the respondent State has filed Criminal Misc. No. 39/1983 for permission to file the affidavit of Shri Ashok Kumar, Public Prosecutor, who had moved the application before the trial court. In this affidavit it is alleged that he had applied his independent mind to the facts and circumstances of the case. According to him, the case was registered on Ist December, 1977 with regard to the occurrences which took place on the night intervening 21st and 22nd December, 1975 and on 17th April, 1976 and, thus, there was a delay in lodging the FIR and moreover, an enquiry was held by the Superintendent of Police, Sirsa, who, in his report had submitted that many of the accused alleged to have taken part in the occurrence were not present at the spot on the day of occurrence and the Station House Officer had been directed to delete their names as accused in the case. It was further alleged in the affidavit by Ashok Kumar that taking into consideration all the above facts, he had come to the conclusion that it was a false case and there were no chances of its success and therefore, after full application of mind, he had moved the application to withdraw from the prosecution. The filing of the affidavit at this stage has no meaning. All these facts should have been stated in the application for permission to withdraw from the prosecution and in that case, the Court would have been in a position to apply its mind upon the facts and circumstances now stated in the affidavit. The report made by the Superintendent of Police, Sirsa is attached with the chargesheet and that report shows that after conducting an enquiry, he did find that the cases were registered on the facts but that the three persons, whose names have been given in the report were not present on the date of occurrence as verified from various documents and persons. He had directed the Station House Officer to delete the names of those persons from the array of accusedpersons and the chargesheet shows that their names were so deleted.

Of course, there has been delay in the registration of the case, but the complaint made to the Chief Minister of Haryana shows that the complainant had earlier made many applications, but no action had been taken. The effect of delay in the registration of case is to be considered by the Court, but it is not a sufficient ground for allowing the Public Prosecutor to withdraw from the prosecutor.

For the foregoing reasons, I accept the present revision petition and set aside the impugned order. The leaned Judicial Magistrate will try the case in accordance with law.