Karnail Singh vs State of Punjab and others

V.S. Aggarwal, J.

This Revision Petition is directed against the order passed by the learned Additional Sessions Judge, Ludhiana, dated December 15, 1992. By virtue of the impugned order, the learned trial Court granted permission to the Public Prosecutor to withdraw from the prosecution and acquitted the accused persons.

The relevant facts can well be delineated to appreciate the question in controversy. Prem Singh was resident of village Mohan Pur and he owned some land in that village. He died issueless. He left behind his widow Gurdev Kaur. Parminder Singh alias Bhinda, Ranjit Singh alias Jit and Avtar Singh, respondentaccused were collaterals of Prem Singh. They were determined to grab the land of Prem Singh. It is alleged that in order to help the widow of Prem Singh to manage and cultivate her land, Karnail Singh and Pargat Singh started living with Gurdev Kaur. Respondent accused in order to grab the land of Prem Singh, forged a Will regarding his estate. On that basis they took forcible possession of the land and the residential house. The house was demolished. A criminal complaint was filed against the accused in the Court of Chief Judicial Magistrate, Khanna. Dalip Singh resident of village Bhammadi was a witness in those cases.

It has been alleged that accusedrespondents approached Dalip Singh so as to prevent him from appearing as a witness on behalf of the complainant against them. Dalip Singh did not agree. A threat was given that he would be eliminated. Dalip Singh appeared as a witness in the Civil Suit in which the Will propounded by the respondentsaccused was under consideration. On the night intervening 5th/6th August, 1991, Karnail Singh, his wife Ranjit Kaur, mother Mann Kaur and Gurdev Kaur besides Pargat Singh and his wife Sukhwinder Kaur were sleeping in the house of Gurdev Kaur. At about 11.30 p.m. Parminder Singh, Avtar Singh and Jit Singh accused accompanied by four others entered their house. Parminder Singh pointed towards Pargat Singh and stated that he required to be eliminated. One of the persons who was not identified was armed with a rifle. Avtar Singh proclaimed that Dalip Singh would be available in his house where he could be eliminated. They took Pargat Singh with them. Out of fear no one from the house moved out. In the morning, Karnail Singh left for village Bhammadi and called at the house of Dalip Singh. Wife of Dalip Singh came and informed that Dalip Singh was taken away at midnight by the accused persons along with others.

Karnail Singh started searching for Dalip Singh and Pargat Singh. Dead body of Pargat Singh was found near the culvert in the area of village Bammadi with gunshot wounds. Dead body of Dalip Singh with gunshot wounds was found hanging with a Barota tree nearby. In the meantime, Kartar Singh, fatherinlaw of Pargat Singh and Shamsher Singh reached there. After leaving them to guard the dead bodies, Karnail Singh went to the Police Station and lodged the First Information Report. Ultimately, the respondents were arrested and were committed to the Court of Sessions to face trial.

Charge was framed against the accused persons to which they pleaded not guilty and claimed trial. Before the evidence could be recorded, the Public Prosecutor moved an application under Section 321 of the Code of Criminal Procedure for permission to withdraw from the prosecution. The ground taken was that the matter was reinvestigated by the CID Agency and it has been found that the accused were falsely implicated. In order to serve the broader cause of public, permission was claimed by the prosecution to withdraw from the prosecution.

Notice of the application was served on complainant Karnail Singh who contested the application. According to Karnail Singh, evidence was available on the record to connect the accusedrespondents with the crime. He urged that withdrawal from the prosecution will not serve any public purpose.

The learned Additional Sessions Judge on appraisal of the facts held that it is not necessary for the Court to assess evidence and discover whether case would end in conviction or acquittal. The learned trial Court concluded that since the Public Prosecutor sought permission to withdraw from the prosecution on account of the subsequent investigation, no motive could be attributed. Accordingly, the application filed by the Public Prosecutor was allowed.

Aggrieved by the said order, the present revision petition has been filed.

The relevant portion of Section 321, Code of Criminal Procedure, reads as under :

"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,

(a) if it is made before a charge has been framed, the accused shall be discharged, in respect of such offence or offences;

(b) 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......

It is obvious from the aforesaid that Public Prosecutor can withdraw from the prosecution but is subject to the consent of the Court. The circumstances under which consent can be given by the Court has been the subjectmatter of various judicial pronouncements. Reference to some of them would be in the fitness of things. In State of Bihar v. Ram Naresh Pandey and another, AIR 1957 SC 389 the Supreme Court was considering the scope of section 494, Code of Criminal Procedure, 1898. The provisions are pari materia of Section 321, Code of Criminal Procedure, 1973, with minor changes. It was concluded that the Court has to satisfy itself that the Public Prosecutor has not improperly exercised his functions. In para 3, it was held that the functions of the Court in this regard are judicial functions and the Court has to apply its judicial mind. The initiative is that of the Public Prosecutor. The Court is to determine the matter judicially, it was observed :

"The judicial function, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes."

The pronouncement referred to above has stood the test of time.

The same matter again came up for consideration before the Supreme Court in Subhash Chander v. the State (Chandigarh Admn.) and others, AIR 1980 SC 423. The facts of the case were little more identical with the facts of the present case. In Subhash Chander''s case (supra) also the question considered was if the consent has been given validity or not after there was reinvestigation. In para 6, the Court observed :

"The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of longlasting security in a locality, of order in a disorderly situation or harmony in a function milieu, or halting a false and vexatious prosecution in a Court, persuades the Executive, pro bono publico, sacrifice 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 proceeding 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."

Subsequently, referring to the case of Bansi Lal v. Chandan Lal and another, AIR 1976 SC 370, the Court summed up the legal position in the following words :

"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 essentials of the law are not breached, without, of course, crippling or usurping the power of the Public Prosecutor. The two matter 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."

It is obvious from the aforesaid that two matters which are significant are if the considerations for withdrawal are germane and consequently if the decision was taken by the Public Prosecutor as such, whether he has applied his independent mind and has acted as a limb of the judicative process and not as an extension of the Executive.

The same question again came up for consideration in Rajender Kumar Jain v. State Through Spl. Police Establishment and others, AIR 1980 SC 1510 and it was insisted by the Apex Court that when the Courts are moved for permission to withdraw from the prosecution, it must be vigilant and inform themselves fully before granting the consent. It was held that Court performs supervisory functions. While drawing the conclusions, the Supreme Court held :

"Thus, from the precedents of this Court, we gather :

Under the Scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.

The withdrawal from the prosecution is an executive function of the public prosecutor.

The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic, and we add, political purposes and Tammany Hall Enterprises.

The Public Prosecutor is an officer of the Court and responsible to the Court.

The Court performs a supervisory function in granting its consent to the withdrawal.

The Court''s duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."

The last important decision in this regard is the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877. In para 70, the Court observed :

"The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The initiative 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 implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes."

Thereafter, it hastened to add that it should not be taken to hold that consent of the Court is a matter of course. The Court is not required to give detailed reasons.

Having pondered thus some of the leading cases of the Supreme Court, it must be necessary to sum up the position. The sole consideration for the Public Prosecutor when he decides to withdraw from the prosecution is the larger factor of public justice. Interest of public justice is of paramount consideration. It is difficult to formulate a general principle for determining the grounds on which the Public Prosecutor may legitimately seek withdrawal or looking at from another angle the grounds on which the Court can properly grant or withhold the consent. The general test can be that consent should be withheld if withdrawal would tend to further the mischief which the law seeks to prevent. It should be granted if it is likely to have the opposite effect. The Court will give its consent in the exercise of the judicial discretion and before granting consent, it must be satisfied that the grounds stated for withdrawal are proper grounds which, if true, would make the withdrawal a furtherance to the object of law.

The learned counsel for the petitioner vehemently submitted that there was sufficient material on the record and the consent so given is not valid. Detailed scrutiny would not be advisable. In fact, the learned trial Court specifically recorded that he had considered the relevant submissions. In Sheo Nandan Paswan''s case (supra) the Supreme Court observed :

"When the Magistrate states in his order that he has considered the materials, it is not proper for this Court not to accept that statement. The proper thing to do is to hold that the Magistrate gave consent on objective consideration of the relevant aspect of the case. It would be acting against the mandate of Section 321 to find fault with the Magistrate in such cases, unless the order discloses that the Magistrate has failed to consider whether the application is made in good faith, in interest of public policy and justice and not to thwart or stifle the process of law."

This provides the answer to the argument raised at the bar.

What transpires about the facts of the present case is that the Public Prosecutor informed the Court about the subsequent investigation and that as a result thereto, it had been found that accused persons were not guilty. The learned trial Court accepted the said fact and granted permission to the Public Prosecutor to withdraw from the prosecution. The learned Trial Court recorded that permission claimed is not based on any extraneous consideration as is apparent from the tenor of the order. Consequently, keeping in view the ratio of the decision in Sheo Nandan Paswan''s case (supra) it must be held that the order of the learned trial Court did not suffer from any illegality or impropriety, it requires no interference in revision.

For the reasons given above, this Revision Petition fails and is dismissed.