Kishor Singh & another vs State of Uttarakhand & another

These Criminal Revisions are directed against the judgment and order 21.02.2017 & 21.03.2017 passed by the learned Second Additional

Sessions Judge, Haldwani, District Nainital, in Sessions Trial No. 150 of 2009 ""State Vs. Virendra Singh and others"" & in Sessions Trial No. 152

of 2009 ""State Vs. Hargovind Negi and others"", whereby the applications moved by the learned Additional District Government Counsel

(Criminal) to withdraw the prosecution under Section 321 Cr.P.C. has been rejected by the said Court. Prayer has been made in Criminal

Revision No. 173 of 2017 for acquitting the accused persons named in chargesheet no. 57 of 2009 pursuant to the F.I.R./Case Crime No. 47 of

2009, punishable under Section 147, 148, 149, 332, 333, 336, 341, 353, 395, 397, 412, 427, 435, 34, 120-B of I.P.C., under Section 7 of the

Criminal Law Amendment Act and under Section 3 of the Prevention of Damage of Public Property Act, P.S. Kaladhungi, District Nainital. In

Criminal Revision No. 170 of 2017 prayer is made for acquitting the accused persons named in chargesheet no. 56 of 2009 pursuant to the

F.I.R./Case Crime No. 48 of 2009, punishable under Section 147, 148, 149, 307, 302, 396, 333, 332, 353, 336, 436, 427, 412, 34, 120-B of

I.P.C., under Section 7 of the Criminal Law Amendment Act and under Section 3 of the Prevention of Damage of Public Property Act, P.S.

Kaladhungi, District Nainital.

F.I.R. Nos. 47 of 2009 and 48 of 2009 were registered at Police Station Kaladhungi on 23.08.2009. The case of the prosecution is that on

23.08.2009 at about 09:00 a.m., police received information that some people have blocked the highway near the village Chakluva in protest of

the murder of Balwant Singh Kanyal, Block Pramukh. On this information, Harish Chandra Sati, C.O., Ramnagar, S.I. Sunder Singh Rawat and

S.H.O., Ramnagar, reached at the place of occurrence along with police force, where about 500-600 people had assembled. They were being led

by the accused/revisionists and other persons. These people were identified by the police. These people were armed with lathi, danda, sickle, axe,

pistol and canes of petrol and kerosene oil. They were raising slogans against the police and were also abusing the police. Circle Officer tried to

make them understand but they remained adamant and became violent. Carbine of Head Constable Kishore Tiwari was snatched. The mob

attacked the police party in which many police personnel, including the complainant, received injuries. One Head Constable Pooran Lal was

beaten by mob, who died on the spot. A bus of roadways was also set on fire by the mob. With these averments F.I.R. No. 47/2009 under

Section 147, 148, 149, 397, 336, 427, 341, 332, 333 I.P.C., Section 7 of Criminal Law Amendment Act and Section 3 of PPDP Act was

lodged with P.S. Kaladhungi against 15 known persons and other unknown persons. Another F.I.R., being F.I.R. No. 48/2009, was also filed

regarding the said incident against the accused persons. After registration of F.I.R., the matter was investigated by the Investigating Officer and he

submitted the chargesheet. The Investigating Officer submitted the charge sheet on 14.10.2009 against the accused persons, including revisionists

under Section 147, 148, 149, 395, 397, 336, 427, 341, 353, 332, 333, 435, 34 & 120 B of I.P.C., Section 7 of Criminal Law Amendment Act

and Section 3 of PPDP Act. The Investigating Officer also submitted the chargesheet in the connected case on 12.09.2009 against the accused

persons, including revisionists under Section 147, 148, 149, 307, 302, 396, 333, 353, 336, 412/34, 436, 427, 332, 120 B of I.P.C. and Section

7 of the Criminal Law Amendment Act and 3 PPDP Act. Learned Chief Judicial Magistrate, Nainital took cognizance of the offence on the charge

sheet submitted by the Investigating Officer and the case was committed to the Court of Sessions and Session Trial no. 150 of 2009 and 152 of

2009 were registered against the accused persons. During the pendency of the Session Trial, the Public Prosecutor in the interest of justice

submitted his report to the Government of Uttarakhand for the withdrawal from prosecution of the above noted Session Trial. Accordingly, the

District Magistrate sent a recommendation vide letter no. 03/11/20/Law Dpt./2011 dated 23.11.2011 to the Principal Secretary, on which after

due consideration of the matter the state government recommended the withdrawal of the prosecution in Case Crime no. 46/2009; 47/2009;

48/2009 & 49/2009; all relating to the reported cases of violence and arson in Kaladhungi area following the death of the Block Pramukh Balwant

Singh Kanyal. The Principal Secretary, State of Uttarakhand, accordingly, informed the District Magistrate, Nainital, vide Government Order no.

9180/ Bees-3/08 (05) 2011 dated 13.12.2011. Thereafter, after considering the entire facts and circumstances leading to the commission of the

alleged offence, an application was moved by the Public Prosecutor under Section 321 Cr.P.C. for withdrawing the cases against the accused

persons. Simultaneously, an application was also filed in the connected case annexing the same order of the State Government. The learned

Additional Sessions Judge (Second), Haldwani passed the orders impugned and rejected the applications filed by the Public Prosecutor under

Section 321 Cr.P.C. Hence, these Criminal Revisions.

Learned counsel for the revisionists submitted that the State Government independently considered the report submitted by the Public

Prosecutor and recommendation of the District Magistrate and granted permission for withdrawal of the cases. He submitted that, before moving

the said applications, the learned Additional District Government Counsel (Criminal) applied his mind independently to the material available on

record. He submitted that most of the chargesheeted persons are unemployed or small shopkeepers or doing farming as agricultural labours and,

even some of them, are women and children. He submitted that one F.I.R. was registered by the police personnel against whom F.I.R. was

registered by the family of the deceased. The fact that one weapon (Carbine) was snatched by the crowd is totally false as same was with the

police and, for that purpose, no case was registered. He submitted that Pooran Lal died as he fell from the vehicle and not due to beating of the

crowd. His medical is also not produced. He submitted that, in fact, the then Block Pramukh Balwant Singh Kanyal was murdered inside the

police station and, due to this reason, people of the area got agitated against the police. They assembled to stage a protest and raised slogans

against the atrocities of the police. They were agitating against the police administration for their role after the death of Balwant Singh Kanyal.

There was no personal motive whatsoever. The alleged offence was not a premeditated act; but, one which occurred in the spurt of the moment

due to the assembling of 500-600 persons of the area. He submitted that even few persons, who were chargesheeted, have died during the

pendency of the trial. Some school going children were also arrested by the police; but, subsequently, after facing the trial before the Juvenile

Court, they were acquitted. He submitted that it was not a preplanned and intentional act and there is no evidence against the revisionists or others

to connect them with the alleged crime and, in such eventuality, all the accused persons will be acquitted. He submitted that continuance of the trial

will be the wastage of time, which is against public interest. Learned counsel for the revisionists submitted that the orders passed by the learned

Additional Sessions Judge (Second), Haldwani are incorrect, illegal and improper.

Heard learned counsel for the parties and perused the lower court''s record.

Section 321 Cr.P.C. deals with withdrawal from prosecution. Same reads as follows:

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:

Provided that where such offence-

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ),

or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) 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 hot 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.

In the year 1991, the State of Uttar Pradesh made amendment in the said provision vide U.P. Act No. 18 of 1991 w.e.f. 16.02.1991, which

provides that, under Section 321 of Cr.P.C., after the words ""in-charge of the case may"" the words ""on the written permission of the State

government to that effect (which shall be filed in Court) shall be inserted"".

Bare perusal of the above provision transpires that, on the written permission of the State Government, 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. The Public Prosecutor is required to move an

application in this respect before the Court alongwith the written permission from the State Government. Before doing so, the Public Prosecutor is

required to consider the facts, relevant material and also the public interest.

The Hon''ble Apex Court in the matter of Sheonandan Paswan Vs. State of Bihar and others, reported in (1987) 1 SCC 288, has observed as

follows:

Section 321 needs three requisites to make an order under it valid; (1) The application should be filed by a public prosecutor or

Assistant public prosecutor who is competent to make an application for withdrawal, (2) He must be in charge of the case, (3) The

application should get the consent of the Court before which the case is pending.

I find that all the three requisites are satisfied here. The question is whether the functions by the public prosecutor and the Court

were properly performed. At no stage was a case put forward by any one that the application made by the public prosecutor was

either mala fide or that it was not in good faith. There is no allegation of bias against the Special Judge. The application filed by the

public prosecutor discloses the fact that he had gone through the case diary and the relevant materials connected with the case and

that he came to the conclusion that in the circumstances prevailing at the time of institution of the case and investigation thereof, the

case was instituted on the ground of political vendetta and only to defame the fair image of Jagannath Misra. This statement of the

public prosecutor has not been challenged as borne out of any unwholesome motive. It has not been made out or suggested that the

public prosecutor was motivated by improper considerations. The only contention raised is that the reasons are not sufficient or

relevant.

The public prosecutor should normally be credited with fairness in exercise of his power under Section 321, when there is no

attack against him of having acted in an improper manner. He had before him the State Government''s communication of the policy

taken by it. He had before him the case diary statements and other materials. He perused them before filing the application. Thus his

part under Section 321 in this case has been performed strictly in conformity with this Section. The question that remains then is

whether the grounds urged by him in support of withdrawal were sufficient in law. The application clearly shows that Shri Sinha

applied his mind to the facts of the case. One would normally not expect a more detailed statement in an application for withdrawal

than the one contained in the application in question, when one keeps in view the scope of Section 321 and the wide language it uses.

The plea that there was lack of application of mind by the public prosecutor has only to be rejected in this case.

The Court is required to see if the prosecutor has applied his mind in the matter and has drawn requisite satisfaction that withdrawal sought by

him is in the interest of justice and would not in any manner thwart the course of justice. The Hon''ble Supreme Court in the case of Rajender

Kumar Jain Vs. State, reported in (1980) 3 SCC 435 has formulated the points in the following manner:

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 Sans Tammany Hall enterprise.

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

considerations. 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.

In the present case, the State Government granted permission to withdraw the cases against the accused persons. The learned Additional

District Government Counsel (Criminal) moved an application under Section 321 of Cr.P.C. before the Court. In his application, he has mentioned

that F.I.R. was registered on 22.08.2009. On that day, one local resident, namely, Block Pramukh Balwant Singh Kanyal was murdered. The

local residents were agitating and about 500-600 people assembled at a place. They were agitating against the police personnel. One Government

vehicle was burnt. One weapon was snatched and one police personnel was also beaten. F.I.R. against 15-16 named persons and 15-16

unnamed persons was registered. One day before, the Block Pramukh was murdered near the police station for which the report was lodged

against the accused persons alongwith Thana In-Charge. Due to this reason, the local residents were agitating against the police personnel. They

raised slogans against the police. It is also mentioned in the application that the action of the general public was not preplanned. It was sudden and

due to huge assembly of the people this happened. It is also mentioned in the application that ladies, gents and children were involved in the

agitation. It is also stated that, since the incident was not preplanned and whatever happened that happened suddenly and the matter is of public

interest, the application seeking permission to withdraw the case be allowed.

It is a fact that one day before the incident Block Pramukh, Kotabagh, namely, Balwant Singh Kanyal was murdered near the police station

(though the case of the revisionists is that he was murdered inside the police station). The then S.H.O. was accused in the said incident. The Block

Pramukh was the resident of that area. About 500-600 people assembled at a place and raised slogans against the police. They were agitating

against the police personnel. It appears that the mob was uncontrollable and it was not possible for anybody to control them. Due to this reason,

the incident occurred. It is also true that it was not a preplanned or intentional act of the people against the police personnel. In the incident, ladies,

gents and children were found involved. They were under anger, inasmuch as, their leader was murdered. Their intention was only to agitate against

the police personnel as the Thana In-charge was allegedly involved in the murder of Balwant Singh Kanyal. It cannot be said that alleged offence

was intentional one and preplanned. It was a result of sudden provocation and heat of passion. Even school going children and girls & boys were

also chargesheeted. In my view, while filing application for withdrawal of case, the learned Public Prosecutor applied his mind. It appears to me

that application is filed in good faith and in the interest of justice also. It cannot be said that withdrawal of the cases would not advance the cause of

justice. Reasons given by him in the applications are sufficient to allow the applications, inasmuch as, it also involves public interest. The Public

Prosecutor has exercised his executive function in a proper manner. The trial Court has erred in law in rejecting the applications.

Consequently, both the Criminal Revisions are allowed. Impugned orders are quashed. Applications seeking permission to withdraw the

prosecution stand allowed. The revisionists/ accused persons named in chargesheet no. 57 of 2009 pursuant to the F.I.R./Case Crime No. 47 of

2009 and the revisionists/accused persons named in chargesheet no. 56 of 2009 pursuant to the F.I.R./Case Crime No. 48 of 2009 are acquitted

from the charges levelled against them.