M. Kannappan vs State and 26 Others

N. Dhinakar, J.—Petitioner is P.W.1 in Sessions Case No. 113 of 1985 on the file of the Principal Assistant Sessions Judge, Coimbatore, and he challenges in this revision an order of the learned Sessions Judge dated 10.12.1997 passed on a petition filed by the first respondent u/s 321 Cr.P.C. seeking permission of the court to withdraw the case filed against respondents 2 to 28 in this revision.

The prosecution came to be initiated against respondents 2 to 28 by way of a police report filed u/s 173 Cr.P.C. by the first respondent with an allegation that at about 8.00 p.m. on 12.8.1982, respondents 2 to 28 formed themselves into an unlawful assembly with a common object of committing trespass, mischief and setting fire to a theatre belonging to the son-in-law of the petitioner and in pursuance of the said unlawful assembly, all the respondents committed offences punishable under Sections 148, 450, 436, 436 r/w 149 and 427 IPC. The case was taken on file and committed to the Sessions Court in P.R.C. No. 10/1988 and thereafter, charges were framed by the learned Sessions Judge against respondents 2 to 28 for the offences punishable under Sections 148, 450, 436, 436 r/w 149 and 427 IPC. Later, a charge u/s 307 IPC was also framed on a petition filed by the Public Prosecutor.

While the matter stood thus and before the commencement of the trial, the Additional Public Prosecutor, Coimbatore, filed a petition u/s 321 Cr.P.C. seeking permission of the court to withdraw the case, in view of the order of the Government published in G.O.RT. 3855/Public Law and Order Department dated 1.10.1997 and also taking into consideration the view of the Inspector of Police, Crime Branch, Coimbatore, that he is of the opinion that the case has to be withdrawn. The learned Sessions Judge, allowed the withdrawal of the case by stating that since the Public Prosecutor has filed a petition for withdrawal of the case in view of the G.O. and as the court is satisfied on the said ground, the prayer can be granted and acquitted respondents 2 to 28 u/s 321(b) Cr.P.C.

Learned Counsel for the petitioner challenges the order inter alia, contending that the Additional Public Prosecutor when filed the petition u/s 321 Cr.P.C. for withdrawal of the case, did not apply his mind, but simply followed the direction issued by the Government in the G.O. referred to above and the word "satisfied" used by him in the petition does not show that he was actually satisfied that the case had to be withdrawn. It is the submission of the learned Counsel that if the Additional Public Prosecutor was really satisfied about the grounds on which the case has to be withdrawn, he would not have filed a petition earlier praying the court to frame an additional charge u/s 307 IPC and the very fact that the Additional Public Prosecutor at an earlier stage requested the court to frame a charge, on the materials, u/s 307 IPC indicates that the Additional Public Prosecutor applied his mind on the materials collected by the investigating agency and thought that a charge u/s 307 is also made out which the learned Sessions Judge has failed to notice, and requested the court to frame a charge and this request was also acceded to by the trial court which framed a charge u/s 307 IPC. It is the further contention of the learned Counsel that the learned Sessions Judge cannot simply act upon the petition and should independently go into the averments made in the petition and satisfy himself whether the case had to be permitted to be withdrawn in the interest of justice and in the absence of any satisfaction on the part of the court, which could be seen only on reasons recorded by it, the court cannot simply permit the prosecution to withdraw the case.

In support of his plea, the learned Counsel relies upon several judgments of the Supreme Court but suffice it for me to refer to only two decisions. One delivered in M.N. Sankarayarayanan Nair Vs. P.V. Balakrishnan and Others, and the other R.M. Tewari advocate v. State (NCT of Delhi) and others ( 1996 (1) CRI 149 (SC)). In the case first cited, the Supreme Court held that though the Section is in general terms and does not circumscribe the powers of 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 the prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predict as they are dependent entirely on the facts and circumstances of each case. The Supreme Court further held that nonetheless it is the 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 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. (Emphasis supplied)

In the case second cited the Supreme Court with approval quoted the followed passage in the judgment of the Supreme Court in State of Orissa Vs. Chandrika Mohapatra and Others,

Now the law as to when consent to withdrawal of prosecution should be accorded u/s 494 of the Code of Criminal Procedure is well settled as a result of several decisions of this Court. The first case in which this question came up for consideration was The State of Bihar Vs. Ram Naresh Pandey, . It was pointed out by this Court m that case that in granting consent to withdrawal from prosecution, the court undoubtedly exercises judicial discretion, but it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method�.."

"It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.

The Supreme Court also quoted With approval the following passage in the judgment delivered in Sheonandan Paswan Vs. State of Bihar and Others, -

"From the aforesaid enunciation of the legal position governing the proper exercise of the power contained in Section 321, three or four things become amply clear. In the first place, though it is an executive function of the Public Prosecutor for which statutory neither absolute nor unreviewable but it is subject to the court''s supervisory function. In fact, being an executive function, it would be subject to a judicial review on certain limited grounds like any other executive action, the authority with whom the discretion is vested must genuinely address itself to the matter before it, must not act under the dictates of another body, must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories; failure to exercise discretion, and excess or abuse of discretionary power. The two classes are not however, mutually exclusive".

The Supreme Court ultimately held that the Public Prosecutor can only withdraw the case on the settled principles of law as enunciated in its decisions and it cannot be withdrawn without showing any ground.

The principles of law as enunciated by the Supreme Court when applied to the facts of this case show that neither the Public Prosecutor when he filed the petition u/s 321 Cr.P.C. nor the court when it allowed the same and acquitted the accused u/s 321(b) Cr.P.C. considered the materials, applied their mind and satisfied themselves for the withdrawal of the case. In my view, the petition filed by the Additional Public Prosecutor is bald and similarly, the order of the learned Sessions Judge shows lack of application of mind on his part. The order therefore is liable to be set aside and it is accordingly set aside.

The matter is remanded back to the trial court for the Public Prosecutor to consider the matter afresh and decide whether the petition is required to be filed u/s 321 Cr.P.C. and if he desires to file such a petition making out grounds for withdrawal, the court will consider the grounds raised in the petition taking into consideration the law on this subject and decide the same. Any such petition, if filed, must be filed within one week from the date of the receipt of this order and the Sessions Court will dispose it of within two weeks from the date of filing of such petition. The revision is disposed of with the above directions.

The Registry is directed to dispatch the order expeditiously to the trial court along with the records received by this Court.