Malkiat Singh vs State of Punjab

V.S. Aggarwal, J.

By this common judgment criminal Misc. No. 8651M of 1995 and Criminal Revision No. 32 of 1996 can be disposed of together.

The relevant facts are that Sukhjit Kaur respondent No. 2 was married to Daljit Singh petitioner No. 3. The married life did not subsist. Daljit Singh filed a petition for divorce under Section 13 of the Hindu Marriage Act against Sukhjit Kaur on the basis of cruelty and desertion. The learned District Judge, Ferozepur passed a decree for divorce on 2.8.1994. On 22.5.1994 Sukhjit Kaur had filed a complaint on basis of which FIR No. 57 had been recorded at Police Station Guru Har Sahai. It pertained to offences punishable under Sections 498A and 506 of the Indian Penal Code.

The Public Prosecutor submitted an application under Section 321 of the Code of Criminal Procedure seeking permission to withdraw from prosecution. He pleaded that the learned District Judge, Ferozepur has already held that it is Sukhjit Kaur who had subjected her husband to cruelty. It becomes unnecessary, therefore, for the criminal case arising out of FIR No. 57 of 1994 to continue. Thereupon, the Public Prosecutor mentioned in paragraph 11 of the petition which is reproduced below claiming the permission of the Court :

"That I have applied my mind to the facts and circumstances of this case and after going through the copy of judgment of Ld. District Judge, I am of the opinion that to continue the trial of this case against all the accused shall amount to criminal misuse of the provision of law which is against the public policy because no one should be subjected to the rigours of trial without any fault on his part. Even otherwise public interest demands that this trial must stop and such cases to be withdrawn without any delay."

The learned Judicial Magistrate, Ferozepur considered the request of the Public Prosecutor. The petition had been contested by respondent No. 2. It was held that the case had been registered on basis of the statement of respondent No. 2. Charge has been framed against the petitioners. No revision petition was filed against the charge. While exercising his discretion under Section 321 of the Code of Criminal Procedure, the learned trial court refused the permission to the prosecutor to withdraw from prosecution.

Aggrieved by the same, the petitioners who are accused in the trial court have filed the present criminal miscellaneous petition. The State has filed a criminal revision petition.

On behalf of the petitioners it had been contended that once a decree for divorce had been passed between petitioner No. 3 and respondent No. 2 holding that respondent No. 2 has deserted petitioner No. 3 and has been subjected to cruelty, there is nothing for the criminal trial court to decide because the judgment of the civil court must get precedence over that of the criminal court. In his opinion in these circumstances permission to withdraw should have been granted.

In the reply filed respondent No. 2 mentions that there is no ground for this Court to invoke its inherent powers. There is no abuse of the process of the court. The trial Court has applied its mind and found that there were sufficient grounds for proceeding against the petitioners. Permission to withdraw was rightly refused.

At the time of arguments, the pleas referred to above were reiterated. The short question, therefore, that comes up for consideration is as to whether the trial court was justified for refusing permission to the public prosecutor to withdraw from the prosecution.

Section 321 of the Code of Criminal Procedure runs :

"321. 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 of 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) it if 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 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."

Bare reading of the provision reproduced above reveals that a right has been given to the Public Prosecutor, incharge of the case to withdraw from prosecution. But the rider is that consent of the Court had to be obtained. It is not an unfettered right vested with the Public Prosecutor. The same is controlled by the Court. Under what circumstances the Court will grant the consent or refuse it had been subject matter of controversy. It had been discussed in number of decisions from the Supreme Court more often than once. Reference to some of them would be in the fitness of things. In the case of M.N. Sankaranarayanan Nair v. P.V. Balakrishnan and others, AIR 1972 SC 496, this controversy had come up for consideration. The Supreme Court, taking note of the provisions of Section 494 of the Code of Criminal Procedure, 1898 which are basically para materia with Section 321 of the Code held :

"A reading of Section 494 would show that it is the Public Prosecutor who is incharge 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."

Thereafter the Supreme Court went on to discuss and held that permission can only be granted in the interest of justice. The Court must see that offenders should not got unpunished. Thereupon, it was held :

"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 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."

Subsequently, in the case of Bansi Lal v. Chandan Lal and another, AIR 1976 SC 370 the same question again cropped up. A case as such had been registered with respect to offences punishable under Sections 147, 148, 302, 342 and 149 IPC. Permission to the Public Prosecutor seeking withdrawal from prosecution was allowed. The High Court had upheld the order of the learned Sessions Judge. The Supreme Court held that permission cannot be allowed at mere asking of the Public Prosecutor. The Sessions Judge must be satisfied that grant of permission would serve the administration of justice. The court held :

"It is added that the request to grant permission under Section 494 should not be accepted "as a necessary formality", "for the mere asking", but the Court must be satisfied "on the materials placed before it" that the grant of permission would serve the administration of justice and that "permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain."

In fact the Supreme court went on to hold that if material before the learned Additional Sessions Judge was considered sufficient to enable him to frame the charges, it was not possible to say that there was no evidence in support of the prosecution. The appeal was allowed. This question again was considered in detail in the case of Balwant Singh and others v. State of Bihar, AIR 1977 SC 2265. Here in the present case, the Supreme Court added that ordinarily the justice demands that civil case must reach its destination without interruption. The Public Prosecutor must act independently. The Court has to be vigilant. The Supreme court held :

"That must be a reason why the law must run its course. For justice ordinarily demands that every case must reach its destination, not interrupted en route. If some policy consideration bearing on the administration of justice justifies withdrawal, the Court may accord permission; not if no public policy bearing on the administration of justice is involved. We think that surrender of discretion by the public prosecutor and the Magistrate are unfortunate. The Court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal with a bunch of papers tacked on. Moreover, the State should not stultify the Court by first stating that there is a true case to be tried and then make a volteface to the effect that on a second investigation the case has been discovered to be false."

Subsequently, in Subhash Chander v. The State (Chandigarh Admn.) and others, AIR 1980 Supreme Court 423, it was observed as under :

"The consent of the court under Section 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."

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. The decision to withdraw must be of public prosecutor, not of other authorities, even of the those whose displeasure may effect his continuance in office. Another Bench of the Supreme Court in the case of Mohd. Mumtaz v. Smt. Nandini Satpathy and others, AIR 1987 SC 863 also had gone into this question and concluded that once charge has already been framed, it would not be fair to state that there was paucity of evidence. In the same year, in the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877 in paragraph 70 the Court noted that section 321 Cr.P.C. does not give indication as to on what ground such an application can be filed by the Public Prosecutor. It was held :

"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 also 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 Court still has to see that function of the public Prosecutor has been properly exercised or not. Though it was observed that Court''s function is to give consent but the Supreme Court hastened to add that it does not mean that consent is a matter of course. Once the Magistrate has applied the mind, the Court will not interfere. It was held :

"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 aspects 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 the interest of public policy and justice and not to thwart of stifle the process of law."

It is obvious from aforesaid that Court performs a supervisory function in granting the permission to Public Prosecutor to withdraw or not to withdraw. The Court has a special duty in this regard. It is the ultimate repository of legislative confidence in granting or withholding its consent to withdraw from the prosecution. The Court ordinarily would desist from great scrutiny on merits. The trial court must apply its mind to the broad aspects of the case, particularly the reasons prompting the Public Protector seeking withdrawal from the prosecution. As already noted above, ordinarily the cases must be tried and brought to the logical end.

Reverting back to the facts of the present case, it is clear that though the District Judge, Ferozepur had granted a decree for divorce, still it will not be an end to any offence that petitioners might well have committed. The scope of Sections 498A and 506 IPC is different from that of Section 13 of the Hindu Marriage Act. Both need not go arminarm. In these circumstances, the reasons given by the Public Prosecutor seeking withdrawal from the prosecution merely because decree for divorce had been passed, is not at all convincing. This is for the added reasons that the charge has been already been framed. The trial court found that there were reasons to proceed. There is no other material to take a different view. The learned Judicial Magistrate was, therefore, justified in refusing the permission prayed by the Public Prosecutor.

Otherwise also while exercising the inherent powers of the Court, there is no patent illegality or abuse of the process of the Court that may permit this Court to exercise the inherent powers. Therefore, both the petitions being without merit must fail and are dismissed.