Navjot Singh Sidhu vs State of Punjab

Swatanter Kumar, J.

Scope, ambit and limitation on exercise of discretion by a Public Prosecutor while filing an application under Section 321 of the Criminal Procedure Code is the paramount question that falls for consideration in the present case.

The State through the Public Prosecutor filed an application under Section 321 of the Code for permission to withdraw the prosecution against Mr. Navjot Singh Sindhu and his coaccused Rupinder Singh Sandhu, which was dismissed by the learned Sessions Judge, Patiala, on 9.8.1995. It is this order of the learned Sessions Judge which has been assailed in the present revision petition i.e. No. 589 of 1995 by Navjot Singh Sidhu and his coaccused Rupinder Singh Sandhu. Against the same order, another revision has been preferred by the State of Punjab, being Criminal Revision No. 666 of 1995.

F.I.R. No. 244 dated 27.12.1988 was registered at the instance of Jaswinder Singh son of Pritam Singh of village Mandi, Police Station Julkan, under Section 304/34 of Indian Penal Code. The case set up by the complainant was that on the day of occurrence, he along with his uncle Gurnam Singh and one Avtar Singh who was the nephew of said Gurnam Singh were travelling in a Maruti Car. Gurnam Singh deceased was driving it. When they were passing through the bazar known as Sheranwala Gate, in the meanwhile one more vehicle bearing registration No. PAD6030 was found standing on the front of the car of the deceased. Gurnam Singh was about to overtake this vehicle as the vehicle in front of their car bad blocked the passage. Other vehicle which was in front of them, was being driven by a person which was having haircut. When the complainant and others asked the driver of the said vehicle to move their vehicle from the place, then one Sikh person namely Navjot Singh Sidhu came out of the said vehicle. It is alleged by the complainant that immediately coming out from the vehicle, Navjot Singh Sidhu Accused started abusing while Gurnam Singh, Avtar Singh and Jaswinder Singh objected to it. The complainant also alleged that he could identify Navjot Singh Sidhu because he was a cricket player of international level.

Said Navjot Singh Sidhu accused dragged Gurnam Singh out of the car and started giving him fist blows which hit Gurnam Singh on his left temporal region and this accused also gave kick blows on the left knee and other parts of the body. The complainant Jaswinder Singh came out of the car in order to save Gurnam Singh, but in the meanwhile the person (Rupinder Singh Sandhu) who had haircut came out and he also started giving fist blows. Thereupon Jaswinder Singh complainant raised alarm "Mar ditta, Mar ditta". After causing the injuries both the accused ran away from the placed of occurrence in the said vehicle and they also took the keys of the car of the complainant party.

Avtar Singh and Jaswinder Singh removed Gurnam Singh in a rickshaw and carried him to Rajendra Hospital, Patiala, where Gurnam Singh was declared dead. It may also be mentioned here that in this occurrence Avtar Singh eye witness also suffered injuries. Said Avtar Singh was left behind in order to guard the deadbody of Gurnam Singh while Jaswinder Singh lodged the report in Police Station, Kotwali on 27.12.1988, on the basis of which formal F.I.R. No. 244 was registered. Post mortem on the dead body of Gurnam Singh was conducted and the doctor opined that cause of death would be given after the receipt of the report of Pathologist which was received. However, the investigating agency found Navjot Singh Sidhu as innocent and he was not challened. Rather challan was presented under Section 304 IPC against Rupinder Singh Sandhu. The operative part of the report of the Pathologist can be summed up as follows :

"Death in this case was attributed to the effects of head injury and Cardiac condition. However, head injury in itself could be sufficient to cause death in the ordinary course of nature."

The challan against Rupinder Singh Sandhu was given in the Court of Illaqa Magistrate who supplied copies of the documents to the accused and finally Rupinder Singh Sandhu was committed to the Court of Sessions. Earlier the case was pending in the Court of Shri M.R. Batra, Additional Sessions Judge, Patiala. The applicant state itself moved an application under Section 319 Cr.P.C. on 9.7.1993 to summon Navjot Singh Sidhu as an accused and finally Shri Batra vide his detailed order dated 3.9.1993 summoned the accused Navjot Singh under Section 304 I.P.C. This order of Shri Batra has neither been challenged by Navjot Singh Sidhu nor by the State.

The complainant Jaswinder Singh was not satisfied with the investigation when the police declared Navjot Singh Sidhu as innocent and showed him in column No. 2. Jaswinder Singh filed a private complaint in the Court of Ilaqa Magistrate, No. 21T dated 22.7.1989. Preliminary evidence was recorded by the Judicial Courts and finally vide order dated 2.6.1994 the Court of Shri Gurmail Singh Dhillon, Judicial Magistrate Ist Class, Patiala, summoned Navjot Singh Sidhu and his coaccused Rupinder Singh Sandhu under Sections 302/324/323/34 IPC as in the opinion of the Magistrate there were sufficient grounds for proceedings against the accused. This order was also not challenged at any stage by any of the accused.

As the learned Magistrate had summoned the accused for an offence under Section 302 of Indian Penal Code, which was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and was directed to be tried together with the State case. The learned Sessions Judge vide his order dated 20.8.1994 framed a specific charge under Section 302 I.P.C. against accused Mr. Navjot Singh Sidhu and under Section 302/34 I.P.C. against accused Mr. Rupinder Singh Sandhu. The trial proceeded and statements of Dr. Kishan Vij and Dr. Jitender were recorded on 6.12.1994. It is at that stage when on 8.12.1994 the application was filed on behalf of the State by the prosecutor for withdrawing the prosecution against Mr. Navjot Singh Sidhu alone, but again on 21.3.1995 another application was filed for withdrawl of prosecution against both Mr. Navjot Singh Sidhu and Mr. Rupinder Singh Sandhu. These are two applications which have been dismissed by the impugned order.

On the above facts counsel for the petitioners Mr. Navjot Singh Sidhu and Mr. Rupinder Singh Sandhu has raised mainly the following arguments :

i) The learned trial Court has erred in not considering and dealing with the grounds which were raised by the Public Prosecutor in the application filed for withdrawal of prosecution against these accused.

ii) The expression used in Section 321 "at any stage" of the prosecution indicates that application could be filed at any stage and, therefore, the decision of the learned trial Court in relying certain other factors and indicating that the application was mala fide and was not a proper exercise of power is ill founded.

iii) The judgment of the learned trial Court is based upon misreading of the provisions of Section 321 of the Code and its scope.

The learned counsel appearing for the State in Criminal Revision No. 666 of 1995 has adopted the arguments of Mr. R.S. Cheema, the learned Senior Advocate and has not argued anything in addition thereto. While on the other hand, Mr. R.S. Ghai, the learned Senior Advocate appearing for the complainant has contended that in the facts and circumstances of the case withdrawal of prosecution is to frustrate the process of law as the Public Prosecutor has not exercised his discretion on any prudent basis. Rather the record itself reflects the uncalled for change of stands by prosecution from time to time without any purpose and without any basis. The Public Prosecutor cannot be permitted to shelter or frustrate an apparent offence that too without any well reasoned exercise of discretion, and primarily at the dictate of the State.

Before I take up the respective contentions raised by the respective counsel and discuss the law on the subject, it will be necessary to refer to certain orders passed by the learned trial Court during the progress of this trial.

The case was fixed for recording of prosecution evidence on 6.12.1994. On that date the statements of two prosecution witnesses were recorded and the Court passed the following order :

"Statements of two P.Ws. have been recorded. At this stage the learned Public Prosecutor submits that the State has decided to withdraw prosecution against Navjot Singh Sidhu accused. He requests to this Court that some time may be given to him in order to draft application. Now the trial stands adjourned to 8.12.1994. Witnesses are discharged for the time being."

Thereafter application for withdrawal of prosecution against Mr. Navjot Singh Sidhu was filed which was listed for arguments on 2.1.1995. The following order was passed by the Court on that date :

"Present : P.P. for the State.

Shri K.S. Nagra counsel for the complainant.

Accused on bail with their counsel Shri N.P. Singh Waraich and Shri S.C. Gupta, Advocate.

Learned counsel Shri Waraich has made a request that arguments on the application under Section 321 Cr.P.C. may not be heard today as State is also likely to drop the prosecution against Rupinder Singh Sandhu. Request appears to be justified in order to avoid any conflicting order and also to avoid any expression of opinion on the part of this court for the withdrawal of the prosecution against Navjot Singh Sidhu. Now to come up for arguments on the application under Section 321 Cr.P.C. on 24.1.1995.

Announced. Sd/

Dated : 2.1.1995. Sessions Judge, Patiala."

On 24.1.1995, the date fixed for hearing of the case, the prosecution had not filed application for withdrawal of case against Rupinder Singh Sandhu and it was stated at the bar that Shri Balram Dutt, Senior Public Prosecutor had to argue the case and an adjournment was prayed for. Consequently the case was adjourned to 13.2.1995 and then to 10.3.1995. The learned trial Court on 10.3.1995 passed the following order :

"It is strange that State is not advancing the arguments on its application under Section 321 Cr.P.C. Learned P.P. requests that the file of this case had gone to Chandigarh in connection with the assessment of the case of Rupinder Singh Sandhu accused and he has not gone through the record in order to argue the application dated 8.12.94 U/s 321 Cr.P.C. Request of the State has been opposed by Shri K.S. Nagra appearing on behalf of the complainant. In the interest of justice, case stands adjourned for arguments on 21.3.1995.

Announced. Sd/

Dated : 10.3.1995. Sessions Judge, Patiala."

On 21.3.1995 the application was filed and both these applications were rejected by the learned trial Court vide the impugned order dated 7.6.1995.

Founding his submissions, the learned counsel for the complainant argued that the action of the Public Prosecutor lacks bona fides. There were no reasons whatsoever, justifying the filing of the application under Section 321 of the Code. It was further contended that the learned Public Prosecutor has become only an instrument for carrying out the directive of the State. The State had already taken decision and the Public Prosecutor became a stooge in the hands of the Government to achieve the ends of withdrawal of the case. It was also urged that the Public Prosecutor has acted as a Court to pronounce the judgment and has not acted in public interest or administration of criminal justice.

In order to examine the merits of the various contentions raised on behalf of the respective parties before this Court, reference to the provisions of Section 321 Cr.P.C. would be necessary :

"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 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 not 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."

A bare reading of the above said provision indicates the pervasive scope of the powers and authority vested in the Public Prosecutor for withdrawing the criminal prosecution against an accused. Certainly, the withdrawal could be at any stage. Still it is not an absolute power free of restrictions. It cannot be exercised arbitrarily and without genuine and bona fide reasons. Larger the scope of authority and power vested in a functionary of the Executive, more onerous is the burden of the duty arising therefrom.

The learned Public Prosecutor is expected to exercise his power and authority with great caution, sense of responsibility and keeping the sole object of administration of criminal justice as the ultimate goal achieved by him in exercise of such power. Once this stage is over, the function of the Court is not mechanical. The Court of competent jurisdiction is again expected to apply its mind in consonance with the settled cannons of law governing such subject. The exercise of power by the learned Public Prosecutor is put to the acid test of judicial scrutiny. Thus, the Court does not become a mere approving authority like an administrative action, but it has to apply its mind to the various pros and cons of the application, the contents thereof and its cumulative effect on the administration of criminal justice. Public interest, though not spelled out in the provisions of Section 321 of the Code, still remains as the prominent basis for balancing the equilibrium of the scale of justice to the discretion of the Executive to withdraw a prosecution. Preventing tarnishing of the public faith in the administration of criminal justice and fairness in State action would ever be the guiding factor for the Court while adjudicating such matters.

The law in this aspect has been consistent though its application might have varied depending on the facts and circumstances of this case. At this stage I would advert to discuss the law in relation thereto, as enunciated by the various judgments of the Hon''ble Supreme Court of India.

The case of Ram Naresh Pandey and another is one of the first cases where the Hon''ble Supreme Court enunciated the principles governing the sanction by the Court under Section 494 of the old Code upon an application filed by the Public Prosecutor seeking consent to withdraw from the prosecution. In The State of Bihar v. Ram Naresh Pandey and another, A.I.R. 1957 S.C. 389, the Hon''ble Court held as under :

"Section 494 is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. 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. There can be no doubt, however, that the resultant order, on the granting of the consent, being an order of `discharge'' or `acquittal'' would attract the applicability of correction by the High Court under Ss. 435, 436 and 439 or S. 417, Criminal P.C. The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of S. 494, Criminal P.C., would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. 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 Section gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds. The judicial functions, 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."

"This would not be a permissible construction of the section. But such evidence as may already have been recorded by the time the application is made can be looked into and considered in such cases, in order to determine the impropriety of the withdrawal as amounting to abuse or an improper interference with the normal course of justice. Hence where an application for withdrawal under S. 494, Criminal P.C. is made on the ground of insufficiency or meagreness of reliable evidence that is available, it is not an improper exercise of discretion for the Court to grant consent before evidence is taken, if it was reasonably satisfied, otherwise, that the evidence, if actually taken, is not likely to result in conviction."

In the case of M.N. Sankaranarayanan Nair v. P.V. Balakrishnan and others, A.I.R. 1972 Supreme Court 496, inspite of parties considering to a point relating to consent of the Government and authority of the Public Prosecutor to file such an application, the Hon''ble Supreme Court emphasised the need of the Courts to exercise due control while granting or declining such a consent. While declining the consent and affirming the judgments of the Courts, the Supreme Court observed as under :

"The section does not, however, indicate the reasons which should weigh with the public prosecutor to move the Court nor the grounds on which the Court will grant or refuse permission. 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 prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. 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."

Emphasising the importance of administration of justice being the governing factor in such cases, in the case of Bansi Lal v. Chandan Lal and another, A.I.R. 1976 Supreme Court 370, the Court held as under :

"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 dutybound to further and maintain."

It needs to be mentioned at this stage that in this case the learned Sessions Judge had permitted the withdrawal of the prosecution against the accused. The Court rejected the ground of insufficiency of evidence and set aside the said order. Such need was further emphasised by the Hon''ble Supreme Court in the case of State of Orissa v. Chandrika Mohapatra and others, A.I.R. 1977 Supreme Court 903, wherein it was held as under :

"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 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. (emphasis supplied by me)."

The application of mind by the Public Prosecutor should not be controlled by the Government. He need not be obeying the directions of others but should apply his mind on fair basis on which the court would grant consent. The independent application of mind by the Public Prosecutor was considered to be of serious consequences by the Supreme Court in the case of Balwant Singh and others v. State of Bihar, A.I.R. 1977 Supreme Court 2265, where it was held as under :

"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. In these circumstances, we refuse leave."

At this stage reference can also be made to the judgment of the Supreme Court in the case of Rajinder Kumar Jain v. State through Spl. Police Establishment and others, A.I.R. 1980 Supreme Court 1510, where the Court held as under :

"It may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure. The Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session."

"It shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its `Minister of Justice''. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S. 321, Criminal Procedure Code."

The above principles were cumulatively discussed in great elucidation by the Supreme Court in the well known case of Sheo Nandan Paswan v. State of Bihar and others, A.I.R. 1987 Supreme Court 877. In this case while laying down different circumstances and criteria which would define the true scope and implementation of Section 321 of the Code, the Court also examined the effect of other provisions in relation to Section 321 of the Code. The following dictim of the Supreme Court in this case (Sheo Nandan Pawan) needs to be noticed at this stage :

"Section 321 providing for withdrawal from prosecution 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 if is not an attempt to interfere with the normal course of justice for illegitimate reasons or purpose. When an application under Section 321 is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. The Court''s function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, it does not mean that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines consent. The section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper. This will be clear on persual of some other provisions in the Code such as Ss. 203, 227, 245, 257 and 258 which relate to the manner in which Courts have to exercise their jurisdiction in pending case when applications are made for their withdrawal or when the Court finds that there is no ground to proceed with the cases and Sec. 320 which is a kindred section. While ss. 203, 227, 245, 257 and 255 require the Magistrate to record his reasons for the order he passed S. 320 contemplates consent by the Court only in a supervisory manner and not in an adjudicatory manner."

The above principles have been reiterated by the Hon''ble Supreme Court of India in more recent cases as well. In the case of V.S. Achuthanandan v. R. Balakrishna Pillai and others, A.I.R. 1995 Supreme Court 436, the Hon''ble Supreme Court held as under :

"Of course, finding support from the observations of the Supreme Court in Sheo Nandan Paswan''s case, A.I.R. 1987 SC 877, the learned Public Prosecutor argued with vehemence that the judgment in (sic) of a Public Prosecutor under Section 321 Cr.P.C. cannot be lightly interfered with. But the settled decision of law, which I have already discussed, makes clear that the Court has a duty to oversee whether the Public Prosecutor has properly exercised his power under Section 321 Cr.P.C. Having regard to the entire facts and circumstances of this case, it is not possible to hold that the Public Prosecutor has properly exercised his discretion or that there are justifiable or convincing reasons to deflect from the normal course of justice."

In R.M. Tewari v. State (NCT of Delhi) and others, A.I.R. 1996 Supreme Court 2047, the Court deprecated the practice of granting mechanical consent for withdrawal of prosecution even if such application was based on the recommendations of the review committee. It was held as under :

"In case of detention under Terrorist and Disruptive Activities (Prevention) Act (28 of 1987) withdrawal from prosecution is not to be permitted mechanically by the Court on an application for that purpose made by the Public Prosecutor. It is equally clear that the Public Prosecutor also had not to act mechanically in the discharge of his statutory function under Section 321 Cr.P.C. on such a recommendation being made by the Review Committee; and it is the duty of the Public Prosecutor to satisfy himself that it is a fit case for withdrawal from prosecution before he seeks the consent of the Court for that purpose. Hence, when in the instant case the Public Prosecutor did not fully appreciate the requirement of Section 321 Cr.P.C. and made the applications for withdrawal for prosecution only on the basis of the recommendation of the Review Committee, the action of Public Prosecutor was improper."

The fair analysis of the aforereferred judgments is that a Public Prosecutor has to act on his own bona fidely and in the interest of administration of justice. He must satisfy himself in relation to the substance of the application for leave to withdraw prosecution against an accused and that such reasons are well accepted in law and would serve the public interest. Upon presentation of such an application the Court has not to function mechanically but has to apply its mind again in consonance with settled principles of law, but at the same time, without determining judicially the matters in controversy.

In order to apply these principles reference to some basic features of this case would have to be referred even at the cost of repetition. In the report under Section 173 of the Code, accused Navjot Singh Sidhu was placed in column No. 2, but vide order dated 9.7.1993 he was summoned by the Court after examining the entire challan (chargesheet) presented before the Court. A private complaint was also filed on 22.7.1989 and after recording the evidence both the accused were summoned by the Court on 2.6.1998. Charges were framed on 20.8.1994. Firstly, the State filed an application for withdrawal of the prosecution against Navjot Singh Sidhu on 8.12.1994. Before the said application could be decided and when the matter was pending before the Court, another application was filed on 21.3.1995 for withdrawal of prosecution against both the accused. Both the cases thereafter were consolidated and tried by the same Court. Charge was framed on the accused on 20.8.1994 for an offence under Section 302/34 I.P.C. Post charge evidence was recorded by the prosecution in the shape of PW1 and PW2. Amidst the conclusion of the prosecution evidence, the application was moved for withdrawal of the prosecution.

In the application under Section 321 of the Code it was stated that the medical evidence appearing against the accused is doubtful as per the opinion of the doctor in relation to cause of death. The quarrel between the two motorists was sudden and without provocation, the investigation in the case had given two versions which were contradictory and there was inexpectency of prosecution for the reason of State and public policy as a result of which the State had decided to withdraw the prosecution. It was mentioned in the application that the Public Prosecutor had applied his mind.

The challan was presented by the State under Section 302/34 I.P.C. against the accused, while upon committal proceedings, the learned Court had framed the charge against both the accused based on the complaint under Section 302/34 I.P.C. Entertaining element of doubt and presumption in relation to grant of benefit to the accused were the basic grounds on behalf of the Public Prosecutor to file the application in question. The application was rejected by the learned Court as already noticed. On the first ground of attack while making the order it was argued that the learned Court has not dealt with particularly the four grounds stated in the application. This ground does not have any merit. The learned Sessions Judge first noticed complete content of the application (at internal page 3 of the judgment), then factually discussed the entire case and its progress at different stages. Thereupon the Court concluded that the application filed by the Public Prosecutor was neither in good faith nor was in the interest of administration of justice or public interest, as the case may be.

Without getting into greater details of this argument, I will consider it appropriate to refer to the relevant portion of the judgment as under :

"It may be mentioned here that it was the State who moved the application for the first time against Navjot Singh Sidhu in order to array him as an accused before the Court of Shri Batra. That application was granted to the State. At that point of time, the State had not formulated any opinion whatsoever that it wanted to withdraw the prosecution against Navjot Singh Sidhu, rather on that day, the State was convinced that both the accused are prima facie guilty of the offence and they must be brought to the book."

In the present case, four judicial orders were passed from time to time against Navjot Singh Sidhu. Firstly when he was summoned as an accused by Shri Batra, secondly when the Magistrate decided to proceed against this accused in the private complaint, under Section 302 IPC, thirdly when Navjot Singh Sidhu and his coaccused Rupinder Singh Sandhu were committed to the Court of Session and lastly when this Court framed a charge under Section 302 IPC against Navjot Singh and his companion under Section 302/34 IPC. At no point of time, either the accused or the State went in revision challenging the legality or otherwise of these orders. The State was happy and everything was going in a normal manner. Law was taking its own course. Then what are those factors which abruptly went in favour of the accused and the State was swayed to compel the Public Prosecutor to move an application for the withdrawal of the prosecution. So far as the position of law is concerned, it will be useful for me to incorporate the different authorities which have been cited at the bar by the learned Counsel for the parties. 1987 CAR 148(SC) Sheonandan Paswan v. State of Bihar and others, is an authority of five Judges of the Hon''ble Supreme Court where it has been held in para No. 21 of the judgment that when an application under Section 321 Cr.P.C. is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal but the Hon''ble Supreme Court held in this very para that all that the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. I will presently show that the move of the learned Public Prosecutor was not in good faith, in the interest of public policy and justice; rather it was to thwart and stifle the process of law for the benefit of Navjot Singh Sidhu who is a Cricket player of international level and his companion Rupinder Singh Sandhu."

May be each point had not been discussed separately in great detail, but the Court had certainly examined the cumulative effect of all these grounds with reference to the evidence on record and keeping in mind the proceedings of this case right from the stage of presentation of report under Section 173 of the Code till the date of passing of the order. Soon hereafter I would also be discussing the merits of the application.

The second contention that the application under Section 321 of the Code can be filed at any stage of the proceedings is a contention which hardly needs any discussion. The language of the Section itself makes it clear that the application could be filed at any stage. It will be incorrect to suggest that the learned trial Court has dismissed the application on that ground and has not taken relevant factors into consideration. I am not able to accept the contention on behalf of the petitioners and the State that the judgment is based upon misreading of the provisions of Section 321 of the Code. The order not only appears to substantially meet the requirement of Section 321 of the Code, but is in consonance with the spirit of the provisions.

While entertaining an application under Section 321 of the Code, the Court is primarily concerned with the content of the application, the Public Prosecutor and the record of the case. Of course, such an order would obviously be passed after hearing all the parties affected. Out of these essentials, most pertinent personality is the Public Prosecutor. He holds a dual capacity before the Court. Firstly, he is an officer of the Court like an Advocate, while secondly, he holds public office on behalf of the State within the scope of which he exercises the jurisdiction vested in him under these provisions. To act independently without any influence and to satisfy himself with regard to the substance and genesis of the application being in consonance with the basic rule of law and with limited object of administration of justice or public interest, he must consider various pros and cons of filing such an application in good faith and bona fidely.

Strange enough is the conduct of the State in the present case. It files a report where Navjot Singh Sidhu is placed in column No. 2 and then the State after having come to know of the complaint case, files an application for summoning said Navjot Singh Sidhu as an accused in the case. Was there application of mind by the same learned Public Prosecutor at that stage ? Both the complaint and the State case are consolidated and the charge is framed under Section 302/34 I.P.C. against both the accused. Was there application of mind by the learned Public Prosecutor at that stage ? Further, at different stages upon active participation by the State through the Public Prosecutor the case progresses. But suddenly on 6.12.1994 when two witnesses were examined, instantly an request is made for filing an application for withdrawal. What was the urgency ? Why that instant decision to withdraw the prosecution against only one accused ? If it was a preconsidered mind, why not an application before the prosecution evidence commenced ? What prompted the learned Public Prosecutor for withdrawal of prosecution against only one accused, while the case of the prosecution was based on common evidence against both the accused and they were allegedly coaccused with the aid of Section 34 of the Indian Penal Code ? All these questions, in addition to what has been observed by the learned trial Court certainly raise an element of suspicion to the decision and the manner in which such decision was implemented by filing the application in question.

A reasonable apprehension arises in the mind of the Court whether the learned Public Prosecutor was acting and carrying out the instructions of some other authority or was it his own considered creation which resulted in the filing of the application. This lurking doubt unfortunately travels like a thread in the entire prosecution case right from its registration, presentation of challan, application for summoning, till commencement of prosecution evidence. Once a doubt is casted, it obviously reflects on the bona fides of such an application. As already noticed, wide discretion places greater burden to act with fairness and in the interest of administration of justice upon the authority entitled to exercise such power. It is also true that the Court is not to sit as a Court of appeal to judge the veracity of the grounds given by the learned Public Prosecutor for filing such an application. This restriction has been diluted to a great extent and the duty has been casted upon the Court to examine the material on record without which the validity and propriety of such grounds cannot be determined. This aspect attains greater importance whether the ground taken by the prosecution is paucity of evidence or lack of prospects of successful prosecution. (Rajender Kumar Jain''s case supra).

The Public Prosecutor has to apply his mind to the facts of the case independently and without being subject to any outside influence. Greater responsibility would obviously be casted upon the Public Prosecutor if he files an application for withdrawal of the prosecution against an accused on the ground of insufficient evidence. In the present case it was not really insufficiency of evidence, but it was critical examination of the medical evidence which was stated to be the foundation of the decision of the Public Prosecutor in addition to the ground of inexpediency of the prosecution case in regard to its final result. In the case of Chandrika Mohapatra and others (supra) the Hon''ble Supreme Court specifically held that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. Such a decision must be clubbed with other sound grounds available in law. In any case, the ultimate guiding consideration must always be interest of administration of justice and that is the touchstone on which the question must be determined.

A ground of no material to substantiate the charge sheet was taken up by the prosecution in the case of V.S. Achuthanandan (supra). Such a stand in that case where charge related to criminal conspiracy was found by the Supreme Court to be not a proper application of mind by the Public Prosecutor. The Hon''ble Supreme Court held as under :

"It is again not brought to my notice as to how the 6th accused stands on a different footing in regard to these material allegations. Paucity of evidence cannot, therefore, be taken as a ground to withdraw the prosecution against one among them. At any rate, it cannot be said that there was a proper application of mind in seeking withdrawal of the prosecution against one among the officials."

To intercept and recall an enquiry or trial in a Court save in the manner and to the extent provided for in law is itself a violation of law. Power of the Public Prosecutor, thus, is an exception to the rule that a case where a report has been presented to the Court of competent jurisdiction should be taken to its logical end by the pronouncement of judgment by the Court of competent jurisdiction.

The role assigned to the Public Prosecutor is more tilted as a limb of the judicative process and not an extension of the Executive. The Legislature in its wisdom vested this wide power in the Public Prosecutor and not exclusively in any Executive Officer. This is indicative of the legislative intent that the Legislative wanted a check and an independent mind to come to such a conclusion, though initiation may be by the State. Such conclusion is open to judicial scrutiny though in its limited perspective.

If the intention of the prosecution at a particular stage of the proceedings is primarily to scuttle the judicial process to give benefit to an individual leaving the paramount consideration of administration of justice much behind, such an application is bound to be tainted with colourable exercise of power and the Court would be well within its jurisdiction to decline its consent.

In the present case the record speaks for itself that at some stages the prosecution went all out to pursue the prosecution with complete vigour and desire to bring the alleged accused to face the Courts of law. On the other hand, on 6.12.1994 a sudden change of mind by the learned Public Prosecutor in the Court can hardly be justified. The reports of all the doctors were available with the Public Prosecutor for all this period. They were so annexed with the challan/chargesheet. The learned Public Prosecutor had the occasion to examine the records as per practice even before presentation of chargesheet/challan in the Court of competent jurisdiction. He applied his mind while filing an application under Section 319 of the Code for summoning Navjot Singh Sidhu as an accused, though his name was shown in column No. 2 of the challan. The committal proceedings, the framing of charge all are the steps where the learned Public Prosecutor ought to have applied his mind to the entire case and consequences thereof. The expression `at any stage'' is inconsequential, once exercise of such power is not in good faith, fair and is apparently not in the interest of administration of justice. The Court is not to examine the merits of the evidence, but in view of a specific ground the Court has no option but to refer to the medical evidence, which at least does not make out a case for withdrawal, as is clear from the statement of PW1 in the Court. I would stop short of that to avoid any prejudice to the parties.

The last ground taken in the application relates to conflicting versions coming up during investigation. The prosecution has a duty to bring the complete and entire evidence before the Court and it is for the Court to decide what is correct and what are the consequences thereof. Having filed the challan in the Court of competent jurisdiction, I really wonder that it could be a valid ground for the learned Public Prosecutor even to take up in the application. The ordersheet of this case, as reproduced above, indicates that it was the executive officers who were controlling the hand of the learned Public Prosecutor. Without any hesitation in that regard the learned Public Prosecutor stated in the Court that he awaits instructions of the State in that regard, on different dates. If the intention was to shield alleged accused in the above manner, it would not be permissible in law. In a recent case titled as State of Punjab v. Maninder Singh, 1996(3) All India Criminal Law Reporter 259, on an application for withdrawal under Section 321 read with Section 482 of the Code in a case of misappropriation of public funds, the Hon''ble Supreme Court expressed its anguish in the following language :

"It is astonishing and we are aghast to find that the State Government legitimised corruption and decided to shield the officers who have committed misappropriation of public funds to the tune of Rs. 1.61 crores as culled out during investigation. It is obvious from the record that the Government wants to hide the persons and shield the officers responsible for committing misappropriation."

"....However, we record our deep anguish and strong disapproval of the conduct of the Government in shielding corrupt officers who committed misappropriation of public funds from being prosecuted and punished according to law."

At this stage it needs to be noticed that the complaint case filed by the complainant was clubbed with the State case on framing of charge. The accused are facing the charge under Sections 302, 323 read with Section 34 of Indian Penal Code. The withdrawal of the prosecution case commenced on the police report would not and could not affect the trial on the complaint case in any manner, whatsoever. This factor ought to have been taken into consideration by the learned Public Prosecutor that a complainant would have to incur the heavy responsibility of proving the case from the same evidence on which the police report was based. In other words, the complainant would be left high and dry to summon/collect evidence, prove it from hospital, police authorities and other investigating sources, to prove the same offence for which the police had filed the challan before the Court of competent jurisdiction. In view of the law laid down by the Supreme Court in the case of State of Punjab v. Surjit Singh, A.I.R. 1976 Supreme Court 1214 and Sheo Nandan Paswan''s case (supra) (para No. 74), the Public Prosecutor had no jurisdiction to withdraw the complaint case or to affect the same in any manner, whatsoever. This being the position, one really wonders what was the ultimate object for filing the application at this stage of this proceedings before the learned trial Court.

I would like to sum up the reasons which have been given in this judgment and in the judgment of the learned Sessions Judge for declining the permission for withdrawal of prosecution against the accused :

i) The action of the Public Prosecutor does not appear to be in good faith and in any case is not in the interest of administration of justice;

ii) The purpose of filing of this application was more to provide benefit to an individual rather then to uphold the basic rule of law and administration of criminal justice;

iii) The abrupt decision in the Court by the learned Public Prosecutor after examining the two witnesses, indicates lack of proper application of mind by the Public Prosecutor;

iv) The critical analysis of the two witnesses examined in the Court by ignoring the prosecution case in its entirety and prejudging the worth of the remaining prosecution evidence, is more tilted in scuttling the judicial process. It appears that the learned Public Prosecutor assumed to himself function of pronouncing an order rather than applying his mind in an open and fair manner whether such application should at all be filed.

v) The learned Public Prosecutor appears to have acted more on the dictate of the Executive rather than his own independent mind to the real controversies in issue.

vi) Expediency or expectancy of success for conviction, per se cannot constitute a sufficient ground for filing of such an application;

vii) The conduct of the learned Public Prosecutor, pre and post presentation of the police report/challan under Section 173 Cr.P.C., at the stage of filing of application for summoning Navjot Singh Sidhu, who was shown in column No. 2 as an accused, committal proceedings and framing of charge, does not support the abrupt decision of the learned Public Prosecutor to file an application for withdrawal of prosecution against the accused.

While both these revision petitions were admitted to hearing, the Court vide order dated 9.8.1995 had permitted the proceedings to continue. However, it was ordered that no final order be passed. It has been informed to the Court that the case of the prosecution has considerably progressed and even statements of the accused under Section 313 Cr.P.C. have been recorded. Keeping this additional factor in mind, I do not find any infirmity in the judgment of the learned Sessions Judge.

The cumulative effect of the above reasoning is that the application filed by the Public Prosecutor does not stand the test even of limited judicial scrutiny. The abrupt decision of the learned Public Prosecutor on 6.12.94 in filing the application for withdrawing the prosecution against Navjot Singh Sidhu and then another attempt to remove the disparity vis a vis the other accused, the application filed later, was nothing but faux pas in law. The reasoning given by the learned Public Prosecutor appears to be result of extraneous considerations not germane to the substance and spirit behind the provisions of Section 321 of the Code. It was more to provide protection to the accused influenced from the fact that one of them was cricketer of international fame and attempt was to truncate the logical end of the prosecution initiated by the State itself. The Public Prosecutor acts as a linch pin to the administration of criminal justice. He has an implied obligation to ensure that faith of the public is not lost and the image of administration of criminal justice by judicial process is not tarnished.

Curio are the cases where the complainant being dissatisfied by the approach and conduct of investigating and prosecution agencies, sets the judicial process into motion by filing a criminal complaint before the Court of competent jurisdiction, even in relation to such serious offences. Thereafter, the State also files the police report in the Court. The cases are consolidated. Charges are framed. The evidence of the prosecution commences in the State case itself. Suddenly, the learned Public Prosecutor decides to withdraw the prosecution against one accused and thereafter against both the accused on the basis of the decision taken by him in Court itself. The accused are sought to be protected by invoking the powers vested in the concerned authority under Section 321 of the Code.

In these circumstances, such protection to an accused which exposes the complainant to the rigours of discharging the onerous burden of proof in murder trial at his own expenses and means, to say the least, cannot be said to be in the interest of administration of justice.

Where the settled cannons of criminal jurisprudence discernibly presume every accused innocent till proved guilty, there it also recognises with tenacity, the protection to a complainant to have a fair chance to prove his case and even with the aid of State agencies, wherever necessary.

To conclude, the grounds of application seen in the light of the above facts and circumstances, are for extraneous considerations and are nothing but plagiarism of the Public Prosecutor at the dictum of the State.

Argo I have no hesitation to hold and predicate the conclusions of the learned Sessions Judge, arrived at in the impugned judgment. Consequently, both these revision petitions are dismissed. The interim order shall stand vacated. However, in order to avoid any prejudice to either of the parties to these proceedings, I would prefer to request the learned Sessions Judge dealing with the matter, to conclude the trial of this case, as expeditiously as possible.

Petitions dismissed.