Pritam Singh vs Jang Bahadur and ors.

A.S. Nehra, J.

Pritam Singh petitioner has filed this revision petition against the order dated 24.41989 passed by the Sessions Judge, Jalandhar, by which the Public Prosecutor was granted permission to withdraw the prosecution case and the respondents were acquitted.

Briefly stated, the facts of the case arc that Jang Bahadur was charged for offences under section 302 IPC, section 307 IPC on two counts and section 27 of the Indian Arms Act, while his coaccused Satish Kumar was charged for offences under section 302 read with section 34, IPC; and under section 307 read with section 34, IPC, on two counts. The case was registered on the statement of Pritam Singh to the effect that he and his brother Amrik Singh deceased used to ply cart by taking the same on hire; that on 1411987 at 4.30 p.m., Pritam Singh, Amrik Singh and Nachhatter Singh came out of the house of Nachhitter Singh and proceeded towards the bazar in connection with their avocation : that when they reached near the turning of the house of Sansar Chand, Jang Bahadur came there on cycle; and that Amrik Singh remarked to Jang Bahadur that he stopped every one and questioned them as to from where they had come, treating them to be terrorists and it was not good for him. He further stated that the same led to an altercation between Amrik Singh and Jang Bahadur; that, in the meantime, Satish Kumar who is younger brother of Jang Bahadur, also arrived there and he exhorted Jang Bahadur to fire from his pistol and teach them a lesson; that Jang Bahadur then fired at Amrik Singh and Nachhitter Singh, hitting both of them and also Joginder Singh son of Surjit Singh; that the firing of the shot attracted Kabal Singh to the spot; that Pritam Singh then raised alarm and both the accused ran away; and that the injured were removed to the hospital where Amrik Singh succumbed to the injuries.

The Public Prosecutor applied for withdrawal of the case on the basis that it shall be in the interest of public administration and justice that the case was withdrawn. He has given detailed reasons in his application dated 2831989, wherein he stated that the decision for making a move for the withdrawal of the case was taken after perusal of the report/result of further enquiry and investigation carried out by the D.I.G. of Police Range, Jalandhar, and I.G. of Police (Crime) Panjab; that investigation had been carried out after the presentation of the challan in the Court and, on the basis of the representation of Shrimati Santosh Kumari, wife of Jang Bahadur accused, to the State; that Pritam Singh, who lodged the FIR, and Kabal Singh, who is cited as an eyewitness were not present at the spot and Shrimati Surjit Kaur, wife of Joginder Singh, was the only independent eyewitness of the occurrence; that her statement was net recorded during initial investigation but, when her statement was recorded, she stated nothing against Jang Bahadur; that Joginder Singh, who sustained injuries at the time of the occurrence, when examined by the D.I.G., did not state anything against Jang Bahadur; that if the evidence is led, it shall be leading false evidence; and that it was after making full assessment of the facts and circumstances of the case that he had made an application in bona fide exercise of executive function for permission/consent of the Court to withdraw the case.

Pritam Singh petitioner was given an opportunity to file reply to the application. He contested the application and pleaded that Shrimati Surjit Kaur had been introduced as a false witness and no reason had been given as to how Pritam Singh and Kabal Singh were false witnesses; that Joginder Singh had supported the version of the FIR and his affidavit was being attached. Pritam Singh also filed an affidavit of Nachhitter Singh in support of his case.

After hearing the learned counsel for the parties, the Public Prosecutor was allowed to withdraw the prosecution case. The statement of the Public Prosecutor was recorded and the respondents were acquitted by the Sessions Judge on 2441989.

The submission of the learned counsel for the petitioner is that the Public Prosecutor acted as directed by the Government to make the application for withdrawal and himself did not apply his mind. Section 321 of the Code of Criminal Procedure, enables the Public Prosecutor incharge of a case to withdraw from the prosecution with consent of the Court. Before an application is made under section 321 of the Code of Criminal Procedure, the Public Prosecutor has to apply his mind to the facts and circumstances of the case independently without being subject to any outside influence. The Court before which the case is pending cannot give its consent to withdraw without itself applying its mind to the facts of the case. It cannot be said that a Public Prosecutor''s action will be illegal if he receives any communication or instructions from the Government. Unlike the Judges, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government for conducting in Court any prosecution or other proceedings on behalf of the Government. So, there is relationship of counsel and client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without instructions of the Government; a Public Prosecutor cannot conduct a case absolutely on his own or contrary to the instructions of his client, namely, the Government. Therefore, if the Public Prosecutor receives instructions from the State Government then it cannot be said that he has acted under extraneous influence. Therefore, there is no merit in the contention raised by the learned counsel for the petitioner and the same is rejected.

The learned counsel for the petitioner has argued that the learned Sessions Judge has not given a finding to the effect that the withdrawal of the prosecution shall be in the interest of public justice and administration. The Public Prosecutor, in an application for withdrawal dated 2831982, has stated that, after making the full assessment of the facts and circumstances of the case, he is bona fide exercise of executive functions, had submitted the application for withdrawal of the prosecution case, which shall be in the interest of public justice and administration. This application had been allowed, as prayed. Therefore, there was no need to give a finding that the withdrawal of the prosecution case shall be in interest of public justice and administration.

When an application under section 321 of the Code of Criminal Procedure 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 the consent. However, it does not mean that the consent of the Court is a matter of course. When the Public Prosecutor makes an application for withdrawal after taking into consideration of the material before him, the Court exercises its judicial discretion by considering certain material and, on such consideration, either gives consent or declines consent. The section should not be construed to mean that the Court has to give detailed reasons for order when it gives consent. All that is necessary to satisfy the section is to see that the Public Prosecutor acted in good faith and that the Sessions Judge is satisfied that the exercise of discretion by the Public Prosecutor is proper.

In the present case, the Public Prosecutor has acted in good faith and the learned Sessions Judge was satisfied that the exercise of discretion by the Public Prosecutor was proper. Therefore, the order passed by the Sessions Judge, Jalandhar, on 2441989 is in accordance with law.

In view of my abovementioned discussion, there is no merit in this revision petition and, therefore, the same is dismissed.