P.S.N. Badrudeen vs Mrs. Selvam Raj Kennet and Another

Padmini Jesudurai, J.—The above revision is by the first informant in the case who is also P.W. 1 in the police charge-sheet, in C.C.357 of 1981 on the file of the Judicial First Class Magistrate, No. 1 Madurai and is directed against the judgment of the above court acquitting the first respondent under S.321(a) Crl.P.C.

On 6.3.1981 the petitioner presented a complaint to the police for an offence under S.420, I.P.C, alleging that the first respondent made a representation to him that she was the owner of certain lands in Madakulam village, Madurai South and that she has absolute rights to swell the same and she needed money for the marriage expenses of her daughter and offered the above property for sale to the petitioner and on 25.7.1980 there was an agreement of sale between the petitioner and the first respondent fixing the sale amount at Rs. 1,25,000 and on that date an advance of Rs. 25,000 was paid by the petitioner to the first respondent. Later on, the petitioner came to know that the first respondent had no saleable right in the above property and had therefore committed an offence under S.420, I.P.C. A case in crime No. 19 of 1981 of Madurai Central Crime Branch was registered on the above complaint and the second respondent after completing the investigation laid charge-sheet against the first respondent before the above court for the above offence which was taken on file by him as C.C. 357 of 1981. The petitioner herein was cited as P.W. 1 in the charge-sheet so filed. The first respondent on 29.2.1982, filed an application in this Court under S.482, Crl.P.C., for quashing the charge-sheet. On 6.8.1982 the first respondent did not press her quash petition and the same was dismissed by this Court as withdrawn. On 20-9-1982, the learned Assistant Public Prosecutor Grade II, in charge of the case before the trial Court filed an application before the trial court dated, 17.9.1982 under S.321, Crl.P.C. stating that he had been ordered by the Collector of Madurai to withdraw from the prosecution and that the necessary consent of the Court for withdrawal may be accorded and on the consent being given withdrawal would be made. On 8.4.1983 the learned Magistrate accorded permission to withdraw from the prosecution and pasted the impugned order acquitting the first respondent. The present petition revision is filed by the aggrieved P.W. 1, against the above order of the learned Magistrate.

Thiru N. Natarajan, Learned Counsel for the petitioner contended that there was no proper compliance of S.321, Crl.P.C., in that--(1) The learned Public Prosecutor had not applied his mind but had mechanically acted under the orders of the District Co Hector ordering him to withdraw the case and had not given any cause justifying the withdrawal; (2) The learned Magistrate had also mechanically passed the order granting permission and acquitting the first respondent without ascertaining the reasons for withdrawal and without being satisfied about the correctness of the reasons. The Order was a non-speaking order. The judgment of the trial Court therefore had to be Set aside.

Per contra, Thiru A. Packiaraj, Learned Counsel for the first respondent and the learned Public Prosecutor for the second respondent submitted that the offence itself was of a civil nature and the proper remedy for the petitioner would be to resort to a civil Court for redressing his grievances and that therefore the order of withdrawal could be justified.

The question that arises for consideration is whether the order of the learned Magistrate passed under S.321, Crl.P.C. is legal.

It is settled law that the Public Prosecutor in charge of the case has to apply his mind on the reasons justifying the withdrawal of the prosecution and satisfy himself that the withdrawal is necessary in the interest of the administration of justice. This responsibity of the learned Public Prosecutor cannot be abdicated in favour of any one else. Though as a counsel for the State it would be open to him to receive information from the State to apprise him of the circumstances calling for a withdrawal, the final decision however would be the decision of the Public Prosecutor himself. Case law on the subject has made it clear that the reasons for withdrawal could be many but it should be clear that the withdrawal is ultimately to promote the ends of justice. It is also settled law that when the court is called upon to give permission to the Public Prosecutor to withdraw from the prosecution, the court has also to satisfy itself that the withdrawal is in the interest of justice. The order passed by the Court should be a speaking order so that a court of revision would be in a position to find out whether permission under S.321, Crl.P.C. has been properly given.

The Supreme Court has on several occasions made the law clear. Useful reference may be made to two of the decisions. In Rajender Kumar Jain and Others Vs. State Through Special Police Establishment and Others, , the law was laid down in the following words--

The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else; and so, he cannot surrender that discretion to some one 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 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.

Similarly in Sheonandan Paswan Vs. State of Bihar and Others, , it has been observed as follows:-

The statutory responsibility for deciding withdrawal squarely rests upon the Public Prosecutor. It is non-negotiable and cannot be bartered away. The courts'' duty is to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice.

The memo for withdrawal filed by the learned Public Prosecutor is as follows:--

Ref. 1, Madurai District Collector''s K. Dis. 75200/82, dated 7.9.1982.

Public Prosecutor, Madurai, letter, dated 15.9.1982

The Asst. Public Prosecutor Gr. I, Madurai South Dt. Endorsement, dt. 16.9.1982.

Humble petition submitted under S.321, Crl P.C. most respectfully showeth:

As ordered by the District Collector, Madurai, I request for the consent of this honourable Court for withdrawing from the prosecution of the accused Mrs. Selvam Raj Kennet in C.C. 357 of 1981 and on consent being granted T withdraw from the prosecution of the accused Mrs. Selvam Raj Kennet in the above said case C.C. No. 357 of 1981.

The order passed by the learned Magistrate is as follows.

From the above it is clear that the learned Public Prosecutor had not applied his mind at all to the facts of the case, but had merely referred to certain communications of the Collector of the District, of the Public Prosecutor of the District and of the Assistant Public Prosecutor Grade I of the District. It is not known what reasons were suggested in the above communications for withdrawal of the case. The communications are not before court. Ultimately, it is the Public Prosecutor who is in charge of the case in that Court, who has to take a decision on the withdrawal. In the memo filed by the learned Assistant Public Prosecutor no reasons have been put forth as to why the case was sought to be withdrawn. It is also not known how the withdrawal is in the interest of justice. No doubt, the mere use of the words as ordered by the District Collector'' would not by itself be a ground for making the whole proceedings illegal as pointed out by the Supreme Court in Rajender Kumar Jain and Others Vs. State Through Special Police Establishment and Others, .. Under similar circumstances, the Supreme Court observed.

What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of poiicy. The Court, in such a situation, is to make an effort to solicit the reasons for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons.

It therefore follows that even if the learned Magistrate while passing his order under S.321, Crl.P.C., had complied with the requirements as stated above by the Supreme Court the order could have been saved. In the absence of any reasons put forth either in the memo filed by the Prosecutor or in the order passed by the Magistrate, the mere mention in the order that these are sufficient reasons for withdrawal could convey no meaning. It is obvious that neither the Public Prosecutor nor the Court applied his mind regarding the circumstances justifying a withdrawal. The State, whose duty is to prosecute offenders is also empowered to withdraw from prosecution if the same would subserve administration of justice. However, that the withdrawal it not for reasons extraneous to the interest of justice has to be made clear to the Court at the time when the Court accords permission for withdrawal. The order passed by the learned Magistrate is in violation of the requirements of S.321, Crl.P.C. The same has therefore to be set aside. In the result, the revision is allowed. The judgment of the trial Court acquitting the first respondent is set aside. The case is sent back to the concerned Court for disposal according to law.