Sanjeev Kumar Jaiswal and others vs State of U.P. and another

Kashi Nath Pandey, J.—Heard learned Counsel for the Revisionists, Sri S.P. Singh, learned Counsel for opposite party No. 2, Miss. Afshan Shafaut and the learned A.G.A.

Sanjeev Kumar, Ghan Shyam Jaiswal, Smt. Radhika Devi Jaiswal, Km. Kanchan, Smt. Hemlata and Km. Guddan have filed this revision against order dated 10.5.2001 passed by Chief Judicial Magistrate, Siddharth Nagar in criminal case No. 803 of 2000. State v. Sanjeev Kumar and others rejecting the application of A.P.O., Siddharth Nagar moved under section 321 Cr.P.C. for withdrawing the case against accusedrevisionists pending before the Court under sections 498A, 304B and 3/4 Dowry Prohibition Act.

According to the FIR, lodged by Sri Krishna Jaiswal son of Sri Raghunath Prasad, resident of Akbar Nagar, Banshi, police station Banshi, district Siddharth Nagar, the brother of the deceased had married his sister, Laxmi on 17.6.1998 with Sanjeev Jaiswal son of Ghanshyam Prasad, resident of Naugarh Bazar, police station Tetari Bazar. On account of dissatisfaction of dowry on 4.2.2000 at about 5.00 a.m. in the morning his sister, Laxmi was burnt by her husband Sanjeev Jaiswal, fatherinlaw Ghanshyam, motherinlaw Radhika Devi and sistersinlaw kanchan, Hemlata and Guddan.

Some persons informed him on telephone in the evening regarding the above incident, then he went to the matrimonial house of his sister and against their will, he had taken her to Gorakhpur for her treatment, where up to 19.2.2000 she was subjected to treatment in different hospitals. On the advice of doctor she was taken to Delhi for the treatment, where on 28.2.2000 at about 11.00 p.m. in the night she died. During the period of her treatment none of her family member turned up even to see her except her husband.

He came to the house with a dead body of his sister. In Delhi the husband of Laxmi got the signature of his brother, Dhruv Chandra on several papers on 29.2.2000. After the above incident he also came to know that one week before the incident, 7 months baby of his sister was separated from her.

According to the application, moved by A.P.O. Siddharth Nagar Sri Mool Chandra Pandey, Sanjeev Kumar Jaiswal the husband of the deceased tried to save her and he also received burnt injury. The injury report is dated 10.2.2000. He had taken her to Gorakhpur and from 5.2.2000 up to 18.2.2000 she was subjected to treatment in Star Hospital Private Limited, Gorakhpur from the expenses of her husband. On 8.2.2000 dying declaration of Laxmi was recorded by Additional City Magistrate, Gorakhpur in which Laxmi did not implicate the revisionist. On 18.2.2000 she was referred to Safdarjang hospital, Delhi where she was admitted for her treatment and there she died on 28.2.2000. On 21.2.2000 at about 6.45 p.m. in the evening S.D.M., Basant Bihar, New Delhi had recorded the statement of Laxmi in which she had not implicated any of the revisionistaccused. Inquest report was prepared by S.D.M., Basant Bihar on which there are signatures of accused, Sanjeev Kumar Jaiswal and Dhruv Chandra Jaiswal the brother of the deceased. At that time no allegation was made by Dhruv Chandra Jaiswal against the revisionistaccused. The statement of Dhruv Chandra Jaiswal was recorded by S.D.M., Basant Bihar. At that time his sister Munni Devi was also present. Her statement was also recorded. They have not implicated the revisionistaccused. Thus there is nothing regarding demand of dowry or subjecting her to cruelty in any of the statement of Dhruv Chandra, Munni Devi and deceased.

Investigating Officer recorded the statement of doctor Karim, Star Hospital, Gorakhpur, R.P. Meena, S.D.M., Basant Bihar. Only on the basis of the statement of elder brother of the deceased, chargesheet has been submitted against the accusedrevisionist.

Considering all above circumstances and evidence the State Government reached to the conclusion that it is unnecessary to proceed with the prosecution. There is no any evidence which may result into conviction, therefore, the State Government by order dated 15.1.2001 decided to withdraw the case, accordingly A.P.O. was instructed. A.P.O. after scrutinising all the relevant materials reached to the conclusion that even if the prosecution is continued, the only result will be of acquittal. Thus there is only unnecessary expenditure of State money and time as well as valuable time of the Court which is not in public interest, therefore, there was sufficient reason for his bona fide satisfaction and believe for withdrawing the case. Learned A.P.O. also referred J.I.C. 1998, page 158 of Allahabad High Court and A.I.R. 2001 page 116 Supreme Court and requested the Court to grant permission to withdraw the case crime No. 45 of 2000 (Criminal Case No. 803 of 2000) under sections 498A, 304B I.P.C. and section 3/4 Dowry Prohibition Act of Police station Tateri Bazar, District Siddharth Nagar.

I have also gone through the impugned order dated 10.5.2001 passed by M.A. Abbasi, Chief Judicial Magistrate Siddharth Nagar. He has not accorded the consent on the ground that paucity of evidence is no ground for withdrawal of the case under section 321 Cr.P.C. There was 70% burn but she was not taken to hospital, just after the incident nor the family members of her parents'' house nor local Police were informed. The statement of the deceased might have been recorded under the pressure of the welfare of her seven months baby. It has also been held that, fate of the prosecution will end into acquittal or there will be unnecessary expenditure of State money, is no ground for the withdrawal of the case. Lower Court held that the only thing which is to be considered, is only the application moved by A.P.O., is bona fide and in the interest of public justice. It has also been held that the offences against woman or children should be excepted from general order of withdrawal of such cases as it do not involve in public policy. The lower Court reached to the conclusion that it is not in the interest of public justice to withdraw the cases in which ladies and children were subjected to cruelty. Such cases should be within the category of exception.

Learned Counsel for the revisionists argued that the learned Lower Court relied on the minority view of the Hon''ble Supreme Court, majority view is otherwise. He has also argued that although no specific guideline has been mentioned in section 321 Cr.P.C., but from 1957 up to 2001 in different cases, it was a concurrent view of the Hon''ble Courts that the discretion lies in the prosecuting officer under section 321 Cr.P.C. The Court has been vested with only supervisory power. It is not expected from the Court to rescrutinise the evidence and go into the merit of the case in detail.

The husband of the deceased had made all effort to save the life of his wife. Affidavit by Ghanshyam Jaiswal, the father of Sanjeev Kurnar Jaiswal has been filed. The copy of FIR is annexure No. 1. Annexure No. 2 is regarding the treatment of Vijay Laxmi in the Star Hospital, Gorakhpur. Annexure No. 3 is the injury report of Sanjeev Kumar Jaiswal which shows scabbed burn injury all over the left palm and right palm.

Annexure No.4 is dying declaration of Vijay Laxmi Jaiswal wife of Sanjeev Kumar Jaiswal recorded by Upper City Magistrate, Gorakhpur on 8.2.2000 in which she has not uttered even a single word against her husband or his any family members. According to her statement

Annexure No.5 is dying declaration of the deceased dated 21.2.2000 recorded by S.D.M., Basant Bihar

Annexure No.6 is statement of Dr. Tijahat Karim son of late Sri Abdul Karim, Star Hospital Gorakhpur. According to him Smt. Vijay Laxmi wife of Sanjeev Kumar Jaiswal was admitted in his hospital on 5.2.2000 at about 7.30 by her husband, Sanjeev Kumar Jaiswal. On 8.2.2000 her statement was recorded by Magistrate in hospital. At that time the thumb impression of Vijay Laxmi was identified by him.

Annexure No. 7 is statement of Dr. Asif Masood son of Dr. Masood Alam, Star Hospital, Gorakhpur. According to him on 5.2.2000 at about 7.30 am. in the morning Smt. Vijay Laxmi Jaiswal was admitted in his hospital by her husband, Sanjeev Kumar Jaiswal. Medico legal formality was completed by district hospital Gorakhpur. The photo copy of which was given to him. Sanjeev Kumar told him that Smt. Vijay Laxmi Jaiswal herself lit fire by sprinkling kerosene oil of lantern on her body on 4.2.2000 at 7 O''clock. He also enquired from Vijay Laxmi, then she too told that she herself lit fire. On the bed head ticket of the patient self emulation 7.00 a.m. yesterday has been written. She was treated up to 19.2.2000 in his hospital, thereafter referred to Safdarganj hospital, New Delhi.

The learned Counsel for the opposite party argued that there is difference in the version regarding the incident in the dying declaration and in the statement of doctor as has been told to him by the deceased and her husband but it is noted that this Court is not expected to scrutinize the fact of the case in detail. The theme of the statement of the deceased is not against the accusedrevisionist. Reappraisal of evidence is not expected from the Court while exercising the power under section 321 Cr.P.C.

Annexure No. 8 is the statement of Dr. Shrikant Mishra, Additional City Magistrate, Gorakhpur who has stated that at the time of recording the statement of Vijay Laxmi in the Star Hospital, Gorakhpur, no one was present there. He can not say any word about any influence on the patient before her statement was recorded by him.

Annexure No. 9 is the statement of Dr. Ghanshyam Singh, E.M.O. Netaji Subash Chandra Bos, District Hospital, Gorakhpur who has stated that on 5.2.2000 at 6.10 a.m. in the morning Smt. Vijay Laxmi wife of Sanjeev Kumar Jaiswal was admitted in emergency by her husband, Sri Sanjeev Kumar Jaiswal in burnt condition. Burnt injuries were noted by him, thereafter she was taken to some other hospital.

Learned Counsel for the opposite party argued that the incident is of 4.2.2000 morning whereas she was taken to Gorakhpur hospital after 24 hours on 5.2.2000. There is no any explanation of this delay butin the statement of the deceased recorded by Magistrate at Gorakhpur, it has been mentioned that she was subjected to treatment just after the incident by the local doctor. It has been mentioned in the FIR that the informant had taken her sister to different hospital but this does not find support in the statement of any doctor of any hospital, therefore, primafacie it can be said that she was taken to hospital by her husband.

Annexure No. 10 is the statement of Dr. Upendra Sharma, Safdarganj Hospital, New Delhi. According to which Vijay Laxmi was admitted in his hospital by her husband, Sri Sanjeev Kumar Jaiswal. She was brought from Star Hospital, Gorakhpur. When he asked from Vijay Laxmi about the incident she told that on 4.2.2000 at about 7.00 a.m. in the morning, when she was filling kerosene oil in the lantern, accidentally fell down on her, resulting into this accident. The same version was told by her husband, Sanjeev Kumar Jaiswal.

Learned Counsel for the opposite party drawn the attention of the Court towards the contradictory statement regarding incident in the dying declaration of the deceased as well as in the statement of the doctor as told to them by the deceased and her husband but it is to be noted that the direct evidence which has been recorded by the Magistrate shall be given more importance than to hearsay evidence. It is also made clear that it is not within the domain of this Court under section 321 Cr.P.C. for reappraisal of the evidence. The Court has only to see the bona fide conduct of the A.P.O. in the public interest at large.

Annexure No. 11 is the statement of Dhruv Chandra dated 29.2.2000 in which he has not made any allegation against the accusedrevisionist. It was told by his sister, Vijay Laxmi that lantern fell down accidentally and lilting fire in her clothes. She was happy with her family.

Annexure No. 12 is the statement of Kumari Munni daughter of Sri Bhagwan Das, sister of the deceased. She has stated that his sister Vijay Laxmi burnt on 4.2.2000 on account of falling of lantern on her. She was happy with members of her matrimonial house. No other is responsible for her death.

Annexure No. 13 is sanction of the State Government for moving an application for withdrawal of the case in the interest of public.

Considering all above facts after rescrutinising and analysing the relevant facts an application was moved by Phool Chandra, APO Siddharth Nagar under section 321 Cr.P.C. It has also been argued by the learned Counsel for the opposite party that even if there be dying declaration of the deceased exonerating the accusedrevisionists but it is apparent that she died an unnatural death within 7 years of her marriage. There is allegation of informant regarding demand of dowry and subjecting his sister to cruelty on its non fulfilment, therefore, even if, referring to the statements of the doctors, she might have committed suicide, even then, the case comes within the domain of section 304B read with section 306, I.P.C. but if the theory of demand of dowry and subjecting her to cruelty on its non fulfilment has not been supported by the victim, no importance can be given to it.

It is to be noted that the FIR was lodged at about one month after the incident, after the death of the victim, if FIR case is true, that against the will of members of her matrimonial house. The informant had taken his sister for her treatment to different hospital, then what was the explanation of not lodging FIR just after the incident. Considering all above facts, it can be said that after the death of her sister, he has concocted a story and lodged the FIR, in alternative, it can also be said that for the future prospect of his sister, the informant tolerated in the hope that there may be betterment behaviour in the matrimonial life of his sister but after her death he lost all hopes and lodged the FIR, where two possibilities are there. One in favour of the accused should be preferred. It is not expected from the Court while exercising power under section 321 Cr.P.C. to go into the merit of the case but power of the Court is limited to scrutinize bona fide conduct of APO in the interest of public justice. If there are alternative view the one which is in favour of the'' accused should be adopted.

Learned Counsel for opposite party also argued that withdrawing the case against 45 persons can not be said to be in the public interest at large. It can be said to be in the interest of individual justice. Against the argument of the learned Counsel for the opposite party, learned Counsel for the revisionists argued that message should be sent to the public at mass that there should not be prosecution on false and frivolous ground, there should not be unnecessary loss of time and money. Here prosecuting a case which fate is apparent on the face of record, dying declaration recorded by the two Magistrate at Gorakhpur as well as Delhi within the interval of 13 days can not be ignored against circumstantial evidence which raises only a question mark.

In view of the above facts discussed, learned Counsel for the revisionists has drawn the attention of the Court towards section 321 Cr.P.C. and law laid down by Hon''ble Supreme Court in several cases and argued that applying the law laid down by the Hon''ble Apex Court to the facts of the present case, it is just and proper for the Court to allow the revision and set aside the order of the learned Magistrate and accord permission to the Assistant Public Prosecutor under section 321 Cr.P.C. to withdraw the case. It has also been argued that there is no comment by the learned Magistrate in the impugned order regarding the bonafide conduct of the Assistant Prosecuting Officer nor there is any comment that all the materials have not been considered by the Assistant Prosecuting Officer. The view of the learned Lower Court is based on minority view of the Apex Court.

Learned Counsel for the revisionists has drawn the attention of the Court towards section 321 Cr.P.C. The very heading of the section is withdrawal from prosecution. According to section 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 while Uttar Pradesh Act of 1991, section 3 in section 321, after the words "In charge of a case may" the words "On the written permission of the State Government to that effect (which shall be filed in the Court) shall be inserted.

Thus from perusal of the section it is apparent that this section deals with the withdrawal from prosecution by the prosecutor on the written permission of the State Government but this can only be with the consent of the Court. Thus supervisory power has been conferred on the Court to check arbitrary withdrawal by the prosecution branch. Nothing has been mentioned in the section for the guideline of the Court for according its consent. Learned Counsel for the revisionists has cited:

State of Orissa v. Chandrika Mahapatra and others, 1976 SCC (Cri.) 584

Subhash Chander v. State (Chandigarh Administration and others), 1980 SCC (Cri.) 376 = 1980 (17) ACC 5 (Sum.)

Rajendra Kumar Jain v. State through Special Police Establishment and others, 1980 SCC (Cri.) 757

Sheo Nandan Paswan v. State of Bihar and others, 1983 (20) ACC 424 (SC) = 1983 SCC (Cri.) 224

Tek Chand and others v. Supdt. of Police and others, 1987 SCC (Cri.) 167

Sheo Nandan Paswan v. State of Bihar and other, 1987 SCC (Cri.) 82

Mohd. Mumtaz v. Nandini Satpathy and others, 1987 SCC (S.C.) 778

Abdul Karim and others v. State of Karnataka and others, 2001 (42) ACC 54 (SC) = 2001 SCC (Cri.) 59

Rahul Agarwal v. Rakesh Jain and others, 2005 (51) ACC 724 (SC) = 2005 (27) AIC 728 (SC)

Ghanshyam v. State of M.P. and others, 2007 (57) ACC 305 (SC) = 2006 (48) AIC 107

In which Hon''ble Supreme Court has laid down principles for according consent for withdrawal of the cases by prosecutor under section 321 Cr.P.C.

In State of Orissa v. Chandrika Mahapatra and others, 1976 SCC (Cri.) 584 the Supreme Court has held that paramount consideration must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice. Lack of evidence can be good ground for withdrawal.

In Subhash Chander v. State, 1980 SCC (Cri.) 376 =1980 (17) ACC 5 (Sum.) (Chandigarh Administration and others), it has been held that the public prosecutor or Assistant Prosecutor in charge of a case is vested with the power to withdraw from the prosecution with the consent of the Court. Other administrative authorities has no authority to interfere in this matter. The consent of the Court is imposed as a check on the exercise of the power of the prosecutor. Grounds of public policy may call for withdrawal of the prosecution. Prosecutor is expected to apply his independent mind and exercise his discretion.

In Rajendra Kumar Jain v. State, 1980 SCC (Cri.) 757 it has been held that under section 321 Cr.P.C. withdrawal from prosecution is the sole discretion of public prosecutor. The Government may give its suggestion, advice or guidance. The Courts jurisdiction is only supervisory, it has only to see if the prosecutor has applied his independent mind in the broader interest of public justice. The Court can ascertain the reasons for withdrawal move but can not reappreciate the grounds of the same.

In Sheo Nandan Paswan v. State of Bihar, 1983 (20) ACC 424 (SC) = 1983 SCC (Cri.) 224 it has been held that before an application is made under section 321, the public prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor but nobody can compel to do so. There is no bar under section 321 on the Public Prosecutor to receive any instruction from the Government before he files an application under that section, if the Public Prosecutor receives such instruction, he can not be said to act under extraneous influence. There is relationship of Counsel and client between the public prosecutor and the Government. The statutory responsibility for deciding withdrawal squarely rests upon the Public Prosecutor. Section 321 does not prescribe any ground, nor does put an embargo or fetter on the power of public prosecutor to withdraw from prosecuting a particular criminal case pending in any Court. If the public prosecutor after applying his mind comes to the conclusion that the continuance of the prosecution in the circumstances would only end in an exercise in futility. He is fully justified in moving the application for withdrawal. The function of the Court under section 321 is limited one and intended only to prevent abuse. The Court should not accord its consent as a matter of course but should apply its mind to the ground taken in the application for withdrawal by Public Prosecutor. It is not the duty of the Court under section 321 Cr.P.C. to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution. The Courts can only see that whether the prosecutor has applied his independent mind as a free agent uninfluenced by irrelevant and extraneous or oblique considerations.

In Tek Chand and others v. Tek Chand Superintendent of Police and others, 1987 SCC (Crl.) 167 it has been held that where the order of the Chief Judicial Magistrate under section 321 granting permission for withdrawal of prosecution has been affirmed by the High Court no useful purpose would be served in setting aside the order in view of no chance of ultimate conviction and resulting harassment of parties and wastage of public time.

In Sheo Nandan Paswan v. State of Bihar and others, 1987 SCC (Crl.) 82 the majority view of the Hon''ble Court is that the Court in revision considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence. 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 or stifle the process of law. It has been observed by Hon''ble Justice Venkataramiah in support of the majority view that if the Court has consented for withdrawal, Supreme Court should be slow to interfere. If the Court had rejected the application for withdrawal and the High Court had affirmed that order, Supreme Court may not have interfered with that order. Even if the Special Judge had permitted to withdrawal but the High Court have reversed that order, the Supreme Court may not have been interfered with the order of the High Court. Thus the theme behind the above observation is that there should be least interference by the revisional Court in order of the Magistrate which is based on facts of each case. The minority view in the case otherwise I do not think it is necessary to discuss the minority view except to mention it "If there is not sufficient evidence or the charges are groundless, the accused may still be discharged." The judgement of the Public Prosecutor under section 321 can not be lightly interfered with unless the Court comes to the conclusion that he has not applied his mind or that his decision is not bona fide. The Public Prosecutor should normally be credited with fairness in the exercise of power under section 321 when there is no attack against him of having acted in an improper manner. The discretion given to the Public Prosecutor is subject to the consent of the Court before which the prosecution is pending.

Rajendra Kumar Jain v. State, 1980 SCC (Crl.) 757 has been referred in which Hon''ble Justice Chinnappa Reddy has summarised the true legal position thus:

(I) Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the executive.

(II) The withdrawal from the prosecution is an executive function of the Public Prosecutor.

(III) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he can not surrender that discretion to someone else.

(IV) The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

(V) The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammary Hall enterprises.

(VI) The Public Prosecutor is an officer of the Court and responsible to the Court.

(VII) The Court performs a supervisory function in granting its consent to the withdrawal.

(VIII) 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.

Section 321 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 Court has only to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not the attempt to interfere with the normal course of justice for illegitimate reasons or purposes. This section does obligate the Court to record reasons before consent is given. Magistrate function is intended to prevent abuse. The Hon''ble Court confirmed the order passed by this Court in Sheo Nandan Paswan v. State of Bihar and others, 1983 (20) ACC 424 (SC). The same view has been confirmed in Mohd. Mumtaz v. Nandini Satpathy and others, 1987 CLJ (SC) 778.

After considering all the cases discussed above, one point is common in all the above cases that the order of the Magistrate passed under section 321 Cr.P.C. has not been interfered by the revisional Court but the order passed by the Magistrate has been upheld in revision. Each case is to be decided to its own facts. If the Magistrate has considered the material placed before him and reached to the conclusion that the consent is to be given or is to be rejected, his conclusion which is based on finding of fact must not be interfered by the revisional Court.

Learned Counsel for the revisionists has also cited Abdul Karim and others v. State of Karnataka and others, 2001 (42) ACC 54 (SC) in which the Hon''ble Apex Court as per majority view held that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice.

It must follow that the application under section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the Court, with its permission, in a sealed envelope. The Court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the Court to weight the material. The Court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The Court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the Court accords consent, it must make such order on the application as will indicate to a higher Court that it has done all that the law requires it to do before granting consent. In this case the Hon''ble Court did not confirm the order passed by the trial Court giving consent to the Public Prosecutor for withdrawal of the case under section 321 Cr.P.C. as Court was not satisfied seeing the criminal history of Virappan to withdraw the cases against him was in the interest of public justice.

In Rahul Agarwal v. Rakesh Jain and another, 2005 (51) ACC 724 (SC) = 2005 (27) AIC 728 (SC) it has been held that withdrawal of prosecution can be allowed only when valid reasons are made out for the same. It can only be allowed in the interest of justice. The Court should consider all relevant considerations and find out whether the withdrawal of prosecution would advance the cause of justice. Discretion under section 321 Cr.P.C. should not be exercised to stifle the prosecution. Withdrawal can be permitted, if the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused. It can be allowed if it is likely to bury the dispute and bring about harmony between the parties. In this case permission to withdraw has not been confirmed by the Apex Court as the case was about to be over. No ground that the trial had been pending for over seven years.

Learned Counsel for the revisionists has also relied on Ghanshyam v. State of M.P. and others, 2007 (57) ACC 305 (SC) = 2006 (48) AIC 107 in which Hon''ble Supreme Court has held that discretion to withdraw from the prosecution is that of Public Prosecutor, he may withdraw from the prosecution not merely on ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. On point of law there is no dispute between the learned Counsel for the parties.

Learned Counsel for the opposite party No. 2 relied on Hari Dhyananand and others v. State of U.P. and others, 2008(1) JIC 7 (Alld.) and argued that withdrawal of prosecution can be allowed only in the interest of justice, Court must consider all relevant consideration and find out whether the withdrawal of the prosecution would advance the cause of justice. If the case is likely to end into an acquittal and the continuance of the case is causing severe harassment to the accused, the Court may permit withdrawal of the prosecution, if the withdrawal of the prosecution is likely to bury the dispute and bring to harmony between the parties, and it would be in the best interest of justice the Court may allow withdrawal of the prosecution. The discretion under section 321 Cr.P.C. is to be carefully exercised by the Court having due regard to alt relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the States for redressing their grievance. Withdraw of the prosecution shall be permitted only when valid reasons are made out for the same. Thus the most important thing is the facts of each and every case on which above principles are to be tested before exercising discretion by the Court under section 321 Cr.P.C.

Learned Counsel has also relied on Abdul Karim and others v. State of Karnataka and others, 2001 (42) ACC 54 (SC) which has been discussed earlier. Ghanshyam v. State of M.P. and others, 2007 (57) ACC 305 (SC) has also been referred by learned Counsel for the opposite party No. 2 which too has been discussed above. Thus on point of principle, there is no any difference regarding the discretionary power of Public Prosecutor or Assistant Prosecutor in charge of a case but this is subject to the consent of the Court and the Court while exercising its power under section 321 will not accord its consent in a routine manner, but it shall accord its consent seeing the facts and circumstances of each case and will give more importance to the fact that whether the application moved by APO or PO is in the interest of Public justice.

Learned Counsel for the complainantopposite party has cited Jai Prakash Yadav and others v. State of U.P., 2008 (62) ACC 788 and argued that when an application under section 321 Cr.P.C. is made, it is not necessary for the Court to assess the evidence whether the case would result in conviction or acquittal. All 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 stifle or thwart the process of law and that it will not cause manifest injustice, if consent is given. The Court has also to see the lager interest of society and that the withdrawal of the case is not being sought at the instance of aggrieved party.

I have also gone through the impugned order dated 10.5.2001 in which there is no comment on the bona fide conduct and consideration of all the relevant materials adduced before A.P.O. by prosecution. After going through the petition moved by APO it appears that it is in full detail considering all the materials placed before him in police report.

The only ground on which the application moved by APO has been rejected is that according to the Hon''ble Apex Court, on account of paucity of evidence and unnecessary expenditure of the State the case under section 321 Cr.P.C. can not be permitted to be withdrawn but it is the minority view of the Hon''ble Supreme Court, the majority view of three judges are otherwise, for according consent 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. It is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal.

Secondly, the learned lower Court reached to the conclusion that in cases where there is cruelty against the women and children, such matter should be treated under exception and discretionary power under section 321 Cr.P.C. should not be exercised according consent for withdrawal. But it is to be noted that whereas the facts of the present case before the Court is concerned at the interval of 13 days, there are two dying declaration of the deceased who had made no allegation of any type against any one of her family members or her husband, even her brother and sister had not made any allegation against revisionistsaccused. Even the informant did not lodge any FIR till the death of the deceased. The FIR was lodged after about one months from the date of incident. In above circumstances of fact, there should be a message to the general public at large that the State shall not proceed with frivolous prosecution which can be said to be in public interest. It is noted that besides the husband the fatherinlaw, the motherinlaw, the younger sisterinlaw have been implicated. After applying the principle of law laid down by the Hon''ble Apex Court to the facts of the present case, I reached to the conclusion that it was more appropriate for the Court to accord consent under section 321 Cr.P.C. Accordingly the revision is allowed. The impugned order dated 10.5.2001 is quashed. Accordingly the application moved by APO is allowed. Thus the accusedrevisionists are discharged in case crime No. 45 of 2000 under sections 498A, 304B I.P.C. and 3/4 Dowry Prohibition Act.

Application Allowed.