Shri Krushna Chandra Patnaik vs The State of Orissa and Others

D.P. Mohapatra, J.—The order of the learned Sub-divisional Judicial Magistrate, Khurda allowing the application of the Public Prosecutor u/s 321, Criminal Procedure Code, 1973 and granting permission to withdraw from prosecution in G. R. Case No. 20 of 1982 is assailed by the Petitioner in this application u/s 401 read with Sections 397 and 482 of the Code.

The facts relevant for the present proceeding may be shortly stated thus:

In the aforementioned criminal case, opposite parties 2, 3 and 4 faced charges under Sections 406/466/471/477-A/120-B. Indian Penal Code. The prosecution alleged that out of the sum of Rs. 6,030/- received in the shape of Bank draft on 27-2-1980 in favour of Rameswar High School towards grant-in-aid for building repair and contingency for the years 1978-79, 1979-80 and 1980-81, a sum of Rs. 5214/- was misappropriated by accused Laxmidhar Sarangi (opposite party No. 3) Headmaster of the School by showing false expenditure and by creating false vouchers and by falsifying accounts of the School in the Cash Book in conspiracy with the other two accused persons. The Special Public Prosecutor (Vigilance) and the Asst. Public Prosecutor (Vigilance) were in charge of the case on behalf of the prosecution. Before commencement of the trial of the case, the counsel for the prosecution filed the application u/s 321, Criminal Procedure Code, for withdrawal of the case mainly on the following grounds:

(i) that there is no case for the prosecution and even if the prosecution proceeds with the case it cannot prove the allegations against the accused persons:

(ii) that the prosecution witnesses cited in the chargesheet and Ors. had applied to the Government for withdrawal of the case; and (iii) that to restore public peace and healthy atmosphere in the School in question, withdrawal of the case is highly essential, In view of larger public interest.

To this application the Petitioner filed an objection stating, inter alia, that there is ample evidence in support of the prosecution case to establish all the charges against the accused persons, that the Public Prosecutor in ch a re of the case has filed the application for withdrawal without applying his mind to the merits of the case; that since the accused persons have committed the alleged offences in a public institution, the objector being a member of the public has got every right to oppose the attempt for withdrawal of the case by the Public Prosecutor and that the grounds taken by the Public Prosecutor in the petition u/s 321, Criminal Procedure Code are illegal and not reasonable. It is pertinent to mention here that the Petitioner a resident of the locality where the School located, was previously the Secretary of the School. To the objection filed by the Petitioner the accused opposite parties filed a reply stating therein, as appears from the impugned order, that the objector has got no locus standi to tile the objection; that the objector who was the Secretary of the School in the year 1974 was driven out from the institution on the charge of misappropriation and other allegations; and since the accused persons alleged against the objector relating to his activities as a p.w. d. contractor which resulted in cancellation of some works entrusted to him: he has filed this objection out of vengeance towards them.

The trial Court on consideration of the matter negatived the objection relating to locus standi of the Petitioner to contest the petition u/s 321, Criminal Procedure Code The Court further held that the reasons stated in the application u/s 321, Criminal Procedure Code that the prosecution case is likely to fail is not a valid ground for withdrawal from prosecution. The Court however considered the position that withdrawal of a criminal case is an executive function of the Public Prosecutor and it is for him to be satisfied if the criminal case should be withdrawn. The function of the Court is only supervisory. Applying this principle, the Court observed that since the Public Prosecutor was satisfied as stated in the petition, that in order to restore public peace in the vicinity for better management of the educational institution in question and for larger public interest the matter should be closed, the prayer for withdrawal of the prosecution is to be allowed.

In the revision petition which is a very lengthy one the main attempt of the Petitioner appears to have been to show that the prosecution has a good case against the accused persons and the statement made in the petition u/s 321, Criminal Procedure Code filed by the Public Prosecutor that the charges against the accused persons are not likely to succeed is incorrect. It is the contention of the Petitioner that indeed there was no necessity for causing repair to the School building at the relevant time and the expenditure -said to have been incurred on that account was a false one. The documents that is the entries in the cash book of the School and the vouchers etc. were also false and fictitious. There is no allegation either in the objection to the petition u/s 321, Criminal Procedure Code or in the revision petition and it is also not contended that the action of -the Public Prosecutor in moving the Court for withdrawal of the prosecution was actuated by bias or mala fides. The learned Counsel for the accused-opposite parties on the other hand supported the order. He placed reliance on the decision of the Supreme Court reported in Mohd. Mumtaz v. Smt. Nandini Satpathy and ors. (1987)1 SCC. 269 and contended that there is no valid reason for this Court to interfere with the order of the trial Court granting permission to the Public Prosecutor to withdraw from the case.

Withdrawal of prosecution in criminal cases, particularly in sensational cases and cases involving well known persons has often given rise in controversies. Therefore, a large number of decisions of the Supreme Court and different High Courts are available on the point. A good number of them were cited before me by the learned Counsel for the parties. I may notice here some of the these decisions. M. N. Sankaranaravanan Nair v. P. V. Baikrisbnan and Ors. 1972 S.C.D. 322, Bansi Lal Vs. Chandan Lal and Others, , Bansi Lal Vs. Chandan Lal and Others, , Balwant Singh and Others Vs. State of Bihar, , Rajender Kumar Jain and Others Vs. State Through Special Police Establishment and Others, , Sheonandan Paswan Vs. State of Bihar and Others, and Mohd. Mumtaz v. Nandini Satpathy and ors.

It may not, in my opinion, be necessary to discuss in detail these decisions since most of them and many other decisions have been considered in the recent decision of the Supreme. Court in the case of Sheonandan Paswan Vs. State of Bihar and Others, . In that case a five Judges'' Bench of the Supreme Court considered the scope and ambit of Section 321, Code of Criminal Procedure 1973, particularly the role of the Public Prosecutor and that of the Court in the matter of withdrawal of a criminal case. . The gist of the observations in the judgment relevant for the present purpose may be stated thus:

Section 321, Criminal Procedure Code, 1973 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 it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. Section 321 gives the Public Prosecutor the power for withdrawal of any case at any stage before judgment is pronounced. This pre-supposes the fact that the entire evidence may have been adduced in the case before the application is made. When an application u/s 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, since that is not within the scope of Court''s power u/s 321. 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. The Court after considering these facts, of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. The sanction does not obligate the Court to record reasons before consent is given. However, it does not mean that the 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. While considering the matter, the Court''s duty is not to reappreciate the grounds which led the Public Protecutor 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 judgment of the Public Prosecutor u/s 321 cannot 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.

Examining the present case in the right of the principles laid down and the observations made by the Supreme Court in Sheo Nandan Paswan''s case, I find no scope to interfere with the order of the Court below granting permission to the Public Prosecutor for withdrawal from prosecution. Perusal of the petition filed by the Public Prosecutor u/s 321 leaves no scope'' for doubt that he applied his mind to the facts and circumstances of the case while taking the decision to approach the Court for permission for withdrawal from prosecution. In the application the allegations against the accused persons and the circumstances in which such allegations were made have been set out in detail. The Public Prosecutor has stated therein three reasons for withdrawal; viz, (i) that the charges framed against the accused persons may not stand, (ii) that some of the prosecution witnesses, viz., Nilakantha Rath, Krushna Chandra Patnaik. Fakir Barik and Ors. have filed petition for withdrawal of the case before the State Government;and (iii) that the school being a public institution, healthy atmosphere is necessary to be maintained in the school. The sum involved being not very large, the ends of public policy would be better served by withdrawal of the case and continuance of prosecution is likely to disturb the peaceful atmosphere in the institution. There is absolutely no material to show that the Public Prosecutor was actuated by any extraneous reason or mala fide in filing the application for withdrawal from prosecution. It cannot also be said that the reasons set out in the application are wholly irrelevant or unworthy of consider action by any Court in the matter of withdrawal from prosecution. As noticed in the decisions referred to above, want of sufficient material to establish the charges has been accepted as a good ground for withdrawal. Further, public policy is the foremost consideration in the matter of grant of permission for withdrawal from prosecution under'' Section 321. If the Public Prosecutor on consideration of the materials available with him is satisfied that withdrawal of the criminal case would facilitate maintaining peace and tranquillity in public institution like a school and for maintaining good relationship amongst the residents of the village or persons in the locality no exception can be taken to his decision and it win not be proper for the Court in its supervisory capacity to reject the prayer for permission for withdrawal from prosecution for the reason of want of good ground.

It is pertinent to mention here that: another objection was filed by accused Biswanath Naik making some averments that the Petitioner Krushna Chandra Patnaik had a grudge against the accused persons since on their complaint he was driven out from the Secretaryship of the School in 1974 and some contract works entrusted to him were cancelled. It was alleged in the petition that his move to object to the petition for withdrawal was really the outcome of bitterness due to these matters. On perusal of the petition filed by the Public Prosecutor, the objection filed by the Petitioner and the impugned order and on giving my anxious consideration to the matter, I am of the view that the Court committed no illegality or impropriety in granting the prayer of the Public Prosecutor for withdrawal from prosecution and the impugned order is not available to be interfered with.

In the result, the revision petition is devoid of merit and it is accordingly dismissed.