Sivanandi @ Dharmalingam and Others vs V. Rajendran and Another

N. Kannadasan, J.—The above Revision Petition is filed challenging the order passed by the Court below in Criminal M.P. No. 1069 of

2004 in S.C.No. 96/1996 dated 27.10.2004 on the file of the Principal Assistant Sessions Judge, Madurai.

The Government in G.O. (ID) No. 32, Public (Law & Order B) Dept. dated 14.4.2000 has passed an order to the effect that the District

Collectors of Southern Districts in Tamil Nadu are requested to address the Public Prosecutor incharge of the cases mentioned in the Annexure

therein to take necessary steps to withdraw such cases, which are registered in connection with the caste clashes during the year 1996 and prior to

1996.

In pursuance of the said order, it appears that the learned Public Prosecutors of the Southern Districts have filed an application u/s 321, Cr.P.C

before the Court to withdraw the cases. In the instant case such an application was filed by the learned Public Prosecutor seeking permission to

withdraw the case which is registered as against the petitioners herein/accused for the alleged offence. The alleged offence took place on 3.7.1992.

The Trial Court by order dated 5.6.2000 has granted permission to the prosecution to withdraw the case and discharged the petitioners in

pursuance of the power conferred on it u/s 321, Cr.P.C. Subsequently, the witnesses have filed a revision before this Court challenging the order

passed by the trial Court on 5.6.2000. The learned Judge passed an order in Crl.R.C.No. 641 of 2001 dated 17.3.2004 setting aside the order of

the trial Court granting permission for withdrawal of the case and accordingly remitted the matter with a direction to the learned Public Prosecutor

to file a fresh application with proper reasons in view of the G.O. dated 11.4.2000. Subsequently, a fresh application was filed on 9.8.2004 setting

out the detailed reasons for seeking permission to withdraw the case. The learned Additional Principal Sessions Judge, Madurai has passed the

order rejecting the application filed by the Public Prosecutor, which is impugned in the present revision.

The learned counsel for the petitioners contended that the trial Court has erroneously rejected the application filed by the Public Prosecutor by

setting out two reasons namely the offence is not compoundable and the witnesses are ready to give evidence in the proposed trial.

Heard the learned Additional Public Prosecutor for second respondent and the learned counsel for the first respondent/defacto complainant.

The learned counsel for the first respondent contended that the trial Court has correctly rejected the application filed by the Prosecution and the

same shall not be interfered with. The learned counsel, however, contended that the offence for which the petitioners are charged cannot be

construed as communal clashes inasmuch as one group of the persons alone were injured, whereas petitioners did not suffer any injuries. The

learned counsel would further contend that if the petitioners are discharged from the cases, there is every possibility of recurrence of the similar

incidents. The learned counsel also relied upon the decision of the Apex Court to the effect that the Court should not grant permission for

withdrawal for mere asking for and in this connection he has cited the decision of the Apex Court: Abdul Karim v. State of Karnataka, (2000) 8

SCC 710 and Sheonandan Paswan Vs. State of Bihar and Others, and Satyajit Banerjee and Others Vs. State of West Bengal and Others, .

I have considered the rival contentions of the learned counsel for the respective parties.

It is not in dispute that in the year 1996, in the Southern Districts, there are several communal clashes. In the light of the said acts, the

Government has passed an order in G.O. (ID) No. 32, Public (Law & Order B) Dept., dated 14.4.2000 which reads as follows:

ORDER

The Government have examined the question of withdrawal of the cases mentioned in the Annexure to this order registered in connection with the

caste clashes in the Southern Districts during the year 1996 and prior to 1996 and are of the view that the cases mentioned therein are fit for

withdrawal. The Collectors of Dindigul, Theni, districts and the Commissioner of Police Madurai/Sivaganga, Tirunalveli, Thoothukudi,

Virudhunagar and Ramanathapuram districts and the Commissioner of Police Madurai/Tirunelveli and the Superintendent of Police, Dindigul,

Theni, Madurai, Sivaganga, Tirunalveli, Thoothukudi, Virudhunagar and Ramanathapuram Districts are therefore, request to address the Public

Prosecutor in charge of the cases mentioned in the Annexure in this order to take necessary action accordingly to withdraw these cases.

The receipt of this Government Order should be acknowledged immediately.

(By Order of the Governor)

In pursuance of the above G.O, a petition was filed by the learned Public Prosecutor seeking permission to withdraw the case on hand. Though

permission is granted initially, later on it was set aside by this Court on the only ground that the learned Public Prosecutor has not chosen to file an

application indicating the ground on which such decision was taken. Further, one of the main grounds urged in the above revision was that the then

Public Prosecutor was related to one of the petitioners'' herein. This Court, by an order dated 17.3.2004 has set aside the order passed by the trial

Court and remanded the matter back for a fresh consideration.

After the matter was remitted, a fresh application was filed by the learned Public Prosecutor with supporting reasons. In the subsequent

application entire details are set out for withdrawal of the cases. In the said application, it is specifically mentioned to the effect that the learned

Public Prosecutor has held a detailed discussion with the Inspector of Police, Melur and after applying his mind to the facts of the case as well as

the then prevailing situation, the application is filed. A specific reference is also made to the effect that the occurrence took place about 12 years

prior to the date of application namely 3.7.1992 and there was no communal clash for about seven years in the concerned village and all the

people belonging to the respective communities living peacefully and there was no sufficient motive for the alleged occurrence except pelting of

stones consequent to which the case was registered. The application also proceeds to the effect that there is complete communal harmoney

prevailing in that area and if the trial is taken up in the instant case, there is every possibility of fresh provocation.

The trial Court by order dated 27.10.2004 has rejected the application filed by the public prosecutor on the ground that the offence is not

compoundable and the witnesses are ready to conduct the case if the case is taken up for trial.

The trial Court has not applied its mind with regard to the scope of Section 321, Cr.P.C and the principles laid down by the Apex Court in this

regard. In this connection, it is useful to refer about the decision of the Apex Court rendered in Rajender Kumar Jain v. State through Special

Police Establishment and Ors., 1980 SCC (Cri) 757 and Manohar Lal v. Bansi Lal and Ors. and Attorney General of India v. State of Haryana

and Ors.. The Apex Court after analysing the various earlier decisions has laid the principles of which the Courts have to examine, which reads as

follows:

Thus, from the precedents of this Court, we gather:

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

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

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

someone else.

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

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.

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

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

The Court''s duty is not to re-appreciate 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.

Subsequently, the Apex Court in its decision Sheonandan Paswan v. State of Bihar and Ors., 1983 SCC (Cri) 224 has observed as follows:

In our opinion, the object of Section 321, Cr.P.C. appears to be to reserve power to the Executive Government to withdraw any criminal case on

larger grounds of public policy such as inexpediency of prosecutions for reasons of State; broader public interest like maintenance of law and

order; maintenance of public peace and harmony, social, economic and political, changed social and political situation; avoidance of destabilization

of a stable government and the like. And such powers have been, in our opinion, rightly reserved for the Government; for, who but the

Government is in know of such conditions and situations prevailing in a State or in the country ? The Court is not in a position to know such

situations"".

Further, after observing as above, the Apex Court has specifically held that the exercise of the power of the Court is judicial to the extent that the

Court, in according or refusing consent, has to see (a) whether the grounds of withdrawal are valid; and (b) whether the application is bona fide or

is collusive.

In the light of the above principles, if the application filed by the public prosecutor is looked into, there is nothing to suggest that the grounds for

withdrawal are not valid. It is also not possible to hold that the application is not bona fide or is collusive. There is no dispute that at the relevant

point of time there were a serious of communal clashes in the southern districts. The Government thought it fit in public interest, to direct the

concerned District Collectors to address the public prosecutors seeking permission to withdraw the cases, inasmuch as the withdrawal of the

prosecution is an executive function of the learned Public Prosecutor and the Court performs a supervisory function, the Court below has rejected

the application on flimsy grounds. In fact, the Apex Court in Rajender Kumar Jain''s case referred supra, has observed that in the public interest it

is expedient for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial

conflicts, student unrest, etc. The present application is also filed consequent to the issuance of a Government Order in respect of several cases

registered between different communities due to communal clash. In the light of the above facts and circumstances, the contention of the learned

counsel for the first respondent to the effect that the injuries were caused only on some of the persons belonging to one group and no injuries were

caused to the group belonging to the petitioners and as such, the prosecution should not withdraw the case is not acceptable.

As regards the reasoning of the Court below in refusing to grant permission for withdrawal on the ground that an offence is not compoundable

and the witnesses are ready to depose, the said reasonings, have no relevance in the light of the facts and circumstances. The exercise of the power

of the Court is judicial to the extent that while according or refusing consent, it has to see as to whether the grounds of withdrawal are valid and as

to whether the application is bona fide or collusive in nature. The exercise of the power in the instant case is absolutely contrary to the settled

principles of law as laid down by the Apex Court.

For the reasons stated above the order of the Court below dated 27.10.2004 is set aside the above revision is allowed with a direction to the

trial Court to discharge the petitioners/accused by allowing the application filed by the learned public prosecutor. Hence this revision is allowed as

stated above.