State of Punjab vs Brij Mohan

V.S. Aggarwal, J.

The State of Punjab challenges the order passed by the learned Sessions Judge, Ferozepur dated 6.11.1994. By virtue of the impugned order, the learned trial Court had dismissed the application filed by the Public Prosecutor seeking withdrawal from prosecution. It was held that interest of justice and public interest was in continuation of the trial rather allowing the prosecution to be withdrawn.

The sum and substance of the facts alleged were that Smt. Indra wife of Brij Mohan is alleged to have committed suicide on 20.5.1992. An application was filed with the Superintendent of Police, Ferozepur alleging cruelty towards the deceased by the respondents who are the husband, fatherinlaw and motherinlaw of the deceased. The cruelty was for not bringing sufficient dowry by the deceased. A case was registered against the respondents with respect to offences punishable under Sections 306/304B/498A/34 Indian Penal Code. An application was filed before the learned Sessions Judge by the Public Prosecutor to withdraw from the prosecution. The said application reads :

"1. That above cited case is pending trial in this Hon''ble court and the next date of hearing is 25/11/94 for recording prosecution evidence.

That it has been decided in public interest and in the interest of justice to withdrawal from the prosecution against all the accused persons in the above cited case."

The learned Sessions Judge vide the impugned order noted that charge has already been framed. The interest of justice demands that trial should take place and the case is decided on its merits. It was concluded further it is not shown as to what public interest or interest of justice is involved for withdrawing the case. The application was dismissed.

Aggrieved by the same, the present revision petition has been filed.

The relevant extract of Section 321 of the Code of Criminal Procedure which permits the Public Prosecutor to withdraw from prosecution with the consent of the Court is being reproduced below :

"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:"

The above noted position would show that Public Prosecutor can withdraw from the prosecution but it is subject to the consent of the Court. The withdrawal has to be within the framework of Section 321 of the Code of Criminal Procedure. The circumstances under which the permission has to be granted have not been elucidated. The Supreme Court in the case of State of Bihar v. Ram Naresh Pandey and another, AIR 1957 SC 389 has already looked into the question and concluded that the rule of nolle prosequi which is prevalent in England is not applicable in India. This is so because the language used in Section 321 Cr.P.C. and in the earlier Code of 1898 (Section 494) is totally different from the English law. The Court has to act and consider the application within the parameters of Section 321 of the Code of Criminal Procedure.

As is apparent from the bare reading of the provisions of Section 321 Cr.P.C., the right has been conferred on the Public Prosecutor. It is he who has to set the ball rolling. Though he has the right but there are fetters. The consent of the Court has to be obtained. In the first instance Public Prosecutor has to apply his mind. He has to satisfy himself and act to the best of his judgment and capability. The Public Prosecutor must bear in mind that to allow continuation of the prosecution, to reach its logical end is the rule. The withdrawal is an exception. Justice demands that every case should reach its logical end unless public interest says otherwise.

This question has been agitating the minds of the Courts time and again. It has been subject matter of various judicial pronouncements. Taking opportunity and referring some of them would be in the fitness of things. A Full Bench of the Kerala High Court in the case of Dy. Accountant General (Admn.), Office of the Accountant General, Kerala v. State of Kerala and others, 1970 Crl.L.J. 966 was concerned once again about the power of the Public Prosecutor. The Court held that power to withdraw from prosecution has been conferred on the Public Prosecutor and on no one else. It is an executive power. Still it should be exercised in light of his own judgment and not on the dictation of another authority, however high. The Court was hesitant in specifying any particular guideline but emphatic that it is only the Public Prosecutor who can seek withdrawal from prosecution. The Supreme Court in the case of amongst others also considered the said question that it is the Public Prosecutor who can only ask for permission to withdraw from prosecution. It was held :

"A reading of Section 494 would show that it is the Public Prosecutor who is incharge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal or even before the Judgment is pronounced. The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission."

Of course the Supreme Court later while clarifying that it is also the duty of the Court to ensure that it is in furtherance of the justice, further observed :

"Nonetheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest."

Reference to the decision in the case of M.N. Sankaranarayanan Nair v. P.V. Balakrishnan and others, AIR 1972 SC 496 Balwant Singh and others v. State of Bihar, AIR 1977 SC 2265 would also be in the fitness of things. The District Magistrate directed the Public Prosecutor to withdraw from the prosecution or in other words move for withdrawal. It was held that Public Prosecutor had obeyed the orders. The permission was refused. Of course it was added that the District Magistrate could bring to the notice of the Public Prosecutor material and suggest to consider if he should withdraw from prosecution but cannot give a command.

Towards the concluding portion of the judgment it was observed :

"That must be a reason why the law must run its course. For justice ordinarily demands that every case must reach its destination, not interrupted en route. If some policy consideration bearing on the administration of justice justifies withdrawal, the court may accord permission; not if no public policy bearing on the administration of justice is involved. We think that surrender of discretion by the public prosecutor and the Magistrate are unfortunate. The court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal with a bunch of papers tacked on. Moreover, the State should not stultify the court by first stating that there is a true case to be tried and then make a volte face to the effect that on a second investigation the case has been discovered to be false."

The same conclusion was arrived at by this court in the case of State of Punjab v. Gurdip Singh and others, 1980 Crl.L.J. 1027. A permission was claimed for withdrawal from prosecution but this Court held that reason for withdrawal should not be extraneous to the interest of justice and Public Prosecutor has to keep that fact in mind. Once again in the case of Subhash Chander v. State (Chandigarh Admn.) and others, AIR 1980 SC 423, the Supreme Court held that it is the Public Prosecutor alone who has to apply his mind before the seeks permission to withdraw from the prosecution. In paragraph 9 the Supreme Court held :

"The functionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosecutor. The Public Prosecutor is not the executive, nor a flunky of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive."

The above quoted precedents leave no doubt in one''s mind that it is the Public Prosecutor who must take stock of the situation. He may consider the request and the facts that are brought to his notice. It is he who must apply his mind independently and thereafter if the interest of justice or public interest so requires, may seek permission from the court to withdraw from the prosecution.

While the Public Prosecutor has to apply his mind as noticed above, still it is the Court which holds the final word. Under what circumstances the Court could refuse permission or would grant permission to withdraw from prosecution to the Public Prosecutor could never be stated in a straitjacket formula. The Court has to be vigilant and satisfy himself fully of the circumstances before granting the consent. It has to perform a supervisory function. It has already been noted above that the Court has to be vigilant and see that permission is not sought on the ground extraneous to the interest of justice. The Supreme Court in the case of Bansi Lal v. Chandan Lal and another, AIR 1976 SC 370 in this regard concluded that request has not to be granted mechanically. The Court must ensure that it is not prayed with some extrenous considerations. In paragraph 4 it was observed :

"It is added that the request to grant permission under Section 494 should not be accepted "as a necessary formality", "for the mere asking", but the court must be satisfied "on the materials placed before it" that the grant of permission would serve the administration of justice and that "permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain."

Similarly in the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877 in paragraph 70 it was observed :

"The section 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."

It is true that it was recorded "the court function is to give consent" but the Supreme Court hastened to add that consent of the Court is not a matter of course. It is a judicial function. It has to ensure that executive function of the Public Prosecutor has not been exercised properly. More guidelines were provided in the case of Rajender Kumar Jain v. State through Spl. Police Establishment and others, AIR 1980 SC 1510. It was concluded after scanning through various precedents that :

"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 can 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 Tammany 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 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 consideration. 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."

The conclusion from the aforesaid is clear. The Court is not to act as a mouthpiece of the State. It has to strike a balance. While a general principle is difficult to be provided but the general test still would be that if it tends to further the mischief, the consent should be refused. It can be granted, if it is likely to have the opposite effect. The Court must satisfy itself that the grounds stated for withdrawal are proper and true. They should further the interest of justice.

Reverting back to the facts of the case, it goes without saying that it cannot be termed that the Public Prosecutor had acted independently. In the application that has been filed it has simply been mentioned that it has been decided in public interest to withdraw from the prosecution. Who has decided it ? The application does not even record his own satisfaction. It does not indicate as to why he has come to the conclusion that he seeks permission to withdraw from the prosecution. When it is not the satisfaction of the Public Prosecutor, then there is no occasion to grant consent for withdrawal from prosecution. It was rightly recorded that prosecution must continue and consequently keeping all the facts, the learned trial Court was justified in refusing the permission.

For these reasons, the revision petition being without merit must fail and is dismissed.