Tek Chand and ors. vs Tek Chand Superintendent of Police and ors.

Surinder Singh, J.

This judgment will dispose of Criminal Revisions Nos. 1427 and 1428, both of 1980, as common arguments have been addressed in both the cases which require consideration of the same question of law.

for purposes of elucidation, it may be mentioned that Criminal Revi slon No. 1427 of 1990 is directed against the order of the Chief Judicial Magistrate, Bhiwani, dated May 17, 1980 in State v. Tek Chand etc. in which challan had been put in the said Court under sections 342/323/332/3541/55/109, Indian Penal Code, in consequence of First Information Report No. 393, dated November 7, 1977 of Police Station City Bhiwani. The connected Revision Petition No. 1428 of 1980 relates to a similar case State v. Tek Chand and others in which the challan had been put in the same Court under sections 450/202/392/395/427/380/201/166/167/414/210/3231/091/120, Indian Penal Code, in pursuance to First Information Report No. 80, dated November 7, 1977 of Police Station Tosham. Though these two challans relate to two separate occurrences within the jurisdiction of the two Police Stations mentioned above, the complainants in both the cases arc the same, who are the four petitioners in the present two Revision Petitions. A perusal of the opening paragraph of the impugned orders of the Chief Judicial Magistrate, passed separately in the two cases, reveals that before any steps for the prosecution of the cases could be taken, the accused filed applications for the transfer of the cases, from out of State of Haryana, before the Supreme Court of India and further proceedings in the cases were stayed. From the impugned orders. It further appears that on May 17, 1980, the Assistant Public Prosecutor attached to the Court of the Chief Judicial Magistrate filed separate applications under section 321, Code of Criminal Procedure seeking permission for withdrawing the prosecution of the accused in these cases. These applications were disposed of by means of the orders passed by the Chief Judicial Magistrate on the same date, i.e., May 17, 1980, which are impugned in the present Revision Petitions.

I have heard Mr. S. S. Rathor and Mr. H. L. Sibal, learned counsel for the petitioners and the contesting respondents respectively, as also the learned AdvocateGeneral, Haryana assisted by Mr. R. P. Bhasin, District attorney representing the respondent State of Haryana. The twofold contention if the learned counsel for the petitioners is formulated as follows :

(a) the trial Court had not applied its mind on the question as to whether there were sufficient grounds made out for granting permission to the prosecutor for respondents and the withdrawal of the prosecution against the

(b) there were, in fact, no grounds made out for the grant of the permission to withdraw prosecution.

Dilating on point (a), the learned counsel referred the provisions of section 32 11 Code of Criminal, Procedure the relevant portion of which may be extracted for ready reference :

"Whether from prosecution 321. The Public Prosecutor or Assistant public prosecutor in charge of a case may, with the consent of Court at anytime 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 ha, been framed, the accused shall be discharged in respect of such offence or offences :

The submission of the learned counsel in reference to the interpretation of the above provision is that before according permission for withdrawal of prosecution, the Court is called upon to appraise all the material available on the record and come to a firm finding that sufficient grounds exist for the giant of such permission. Apart from the other authorities, which shall be noticed later, the learned counsel for the contesting parties including the State have all relied upon the decision of the Supreme Court in Rajinder Kumar Jain v. State and others, A.I.R. 1980 Supreme Court 1510, and two other connected cases. It would, therefore, be appropriate to notice the verdict of that Court in respect of interpretation of the provisions of section 321. Code of Criminal Procedure, which is the primary point mooted in the present cases. Their Lordships of the Supreme Court have shown the beacon light to the ships selling on the voyage to justice and has thus, facilitated the process of the Courts subordinate. It is proposed to extract in extenso, paragraph 13 of the judgment which succinctly summarises the ratio of law on the point, emanating from the precedents or that Court,

"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, also, 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 patcity 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.

6 The Public Prosecutor is an officer or 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 rot 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 social duty in this regard ask is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."

By way of additional guideline, their Lordships or the Supreme Court, as is apparent from the words "We may add...." in the beginning of Paragraph 13A after judgment, made the following observations :

"We may add, it shall be the duty of the Public Prosecutor to inform the Court aid it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility mind a stake in the administration of criminal justice and so has the Public Prosecutor, its ''Minister of Justice''. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of section 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case amd decide what is to be done in each case."

In order to judge the merits or otherwise of the impugned order passed in the present case the Court is to follow the guidelines provided in Rajinder Kumar Jain''s case (supra), i.e., those serialized from I to 8 of Paragraph 13 and the additional observation in Paragraph 13A of the judgment The basic rules are, therefore, obvious. The 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 Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well. The object of withdrawal should be to further the broad ends of public justice, public order and peace. Another vital guideline, which in fact is the moot point in the present case, is that 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. Further both the Public Prosecutor and the Court have a duty to perform, the Public Prosecutor to inform I he Court and the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. A cumulative consideration of these guidelines bring out a salient feature in regard to the duty cast upon the Court and it nay be inferred that this duty of the Court extends only to appraise itself of all the reasons and not to reappreciate the grounds which led the Public Prosecutor to request for withdrawal. This distinguishing feature will have to be kept in mind while considering the merits of the impugned order in the case in hand.

It may be observed at this stage that apart from citing Rajinder Kumar Jain''s case (supra), the learned counsel for the petitioners laid stress that some earlier authorities of the Supreme Court may also be considered and the same has been done. The learned counsel made a reference to M. N. Sankaranarayanan Nair v. P. V. Balakrishnan and others, A.I.R. 1972 S.C. 496, in support of the contention that it is the duty of the Court to see that the permission for withdrawal is not sought on grounds extraneous to the interest or justice. There am certainly no two opinions on this proposition. It is, however, material to note that in this very authority it was observed as follows : I

"The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court nor the grounds on which the Court will grant or refuse permission. Though the Section, is in general terms and does not circumscribe powers of the public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecution agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case."

The words underlined are a pointer that some of the permissible ground, which cover the interest of administration of justice are that the prosecution is not able to produce sufficient evidence to sustain the charge or that subsequent information before the prosecuting agency would falsely the prosecution evidence. The import of these observations would be considered while dealing with the merits of the case.

The next authority referred to by the learned counsel is Bansi Lal v. Chardun Lal and another. A.I.R. 1976 S. C. 370. The said authority is, however, Ilased on the peculiar facts of that case, where the prosecution had reached the stage of framing charges in the Sessions Court and there was no material before the Court justifying withdrawal of the case against some accused. This is not so in the case in hand.

The authority State of Orisa v. Chandrika Mohapatra and others, A. I. R. 1977 S.C. 903, lays down the general Principle that the guiding consideration for withdrawal of prosecution must always be the interest of administration of justice, which is the touchstone in all such matters.

Another authority in the some sequence relied upon on behalf of the petitioners is Balwant Singh and others v. State Bihar, A.I.R. 1977 S. C. 2265. Once again, the said authority is distinguishable on facts alone. It was held by their Lordships that the Public Prosecutor is not bound by the orders issued to him by the District Magistrate to move for withdrawal of the case and that the Public Prosecutor should apply his own mind to the matter before moving for permission to withdraw the case. This aspect would of course be looked into at the proper occasion.

All the above authorities excepting Bansi Lal v. Chandan Lal and another A.I.R. 1976 S.C. 370, were noticed and considered by their Lordships of the Supreme Court in Rajinder Kumar Jain''s case (supra) and their ratio was extracted in Paragraph 13 of the judgment in the said case which has already been reproduced in extenso

Coming now to the merits of the case, the main grievance of the petitioners, as expounded by their learned counsel is that the trial Court had not applied its mind on the question as to whether there were sufficient grounds made out for granting permission to withdraw the prosecution. The contention is that the learned trial Magistrate did not specifically make a mention in his order about all the facts which he had noticed and considered for the purpose of allowing permission to withdraw. There appears to be some confusion in this behalf as in Para 7 of the impugned order, the learned Chief Judicial Magistrate used the words "so for as the grounds are concerned. It is not for the Court to look it but at the end of the order it was observed that "I am satisfied that the Assistant Public Prosecutor satisfied himself before seeking the permission. As already & trial Court deduced in the earlier part of this judgment, it is the duty of to appraise itself of all the reasons, though it is not called upon to reappreciate the grounds of withdrawal. Since some doubts have been expressed on the point as to whether the Courthad really appraised itself of the reasons, it is appropriate that this Court may do the needful I as a matter of abundant caution, For this purpose, the contents of the First Information Report were gone into with the aid of the learned counsel for the petitioners who submitted that according to point (4) of the report of the Commission of Inquiry, there was some prima facie indication of the commission or certain offences. According to the learned counsel, these observations of the Commission should be deemed to be enough to hold that a prima facie case for the prosecution of the respondents exists. There is, however, no warrant for this proposition. The report of the Commission is indeed one of the circumstances which both the Public Prosecutor as well as the trial Court must at take into consideration to assess whether it was a fit case for the withdrawal of prosecution, or not, but at the same time it cannot be deemed to be a conclusive piece of evidence in the matter.

Another grievance made against the impugned order is that it does not indicate as to whether the Court had actually satisfied itself about the bone fides of the Assistant Public Prosecutor in moving for the withdrawal of prosecution. This contention is also negatived not only from the application dated May 17, 1980 Wed by the Assistant Public Prosecutor but the statement of the Assistant Public Prosecutor recorded by the trial Court on that date, wherein the Assistant Public Prosecutor deposed that he had considered all facts and circumstances of the case on the basis of which he had made the application for permission to withdraw the prosecution. The Assistant Public Prosecutor further stated that the evidence in the case had been considered by him and was unacceptable. The result is that point (a) of the arguments of the learned counsel is not tenable and is repelled.

Coming now to point (b), it is necessary to mention that a Supplementary report under section 173, of the Code of Criminal Procedure, filed by Surjit Singh, Deputy Superintendent of Police. CID. Haryana is available on the record. The report runs into several passes and includes all the facts and circumstances of the case which (sic) with the opinion of the Investigation Officer that the accused mentioned in the First Information Report had not committed any offence and the allegations levelled against them did not stand proved. The contents of this Report have been gone through in view of the guidelines laid down by the Supreme Court. It is only necessary to peruse the said supplementary report and not to reappreciate the grounds mentioned therein. In regard to the said supplementary report, the argument advanced by the learned counsel for the petitioners is that once a report under section 173 of the Code is filed in Court there is no power left with, the Investigating Authorities to submit a supplementary report. This contention is negatived by the very statutory provision, namely, subsection (8) of section 173 Code of Criminal Procedure, which authorises the Investigation to submit a further report or reports, after receipt of further evidence, oral or documentary The objection to the submission of the supplementary report is, therefore, root tenable. Accordingly point, (b) of the arguments is also found against the petitioners.

As a cumulative result of the above discussion, it is hold that the impugned order passed by the Chief judicial Magistrate does not stiffer from any illegality or irregularity and, the same is affirmed.

As already noticed, the points which have been urged considered are akin in both the Criminal Revision Nos. 1427 ant 1428 of 1980. Both these Revision Petitions are consequently dismissed.