Vangara Subbaiah vs Attaluri Narasimha Rao and others

This revision is filed against the order passed by the Assistant Sessions Judge, Nuzvid in Crl.MP No.88 of 1996 in SC No.179 of 1994 permitting the Public Prosecutor to withdraw the prosecution in SC No. 179 of 1994. While the SC was pending, the Public Prosecutor filed a petition u/s 321 Cr.PC proposing to withdraw the case. Thereupon the learned Assistant Sessions Judge passed the following order:

"Heard. Permitted. Destroy if any property after appeal time."

This order is challenged in this revision.

The learned Counsel appearing for the petitioner submitted that the Public Prosecutor is the prime custodian to take a decision with regard to the withdrawal of the criminal case on the advise of the State. As per the Counsel the Public Prosecutor can take an independent decision and he should not be governed or directed by the executive authority. He also submitted that the Court cannot also act mechanically; it should apply its mind and take decision suitably whether public interest would be served by the act of withdrawal of the case by the Public Prosecutor.

Such consideration has not been gone into in this case by the Public Prosecutor and also by the Court. The impugned order is cryptic and does not indicate that the Assistant Sessions Judge has applied his mind.

In support of his contention and to bring home the scope of Section 321 the learned Counsel appearing for the petitioner relied on the judgment of the Supreme Court rendered in R.M. Tewari Vs. State (NCT of Delhi) and Others, . In this case the Supreme Court while considering the scope of Section 321 of Cr.PC held:

It, is therefore, clear that the Designated Court was right in taking the view that withdrawal from prosecution is not to be permitted mechanically by the Court on an application for that purpose made by the Public Prosecutor. It is equally clear that the Public Prosecutor also has not to act mechanically in the discharge of his statutory function u/s 321 Cr.PC, on such a recommendation being made by the Review Committee; and that it is the duty of the Public Prosecutor to satisfy himself that it is a fit case for withdrawal from prosecution before he seeks the consent of the Court for that purpose.

It appears that in these matters, the Public Prosecutor did not fully appreciate the requirements of Section 321 Cr.PC and made the applications for withdrawal from prosecution only on the basis of the recommendations of the Review Committee. It was necessary for the Public Prosecutor to satisfy himself in each case that the case is fit for withdrawal from prosecution in accordance with the settled principles indicated in the decisions of this Court and when to satisfy the Designated Court of the existence of a ground which permits withdrawal from prosecution u/s 321 Cr.PC."

It was further held that "If the recommendation of the Review Committee, based on the material present, is, that resort to provisions of the TADA Act is unwarranted for any reason which permits withdrawal from prosecution for those offences, a suitable application made u/s 321 Cr.PC on that ground has to be considered and decided by the Designated Court giving due weight to and opinion formed by the Public Prosecutor on the basis of the recommendation of the High Power Committee".

For the same purpose he relied upon a judgment of this Court rendered in T. Venkat Ram Reddy, Editor, Deccan Chronicle v. D. Gopalakrishnam Raju, 1992 (2) An.WR 633. In this case the teamed Judge referred the principles laid down in Sheonandan Paswan Vs. State of Bihar and Others, . The learned Judge summarised the legal position from the judgment as follows:

"1. 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 some one 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, political purposes sans Tammany Hal enterprise.

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 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"

It was further observed by the Supreme Court as follows:

"We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and 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 and decide what is to be done in each case."

Taking the legal position as laid down by the Supreme Court it was held that it is difficult to say that neither the Government nor the Public Prosecutor has applied their mind before granting permission to withdraw the prosecution by giving detailed reasons and the order passed by the Government is an arbitrary one.

Now this being the position of law we have to see whether the memo filed by the Public Prosecutor indicates that the Public Prosecutor has applied his mind or there is any material justifying the withdrawal of the prosecution. It has also to be seen whether the Court has applied its mind while granting permission to withdraw the prosecution.

After perusal of the petition and also the order of the Court I am of the firm view that the order suffers from both ends. The learned Public Prosecutor stated that the Government after examining the merits of the case has consented for withdrawal of the prosecution and to that effect a G.O was passed. In pursuance of the said G.O the Collector, Krishna, Machilipatnam issued proceedings directing the Public Prosecutor to withdraw the case. There is no indication whatsoever that the Public Prosecutor has applied his mind independently anci came to the conclusion that it is a fit case to make the request for withdrawal. The requirement of law is not met by the Public Prosecutor when the petition in this case was filed. At the same time the order of the Magistrate is also cryptic. He only stated that the petition is admitted and permission was granted. There is no indication that he applied his mind to the facts of the case. He did not satisfy himself that the request of the Public Prosecutor was based on proper grounds and there is no abuse of any process. The permission was granted in a mechanical way. Therefore, the order of withdrawal has to be set aside for more than one reason.

The learned Counsel appearing for the conlesting respondents submitted that the Public Prosecutor has only to make an application u/s 321 and need not give any reasons for withdrawing the prosecution and for the said proportion he relied upon the judgment rendered in T. Venkat Ram Reddy, Editor, Deccan Chronicle v. D. Gopalakrishnam Raju, (supra). The scope of this judgment is already referred to in the judgment. The submission of the learned Counsel appearing for the contesting parly is untenable. Therefore, the revision case is allowed and the impugned order is set aside.