N Criminal Appeal Nos
308310 of 1975
Appeals by Special Leave from the Judgments and Orders dated 1811974 and 1821974 of the Orissa High Court in Criminal Revision Nos
708 705 and 30672 respectively
336 G Rath Adv
General for the State of Orissa and B Parthasarthi for the appellant
Nemo for the respondent
The Judgment of the Court was delivered by BHAGWATI J
This group of three Criminal Appeals by Special Leave can be divided broadly into two categories one category consisting of Criminal Appeals Nos 308  309 of 1975 and the other consisting of Criminal Appeal No 310 of 1975
We are disposing of them by a common judgment since the question which arises for consideration in both sets of appeals is as to what is the extent of the power of the Court to give consent to withdrawal of prosecution and discharge of the accused under Section 494 of the Criminal Procedure Code
Taking up first Criminal Appeals Nos 308 and 309 of 1975 both these criminal appeals arise out of prosecutions launched in respect of offences alleged to have been com mitted in the course of the same incident
The police filed a case against nine respondents in Criminal Appeals No 308 of 1975 charging them for offences under sections 143 341 and 138 of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act
It appears that before the trial could proceed against the respondents an application was made by Court Sub Inspector who was in charge of the prosecution praying for permission for withdrawal of the prosecution on two grounds
One ground was that it was considered inexpedient to proceed with the case while the other was that the evidence collected during investigation was meagre to proceed against the respondents and that no useful purpose would be served by proceeding with the case against them
The learned Magistrate took the view that it was not sufficient ground for according consent that the prosecution considered it inexpedient to proceed further with the case
But so far as the second ground was con cerned the learned Magistrate held that it was a valid ground and he did not rest this conclusion merely on the averment made by the Court Sub Inspector but he also perused the case diary for the purpose of satisfying himself that the evidence was not sufficient to proceed against the respondents
The learned Magistrate felt that in this situation it was proper to accord consent for withdrawal of the prosecution since compelling the State to go on with the prosecution in these circumstances would involve unnec essary expenditure and waste of public time which could otherwise be profitably utilised for other judicial work
The Learned Magistrate accordingly allowed the Court Sub Inspector to withdraw the prosecution and discharged the respondents under
Section
494 of the Criminal Procedure Code
It seems that this order of the learned Magistrate accord ing consent to the withdrawal came to the notice of the High Court and prima facie taking the view that it was not a proper order the High Court suo moto issued notices to the State as well as the respondents calling upon them to show cause why this order should not be quashed and set aside
The matter was heard by a single judge of 337 the High Court and the learned judge quashed and Set aside the order passed by the learned Magistrate with the follow ing observations  The Magistrate should have perused the case diary to see if there was sufficient material for framing of charge
But that he obviously did not choose to do
On the petition for withdrawal that it was inexpedient to proceed with the case he thought it prudent to acquit the accused persons whose prosecution would unnecessarily consume public money and time
Obviously the learned lower court has missed the point and has not approached the subject as he ought to
 The State thereupon preferred the present appeal with Special Leave obtained from this Court
Now the law as to when consent to withdrawal of prosecution should be accorded under Section 494 of the Code of Criminal Procedure is well settled as a result of several decisions of this Court
The first case in which this question came up for consideration was The State of Bihar vs Ram Naresh Pandey1
It was pointed out by this Court in that case that in granting consent to withdrawal from prosecution the Court undoubtedly exercises judicial discretion but it does not follow that the discretion is to be exercised only with refer ence to material gathered by the judicial method
Having said this the Court proceeded to enunciate the principles which should guide the exercise of this discretion In understanding and applying the Section two main features thereof have to be kept in mind
The initiative is that of the Public Prosecutor and what the Court has to do is only to give its con sent and not to determine any matter judicially  
The Judicial function therefore implicit in the exercise of judicial discretion for granting the consent should 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  
The Magistrate s functions in these matters are not only supplementary at a higher level to those of the executive but are intended to prevent abuse   
There is however a general concurrence at least in the later case that the application for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecution 1 338 This Court had again occasion to consider this question in MN Sankarayarayanan Nair vs
P V Balakrishnan  Ors
1 where Jaganmohan Reddy J speaking on behalf of the Court pointed out Though the Section is in general terms and does not circumscribe the 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 prose cuting agency would falsify the prosecution evi dence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case
Nevertheless 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 gener al 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 the behest
 It will therefore be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution
He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well rounded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution
The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn
Now in the present case it is clear that according to the prosecution the evidence collected during investigation was not sufficient to sustain the charge against the re spondent and the learned Magistrate was satisfied in regard to the truth of this averment made by the Court Sub Inspec tor
It is difficult for us to understand how the High Court could possibly observe in its order that the Magis trate had not perused the ease diary when in terms the learned Magistrate has stated in his order that he had read the ease diary and it was after reading it that be was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill founded
Then again it is difficult to comprehend how the High Court could possibly say that the learned Magistrate accorded consent to the withdrawal of the prosecution on the ground that it was inexpedient to proceed with 11972 2  SCR 599 339 the case when in so many terms the learned Magistrate rejected that ground and granted consent only on the second ground based on inadequacy of evidence
There is no doubt that the learned Magistrate was right in granting consent and the High Count committed a manifest error m setting aside the order of the learned Magistrate
We accordingly allow Criminal Appeal No 208 of 1975 set aside the order of High Court and restore that of the learned Magistrate
Criminal Appeal No 309 of 1975 also arises out of the same incident and the only difference between this Criminal Appeal and the earlier one is that the respondents are different
It is no doubt true that in this case the Court Sub Inspector based his application for consent to the withdrawal of the prosecution on the ground that it was administratively considered by the State inexpedient to proceed with the case and that as already pointed out would not be a valid ground
But since both the cases arise out of the same incident and the evidence in regard to both is admittedly the same we do not think that any useful purpose would be served by compelling the prosecution to proceed with the case against the respondents in the present case
We accordingly allow Criminal Appeal No 309 of 1975 set aside the order of the High Court and restore that of the learned Magistrate
We now turn to Criminal Appeal No 310 of 1975
The case out of which this appeal arises was the result of a serious rivalry between two trade unions in an industrial undertak ing
It seems that the respondents who are members of one trade union tried to break up a procession which was organised by the rival trade union and this led to a clash resulting in injuries to various persons
The respondents were charge sheeted for various offences arising out this incident and they were committed to the Court of sessions to stand trial for offences under sections 147 148 149 307 and 324 IPC
However before the trial commenced an application was made by the Public Prosecutor for the consent of the court to withdraw the prosecution against the respondents under section 494 of the Code of Criminal Proce dure
There were five grounds on which the application was based
Of them two only are important
One was that the occurrence arose out of labour union trouble and since the date of the occurrence there was industrial peace and harmony and the other was that withdrawal of the prosecu tion would help maintain cordiality between the rival trade unions
The learned Sessions Judge was impressed by these two grounds and he granted consent to the withdrawal of the prosecution against the respondents
The reasons which weighed with him may be stated in his own words as follows The grounds are that the incident had been the outcome of labour trouble
which has now sub sided and that the Government in order to maintain cordial relationship between the mineowners and good labour relationship wants to withdraw the case
The case as if I find arose on account of labour union rivalry and the occurrence 340 place to sabotage a procession led by rival trade union
The intention being to keep labour trouble in abeyance I accord consent of this court for the withdrawal  
The High Court in this case too acted suo moto and issued notices
to the State and the respondents calling upon them to show cause why the order of the learned Ses sions Judge should not be set aside
The case was heard by the same learned judge who heard the earlier two criminal appeals and the learned judge set aside the order granting consent to the withdrawal of the prosecution and quashed the order of acquittal passed by the learned Magistrate and directed the sessions Judge to proceed with the trial of the case
Hence the present appeal by the State with Special Leave obtained from this Court
We have already discussed the principles which should govern cases of this kind where an application is made by the Public Prosecutor for grant of consent to the withdrawal of prosecution under section 494 of the Criminal Procedure Code
We have pointed out that the paramount consideration in all these cases must be the interest of administration of justice
No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused
It must ultimatelY depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice because the objective of every judicial process must be the attain ment of justice
Now in the present case the application made by the Public Prosecutor clearly shows that the inci dent had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking
In these circum stances the State felt that it would not be conducive to the interest of justice to continue the prosecution against the respondents since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking
We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution the State should clearly be at liberty to withdraw from the prosecution
We are therefore of the view that in the present case the learned  Sessions fudge was right in granting consent to the withdrawal of the prosecution and the High Court was in error in setting aside the order o the learned Sessions Judge
We accordingly allow Criminal Appeal No 310 of 1975 set aside the order of the High Court and restore that of the learned Sessions
Judge


Summary:
The principles that should be kept in mind by the Court when giving consent to the prosecution under section 494 Cr
PC 1973 for withdrawing the prosecution against the accused are that the prosecution is not able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well rounded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution
It is not sufficient for the prosecution merely to say that it is not expedient to proceed with the prosecution
The ultimate guiding consid eration must always be the interest of administration of justice and that is the touchstone on which the question must be determined
No hard and fast rule can he laid down nor can any categories of cases be defined in which consent should be granted or refused
It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice because the objective of every judicial
process must be the attainment of justice
338 C F Where therefore the Magistrate granted permission for withdrawal because the prosecution averred that the evidence collected during investigation was not sufficient to sustain the charge against the accused and after satisfy ing himself by perusing the case diary that the averment of the prosecution was justified the High Court was in error in setting aside the order of the Magistrate
In the instant case
the High Court also erred in observing that the Magistrate had not perused the case diary and that the Magistrate had accorded consent for withdrawal of the prosecution by accepting the prosecution case that it was inexpedient to proceed with the case
338 H 339 A Where in the connected case the Magistrate gave his consent for withdrawal on the ground that it was adminis tratively considered by the State inexpedient to proceed with the case though it was not a valid ground no useful purpose would be served in compelling the prosecution to proceed with the case because both cases arose out of the same incident and the evidence in regard to both was admit tedly the same
339 C D Where the application made by the prosecution for with drawal showed that the clash in which certain persons were injured arose out of rivalry between two trade unions but that since the date of the incident calm and peace prevailed in the industrial undertaking the Trial Court would be justified in granting consent for the withdrawal of the prosecution and the High Court would be in error in setting aside that order
In the present case the State felt that it would not be conducive to the interests of justice to continue the prosecution since the prosecution or convic tion of the accused would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the undertaking
Ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution
the State should be at liberty to withdraw from the prosecution
340 D G