CRM No. M 37269 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M 37269 of 2010 Date of decision: 25.05.2011 [ENTITY] and another Petitioners Versus [ENTITY] and others Respondent(s) Coram: Hon'ble Ms Justice [ENTITY] -.- Present: Mr. [ENTITY], Senior Advocate with Mr. [ENTITY], Advocate for the petitioners -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? [ENTITY], J.
This is a petition under [SECTION] [ACT] for quashing of order dated 11.08.2010 passed by the Additional Sessions Judge, Fast Track Court, Mansa as well as the order dated 09.04.2009 passed by the Chief Judicial Magistrate, Mansa arising out of the case FIR No. 124 dated 29.06.2002 under [SECTION], [SECTION], [SECTION] [ACT], Police Station City Mansa, whereby, accused respondents No. 2 to 5 were discharged by allowing the application of respondent No. 1 filed under [SECTION] [ACT]
In the year 2002, a case was registered by the Police against the accused respondents. Challan was filed and the charges were framed. Thereafter, a Committee was constituted comprising of District Magistrate, District Attorney and Senior Superintendent of Police to review criminal cases pending before the Courts. The committee recommended withdrawal of some cases including the present one. The Public Prosecutor moved an application under [SECTION] [ACT] for withdrawal of the case against the accused respondents. The said application was allowed vide order dated 09.04.2009 (P4) passed by the Chief Judicial Magistrate, Mansa. Aggrieved by the order dated 09.04.2009 of the learned Magistrate, criminal revision was filed in the Court of Sessions at Mansa by Shri [ENTITY] son of Shri [ENTITY] in his capacity as Manager of the Khalsa High School, Mansa. However, the Additional Sessions Judge (Ad hoc), Fast Track Court, Mansa, vide order dated 11.08.2010 (P6), dismissed the revision petition.
While challenging the aforesaid order dated 09.01.2009 (P4) of the trial Court and order dated 11.08.2010 (P6) of the Appellate Court, learned Senior Counsel appearing for the petitioners contended that the Public Prosecutor has moved the application only at the behest of the Committee. The Committee has no locus standi to order the withdrawal of the cases and the recommendations were only on account of the political reasons and the Public Prosecution has not applied his mind. It is further stated that there is no public interest.
Heard.
Allegations in the FIR are that the said accused persons committed theft of the record of the School and the Managing Committee. There is no dispute with the argument raised by the learned counsel for the petitioners that it is a well settled proposition of law that the Court can allow the withdrawal of the prosecution only if the said application is made after independent consideration by a Public Prosecutor and in furtherance of the public interest.
The case in hand has to be considered in the light of the above guidelines laid down by the Apex Court in their various judgments.
[SECTION] of [ACT] reads as under:-
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:
Provided that where such offence-
(i) Was against any law relating to a matter to which the executive power of the Union extends, or
(ii) Was investigated by the Delhi Special Police Establishment under the [ACT]), or
(iii) Involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) Was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, And the Prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."
In the case of [PRECEDENT], Public Prosecutor made reference to the Government Letter but independently came to the conclusion that it was in the totality of the circumstances and in the interest of general public that he deemed it proper and necessary that the prosecution should be withdrawn from the Court. While upholding the withdrawal of prosecution, Hon'ble the Supreme Court observed as under:-
"13. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations."
In the case of "Vijay Kumar Baldev Mishra alias Sharma v. State of Maharashtra reported as 2207(3) RCR (Criminal) 269, the Apex Court relied on the judgment rendered in the case of [PRECEDENT], which stated that:-
"90. [SECTION] [ACT] is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under [SECTION], the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis."
16. Noticing that no guidelines have been provided for in the matter of grant or withdrawal of the consent by the Court, the Constitution Bench referred to the ratio of its earlier decision in [PRECEDENT] wherein, it was held:
"His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. 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. [SECTION] requiring the consent of the court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by court. It cannot be taken to place on the court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of 'no prima facie case' under [SECTION] and [SECTION] or of 'groundlessness' under [SECTION] and [SECTION]. This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made."
17. While refusing to grant permission, the Designated Court, in our opinion, was not correct in expressing its opinion in the merit of the matter and the effect of confessions made in terms of the provisions of [ACT]. It was, however, also not necessary to consider as to whether, the action of the public prosecutor as also the State was bona fide or not. Moreover, bona fide on the part of the public prosecutor itself cannot automatically lead to grant of consent. There are other circumstances also which are required to be taken into consideration.
18. For the reasons aforementioned, the appeal is allowed. The application filed by the State for withdrawal of the charges under [ACT] against the appellant shall stand allowed. The learned Designated Judge may now proceed with the matter in accordance with law."
Thus, the Apex Court held in no uncertain term that for the discharge, there need not to always conform to the standard of 'no prima facie case' under [SECTION] and [SECTION] or of 'groundlessness' under [SECTION] and [SECTION].
Reference has also been made to the judgments rendered in the case of [PRECEDENT] and [PRECEDENT] (supra) wherein it was consistently held that in appeal against the consent, the Supreme Court would not assess the evidence as to whether the case would have ended into conviction or acquittal nor it would order re-trial.
From the above arguments and discussion, it is apparent that there is no dispute with the proposition of law that the Public Prosecutor has to arrive at an independent conclusion that the withdrawal from prosecution is justified.
In the present case, there is no doubt that a Committee was constituted consisting of District Magistrate, District Attorney and Senior Superintendent of Police to review criminal cases pending before the Courts and one of the cases recommended for withdrawal was the present case. The said recommendations were forwarded by the Committed to the Government to recommend the withdrawal of the cases in public interest. However, the said application under [SECTION] [ACT] was moved by the Public Prosecutor in accordance with law. The relevant portion of said application, besides making reference of the Review Committee and Government, reads as under:-
"6. That there is paucity of evidence and the case cannot be successfully tried. Two of the accused are not named in the FIR nor any recovery have been effected from accused [ENTITY]. Even the provisions of [ACT] as amended by the [ACT] are not complied with.
7. That the dispute mainly pertains to the Management of an educational institution and the dispute if allowed to continue would difficult, hamper imparting of good education to the students and they will suffer an irreparable loss and would not be able to compete with the growing society.
8. That I have applied my mind independently to the file and have independently come to this conclusion. That this is fit case to be withdrawn to the prosecution in the public interest due to the paucity of evidence and in order to bring peace, tranquility and harmony between the parties and further betterment of the institution which imparts the education of the students."
Thus, a reading of the application shows that the Public Prosecution applied his mind independently before moving the Court an application for withdrawal of the criminal proceedings, as he has specifically stated in the application that it was in 'public interest' and that 'I have applied my mind independently' to the facts and evidence collected on the file and has arrived at conclusion independently. It is further stated in the application that it is in the public interest as well as on account of lack of evidence as also to bring about peace, tranquility and harmony between the parties that criminal proceedings were being withdrawn Thus, the Public Prosecutor has applied his mind to the issue independently and has considered the evidence on the file and facts mentioned therein. As such, the said application is in accordance with law. While allowing the application, the Chief Judicial Magistrate, Mansa found that the withdrawal of the prosecution was not based upon any extraneous consideration and that it was in the interest of justice to allow the prosecution to withdraw the case. Therefore, the consent granted by the Court to the Public Prosecutor to withdraw from the prosecution against the accused was keeping in view the judgment rendered by the Apex Court in the case of [PRECEDENT] (supra) as well as [PRECEDENT], wherein, it was held that the Court may allow the withdrawal only in following circumstances:-
1) If it would advance cause of justice and if case is likely to end in acquittal and was causing harassment to accused.
2) If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties.
Even otherwise, the present petition has been moved under [SECTION] [ACT] Second revision petition is not maintainable. The second revision before the High Court under the garb of invoking inherent power under [SECTION] [ACT] cannot be permitted as held by the Apex Court in the case of [PRECEDENT] as well as in [PRECEDENT]. The Apex Court in the case of [PRECEDENT] (supra) held as under:-
"6. There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Sessions Judge. It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate. The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier. Let that be as it is. The question that falls for our consideration now is whether the High Court could have utilised the powers under [SECTION] of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being [CASE NUMBER] to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. [SECTION] bars a second revision application by the same party. It is now well settled that the inherent powers under [SECTION] of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside."
However, it is also a well settled principle of law that provisions of [SECTION] [ACT] can be invoked in stead of filing of second revision petition, in case, there is apparent injustice. Thus, the facts of the present case do not warrant any interference under [SECTION] [ACT] being a second revision under the garb of [SECTION] [ACT] If it was permitted, then every petition facing the bar under [SECTION] could be challenged under [SECTION] [ACT]
Thus, the present petition is neither maintainable nor is there any merit in the same.
Accordingly, the present petition is dismissed on both counts i.e. on the question of maintainability as well as on merits.
([ENTITY]) Judge 25.05.2011 mohan