HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.R. No. : 102 of 2009 Decided on: 5.11.2009. Bhupender Singh Thind and another ……… Petitioners. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For petitioner No.1: Dr.Puneet Kaur Sekhon & Mr.Satbir Katnoria, Advocates. For Petitioner No.2: Mr.Y.K. Thakur, Advocate. For the respondent: Mr.Satya Pal Jain, Senior Advocate, with Mr.P.K. Sharma, Additional Advocate General & Ms.Shubh Mahajan, Deputy Advocate General. V.K. Ahuja, J.(Oral): This is a revision petition filed by the petitioners under Section 397 read with Section 401 of the Cr.P.C. for quashing the order, dated 18.4.2009, passed by the learned Special Judge (Forest), Shimla in case under Sections 406, 409, 420, 465, 467, 468, 120-B of the IPC and Section 13(2) of the Prevention of Corruption Act, wherein the learned Special Judge vide his impugned order had allowed the prayer of the learned Public Prosecutor made orally for the withdrawal of the application filed under Section 321 of the Cr.P.C., which application was filed by his predecessor seeking withdrawal of the prosecution qua the petitioners. ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Facts of the case in brief are that a case under Sections mentioned above was pending trial before the learned Special Judge (Forest), Shimla. In the said case, an application under Section 321 of the Cr.P.C. was filed by the then Public Prosecution on 7.6.2005. The facts of the case show that earlier also an application under Section 321 of the Cr.P.C. was filed by the then learned Public Prosecutor for withdrawal of the case. The said application was dismissed by the learned Special Judge on 31.7.2006. The State filed a revision petition before this Court against the order of dismissal passed by the learned trial Court and the revision petition was dismissed as withdrawn by this Court observing that the accused persons can file their separate independent revision petitions. Thereafter, separate revision petitions were filed by the petitioners and the learned Single Judge of this Court on 31.7.2006 remanded back the case to the learned Special Judge to hear the parties in accordance with law on the question as to whether permission is to be granted to the learned Public Prosecutor to withdraw the case or not. After the decision of the case by this Court and remand of the case to the leaned Special Judge to consider the application according to law, a statement was made by the then learned Public Prosecutor on 28.11.2008 that he withdraws the application filed earlier by the then Public Prosecutor under Section 321 of the Cr.P.C. The said statement was contested by the petitioners. After hearing the parties in detail and after considering the facts of the case, the learned Special Judge, vide his impugned order, - 3 - dated 18.4.2009, granted permission to the learned Public Prosecutor to withdraw the application filed by the then Public Prosecutor under Section 321 of the Cr.P.C. for withdrawal of the case. Being aggrieved by the said order passed by the learned Special Judge permitting the oral prayer made by the learned Public Prosecutor to withdraw the earlier application under Section 321 of the Cr.P.C. for withdrawal of the case, the petitioners have preferred the present revision petition. I have heard the learned counsel for the parties at length and have gone through the record of the case. The submissions made by the learned counsel for the petitioners were that the application was filed by the Public Prosecutor under Section 321 of the Cr.P.C. for withdrawal of the case in writing. The said application remained pending for a considerable time since it was filed on 7.6.2005 and was allowed to be withdrawn on an oral prayer made by the learned Public Prosecutor. It was submitted that once the application had been submitted in writing, no oral prayer should have been allowed and the court should have considered the grounds as to whether the Public Prosecutor can be allowed to change the stand and withdraw the application filed earlier by the then Public Prosecutor for withdrawal of the case. It was further submitted by the learned counsel for the petitioners that against the earlier order dismissing the application, a revision petition was allowed by this Court and the - 4 - directions were given to the learned Special Judge to consider the application afresh but in a way the learned Special Judge has defied the order passed by this Court and had not considered the merits of the application filed under Section 321 of the Cr.P.C. but has adopted a shortcut method and disposed of the application being dismissed as withdrawn on an oral prayer made by the new Public Prosecutor. It was submitted that the application should have been filed in writing and grounds should have been mentioned therein, which should have been considered by the court. But, by adopting a shortcut method, the learned Special Judge has not considered the merits of the application filed under Section 321 of the Cr.P.C. and has also failed to appreciate the order passed by this Court to consider the application in accordance with law and the case law cited before him. To substantiate her case that the Public Prosecutor could not have been permitted to withdraw the application, the learned counsel for the petitioners had placed reliance upon the decision in Sheonandan Paswan versus State of Bihar and others, (1987) 1 Supreme Court Cases 288, wherein the Apex Court had discussed the powers of revision under Section 397 of the Cr.P.C. and it was held that detailed appreciation of facts was not open in revision. In para 69 and 70 of the said judgment, it was observed by the Apex Court as under: “Section 321 needs three requisites to make an order under it valid : (1) The application should be filed by a Public Prosecutor or Assistant Public Prosecutor who is competent to make an application for withdrawal, (2) he must be in charge of the case and (3) the application should get the consent of the court - 5 - before which the case is pending. All the requisites had been satisfied in this case.” Another decision which was relied upon by the learned counsel for the petitioners was in Rahul Agarwal versus Rakesh Jain and another, AIR 2005 Supreme Court 910, wherein it was observed by their Lordships that permission for withdrawal can only be granted in the interest of justice and for valid reasons. It may be granted in case which is likely to end in acquittal and continuance of case is only causing severe harassment to the accused or to bring about harmony between parties. It was further observed that discretion should not be exercised to stifle prosecution at instance of aggrieved parties. It was further observed in para 10 of the judgment that even if the Government directs Public Prosecutor to withdraw prosecution, the Court must consider all relevant circumstances and find out whether withdrawal would advance the cause of justice. The above decision is relevant for considering the application under Section 321 of the Cr.P.C. filed for the withdrawal of the case and as to whether a case is made out for withdrawal of the case or not. On the other hand, the submissions made by the learned counsel for the respondent/State were that there are three requirements for an application under Section 321 of the Cr.P.C. Firstly, that there should be the decision of the State Government. Secondly, the Public Prosecutor has to apply his mind independently and without any pressure and he cannot surrender his right; and thirdly the court has the final say to determine the question as to whether the - 6 - application for withdrawal has been filed in public interest and should be allowed or not. To substantiate his submissions, the learned counsel for the respondent/State has relied upon the decision in Rajender Kumar Jain versus State Through Spl.Police Establishment and others, AIR 1980 Supreme Court 1510. The observations made in paras 13 and 13-A are relevant which are reproduced as under: “13. Thus, from the precedents of this Court; we gather 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. 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. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. 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. 6. The Public Prosecutor is an officer of the Court and responsible to the Court. 7. The Court performs a supervisory function in granting its consent to the withdrawal. 8. 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 - 7 - 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. 13-A. 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 appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and 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 S.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.” Reliance was also placed upon the decision in S.K. Shukla and Ors. versus State of U.P. and Ors., AIR 2006 Supreme Court 413. The observations made in para 33 are relevant and are reproduced below: “In withdrawal from prosecution the Public Prosecutor cannot act like a post box or act on the dictate of the State Governments. He has to act objectively as he is also an officer of the Court. At the same time Court is also not bound by that. The Courts are also free to assess whether the prima facie case is made or not. The Court, if satisfied, can also reject the prayer. In the instant case the Court examined the matter and found that there is a prima facie case to proceed against the accused persons under S.4(b) of the POTA and other provisions of the Explosive or Arms Act, therefore, the sanction granted by the Govt. and application moved by the Public Prosecutor for withdrawal of the cases cannot be sustained.” Coming to the order passed by the learned trial Court, it was submitted by the learned counsel for the - 8 - respondent/State that it was observed by the learned trial Court that there were no directions of the State Government to the learned Public Prosecutor to file an application for withdrawal and, therefore, the application was not maintainable. It was submitted that the reasons have been given by the learned Special Judge for allowing the withdrawal of the application that there were observations of this Court in the previous revision petition touching the merits of the case and it was clearly opined by the learned Special Judge that since the application had been filed by the then Public Prosecutor to withdraw from the prosecution, without there being any specific directions and as such, the impugned order was rightly passed by the learned trial Court granting permission to withdraw from the case. On consideration of the record of the case, it is clear that earlier an application for withdrawal of the case, which was filed by the Public Prosecutor on 7.6.2005 was a 22 page application giving all the reasons for withdrawal of the case. However, the learned trial Court accepted the oral prayer made by the new Public Prosecutor for the withdrawal of the case and proceeded to make observations which, in my opinion, were not called for. I am not disputing the preposition that no oral prayer could have been made to withdraw the earlier application filed by the then Public Prosecutor for withdrawal of the case, but the facts and circumstances of the case show that it was such a case where the prayer was being considered by the Court for withdrawal based on some facts. In my opinion, the learned trial Court should have insisted upon a written application - 9 - in which all the grounds should have been alleged, which had led the new Public Prosecutor to apply for the withdrawal of the case. The learned trial Court rather went on to make observations on the basis of the submission made during the course of arguments, but these were no grounds which have been laid down by the written application by the Public Prosecutor for the withdrawal of the application. The learned trial Court went on to make observations that the Public Prosecutor, who filed the earlier application for withdrawal of the case, had not been granted sanction by the State Government to withdraw the case. In my opinion, this observation could not have been made by the court until and unless a written prayer was made by the new Public Prosecutor alleging these facts. It has been nowhere laid down in any of the above decisions of the Apex Court that the application for withdrawal under Section 321 of the Cr.P.C. should be accompanied by written directions or suggestions to the Public Prosecutor by the State Government for withdrawal or incase the said order is not enclosed with the application, the application has to be dismissed by the Court. Section 321 of the Cr.P.C. provides for the Public Prosecutor to act independently and file the application. Moreover, in case the Public Prosecutor had filed the application without directions from the State Government, the State Government, if so advised, can take disciplinary action, but this does not lead to the inference that no application could have been filed under Section 321 of the Cr.P.C. until and unless the copy of the directions issued by the State Government were enclosed therewith. - 10 - The learned counsel for the respondent had submitted and rightly so that in the latest decision of the Apex Court in S.K. Shukla’s case (supra), their Lordships had observed that there may be directions of the State Government or even suggestions and the Public Prosecutor cannot independently file the application and, therefore, these observations were rightly made by the learned trial Court. In my opinion, their Lordships have only laid down that though the Public Prosecutor is under the State Government and has to follow the directions issued to him, but according to law, still a discretion has been given to him under Section 321 of the Cr.P.C. to independently apply his mind to the facts of the case and file the application for withdrawal accordingly. He is not required to specify in the application that he is filing the application on the directions of the State Government and as such he should be permitted to withdraw the case. It is true that in practice no Public Prosecutor will file an application without there being any direction or suggestion as has been laid down by the Apex Court, but the Apex Court has not laid down that unless and until this is specified in the application or the evidence is led that directions are issued by the State Government, no application can be filed by the Public Prosecutor or in the absence of evidence on record to show that any prior permission was taken by the Public Prosecutor, the application cannot be considered by the Court. It is not a case where a counsel for a party may make an oral prayer and say that I do not press the case and may withdraw the same, but in the present case, though the application has to - 11 - be filed by the Public Prosecutor on some suggestions or directions, but these are not required to be mentioned in the application or the evidence considered by the court as to whether a case is made out or not for allowing the application since law enjoins the duty upon the Public Prosecutor to independently apply his mind and make out a case in public interest. Therefore, the observations made by the learned trial Court are not correct that there was no evidence to show that the State had directed the Public Prosecutor to withdraw the case, the oral prayer should be allowed. I am not inclined to accept this observation since the discretion given to the Public Prosecutor is to act independently to make a prayer for which he is not required to substantiate by evidence that these are the directions or suggestions given by the State Government for the withdrawal. The next ground taken by the learned trial Court was in regard to the facts of the case or the application filed for the withdrawal as has been observed by the learned Single Judge in his judgment dated 10.11.2008, placed on the record. In my opinion, rather than going by the directions of the learned Single Judge to consider the application on merits, the learned trial Court has adopted a shortcut method by allowing the oral prayer made by the new Public Prosecutor to withdraw the earlier application filed in this regard. I am not observing that no oral prayer could have been made for withdrawal but reasons had to be given in the application for permission to withdraw the earlier application in which the facts could have been alleged as may have been considered by the new Public Prosecutor to be - 12 - appropriate compelling him to make such a prayer. In my view, the facts of the case justified that the prayer should have been made in writing giving all the reasons and then the learned trial Court could have formed an opinion whether the prayer for withdrawal is justified or not, in the facts and circumstances of the case. The learned Single Judge had made observations, which were required to be considered by the learned Special Judge while considering the prayer made for withdrawal, but these were not meant to be used for considering the oral prayer made by the new Public Prosecutor for the withdrawal of the case. In case the new Public Prosecutor had felt the necessity, may be on the directions of the State or otherwise, for not pressing the earlier application, he should have specified the reasons which warranted that the earlier application should be withdrawn and those grounds should have been considered by the Court. In view of the above discussion, it is clear that the learned trial Court had passed an order which is not sustainable in the eye of law permitting the withdrawal of the earlier application filed under Section 321 of the Code of Criminal Procedure for withdrawal of the case since no application in writing was filed by the new Public Prosecutor giving the reasons which compelled him to make such a payer that he does not press the earlier application filed in this regard. Accordingly, in view of the above discussion, the petition filed by the petitioners is allowed and the impugned order is set aside. The case shall go back to the learned Special Judge (Forest), Shimla, who shall - 13 - consider the application filed under Section 321 of the Cr.PC. on the merits of the case. However, it is clarified that the learned Special Judge is not debarred from entertaining any application in writing, if it is so made for the withdrawal of the earlier application and shall consider the grounds and then pass appropriate orders on the said application, if filed or on the earlier application under Section 321 of the Cr.P.C. filed by the then Public Prosecutor for withdrawal of the case. The petition stands disposed of accordingly. However, the parties are directed to appear before the learned Special Judge (Forest), Shimla on 21st November, 2009. In view of the final disposal of the main petition, all the pending miscellaneous applications, if any, shall also stand disposed of. November 5, 2009. (V.K. Ahuja), (TILAK) Judge.