IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.17424 of 2009 SUKESHWAR MANJHI, S/O LATE JIYALAL MANJHI, R/O VILLAGE SINGHWANI, P.S. SONBARSA, DISTRICT SITAMARHI AT PRESENT MANAGER, PERSONNEL ADMINISTRATION DEPARTMENT, BIHAR KSHETRIAYA GRAMIN BANK, HEAD OFFICE, BHAGAT SINGH CHOWK, MUNGER .. PETITIONER Versus 1. THE STATE OF BIHAR 2. THE BIHAR KSHETRIAYA GRAMIN BANK THROUGH THE CHAIRMAN, HEAD OFFICE, BHAGAT SINGH CHOWK, MUNGER .. OPPOSITE PARTIES **** /6/ 23.02.2011 Heard the counsel for the parties. 2. This criminal miscellaneous application has been filed for quashing the order, dated 18.02.2009, passed by Shri Rakesh Malvia, Judicial Magistrate, 1st Class, Begusarai, in Cheri Bariarpur P.S. Case No. 13 of 2002 (G.R. No. 396 of 2002 Trial No. 1792 of 2009), by which has refused to withdraw the prosecution under Section 321 of the Criminal Procedure Code against the accused, Sukeshwar Manjhi. 3. A first information report was lodged for offence under Section 409 of the Penal Code bearing Cheri Bariarpur P.S. Case No. 13 of 2002 on the complaint of erstwhile Chairman of Begusarai Chhetriya Gramin Bank, 2 alleging therein that petitioner, Sukeshwar Manjhi, has defalcated the amount deposited by the account holders and misappropriated the same without entering the same in Bank’s register and ledger account and, hence, committed fraud and forgery for which he has been suspended on 16.02.2002 he has not handed over charge to person posted in his place and not allowed to open the Branch. 4. On the first information report the investigation proceeded and charge sheet was submitted for offence under Sections 409, 467, 468 and 120B of the Penal Code. The departmental enquiry also proceeded and the charge of misappropriation was held proved by the disciplinary authority and Sukeshwar Manjhi was dismissed from Begusarai Chhetriya Gramin Bank’s service on 25.06.2005. Sukeshwar Manjhi preferred appeal against dismissal to the appellate authority, the Board of Begusarai Chhetriya Gramin Bank. The Board set aside the order of dismissal in term “the Court case/first information report filed by Sri Sukeshwar Manjhi, Officer, against Bank and Bank against him may be withdrawn/settled/quashed”. In that respect the Chairman of the Board requested the District Magistrate to take 3 appropriate step for withdrawal of case against Sri Sukeshwar Manjhi and direction be given to the Public Prosecutor. 5. The petition was filed under Section 321 of the Criminal Procedure Code in Tr. No. 1792 of 2009 to withdraw the case by the In-Charge Public Prosecutor on the direction of District Magistrate vide it’s letter no. 523, dated 27.03.2008, to withdraw the case. The matter even communicated to the A.P.O. of the Court, concerned, who was In-Charge of the case to do needful, but, A.P.O. rather filed a petition that this Court can not withdraw the case as per Government’s letter, dated 30.03.1986. The petition filed to withdraw the case under Section 321 of the Criminal Procedure Code by In-Charge Public Prosecutor was on the ground that District Magistrate has directed to take step for withdrawal of the case and from the supervision note of Dy. S.P., during investigation mentions that Sukeshwar Manjhi appears to be innocent and letter of S.D.P.O. states that there was no misappropriation and account holder has filed affidavit that there is no misappropriation and charge sheet submitted showing Sukeshwar Manjhi absconding and 4 dismissal of Sukeshwar Manjhi has been set aside in departmental appeal and was reinstated. However, a separate petition filed on 20.09.2008 by the A.P.O. In- Charge of the Court that this case can not be withdrawn as per letter, dated 30.03.1986. 6. However, taking into consideration the petition for withdrawal, the learned Magistrate, by the impugned order, rejected the petition under Section 321 of the Criminal Procedure Code for withdrawal on the ground that case lodge for offence under Section 409 of the Penal Code, charge sheet submitted under Sections 409, 467 and 468 of the Penal Code, cognizance has been taken and trial has proceeded against co-accused after framing of charge, but, for absence of Sukeshwar Manjhi his case had been bifurcated from original record. As per first information report Sukeshwar Manjhi is the main accused. The petition to withdraw the case has been filed in pursuance of letter addressed to the District Magistrate to withdraw the case and not on merits of the case as A.P.O. posted in the Court, who is In-Charge of the case has opposed the withdrawal of prosecution against accused and, hence, rejected the petition under Section 321 of the Criminal 5 Procedure Code. 7. The learned counsel for the petitioner submits that a petition had been filed by In-Charge Public Prosecutor and, there is nothing wrong in recommending the withdrawal of the case by the Chairman when suspension of petitioner revoked and found nothing severe against the petitioner. Hence, impugned order passed without proper application of mind. 8. The learned counsel for the opposite party no. 2 appeared and, however, filed counter affidavit and submitted that petitioner lodged the case under Section 409 of the Penal Code by Begusarai Chhetriya Gramin Bank bearing Cheri Bariarpur P.S. Case No. 13 of 2002 and in departmental proceeding the petitioner found guilty and was dismissed and on appeal the punishment of dismissal was repealed with other punishment though decision taken to withdraw the case. 9. Hence, on respective submissions of the parties the question for consideration is that whether the impugned order suffers from any illegality and is sustainable. 10. The matter concerns with withdrawal of case 6 initiated against the petitioner for defalcation of the public money for which first information report lodged and after investigation charge sheet had been submitted and cognizance taken for offence under Section 409 of the Indian Penal Code. It is relevant to quote Section 321 of the Criminal Procedure Code. 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 the prosecutor in-charge of the case to withdraw from prosecution ………………………………………………….” Hence, Section 321 of the Criminal Procedure Code needs three requirements : (i) Application should be filed by P.P. or A.P.O., who is competent to make an application. (ii) He must be In-Charge of the case (iii) The application should get the consent of the 7 Court before which the case is pending. 11. However, the fact of the case that during the pendency of the case the A.P.O. was In-Charge of the case. The Board requested the District Magistrate to withdraw the case. On the direction of District Magistrate in pursuance of the request of Board the Public Prosecutor, filed the petition under Section 321 of the Criminal Procedure Code to withdraw the case. 12. Now the question is whether on a petition is filed by the Public Prosecutor, In-Charge, whether the Court can refuse to withdraw and further what are the ground for withdrawal and what the Court should consider for withdrawal and whether the Court has discretion to refuse consent. 13. Hence, question for consideration what are the limitation for filing petition under section 321 of the Criminal Procedure, i.e., the ground on which a petition under Section 321 of the Criminal Procedure Code can be filed and what the Court should consider for granting or refusing consent. 14. The question is whether the Court has discretion at all to refuse consent to withdraw the 8 prosecution on petition of Public Prosecutor. If the answer is yes, I am afraid it will hit by unreasonableness and strict violation of Article 14 of the Constitution as held in A.I.R. 1987 S.C., 877 (Sheo Nandan Paswan Vrs. State of Bihar & Ors.). Hence, the question is what are the ground on which Public Prosecutor or A.P.P. can apply for withdrawal and, further, what are the considerations which must weight with the Court in granting or rejecting petition under Section 321 of the Criminal Procedure Code. This has been answered in decision reported in A.I.R. 1987 S.C., 877 (supra). It has been held that Public Prosecutor can apply for withdrawal on legitimate grounds which are relevant to public justice. It is not proper that Public Prosecutor file the petition on direction of District Magistrate or any authority, but, it is entirely discretion of the Public Prosecutor. The Public Prosecutor must apply it’s own mind. It has, further, been held that withdrawal on the ground of lack of evidence required to be tested whether material available in touch stone of Section 239 of the Criminal Procedure Code and, further, petition by the A.P.P. is not all but the Court also required to apply it’s mind on material connecting of the police 9 report and document sent with Section 173 of the Criminal Procedure Code and it has to decide whether to grant such consent or not as granting or refusing consent is judicial function. The Court has to exercise it’s judicial discretion. If the Court satisfied that the executive function of the Public Prosecutor has not been improperly exercised and is legitimate ground in furtherance of public justice can give consent to withdraw. The discretion has not to be exercised mechanically or as mere formality. 15. Hence, having laid down the law I proceed to consider the submission in the light of touch stone of the law laid down by Apex Court as well as under Section 321 of the Criminal Procedure Code. 16. However, the admitted fact as appeared from the impugned order that a petition was filed by Public Prosecutor though the A.P.O. of the Court was the In- Charge of the case, but, A.P.O. the In-Charge of the case, did not file any petition to withdraw the case. The Public Prosecutor filed the petition to withdraw the case making out the averment in supervision note and direction of the District Magistrate in pursuance of the decision of the Board in appeal. However, the petition under Section 321 10 of Criminal Procedure Code on direction of the District Magistrate in pursuance of the decision of Board is erroneous consideration. Further, taking into consideration Section 321 of the Criminal Procedure Code it is clear that application should be filed by Public Prosecutor or A.P.P., who is competent and he must be In- Charge of the case. Moreover, admittedly, in the present facts and circumstances of the case the Public Prosecutor was not In-Charge of the case and it is apparent from record that A.P.O. was In-Charge of the case and, hence, the basic requirement of Section 321 of the Criminal Procedure Code, itself, has not been fulfilled, thus, fact is mentioned in impugned order that A.P.O. posted in Court and In-Charge of the case has opposed the withdrawal. It is stated in the petition by Public Prosecutor for withdrawal itself that petitioner is in no way related with the present case, but, opposite party no. 2 in counter affidavit has stated that punishment of dismissal of petitioner was replaced with other punishment and, hence, contention that petitioner is not related with prosecution case falls to ground. Further, the withdraw on ground of averment in supervision note and affidavit of the account 11 holder which is not required to be seen even at the stage of discharge. The learned Court below took into consideration the fact germane to issue that charge sheet submitted and cognizance taken on consideration of prima facie case as well as petition not filed by the A.P.O. In- Charge of the case who is, in fact, opposing the move, hence, not fulfilled the condition of Section 321 of the Criminal Procedure Code. 17. Hence, when petition for withdrawal neither fulfill the basic requirement that petition be filed by the A.P.O. In-Charge of the case nor fulfill the public interest to withdraw the case and, hence, I do not find any merit to interfere with the order and, hence, the petition is dismissed. S.A. ( Gopal Prasad, J.)