IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE B.RAJENDRAN Writ Appeal No.2649 of 2001 1.The Secretary to Government, Public Department, (L&O-D.O) Government of Tamil Nadu, Madras-9. 2.The Sub Inspector of Police, Karumalaikoodal, Namakkal Taluk, Salem District ... Appellants/Respondents 1 & 2 vs. 1.P.Rajamani Ammal, Proprietrix, Ramesh Metal Works, Gonur Post, Mettur Dam. 2.Jaganathan 3.Asainayagam 4.Thangavelu 5.Irusappan 6.Manickam 7.Raj 8.Sekar 9.Marimuthu 10.Ramaswamy 11.Mathivanan 12.Thamaraiselvan 13.Palanisamy ... Respondents(Petitioner and Respondents 3 to 14) Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.no.4912 of 1990 dated 16.03.2001. W.P.No.4912 of 1990: Petition presented to this Court to issue a writ of certiorarified mandamus calling for the records in G.O.Ms.No.1873, Public (L&O -OS) dated 21.11.1989, of the 1st respondent and quash the said GO as it is illegal and inoperative and is vitiated by an error apparant on face of the accord so far as https://hcservices.ecourts.gov.in/hcservices/ it may relate to the withdrawal of the Criminal Complaint in Crime No.544 of 1988 of Karumalaikoodal Police Station, Namakkal Taluk, Salem District, which was pending on the file of the Judicial Second Class Magistrate, Mettur, Salem District and further directing the 1st and 2nd respondents to proceed with the investigation and prosecution of the offences complained in the said case. For Appellant : Mr.M.Dhandapani, Spl. Government Pleader (W) For Respondents : Mr.S.A.Rajan for R1 JUDGMENT R.BANUMATHI,J This Writ Appeal arises out of the order in W.P.No.4912 of 1990 whereby the learned single Judge quashed the G.O.Ms.No.1873 public (L&O-D.O) dated 21.11.1989 whereby Government withdrew the case registered against the labourers in Crime No.544/1988 of Karumalaikoodal Police Station and ordered payment of compensation of Rs.50,000/- to the 1st Respondent. 2. Brief facts are that 1st Respondent is the Proprietrix of Ramesh Metal Works. Ramkumar is her son. In 1988 there was labour strike and the factory was closed. Only few loyal employees were attending the work. Case of 1st Respondent is that on 26.10.1988, one Subramaniam was returning to the Company in the jeep bearing registration No.TAL 1000 and at about 9.00 P.M., near the factory of Netchem Silicon Company gate, the striking employees stopped the jeep and they assaulted Subramaniam and also alleged to have set fire on the jeep. Regarding the incident, criminal case in Crime No.544/1988 under Secs.147, 341, 323, 427 and 435 IPC was registered. On completion of investigation, charge sheet was filed under Secs.147, 341, 323, 435 r/w.149 IPC before Judicial Magistrate No.II, Mettur on 31.03.1989 against Respondents 2 to 13 and the same was taken on file as R.C.No.99 of 1989. 3. To ensure industrial peace and amity in the factory, cases registered against the labourers were decided to be withdrawn. The Superintendent of Police, Special Branch, CID had sent his follow up action on the announcement made by Minister for Labour and details of 42 cases registered throughout Tamil Nadu. The Government issued G.O.Ms.No.1873, Public (L&O-D.O) Department dated 21.11.1989 withdrawing 31 cases including Crime No.544/1988 of Karumalaikoodal Police Station. https://hcservices.ecourts.gov.in/hcservices/ 4. 1st Respondent filed Writ Petition seeking Writ of Certiorarified Mandamus to quash G.O.Ms.No.1873 Public (L&O-D.O) dated 21.11.1989, so far it relates to withdrawal of criminal complaint in Crime No.544 of 1988 of Karumalaikoodal Police Station and to direct the Appellants to proceed with the investigation and prosecute the offenders. 5. The learned single Judge held that the Memo filed by the Public Prosecutor did not show that there are bleak chances for the prosecution to succeed and the prosecution was not able to produce evidence for sustaining the charges. Learned single Judge further held that the Judicial Magistrate No.II, Mettur has also not considered whether Assistant Public Prosecutor has applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration and learned single Judge further observed that the Assistant Public Prosecutor and the Judicial Magistrate No.II, Mettur have not acted in conformity with the law laid down by the Supreme Court in Rajender kumar's case [AIR 1980 SC 1510]. Learned single Judge observing that in the case of quashing the impugned order due to efflux of time, it may be impossible for the 1st Respondent to prosecute the matter and ordered compensation of Rs.50,000/- for the value of the jeep estimated by the Fire Service. 6. Challenging the order of learned single Judge, Mr.Dhandapani, learned Special Government Pleader submitted that after proper application of mind and to ensure industrial peace, Government has withdrawn the cases and that would not amount to non- application of mind. It was further submitted that when there was no prayer requesting for compensation and when there was no malafide in withdrawing the criminal case, State exchequer cannot be over burdened by award of compensation especially when there was no prayer for the same in the Writ Petition. 7. Contention of 1st Respondent is that before withdrawing the case from the prosecution, notice ought to have been given to the defacto complainant. Learned counsel for 1st Respondent submitted that even if the impugned order is quashed due to efflux of time, it may not be possible for the 1st Respondent to prosecute the offenders and having regard to the passage of time, learned single Judge rightly ordered compensation of Rs.50,000/- for the value of the jeep set on fire in the incident and the impugned order does not warrant any interference. 8. In the impugned G.O.Ms.No.1873, Public (L&O-D.O) Department dated 21.11.1989, Government has observed that the General Secretary, Hosur Ashok Leyland Workers Progressive Union in the representation dated 20.02.1989 has requested for withdrawal of case registered in SIPCOT Police Station Crime No.133/1986. The Superintendent of Police, SB CID, Madras has furnished the https://hcservices.ecourts.gov.in/hcservices/ particulars of pending cases filed by the Police against the labourers in connection with labour agitation throughout the State. Question of withdrawal of 31 cases was considered by the Government and as a gesture of goodwill, Government have decided to withdraw 31 cases in G.O.Ms.No.1873, Public (L&O-D.O) Department dated 21.11.1989. In the Annexure, case in Crime No.544/1988 of Karumalaikoodal Police Station finds place at Sl.No.30. As pointed out earlier, on 01.03.1990, the Assistant Public prosecutor has filed a Memo for withdrawing the case in Crime No.544/1988 of Karumalaikoodal Police Station and the order of the Judicial Magistrate No.II, Mettur in R.C.No.99 of 1989 [23.3.1990] reads as under:- "Learned Public Prosecutor has filed a memo for withdrawing this case. The F.I.R. in this case is therefore closed" 9. In AIR 1977 SC 2265 [Balwant Singh v. State of Bihar], the Supreme Court held that the sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is the larger factor of the administration of Justice and not political favours nor party pressures nor like concerns. Of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. It was further held that the court has to be vigilant when a case has been pending before it and not succumb to excessive suggestion made in the form of application for withdrawal. 10. In 1990 Writ L.R. 316 [Meera Nireshwalla v. State of Tamil Nadu] and in other decisions viz., (1972) 1 SCC 318 [M.N.Sankarayanan Naidu v. P.V.Balkrishnan]; (1976) 4 SCC 250 [State of Orissa v. Chandrika Mohapatra]; AIR 1977 SC 2265 [Balwant Singh v. State of Bihar]; (1980) 2 SCC 155 [Subash Chander v. State (Chandigarh Administration)], the Supreme Court had an occasion to consider the legality of withdrawal of prosecution in number of decisions and the Supreme Court summed up the propositions of functional dichotomy of the Public Prosecutor and the Court in the matter of withdrawal from prosecution which are extensively quoted in the order of learned single Judge. 11. Decision of the Central Government to instruct the public prosecutor to file a Petition for withdrawal should be based upon some genuine source of information. The Government must have reasons for its decision and must apply its mind before instructing the Public Prosecutor. In this case, Government had taken its decision based on the letter from the General Secretary, Hosur Ashok Leyland Workers Progressive Union requesting for withdrawal of case in SIPCOT Police Station Crime No.133/1986. The Superintendent of Police, SB CID has furnished the particulars of pending cases. Upon consideration, Government has decided to withdraw the prosecution. https://hcservices.ecourts.gov.in/hcservices/ 12. If really, 1st Respondent was aggrieved by the order of withdrawal from prosecution, the same cannot be challenged by invoking Article 226 of Constitution of India. The order ought to have been challenged by way of Revision and not by invoking Article 226 of Constitution of India. Grievance of the 1st Respondent is that before withdrawal from prosecution, no notice was issued to the 1st Respondent and therefore, there was violation of principles of natural justice. Sec.321 of Cr.P.C. does not contemplate any notice to the complainant for withdrawing the prosecution. The complainant can challenge the Government decision by way of Revision under Sec.397 Cr.P.C. subject to certain considerations by showing showing any non-compliance with the requirements of the Section. Observing that as against the order made in an application filed under Sec.321 Cr.P.C., Revision alone will lie, in (1987) 1 SCC 288 [Sheonandan Paswan v. State of Bihar and others], the Supreme Court held that there is no appeal provided by the Act against an order giving consent under Section 321, but the order is revisable under Section 397 of the Criminal Procedure Code, Writ Petition filed under Article 226 of Constitution of India is not maintainable. 13. State is the master of litigation in the criminal cases. Withdrawal from the prosecution is an executive function of the Public Prosecutor. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence, but on other relevant grounds as well as in order to further the broad ends of public justice, public order and peace. 14. Public Prosecutor is an Officer of the Court and responsible to the Court. The Court performs a supervisory function in granting consent to the withdrawal. Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from prosecution but to consider whether he applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. 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 prompted the Public Prosecutor to withdraw from the prosecution. Reasons for withdrawal must satisfy the judicial conscience of the Court. Granting sanction is a judicial function. It does not follow that the discretion is to be exercised only with reference to the materials gathered by the judicial method. Executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the course of justice for illegitimate purposes. The order extracted above in Paragraph (8) does not indicate that the executive function of the Public Prosecutor has been properly exercised. 15. As pointed out earlier, since the order of the Court extract in Paragraph (8) does not indicate that the Court appraised https://hcservices.ecourts.gov.in/hcservices/ itself of the reasons which prompted the Public Prosecutor to withdraw from the prosecution case the order suffers from illegal infirmity. Writ Petition filed under Article 226 of Constitution of India challenging the order of withdrawal is not maintainable, since the Public Prosecutor himself has submitted that withdrawal of case against the workmen of 1st Respondent-Ramesh Metal Works suffers from illegal infirmity, we do not propose to deal with this matter further. Suffice it to note, the Writ Petition filed under Article 226 of Constitution is not maintainable. 16. Pointing out that the jeep bearing registration No. TAL 1000 belonging to the 1st Respondent was burnt and that the value of the damages was estimated by the Fire Service at Rs.80,000/- and following the decision in 1990 Writ LR 316 [Meera Nireshwalla v. State of Tamil Nadu], the learned single Judge directed the State to pay compensation of Rs.50,000/-. The order of learned single Judge directing compensation of Rs.50,000/- cannot be sustained. As such there was no prayer in the Writ Petition for award of compensation for the damages caused to the jeep in the incident. As rightly submitted by the learned Special Government Pleader, in the absence of any malafide in withdrawing the prosecution, the State exchequer cannot be burdened with such compensation amount and the order of learned single judge ordering compensation of Rs.50,000/- is liable to be set aside. 17. In the result, the order of learned single Judge in W.P.No.4912/1990 dated 16.03.2001 is set aside and the Writ Appeal is allowed. No costs. bbr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Secretary to Government, Public Department of Tamilnadu, (L&O-D.O) Government of Tamil Nadu, Madras-9. 2. The Sub Inspector of Police, Karumalaikoodal, Namakkal Taluk, Salem District BV(CO) SR/14.7.2010 Judgment in W.A.No.2649/2001 https://hcservices.ecourts.gov.in/hcservices/