1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL REVISION APPLICATION NO. 210 of 2010 PURUSHOTTAM KISANRAO BHAGAT ..VERSUS.. STATE OF MAHARASHTRA, THROUGH P.S.O., P.S., UMARKHED, DIST. YAVATMAL & 2 OTHS. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. J. B. Kasat, Advocate for the applicant. Mr. Bhagwan M. Lonare, A.P.P. for respondent no.1. Mr. S. B. Ahirkar, Advocate for respondent no.2. Mr. Anil S. Mardikar, Advocate for respondent no.3. CORAM : PRASANNA B. VARALE, J. CLOSED FOR ORDERS ON : 03rd MARCH, 2011. ORDER PRONOUNCED ON : 21st NOVEMBER, 2011. 1. Heard Mr. J. B. Kasat, the learned counsel for the applicant, Mr. Bhagwan M. Lonare, the learned Additional Public Prosecutor for respondent no.1, Mr. S.B. Ahirkar, the learned counsel for respondent no.2 and Mr. Anil S. Mardikar, the learned counsel for respondent no.3 2. Being aggrieved by the order, passed by the learned Ad-hoc Additional Sessions Judge, Pusad, dated 29.04.2010, on an application Exh.53 filed under Section 321 of the Code of Criminal Procedure for withdrawal of Sessions Trial No.95/1999 in Crime No.68/1998, the present revision application is filed by the applicant. 3. The brief facts giving rise to the present revision 2 application can be stated thus : Crime No. 55/1998 was registered at Police Station, Umarkhed on the basis of First Information Report lodged by one Shri Ashok Gawande. The complainant Ashok Gawande, while travelling in the State Transport bus, found that his property i.e. mixer was missing and made complaint to the applicant, who was on duty at the relevant time along with one Abdul Rab, a Traffic Constable. On a search conducted, the missing mixer was found with one Uttam Muneshwar. The said Uttam Muneshwar was arrested and taken in custody. One Shri B. R. Khandare, was the In-charge Officer of Police Station, Umarkhed at the relevant time. Though, Uttam Muneshwar was in hale and hearty condition when lodged in police custody, found dead in suspicious circumstances hanging with a torn piece of blanket. A.D. No. 19/1998 was registered at Police Station, Umarkhed. Respondent no.3 – Mukund Kewale, Dy.S.P., Crime, Yavatmal took over the investigation and investigated the matter. During the investigation, it was revealed that Uttam Muneshwar was beaten by the applicant and Abdul Rab and therefore, he committed suicide by hanging in the police lock-up. He, therefore, registered Crime No. 68/1998 against the applicant and Abdul Rab for the offence punishable under Sections 330 and 306 read with Section 34 of Indian Penal Code. On conclusion of the investigation, respondent no.3-Mukund Kewale, Dy.S.P. filed Charge-sheet in the Court of Judicial Magistrate, First Class, Umarkhed for the offence punishable under Sections 330 and 306 read with Section 34 of Indian Penal Code against the applicant and 3 Abdul Rab and subsequently, the case was committed to the Court of Sessions, Pusad and registered as Sessions Trial No. 95 of 1999. 4. The father of deceased Uttam Muneshwar, being dis-satisfied with the investigation, filed Criminal Writ Petition No.266/1999 before this Court and this Court, by the order dated 27.01.2000, entrusted the investigation of custodial death of Uttam Muneshwar to the Central Bureau of Investigation. The C.B.I, SCB, Mumbai investigated Crime No. 68/1998 and in its investigation, charge-sheeted 17 accused persons including respondent no.3 (who is accused no.17 in the charge-sheet filed by CBI). In the said charge-sheet, the offences alleged against the accused persons are under Section 109, 114, 118, 217, 218, 201, 302 read with Section 34 of Indian Penal Code and subsequently, Sessions Trial No.110/2003 came to be registered, which is pending. 5. It is alleged that the applicant and Abdul Rab have not conducted the investigation in proper manner and a deliberate attempt was made to save the police personnel of Umarkhed Police Station, who are the real culprits for the offence. The applicant, being aggrieved by the charge-sheet filed by the CBI vide S.T. No. 110/2003, preferred Criminal Writ Petition No. 273/2007 seeking quashment of the proceedings in S.T. No.95/1999 out of the same Crime No.68/1998. On the basis of letter dated 22.09.2009, sent by the Special Inspector General (Crimes), State C.I.D., Maharashtra State, Pune, the 4 Joint Secretary, Home Department, Mantralaya, Mumbai by a communication dated 24.09.2008 granted permission to the Spl. I.G. of Police (Crimes), Pune to take necessary steps for withdrawal of the prosecution in Sessions Trial No.95/1999. Accordingly, the learned Additional Public Prosecutor, Pusad moved an application (Exh.53) under Section 321 of the Code of Criminal Procedure seeking permission to withdraw the case and the learned 4th Ad-hoc Additional Sessions Judge, Pusad by order dated 03.12.2008 allowed the application (Exh.53). The Revision Application being No.141/2009 filed by respondent no.3 against the order dated 03.12.2008, was partly allowed by this Court vide judgment dated 22.02.2010 and the impugned order dated 03.12.2008 passed by the learned Ad-hoc Addl. Sessions Judge, Pusad was quashed and set aside and the proceedings of the application (Exh.53) were remitted to the Ad- hoc Addl. Sessions Judge, Pusad for fresh hearing and disposal by giving an opportunity of hearing to the parties. 6. In view of the directions of this Court vide Judgment dated 22.02.2010, the learned Ad-hoc Additional Sessions Judge, Pusad, after giving an opportunity of hearing to the parties, decided the application (Exh.53) vide order 29.04.2010, thereby rejecting the application (Exh.53) filed by the learned Additional Public Prosecutor, Pusad seeking permission for withdrawal of the prosecution. The order dated 29.04.2010 is under challenge in the present revision application. 5 7. Mr. Kasat, the learned counsel for the revision applicant, in challenge to the impugned order, submitted that there being two prosecutions in the controversy of custodial death of Uttam Muneshwar in police lock-up, both the prosecutions ought not to have been allowed to be proceeded further. The learned counsel further submitted that the learned Ad-hoc ASJ, Pusad has erred in treating these two cases as counter cases. The learned counsel for the applicant further submitted that the decision taken by the State which resulted into an application seeking permission to withdraw the prosecution, was on the basis of public policy and considering the aspect of public policy, the application for permission to withdraw the prosecution moved by the State ought to have been allowed. The learned counsel for the applicant further submitted that permitting two prosecutions to go on simultaneously would cause substantial prejudice to the applicant. The learned counsel for the applicant has further submitted that the State Government in its conscious decision, which is based on public policy, rightly arrived at a conclusion to seek permission for withdrawal of the prosecution. In support of his submissions, the learned counsel for the applicant has placed reliance on the judgments of the Apex Court, reported in (2005) 2 Supreme Court Cases 377 (Rahul Agrawal .vs. Rakesh Jain and another) and (2006) 10 Supreme Court Cases 473 (Ghanshyam .vs. State of M.P. and others). The learned counsel for the applicant, therefore, prayed for quashing the impugned order. 6 8. I have also heard Mr. Lonare, the learned APP for respondent no.1, Mr.Ahirkar, the learned counsel for respondent no.2 and Mr. Mardikar, the learned counsel for respondent no.3. 9. Mr. Mardikar, the learned counsel for respondent no.3 submitted that the present application preferred by the applicant itself is not tenable. The learned counsel submitted that the application seeking permission to withdraw the prosecution was moved by the State under Section 321 of Cr.P.C., which is rightly rejected by the impugned order dated 29.04.2010 and the aggrieved party would be at the most the State authority. The State has not approached this Court challenging the impugned order and the applicant has no locus to challenge the impugned order. The learned counsel for respondent no.3 submitted that the present application is moved by the applicant invoking the powers under Section 397 read with Section 482 of Cr.P.C. and adoption of such a course is not permissible. Mr. Mardikar, the learned counsel submitted that invocation of powers under Section 482 of Cr.P.C. would be permissible only in the cases where there is no other remedy available and in view of the alternate remedy under Section 397 of Cr.P.C., the present revision application is not tenable. Mr. Mardikar further submitted that apart from tenability of the revision, the view taken by the learned Ad-hoc ASJ, Pusad cannot be termed as either erroneous or perverse and as such, no interference is warranted in the impugned order at the hands of this Court. Mr. Mardikar, the learned counsel for respondent no.3 in support of his submissions, placed reliance on the judgment of the Apex 7 Court reported in AIR 2001 Supreme Court 116, (Abdul Karim etc. .vs. State of Karnataka and others etc.). 10. It is not in dispute that the application (Exh.53) was moved by the Additional Public Prosecutor for withdrawal of the prosecution under Section 321 of Cr.P.C. It would be useful to refer the provisions of Section 321 of Cr.P.C., which reads thus :- 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 Delhi Special Police Establishment Act, 1946 (25 of 1946), or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central 8 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. 11. The law is well settled on the point of withdrawal of prosecution and it is held that while seeking permission for withdrawal from prosecution, the Public Prosecutor has to apply his mind to all the relevant material and has to satisfy that the public interest will be served by withdrawal of the prosecution. It will not be out of place to say that it should be reflected from the application that the Public Prosecutor, on consideration of all the relevant material, arrived at a conclusion that the public interest will be served by withdrawal of the prosecution. The further duty is on the Court while granting the permission to ensure itself that there is application of mind by the Public Prosecutor independently while preferring the application under Section 321 of Cr.P.C. 12. Perusal of the impugned order shows that the material placed on record and more particularly, the application preferred by the State (Exh.53) fall short to reflect that the 9 learned Public Prosecutor has applied his mind independently and satisfied himself for arriving at a conclusion that withdrawal of prosecution is necessary in the public interest. 13. The application (Exh.53) moved by the State only refers to the communication forwarded by the Joint Secretary, Home Department, Mantralaya, Mumbai to the Spl. I.G. (Crimes), Pune and certain facts of the matter. There is nothing in the application (Exh.53) to show that the Public Prosecutor has applied his mind and on such application of mind and satisfying himself, the application was moved. Perusal of the impugned order further shows that the learned Ad-hoc ASJ, Pusad while rejecting the application found that finding of the fact whether the case is of homicidal death or suicidal one, can be arrived at by the full dressed trial. 14. On considering the material, it is observed by the learned Ad-hoc ASJ, Pusad that there is Post Mortem report filed in S.T. No. 95/1999, which shows that the cause of death was due to ‘hanging’, whereas there are witnesses cited in both the cases in regard to the assault on deceased Uttam and it will not be possible at the preliminary stage to arrive at any conclusion, without appreciating the evidence in that respect. The observation of the learned Ad-hoc ASJ that the material evidence in the nature of documentary evidence as well as oral evidence will have to be assessed and that can be done only in the trial, cannot be found fault with. 15. Though, the learned counsel for the applicant has 10 placed reliance on the judgments of the Apex Court in Rahul Agrawal .vs. Rakesh Jain (supra) and Ghanshyam .vs. State of M.P.’s case (supra), in my respectful opinion, these judgments would not be applicable in the present case. 16. In the facts of the present case, it will be useful to refer the judgment of the Apex Court in Abdul Karim’s case (supra), wherein the Apex Court has laid down the tests in the cases of withdrawal of prosecution. The Apex Court observed that - “The law, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. It must therefore follow that the application under S. 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a 11 given case, placed before the Court, with its permission, in a sealed envelope”. In the present case, the application (Exh.53) moved by the learned APP seeking permission for withdrawal of the prosecution is silent on the grounds on which the permission was sought for withdrawal. The only reason stated in the application is the communication sent by the Joint Secretary, Home Department, Mantralaya, Munbai. The similar circumstances were before the Apex Court in Abdul Karim’s case. The application under Section 321 was moved by the Public Prosecutor based on a Government order. Dealing with such situation, the Apex Court observed at paragraph 22 that - “The order on the applications was founded only upon the relevant Government Order, thus : “So far as this case is concerned the Government have passed order to withdraw the TADA case alone as against the accused Venkatesan alias Radio Venkatesan, who is involved in Cr. No. 50/93 and Cr. No. 346/93. As this application has been filed by the learned Special Public Prosecutor on the basis of the Government Order referred above, permission is granted to withdraw the TADA case against the accused Venkatesan alias Radio Venkatesan......” The Order, therefore, was not passed after meeting the requirement of Section 321 and it is bad in law.” 17. In view of the observations of the Apex Court, it is clear that the application (Exh.53) fails to satisfy the test of independent assessment of the material by the Public Prosecutor and his satisfaction. On considering the rival submissions of the learned counsel for the parties and on 12 perusal of the material and in view of the judgment of the Apex Court in Abdul Karim’s case, I am of the opinion that the revision application is devoid of merit and deserves to be rejected. 18. In the result, the revision application is rejected. Steno copy of the order is granted to the parties on payment of necessary charges. JUDGE Diwale