Crl. Misc. No.M-9129 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on: December 24, 2010. Crl. Misc. No.M-9129 of 2009. Anil Kabotra .. Petitioner VERSUS State of Punjab and another . Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.J.S.Bedi, Advocate, for the petitioner. Ms.Gagan Mohini, AAG., Punjab. Ms.Ritu Punj, Advocate, for respondent No.2. *** M.M.S. BEDI, J. The petitioner is aggrieved by the order dated 15.03.2007, Annexure P-17, and order dated 29.02.2008, Annexure P-18, passed by the Sub Divisional Judicial Magistrate, Pathankot and the Additional District Judge, Gurdaspur, respectively, dismissing the application of Additional Public Prosecutor for withdrawal of prosecution against the petitioner under Section 498-A IPC. . . . 1 Crl. Misc. No.M-9129 of 2009 Briefly stated, the facts relevant for the adjudication of the present petition, are that the petitioner is more than 60 years old Ex-Army Officer. He was booked in a case under Section 498-A IPC, after 13 years of his marriage at the age of 43 years as a serving Lieutenant Colonel. After marriage, a daughter was born on 22.06.1991. After seeking voluntarily retirement in September 1992, he along with his wife settled at Pathankot. Counsel for the petitioner claims that he was assaulted on 30.10.2002 and his wife moved to her parental house along with all the money and jewellery and other valuable articles. She took away the keys of the bank locker also and had taken out money and jewellery from the joint locker account on 31.10.2002. On 12.04.2003, his wife Neeta Kabotra filed a complaint with the Senior Superintendent of Police, Gurdaspur. With the influence of family members, FIR No.104 dated 27.05.2003, was registered under Section 498-A IPC, at Police Station, Division No.1, Pathankot. He was arrested on the same day and possession of his house was taken by his wife and her brother in connivance with the police. The petitioner claims that he had approached Punjab State Human Rights Commission on 01.08.2003 and the Human Rights Commission on 02.12.2003, ordered that no further action should be taken in the FIR. An enquiry was conducted by SP Kanwar Vijay Partap Singh Rana of IVC, vide his enquiry dated 04.11.2003. Cancellation of FIR was recommended observing that wife of the petitioner and her family members had falsely implicated the . . . 2 Crl. Misc. No.M-9129 of 2009 petitioner in the case but despite that the challan was presented by ASI Anil Kumar. The the Superintendent of Police, Pathankot, moved an application before the Sub Divisional Judicial Magistrate, Pathankot, on 25.10.2004, for withdrawal of the challan in FIR No.104. The challan was returned by the Sub Divisional Judicial Magistrate, Pathankot, vide order dated 28.10.2004, Annexure P-7. The Additional Director General of police vide order dated 14.10.2004, had directed vide letter Annexure P-8, that challan should not be filed in the Court. During pendency of the challan, the petitioner had also obtained a stay from the office of Director General of Police, Punjab, vide letter dated 14.10.2004, addressed to the Senior Superintendent of Police, Gurdaspur. Despite their being the restraint orders of senior police officials, the police again presented another challan identical to the first challan on 21.04.2005. The second challan submitted is verbatim the copy of the first challan which had been returned on 28.10.2004. A copy of the challan along with notings has been placed on record, as Annexure P-9. The charges were framed against the petitioner on 08.10.2005. The District Attorney, Gurdaspur, recommended withdrawal from the prosecution vide his recommendation Annexure P-13, dated 30.03.2006. Vide order Annexure P-14, dated 23.10.2006, the District Magistrate, Gurdaspur, on the basis of the recommendation of the Senior Superintendent of Police, Gurdaspur, granted his approval to withdraw the case FIR No.104 dated 27.05.2003, against the petitioner. On the basis of the order of the . . . 3 Crl. Misc. No.M-9129 of 2009 District Magistrate, Gurdaspur, an application under Section 321 Cr.P.C., was filed by the Assistant P.P., in the Court of Sub Divisional Judicial Magistrate, Pathankot. The said application under Section 321 Cr.P.C., for withdrawal from prosecution was dismissed by the Court of Sub Divisional Judicial Magistrate, Pathankot, vide order dated 15.03.2007 vide Annexure P17. The revision preferred by the petitioner against the said order was also dismissed by the Court of Additional Sessions Judge, Fast Track Court, Gurdaspur on 29.02.2008. The application for withdrawal of prosecution was contested by the complainant on the ground that the application under Section 321 Cr.P.C., was not result of any independent application of mind by Public Prosecutor and that he had simply stated that the District Magistrate had ordered to withdraw the prosecution. The withdrawal is not in order to further public interest. It was submitted that there are contradictory findings in various enquiries, for which no benefit can be granted to the petitioner- accused. A perusal of the order passed by the Additional Sessions Judge, Gurdaspur, affirming the order of dismissal of the application under Section 321 Cr.P.C., indicates that the following reasons have been given while dismissing the application under Section 321 Cr.P.C., by the Courts below: - “(i) The application under Section 321 Cr.P.C., is not maintainable for withdrawal of prosecution after framing of charges; . . . 4 Crl. Misc. No.M-9129 of 2009 (ii) No public interest will be served by withdrawing from the prosecution whereas the complainant has levelled the allegations of cruelty against the petitioner and she has appeared in the Court for the said purpose; (iii) The petitioner has also got registered a case against his wife Neeta Kabotra, in the shape of private complaint which is pending and that during the pendency of the criminal case filed by the accused against his wife Neeta Kabotra, the prosecution cannot be allowed to withdraw the present case.” On the other hand, counsel for the respondent No.1-complainant has put in appearance and stated that this petition was filed in the year 2009 and during the pendency of the petition, the evidence of the complainant and other witnesses stand already recorded and the case is at final stage. It will not be appropriate, at this stage, to allow the application under Section 321 Cr.P.C. I have heard the counsel for the petitioner as well as the counsel for the complainant and considered the facts and circumstances of the case in view of the law laid down in Abdul Karim Vs. State of Karnataka, 2000(4) RCR (Crl.), page 688. The law regarding the withdrawal of prosecution stands settled in Sheo Nandan Paswan Vs. State of Bihar and others, AIR, 1987, SC, 877. In the said case, it has been held that . . . 5 Crl. Misc. No.M-9129 of 2009 a Magistrate is not required to pass a reasoned order nor to assess evidence to discover whether the case would end in conviction or acquittal. The initiative is that of the Public Prosecutor and the Court has only to give its consent and not to determine any matter judicially. The judicial function implicit in the exercise of judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with normal course of justice for illegitimate reasons or purposes. According to the said judgment, in an application under Section 321 Cr.P.C., it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. The Court's function is to give consent. According to Section 321 Cr.P.C., the Court function is to give consent and it is not obligatory for the Court to record reasons before consent is given. In the said judgment, it was also observed that it does not mean that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its discretion by considering such materials and on such considerations either gives consent or declines consent. It has also been held in the said case that Section 321 Cr.P.C., should not be construed to mean that Court has to give a detailed reasoned order when it gives consent. The judgment in Sheo Nandan Paswan's case (supra) has been followed by this Court in Ranjit Kaur Vs. . . . 6 Crl. Misc. No.M-9129 of 2009 Manwinder Singh and others, 2004 (1) RCR (Crl.), Page 706, in which withdrawal of prosecution under Section 498-A IPC, passed by the Magistrate was challenged in the High Court. It was held that the withdrawal of case from the prosecution is an executive function of Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. The Court is required to satisfy that an executive function has been properly exercised. The Court is not to assess the evidence to discover whether the case would end in conviction or acquittal. Section 321 Cr.P.C., does not obligate the Court to record reasons before consent is given. Similar is the ratio of judgment of Hon'ble the Apex Court in Abdul Karim's case (supra). Application under Section 321 Cr.P.C., requires that the Public Prosecutor has, in good faith, satisfied, on consideration of all relevant material that the withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. Counsel for the complainant has stated that as per the judgment in Abdul Karim's case (supra), Court has to exercise supervisory authority and the Court should ensure that application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. It is pertinent to observe here that in Abdul Karim's case (supra), the application for withdrawal of the TADA case against the accused and his associates was allowed by the designated Court but the High Court had set aside the order of withdrawal of prosecution taking into . . . 7 Crl. Misc. No.M-9129 of 2009 consideration that the accused and his associates were responsible for committing 119 murders and other cases of kidnapping and smuggling. The accused was a renowned criminal named Veerapan. In Swaranjit Kaur Bajwa Vs. State of Punjab, 2008 (4) RCR (Crl.), page 792, it was held that while contesting an application under Section 321 Cr.P.C., the Court's duty is not to appreciate the grounds which have prompted the Public Prosecutor to seek withdrawal but only to consider and see that he has applied his mind as free agent, uninfluenced by irrelevant and extraneous considerations. The main contention of counsel for the complainant, in this case, is that the petitioner has treated the complainant with cruelty. There are serious allegations of assault against him and that the evidence has already been led during pendency of this petition, as such, the case should be decided on merits and the further proceedings in the trial should not be curtailed by misuse of the provisions of Section 321 Cr.P.C. After hearing the counsel for the petitioner as well as the counsel for the complainant, I am of the opinion that the law regarding withdrawal of cases by Public Prosecutor under Section 321 Cr.P.C., has been well settled in R.K.Jain Vs. State through Special Police Establishment, AIR, 1980, SC, 1510, and Sheo Nandan Paswan's case (supra). According to the said judgments, the law regarding Section 321 Cr.P.C., can be summed up as follows: - . . . 8 Crl. Misc. No.M-9129 of 2009 “(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. (8) The Court's duty is not to reappreciate the ground's which led the Public Prosecutor to request withdrawal from the prosecution but to consider . . . 9 Crl. Misc. No.M-9129 of 2009 whether the Public Prosecutor applied his mind as a free agent, uninfluenced by 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.” It is settled principle of law and even a bare reading of Section 321 Cr.P.C., suggests that Section 321 Cr.P.C., gives Public Prosecutor, the power to withdraw any case, at any stage before judgment is pronounced. This pre-supposes the fact that the entire evidence may have been adduced in the case before the application is made. When an application under Section 321 Cr.P.C., is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. It is necessary that the withdrawal should be in public interest and there has to be a proper approval of the Government. In the present case, Annexure P-14, is the order of District Magistrate, Gurdaspur, regarding the approval of withdrawal of the case. On the basis of Annexure P-14, the Additional Public Prosecutor had filed an application for withdrawal of the prosecution specifically mentioning in the application that it was in the interest of justice and that withdrawal application was being filed after application of mind by the District Magistrate. The Courts below have rejected the application under Section 321 Cr.P.C., on the ground that the statement of the complainant had been recorded and she had been cross-examined . . . 10 Crl. Misc. No.M-9129 of 2009 also. Another reason for rejection of application under Section 321 Cr.P.C., is that charge has been framed and the prosecution evidence had been recorded. The Courts below have also touched the merits of the case to form an opinion that the Public Prosecutor did not apply his mind whether moving of application is in public interest or not. The rejection of application for withdrawal from prosecution is not appropriate, as such, the orders passed by the Sub Divisional Judicial Magistrate, Pathankot and the Additional Sessions Judge, Gurdaspur vide orders dated 15.03.2007 and 29.02.2008, respectively are hereby set aside. This order will, however, not prejudice the rights of the complainant to avail any other independent remedy available to her in accordance with law and also will not prejudice the rights of the parties in other litigation pending between the parties. Disposed of. (M.M.S.BEDI) JUDGE December 24, 2010. rka . . . 11