Crl.M.No. M-26637/2010(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.M.No. M-26637/2010(O&M) Date of decision: 21.9.2010. Manjit Singh ....................Petitioner v. State of Punjab .....................Respondents Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.DS Pheruman,Advocate for the petitioner. Jaswant Singh.J. Prayer in the present petition under Section 482 Cr.PC is to quash the order dated 15.6.2010(P5) passed by learned Additional Sessions Judge, Amritsar whereby the application moved by Public Prosecutor for withdrawal from prosecution under Section 321 Cr.PC was dismissed. Admitted facts of the present case are that petitioner is facing trial in case FIR No.38 dated 11.6.2006 under Sections 307, 323, 148, 149 IPC read with Section 25/27/54/59 of the Arms Act, PS Ramdas. The aforesaid FIR was lodged at the instance of complainant Gurdial Singh. Initially, the petitioner was not named in the FIR, however, it is during investigation that his name surfaced. The charges in the aforesaid case have already been framed and even statements of Crl.M.No. M-26637/2010(O&M) 2 some of the witnesses have also been recorded. The present government after coming in power in Punjab took a decision to withdraw the cases arising out of political vendetta. Since the petitioner also alleged that he was falsely implicated in the present case, the matter was enquired into by DSP Ajnala who reported that the case against the petitioner was politically motivated. Thereafter, the matter was processed by various authorities and ultimately Government of Punjab, Home Affairs and Justice Department (Court-I Branch) vide memo dated 23.11.2009 (P3) concurred with the recommendations of District Magistrate, Amritsar to initiate proceedings under Section 321 Cr.PC for withdrawal of the FIR in question. In pursuance thereof, the Additional Public Prosecutor moved an application under Section 321 Cr.PC for withdrawal from prosecution. Complainant filed a protest petition. The learned Additional Sessions Judges, after hearing both sides dismissed the said application vide impugned order dated 15.6.2010. Hence the present petition. Learned counsel for the petitioner has submitted that in the light of provisions of Section 321 Cr.PC, the Public Prosecutor being incharge of the case at any stage of the trial before the judgment is pronounced, can withdraw from the prosecution of any person with the consent of the Court. He further contends that in the present case the Public Prosecutor had rightly moved the application to withdraw the prosecution against petitioner-Manjit Singh and the learned trial Court Crl.M.No. M-26637/2010(O&M) 3 has wrongly assumed the basis that since charge in the present case has been framed and some of the witnesses examined, therefore, dismissed the application of the prosecution. In support he has cited judgment of this Court in Swaranjit Kaur Bajwa v. State of Punjab, 2008(4) RCR (Criminal) 792. After hearing the learned counsel for the petitioner, I find no ground to interfere in exercise of jurisdiction of this Court under Section 482 Cr.PC. Before adverting to the facts of the present case, it would be advantageous to refer to the judgment cited by the learned counsel for the petitioner in Swaranjit Kaur Bajwa's case (supra). In the cited case the petitioner was widow of an Army officer, who had died in a road accident, wherein the petitioner also had received multiple injuries for which she remained bed ridden for a considerable period of time. The relatives of her late husband instead of helping her had sought to deprive her of her share in the house of her late husband. Civil suit was filed by the son of the complainant where he remained unsuccessful and the petitioner was held as a joint owner and in possession of the house. Thereafter, the complainant filed an FIR under Sections 452, 427, 342, 506 IPC and 25/27 of the Arms Act against the widow with the allegations that she had demolished the wall of the house for making a forcible entry by being armed with a revolver. After the challan had been presented and charges framed, the prosecution on the basis of a report of a high level enquiry initiated at Crl.M.No. M-26637/2010(O&M) 4 the instance of the widow, moved an application for withdrawing from the criminal proceedings against her. The application, however, was dismissed by the learned Judicial Magistrate First Class. The revision filed against the same was also dismissed by the Court of learned Additional Sessions Judge. The learned JMIC held that the offence against the widow stood disclosed and it could not be said that there was no material available on the file to pursue the matter against her. It was further observed that the application did not contain sufficient material to show that it was in the interest of public at large and in the interest of administration of justice that the prosecution should be permitted to withdraw. The revisional court further held that provisions of Section 321 Cr.PC are to be invoked where it would advance the cause of justice and the case is likely to end in acquittal and the continuance of the case is an attempt to cause harassment to the accused. This Court noticed the position of law as enumerated in the judgments of Hon'ble the Supreme Court in State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389; Rajender Kumar Jain v. State through Special Police Establishment, AIR 1980 SC 1510; and Sheonandan Paswan v. State of Bihar, AIR 1983 SC 194. The summarised position of law as affirmed by the aforesaid decisions is as follows:- “1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. Crl.M.No. M-26637/2010(O&M) 5 2. The withdrawal from the prosecution is an exclusive 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 certain 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 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 Crl.M.No. M-26637/2010(O&M) 6 withholding its consent to withdrawal from the prosecution.” This Court then noticed that the Public Prosecutor had made the application for withdrawal considering the fact that no cognizable offence was made out against the widow. While allowing Crl.M.No.M 2720 of 2008, this Court held that the Public Prosecutor possesses wide powers to withdraw, however, he can withdraw from a case on a broad ends of public justice which would include social, economic and political purpose. It further noticed that 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. If we examine the facts of the present case, we find that the Additional Public Prosecutor has not exercised the discretion vested in him under the law. In para 8 of the impugned order (P5) it has been noticed that the Public Prosecutor has has acted on the directions of the Deputy Secretary, Home rather than in exercise of his own discretion in a lawful manner. Therefore, it cannot be countenanced by any stretch of imagination that the learned Public Prosecutor had applied his mind as a free agent uninfluenced by irrelevant and extraneous considerations. Still further, the prosecution has not been able to show as to how the withdrawal would advance the cause of justice. The Hon'ble Supreme Court in Rahul Aggarwal v. Rakesh Jain and another, AIR 2005 SC 910, in para 10 has summed up to say that Crl.M.No. M-26637/2010(O&M) 7 even if the Government directs the Public Prosecutor to withdraw from the prosecution even then the Court is duty bound to consider the relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. The relevant para 10 is extracted below:- “10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of the prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the Court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the Court may permit withdrawal of the prosecution. If the withdrawal of the prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest or justice, the Court may allow the withdrawal of prosecution. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused Crl.M.No. M-26637/2010(O&M) 8 committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.” In view of the above discussion, in my considered opinion, the learned trial Court has rightly declined the prayer of the Public Prosecutor to withdraw the prosecution qua the petitioner-Manjit Singh. Dismissed. 21.9.2010 (Jaswant Singh) joshi Judge