Case: Ghanshyam Vs. State Of M.P.

prosecutor himself has made reference to the Government letter, the copy of which has been filed on record and having perused it, I am satisfied that letter is only advisory in character and there is nothing to show that the Public Prosecutor was directed by the Government to move for withdrawal. A fair reading of the application for withdrawal shows that the Prosecutor applied his mind before moving the Court for withdrawal as he has so stated in the application, that :- In the totality of the circumstances and in the interest of general public, I deem it proper and necessary that the prosecution be withdrawn from the Court. Therefore, he made the prayer for the Courts consent. From the above it is clear that the Prosecutor applied his mind to the issue, considered all the circumstances and came to the conclusion that prosecution be sought to be withdrawn, notwithstanding, that an accused has been a Member of Parliament, i.e., a peoples representative." 13. On careful scrutiny of the impugned judgment of the High Court passed in the criminal revision petition No. 84 of 1989, it is abundantly clear that the court was not oblivious of its supervisory duty while adjudicating the application under section 321 Cr.P.C. filed by the Public Prosecutor. The relevant observations of the court are as under: "There are social and economic reasons behind every crime. However, if the Public Prosecutor feels that withdrawal of prosecution fulfills the social purpose completely, then it will be proper to accept the application for withdrawal of prosecution. It is also to be seen that Public Prosecutor is not misusing his wisdom while withdrawing the case for prosecution." 14. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations. 15. The appellant aggrieved by the order by which the courts approval was granted for withdrawal of the prosecution, preferred a criminal revision petition in the High Court. The High Court by a detailed and comprehensive judgment on 28.9.1991 dismissed the revision petition. The said judgment of the High Court became final and binding on the parties because the appellant had never challenged that judgment. In other words, the appellant had no further surviving grievance against respondent no.3. 16. It is relevant to mention that only when respondent no.3, Surya Prasad filed a writ petition in the High Court in the year 2004 in which he had complained of inaction on the part of the police authorities in not registering a case against the accused who had caused serious injuries to him and his sons, the High Court on the basis of the report of the Deputy Director General, Intelligence of the Central Intelligence Department, Gwalior, M.P. and averments incorporated in the writ petition, directed the Superintendent of Police, Gwalior to take action for registration of the case and conduct the investigation and inquiry in accordance with law. 17. The appellant obviously was aggrieved by the said order of the High Court because he feared that now a case would be instituted against him, therefore, he had moved the High Court for recalling of the order dated 8.8.2005 passed in Writ Petition No. 1356 of 2004. The said application for recalling the order was dismissed by the High Court. The appellant is now seriously aggrieved by the judgment and order passed in the writ petition and thereafter in the application for recall respectively, has preferred these appeals before this Court.18. According to the appellant, the High Court ought not to have passed any direction in the writ petition filed by respondent no. 3 because it was filed after undue delay. 19. The appellant urged that the High Court did not consider the incident which had taken place in the year 1986 in the proper perspective. He also contended that respondent no.3 himself was involved in a case emanating from the FIR No. 654 of 1986 under Section 307 I.P.C. registered against the respondent. In the backdrop of the case, according to the appellant, the impugned order of the High Court is unsustainable.20. It would be appropriate to mention at this juncture that the Additional Sessions Judge permitted withdrawal of the prosecution on an application moved by the Public Prosecutor under section 321 Cr.P.C. The appellant had moved a criminal revision petition before the High Court. The order of the High Court was passed in the year 1991 and the appellant never challenged that order in the last 15 years before this Court. Therefore, the appellant is wholly unjustified in making any grievance in respect of the prosecution which had already been withdrawn against the respondent no.3 a long time ago and the said order was affirmed by the High Court and no proceedings were taken against the said judgment of the High Court. 21. It may be pertinent to mention that the order of the High Court was primarily based on the report of the DIG, CID, Gwalior who had conducted the inquiry at the instance of the Court and submitted the report. On the basis of the inquiry report, the High Court directed the Superintendent of Police, Gwalior to take action for registration of the case and conduct the investigation and inquiry in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. On careful scrutiny of the impugned judgment of the High Court passed in the criminal revision petition No. 84 of 1989, it is abundantly clear that the court was not oblivious of its supervisory duty while adjudicating the application under section 321 Cr.P.C. filed by the Public Prosecutor. The relevant observations of the court are asare social and economic reasons behind every crime. However, if the Public Prosecutor feels that withdrawal of prosecution fulfills the social purpose completely, then it will be proper to accept the application for withdrawal of prosecution. It is also to be seen that Public Prosecutor is not misusing his wisdom while withdrawing the case for prosecution.The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations.The appellant obviously was aggrieved by the said order of the High Court because he feared that now a case would be instituted against him, therefore, he had moved the High Court for recalling of the order dated 8.8.2005 passed in Writ Petition No. 1356 of 2004. The said application for recalling the order was dismissed by the High Court. The appellant is now seriously aggrieved by the judgment and order passed in the writ petition and thereafter in the application for recall respectively, has preferred these appeals before this Court.18. According to the appellant, the High Court ought not to have passed any direction in the writ petition filed by respondent no. 3 because it was filed after undue delay.It would be appropriate to mention at this juncture that the Additional Sessions Judge permitted withdrawal of the prosecution on an application moved by the Public Prosecutor under section 321 Cr.P.C. The appellant had moved a criminal revision petition before the High Court. The order of the High Court was passed in the year 1991 and the appellant never challenged that order in the last 15 years before this Court. Therefore, the appellant is wholly unjustified in making any grievance in respect of the prosecution which had already been withdrawn against the respondent no.3 a long time ago and the said order was affirmed by the High Court and no proceedings were taken against the said judgment of the High Court.