Mere application of mind by P.P is not enough to invoke section 321 of Cr.P.C : Sikkim High Court

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Revisional Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. Rev. P. No. 20 State of Sikkim Through Vigilance Department Versus ….. Revisionist Asal Kumar Thapa The then Director Food Security & Agriculture Development Department Government of Sikkim Gangtok East Sikkim. Kiran Kumar Pradhan The then Additional Director Food Security & Agriculture Development Department Government of Sikkim Gangtok East Sikkim. Jagdish Pradhan The then Additional Director Food Security & Agriculture Development Department Government of Sikkim Gangtok East Sikkim. ….. Respondents Accused Persons 1. Application for revision petition under section 397 401 of the Code of Criminal Procedure 1973. Dr. Doma T. Bhutia Public Prosecutor with Mr. S.K. Chettri Additional Public Prosecutor for the Revisionist. Mr. Ajay Rathi Advocate for the Respondents. Date of hearing : 15.10.2020 Date of order : 06.11.2020 Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:45:19 +05 30 JUDGMENT Bhaskar Raj Pradhan J. The State of Sikkim has preferred the revision petition seeking to invoke the powers of this court under sections 397 and 401 2 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others of the Code of Criminal Procedure 1973 against the order dated 13.12.2019 passed by the learned Special JudgeEast Sikkim at Gangtok in Sessions Trial Case No. 01 of 2019 vs. Asal Kumar Thapa & Others]. On 15.11.2016 a First Information Report was lodged at the Sikkim Vigilance Police Station Gangtok against respondent no.1 the then Director Food Security & Agriculture Development Department respondent no.2 the then Additional Director FS & ADD respondent no.3 Joint Director IPM INM FS & ADD and Ringzing Doma Bhutia Senior Accounts Officer cum D&DO FS & ADD Lily Bhutia Manager Srijanasil Labour Women Cooperative Society Pasangkit Lepcha President Srijanasil Labour Women Cooperative Society and others unknown for commission of offences under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act 1988and under section 13(1)(d) read with section 13(2) of the PC Act 1988. According to the charge sheet as no evidence could be found to Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:46:03 +05 30 attribute criminality to the acts of Rinzing Doma Bhutia Pasangkit Lepcha and Lily Bhutia a prayer was made for their discharge. It was further prayed that Pasangkit Lepcha and Lily Bhutia may be taken as 3 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others approvers in the case. Amongst the 59 persons listed as prosecution witnesses Rinzing Doma Bhutia Lily Bhutia and Pasangkit Lepcha were also listed. The statements recorded under section 161 Cr.P.C. were also part of the charge sheet. 59 documentary evidence formed the list of documents filed along with it. According to the learned Public Prosecutor charges are yet to be framed. The charge sheet alleged that the above dishonest and fraudulent acts of the respondents had caused undue wrongful pecuniary loss of Rs.8 48 675 to the Government of Sikkim and corresponding undue pecuniary gain to themselves. A petition under section 321 Cr.P.C. was filed by the learned Special Public Prosecutor on 27.11.2019 before the learned Special Judge P.C. Act 1988 East Sikkim at Gangtok for consent to withdraw the case from prosecution. A copy of the instructions of the State Government dated 22.10.2019 was also annexed thereto. The petition was heard by the learned Special Judge and vide the impugned order dated 13.12.2019 it was held that the court was not inclined to accord consent for withdrawal from prosecution and the petition was rejected. While doing so after hearing the learned counsel for the parties the learned Special Judge referred to the judgment of the Supreme Court in Bairam Muralalidhar vs. State of Andhra Pradesh1 and Niranjan Hemchandra Sashittal & Anr. vs. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:46:49 +05 30 State of Maharashtra2 and of the High Court of Himachal Pradesh in Capt. Ram Singh vs. State of Himachal Pradesh & Ors.3. The learned 110 SCC 380 24 SCC 642 3 2016 Cri. L.J 44694 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others Special Judge held that no case for according consent for withdrawal from prosecution had been made out by the learned Special Public Prosecutor. The learned Special Judge further held that although it was urged that the quality of evidence was poor the records would at least at this stage indicate otherwise. The learned Special Judge held that the statements of witnesses like Tshering Ongmu Wangchuk Laxmi Rai Bina Gurung Sanjit Tamang Pabel Majumdar and Lily Bhutia would give altogether different picture then sought to be projected. The learned Special Judge refrained from making any further observation lest it may affect the merits of the Heard Dr. Doma T. Bhutia learned Public Prosecutor for the Revisionist and Mr. Ajay Rathi learned counsel for the case. respondents. The learned Public Prosecutor submitted that a perusal of the impugned order would reveal that the learned Special Judge had failed to consider whether the learned Special Public Prosecutor applied his independent application of mind and acted in good faith and in public interest which is a sine qua non of section 321 Cr.P.C. Dr. Doma further submitted that the learned Special Judge ought to have considered that the petition was also supported by the instructions from the SecretaryHome Department that the State Government had taken a decision to withdraw the case in accordance with section 321 Cr.P.C. It was urged that the learned Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:47:37 +05 30 Special Public Prosecutor had opined that it would be expedient to withdraw from prosecution as the materials placed on record by the 5 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others investigation would not lead to successful trial causing wastage of the court’s precious time as well as unnecessary sufferings of the accused persons. Thus it was contended that the impugned order was unreasonable and unsustainable in law and deserved to be set aside in the interest of justice and in public interest. It was the case of the learned Public Prosecutor that saving the precious time of the court could also be considered public policy or public interest. Dr. Doma referred to and relied upon the judgment of the Supreme Court in Sheonandan Paswan vs. State of Bihar & Ors.4 in which it was held that 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. Mr. Ajay Rathi to supplement the arguments made by the learned Public Prosecutor placed the judgment of the Supreme Court in Abdul Karim & Others vs. State of Karnataka & Others5 where the Supreme Court explained the principle underlying section 321 Cr.P.C. Section 397 Cr.P.C. mandates that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of such Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:48:22 +05 30 inferior court. It is settled that the scope of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceedings. 41 SCC 288 58 SCC 710 6 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others Section 321 Cr.P.C provides 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 1946iii) involved the misappropriation or destruction of or damage to any property belonging to the Central 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 the Central to withdraw A perusal of section 321 Cr.P.C. reflects that the consent Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:49:20 +05 30 of the court is mandatory before the public prosecutor in charge of a case withdraws from the prosecution of any person either generally or in respect of anyone or more of the offences for which he is tried. 7 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others The Constitutional Bench of the Supreme Court in Sheonandan Paswan examined inter alia the provision of section 321 Cr.P.C. The majority dismissed the appeal preferred by Sheonandan Paswan. It was held that section 321 Cr.P.C. needs three requisites to make an order under it valid: the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal he must be in charge of the case andthe application should get the consent of the court before which the case is pending. A perusal of the impugned order leads one to conclude that it was only the third requisite i.e. the consent of the court before which the case was pending which was not fulfilled. The Supreme Court also held that the impugned order giving consent under section 321 Cr.P.C. was a revisable order and that the revisional court considers the materials only to satisfy itself about the correctness legality and propriety of the findings sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence. It was further held that since section 321 Cr.P.C. does not give any guidelines the grounds on which a withdrawal application can be made such guidelines have to be ascertained with reference to decided cases under the section as Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:50:27 +05 30 well as its predecessor’s section 494. It was held that State of Bihar vs. Ram Naresh Pandey6 is a landmark case which has laid down the law on the point with precision and certainty. In the said judgment while discussing the role of the court the Supreme Court observed: 6 AIR 1957 SC 389 8 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others In Abdul Karimthe Supreme Court held: “92. .. His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate s functions in these matters are not only supplementary at a higher level to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the court for withdrawal by the Public Prosecutor is more in line with this scheme than with the provisions of the Code relating to inquiries and trials by court. It cannot be responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of ‘no prima facie case’ under Sections 209(1) and 253(1) or of ‘groundlessness’ under Sections 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application for consent is made.” to place on the court the process of the application suffers “18. The law as it stands today in relation to applications under Section 321 is laid down by the majority judgment delivered by Khalid J. in the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar1 SCC 288 : 1987 SCC82] . It is held therein that when an application under Section 321 is made it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. What the court has to see is whether the application is made in good faith in the interest of public policy and justice and not to thwart or law. The court after considering the facts of the case has to see from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application withdrawal after taking into consideration all the material before him the court must exercise its judicial discretion by considering such material and on such consideration must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent a higher court is satisfied that such consent was given on an overall consideration of the material available the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:51:31 +05 30 9 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others law therefore The discretion exercisable under Section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. 19. 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. 20. It must follow that the application under Section 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 given case placed before the court with its permission in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can withdrawal of the Public Prosecutor from the prosecution will serve the public interest but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and in good faith reached the conclusion that his withdrawal from the prosecution will serve the public interest. The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If upon such consideration the court accords consent it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent.” the conclusion On the touchstone of the laws so well established this Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:52:49 +05 30 Court shall now examine the petition as well as the impugned order refusing to grant consent to be satisfied as to its correctness legality or propriety. The said petition reads: 10 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others That the aforementioned case is at its initial stage of trial before this Hon’ble Court. That while going through the case papers relating to this case including the charge sheet and the evidences relied on by the investigating agency in the case it has been noticed that the nature and quality of evidences placed on record by the investigating agency in support of the case are such that the trial of the case if allowed to continue is likely to end in discharge acquittal of the accused broadly reasons hereinunder a) The star Prosecution witnesses in the case namely Smt. Rinzing Doma Smt. Passangkit Lepcha and Smt. Lily Bhutia who were themselves partners in the offence and co accused in the case have been impleaded as Prosecution witnesses this case without following the procedure laid down in Section 306 Cr.P.C. b) This defect in investigation renders the testimony of such witnesses inadmissible in evidence. c) The questioned documents therein including the questioned writings and signatures of the investigating agency in support of the case have been examined by the Government of Questioned Documents of Regional Forensic Science Laboratory Saramsa which is under the Department of Police Govt. of Sikkim and hence not an independent body like the Central Forensic Science Laboratory which is the competent authority to accrediteForensic Science Laboratories in the country. d) For the reason at above the certain vital documents relied on by the investigating agency in support of the case are likely to be rendered inadmissible in evidence to the detriment of the Prosecution case. e) The instant prosecution case also suffers the vice of withholding witnesses whose evidence is vital for success of the case. In order to come to a just and proper finding on the guilt of the accused persons in this case it is necessary to examine whether the CIPMC training programme initiated and organized by the accused persons in the instant case was technically identical or different from the one earlier organized by the CIPMC Govt. of India. The accused persons would be proved to be guilty only if Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:54:21 +05 30 11 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others there are evidences on record to prove similarity in the two training programmes. The investigation report in the case lacks these particulars thereby leaving a lacuna in the Prosecution case benefit of which will ultimately go to the accused persons. in view of the above defects in the prosecution case the trial of the accused in the case is likelyend in their discharge acquittal. That in view of the above the entire legal proceedings in the matter if allowed to continue is likely to be a futile exercise at the cost of harassment to the accused persons and witnesses consumption of precious time of this Hon’ble Court and loss of other men sic ‘man’) hours and therefore not likely to serve the interest of administration of justice. That the State Government of Sikkim has also desired this case to be withdrawn from Prosecution in the interest of administration of Justice. A letter to his sic ‘this’) effect received by the undersigned Special Public Prosecutor Protocol) Home from Secretary Department Government of Sikkim is filed as an Annexure herewith. In the circumstances this Hon’ble Court may be placedto allow the State to withdraw this case from Prosecution in the interest of fair and just administration of justice. On a perusal of the petition it is noticed that the learned Special Public Prosecutor desired to withdraw the case prosecution on the ground that the case papers produced were such that if the trial of the case was allowed to continue was likely to end in discharge acquittal of the respondents. It was also asserted that therefore it was likely to be “a futile exercise at the cost of harassment to the accused persons and witnesses consumption of precious time of this honourable court and loss of other men hoursand therefore not likely to serve the interest of administration of justice”. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:55:39 +05 30 Besides the learned Special Public Prosecutor also stated that the Government of Sikkim had also desired the case to be withdrawn in the interest of administration of justice. 12 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others The letter of the Secretary Home Department Government of Sikkim dated 22.10.2019 addressed to the learned Special Public Prosecutor is quoted hereinbelow: “GOVERNMENT OF SIKKIM HOME DEPARTMENT No. 10 528 LD 2019 777 Date: 22 10 19 Shri N.P. Sharma Special Public Prosecutor District & Sessions Court Sichey East Sikkim at Gangtok. Subject: Withdrawal of Sessions TrialCase No. 019. Sir I am directed to inform you that the State Government has taken a decision to withdraw the above mentioned case from prosecution in accordance with the provisions under Section 321 of the Code of Criminal Procedure 1973. Therefore I am directed to request you to kindly convey the decision of the State Government to the Hon’ble Court and withdraw the case from prosecution against all the accused and also submit a report in the matter to this office. This is for your kind information and necessary action. Yours sincerely SecretaryHome Department Government of Sikkim Fax No. 03592 202721 Email: hd.confdlsection@gmail.com” The instructions dated 22.10.2019 by the Secretary Protocol) Home Department Government of Sikkim to the learned Special Public Prosecutor conveys only the decision of the State Government to withdraw the case from prosecution with a further direction to convey that decision to the court and after doing so to submit a report. The said instructions does not reflect the reasons for directing the learned Special Public Prosecutor to do so. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:56:53 +05 30 The petition under section 321 Cr.P.C. has not averred that the learned Special Public Prosecutor is in good faith satisfied 13 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others 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 Supreme Court in Abdul Karim supra) had held that the application under section 321 Cr.P.C. must aver so. The learned Special Public Prosecutor has enumerated the relevant material examined by him. It was therefore vital for the learned Special Judge to examine the reasons enumerated by the learned Special Public Prosecutor in the petition and come to a conclusion whether or not to grant consent. For the said purpose the learned Special Judge was required to satisfy himself that the material placed by the learned Special Public Prosecutor could reasonably lead to the conclusion that his withdrawal from prosecution would serve public interest. The learned Special Judge was also to consider whether the grant of consent may thwart or stifle the courts of law or result in manifest injustice. The first ground taken by the learned Special Public Prosecutor was that the star prosecution witnesses namely Rinzing Doma Bhutia and Lily Bhutia who were themselves partners and co accused in the case had been impleaded as prosecution witnesses without following the procedure laid down in section 306 Cr.P.C. and this defect in investigation renders the testimony of such witnesses inadmissible in evidence. Digitally signed by BHASKAR RAJ Date: 2020.11.06 16:58:14 +05 30 At this point it is relevant to note that as per the learned Public Prosecutor the case is at its initial stage and charges are yet to 14 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others be framed. The charge sheet filed by the Investigating Officer prays for making Pasangkit Lepcha and Lily Bhutia approvers in the case. This prayer is yet to be considered by the learned Special Judge. Section 306 Cr.P.C. provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which the section applies the court at any stage of the investigation or inquiry into or the trial of the offence may tender a pardon to such person on certain conditions enumerated therein. Thus it is seen that the anxiety of the learned Special Public Prosecutor that testimonies of the said witnesses would be rendered inadmissible as the procedure laid down in section 306 Cr.P.C. had not been followed was premature. The law itself mandates that the offenders could be tendered pardon even at the stage of trial which trial had not even begun. The next ground taken by the learned Special Public Prosecutor was that the questioned documents including the questioned writings and signatures of the respondents herein had been examined by the Government Examination of Questioned Documents of Regional Forensic Science Laboratory Saramsa which is under the Department of Police Government of Sikkim and hence not an independent body like the Central Forensic Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:00:05 +05 30 Science Laboratorytraining programme initiated and organised by the respondents was technically identical or different 16 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others from the earlier ones organised and that they would be proved guilty only if the evidences on record proved similarity in the two programmes. It was his opinion that the investigation report lacked these particulars thereby leaving a lacuna in the prosecution case. If the learned Special Public Prosecutor was of the opinion that there was certain evidence lacking section 173(8) Cr.P.C. would have come to the rescue of the investigating agency. This ground again fall short of the requirement mandated by section 321 Cr.P.C. The last ground taken was that the State Government desired that the present case be withdrawn. In Abdul Karimit has been clearly held that the law is though the government may have ordered directed or asked the public prosecutor to withdraw from 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 public interest will be served by his withdrawal from the prosecution. The petition filed by the learned public prosecutor does not record the satisfaction of the learned Special Public Prosecutor having examined the relevant material and in good faith being satisfied that a public interest would be served by his withdrawal from the prosecution. The petition filed by the learned Special Public Prosecutor records only his opinion that because of certain lacunae the prosecution would be BHASKAR RAJ Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:03:56 +05 30 rendered futile. The materials placed do not even remotely indicate to this Court that the petition under section 321 Cr.P.C. was made in good faith or in the interest of public policy and justice. The learned Special Judge has examined the materials and opined that the statement of witnesses recorded by the prosecution gives an altogether 17 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others different picture than what was suggested by the learned Special Public Prosecutor and in such circumstances has declined to grant consent. The facts reveal that after an elaborate investigation charge sheet had been filed against the public servants for criminal misconduct and other offences. The purpose for the enactment of the PC Act 1988 is to eradicate corruption and provide deterrent punishment when criminal culpability is proven. That is the paramount public interest in corruption cases. In Niranjan Hemchandra Sashittal it has been held by the Supreme Court that an attitude to abuse the official position is an anathema to the basic tenets of democracy for it erodes the faith of the people in the system and creates an incurable concavity in the rule of law. Sans the mandatory averment of the learned Special Public Prosecutor as required under section 321 Cr.P.C. and as held above it is difficult to hold that the proposed withdrawal by the learned Special Public Prosecutor would not stifle or thwart the process of law or cause manifest injustice. In Sheonandan Paswan the Supreme Court held that the power of the public prosecutor to withdraw from prosecution under section 321 Cr.P.C. is not absolute and unrestricted and that it has to be controlled and guided power or else it will fall foul of Article 14 of the Constitution of India. It was further held that once prosecution is launched its relentless course only be halted on sound consideration germane to public justice and it is not left to the sweet Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:06:15 +05 30 will of the state or the public prosecutor to withdraw from prosecution. In the present case the learned Special Judge was of the view that manifest injustice would be caused if consent was given. This court on thorough examination of the material placed is of the view that the 18 Crl. Rev. P. No. 20 State of Sikkim through Vigilance Department vs. Asal Kumar Thapa & Others grounds taken in the petition was in pursuance to the direction of the to withdraw from prosecution without properly determining if the withdrawal from prosecution would be in public interest. The impugned order passed by the learned Special Judge refusing to grant consent is correct legal and proper. None of the grounds enumerated in the petition individually or collectively permits this court to express an opinion that the withdrawal was sought for in public interest and it was not to stifle or thwart the process of law or The Criminal Revision Petition therefore fails and is Consequently I.A. No. 20 stands disposed. Digitally signed by BHASKAR RAJ Date: 2020.11.06 17:08:12 +05 30 Bhaskar Raj Pradhan ) Judge cause manifest injustice. Approved for reporting : Yes : Yes Internet 

Summary: The essential requirements that need to be fulfilled in order for a public prosecutor to obtain consent from the court to withdraw a petition in light of no case being made out under section 321 of the Cr.P.C were illustrated by the High Court of Sikkim at Gangtok. The single bench consisting of Justice Bhaskar Raj Pradhan pronounced this judgement in the matter of State of Sikkim v Asal Kumar Thapa &amp; Ors., [Crl. Rev. P. No. 3 of 2020].  It was alleged that the respondents have indulged in corrupt practices and cause wrongful, pecuniary loss of Rs.8,48,675/- to the Government of Sikkim. A petition has been filed by the Public Prosecutor (hereinafter, P.P) under Section 321 Cr.P.C. before the learned Special Judge, P.C. Act, 1988 at Gangtok, seeking consent from the Hon’ble court for the withdrawal of the case from prosecution. The P.P alleged that withdrawing this case would save the precious time of the court could also be considered public policy or public interest since no case has been made out against the accused after thorough investigation. The P. P relied upon the judgment of Sheonandan Paswan vs. State of Bihar &amp; Ors., [(1987) 1 SCC 288] passed by the Supreme court wherein it was held, “in which it was held that 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”.  The court opined that even though the quality of evidence might be poor, the records would, at least at this stage, indicate otherwise. Further, it relied on the judgment of the Supreme Court in Bairam Muralalidhar vs. State of Andhra Pradesh, [2014) 10 SCC 380] and Niranjan Hemchandra Sashittal &amp; Anr. vs. State of Maharashtra, [(2013) 4 SCC 642] while declining consent to withdraw the particular petition. The bench relied on the case of Sheonandan Paswan vs. State of Bihar &amp; Ors., [(1987) 1 SCC 288], referred by the P.P as well to state that, “section 321 Cr.P.C. The majority dismissed the appeal preferred by Sheonandan Paswan. It was held that section 321 Cr.P.C. needs three requisites to make an order under it valid: (1) the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal, (2) he must be in charge of the case and (3) the application should get the consent of the court before which the case is pending. A perusal of the impugned order leads one to conclude that it was only the third requisite, i.e., the consent of the court before which the case was pending, which was not fulfilled”. While dismissing the requests of the P.P, the court held, “If the learned Special Public Prosecutor was of the opinion that there was certain evidence lacking, section 173(8) Cr.P.C. would have come to the rescue of the investigating agency. This ground again fall short of the requirement mandated by section 321 Cr.P.C. The petition filed by the learned Special Public Prosecutor records only his opinion that because of certain lacunae, the prosecution would be rendered futile. The materials placed do not even remotely indicate to this Court that the petition under section 321 Cr.P.C. was made in good faith or in the interest of public policy and justice. The facts reveal that after an elaborate investigation, charge- sheet had been filed against the public servants for criminal misconduct and other offences. The purpose for the enactment of the PC Act, 1988 is to eradicate corruption and provide deterrent punishment when criminal culpability is proven. That is the paramount public interest in corruption cases.