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Pijush Majumdar Vs. Ramesh Nama and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantPijush Majumdar
RespondentRamesh Nama and ors.
Excerpt:
.....exercise a judicial discretion. chandrika mohapatra, it was held that it is not sufficient for the public prosecutor merely to say that it is not expedient to proceed with the prosecution and that he has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution, and that the ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined..........giving consent under section 321, cr. p. c. to the withdrawal from prosecution moved by the asst. public prosecutor, belonia.2. the facts of the case are that premchand majumdar instituted an information at the belonia police station on 20-9-1977 alleging that his brother pijush majumdar was travelling from agartala to belonia in a public bus on 19-9-77 by taking his seat in the front row of the bus stand that a girl and a boy were also accompanying him by his side. the boy got down at a place on the way and so also did the girl passenger after some time. the girl alighted at a place named nalua. premchand also got down there. while he was taking tea at a stall at nalua bazar a person named santi mahajan of village abhaynagar under the belonia p.s. approached him and enquired from him.....
Judgment:

S.M. Ali, J.

1. This revision petition is directed against the order dated 21-8- 1978 passed by the Judicial Magistrate, 1st Class, Belonia in Criminal Case No. G. Rule 135 of 1977, giving consent Under Section 321, Cr. P. C. to the withdrawal from prosecution moved by the Asst. Public Prosecutor, Belonia.

2. The facts of the case are that Premchand Majumdar instituted an information at the Belonia Police Station on 20-9-1977 alleging that his brother Pijush Majumdar was travelling from Agartala to Belonia in a public bus on 19-9-77 by taking his seat in the front row of the bus stand that a girl and a boy were also accompanying him by his side. The boy got down at a place on the way and so also did the girl passenger after some time. The girl alighted at a place named Nalua. Premchand also got down there. While he was taking tea at a stall at Nalua Bazar a person named Santi Mahajan of village Abhaynagar under the Belonia P.S. approached him and enquired from him as to whether'he had outraged the modesty of the girl. On his denial nothing further took place there and Premchand retired to his own house. But on the following morning accused Jogendra Nama, Nantu Nama and Benu Nama came to the house of Premchand and informed him that Premchand should attend a baithak to be held over outraging the modesty of a girl. Premchand then shifted himself to the house of his relative Nitai Pod-dar. After sometime Natu and some Il/l2 other persons arrived there and attempted to forcibly take away Premchand but at the inervention of some villagers those persons left the place after asking the people to send Premchand to the baithaifc While Premchand accompanied by some other persons was proceeding from the house of Nitai he was suddenly surrounded by the accused persons and assaulted. Premchand fell unconscious. He was afterwards rescued by a village matbar. Premchand was hospitalised for the injuries caused to him by the accused persons. After investigation charge sheet was submitted against the accused persons Under Sections 143/147/341 and 323, I P. C. The learned Magistrate took cognizance of the offence on 25-12-1977. After several adjournments, on 21-8-1978 when 6 of the 7 accused persons were present in Court, the Asstt, Public Prosecutor submitted a petition to the learned Magistrate for withdrawal of the case Under Section 321, Cr. P. C. Thereupon the learned Magistrate passed the impugned order.

3. Being aggrieved by the order of acquittal informant Pijush Majumdar has come up in revision to this Court.

4. In the instant case the principal question is whether on a prayer Under Section 321, Cr. P. C. the Presiding Officer of the Court has to exercise his judicial discretion in giving consent to withdrawal or whether he has simply to accord consent thereto in an executive way and whether in the instant case the learned Magisrtate applied his judicial mind in giving consent to the withdrawal or whether the impugned order should be set aside and the Magistrate be asked to proceed with the case. On behalf of the petitioner it was addressed at the Bar that the function of the Magistrate under S, 321, Cr. P. C. is a judicial one and that he must apply his judicial mind before he passes any order regarding the withdrawal prayer. On the other hand, the learned Counsel for the opposite party argued that the duty of applying judicial mind in such a case lies only with the Public Prosecutor or the Asstt. Public Prosecutor, in charge of . the case and that what the Magistrate or the Presiding Officer of the Court has to do is to pass a mere executive order for withdrawal. His function lies in seeing whether the Public Prosecutor or the Asstt. Public Prosecutor has exercised his judicial mind despite any order Or direction that might come from any executive officer or the Government in favour of withdrawal.

5. On both sides case law has been cited in abundance on the import and cedure of Section 321. Cr. P. C. The provisions of the Section are as follows :

Section 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 alter 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 etc. etc.

6. learned Counsel for the opposite party referred to a case reported in AIR 1938 PC 266, Bawa Faqir Singh, v. Emperor in support of his submission that an order Under Section 494, Cr. P. C. (old) which has been renumbered as Section 321, in the new Cr. P. C, is a mere executive order of the Presiding Officer of the Court whereas an order Under Section 337 old Cr. P. C. (306 new Cr. p. C.) is a judicial order. But that was a matter involving power of a Court to tender pardon to an accomplice and its implications. In course of that decision the Privy Council made an observation that the proceedings taken Under Section 337 old Cr. p. C. are different in character from the course which would be taken Under Section 494 old Cr. P. C. and that the former section deals with the action of a judicial, the latter with that of an executive officer. We cannot have any guidance from this observation which is not more than a dictum.

7. In : 1972CriLJ301 M. N. S. Nair v. P. V. Bala-krishnan it was held that the power contained in S, 494 (old Cr. P. C.) gives a general executive direction to withdraw from the prosecution subject to the consent of the Court which may be determined . on many possible grounds and is, therefore, wide and uncontrolled by any other provision in the Code and that it is in pari materia with Section 339 old Cr. P. C. It was further held that the section does not indicate the reasons which should weigh with the Public Prosecutor to move the Court nor the grounds on which the Court will grant or refuse permission and that though the section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution, the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent 'information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.

It was also held that it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from 'the prosecution and the Public Prosecutor merely does so at its behest,

8. In : 1957CriLJ567 , State of Bihar v. Ram Naresh, it was held that Section 494 (old Cr. P. C.) which is the same as Section 321, Cr. P. C is an enabling one and vests in the Public Prosecutor the discretion to apply to the. Court for its consent to withdraw from the prosecution of any person and that the consent, if granted has to be followed up by his discharge or acquittal as the case may be. In that case it was further held that the section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent.

The resultant order, it was found in that case, on the granting of the consent being an order of discharge or acquittal would attract the applicability of correction by the High Court and that the function Of the Court therefore, in granting its consent may well be taken to be a judicial function and also that in granting the consent the Court must exercise a judicial discretion. In that case it was indicated that the discretion to be exercised by the Court cannot be only with reference to material gathered by the judicial method and that it has to be kept in mind that the Court is 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 the normal course of justice for illegitimate reasons or purpose.

9. In : 1977CriLJ773 , State of Orissa v. Chandrika Mohapatra, it was held that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution and that he has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution, and that the ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.

10. In 1980 SCC (Cri) 757: 1980 Cri LJ 1084, Rajendra Kumar Jain v. State, it was laid down that withdrawal from the prosecution on political reasons Under Section 321, Cr. P. C, if otherwise proper, is valid and that an ultimate discretion lies on the Public Prosecutor though Government may Rive its suggestion, advice or guidance to him and also that Court's jurisdiction under the section is supervisory which is discharged by seeing whether the Public Prosecutor has applied his independent mind m the broader interest of public justice. It was also held that the Court has to ascertain the reasons put forth for withdrawal but cannot reappreciate the grounds of the same. The aforesaid cases were cited by the learned Counsel for the opposite party to show that as soon as the Public. Prosecutor or the Assistant Public Prosecutor applies for the purpose the Court has no alternative but to con-Kent to it Under Section 321 of the new Cr. P. C. But a close perusal of the ratios on which the learned Counsel relied discloses that it is no arbitrary authority vested either in the Public Prosecutor or Assistant Public Prosecutor or in the Court.

11. On the other hand, the learned Counsel for the petitioner relied on some rulings of the Supreme Court and of several High Courts in support of his argument that the Public Prosecutor must give reasons for withdrawal and that the Court has to exercise its judicial discretion in giving consent to withdrawal.

12. In : 1976CriLJ328 , Bansi Lai v. Chandan Lai. it was laid down that permission to withdraw from the prosecution should not be granted for the mere asking but the Court must be satisfied on the materials placed before it that the grant of permission would serve the purpose of administration of justice. The decision in that case had a reference to : 1972CriLJ301 . It was found in the former case that where the prosecution reached the stage of framing charges :n the Sessions Court and no occasion for the defence to make out a case arose and there was no material before the Court justifying withdrawal of the case against some accused persons, the order granting permission was wrong in law. It was further held in that case that consenting to the withdrawal of the case on the view that the, attitude displayed by the prosecution made it 'futile' to refuse permission does not certainly serve the administration of justice.

13. In 1980 Cri LJ 1027, State of Punjab v. Gurdip Singh, it was held that the essential consideration which is found implicit in the grant of the power Under Section 321. Cr. P. C. is that it should be in the interest of administration of justice and that it is the duty of the Court to see that in furtherance of that cause permission is not sought on grounds extraneous to interest of justice and that offences which are offences against the State do not go unpunished merely because the Government as a general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from the prosecution and that a Public Prosecutor merely does so at his behest.

In that case reliance was placed on 1957 Cri LJ 567 (SC). 1972 Cri LJ 301 (SC), 1977 CfiLJ 773 CSC) and 1980 Cri LJ 324 TSC).

14. In : 1977CriLJ1935 Balwant Singh v. State of Bihar, the ratio laid down is that the matter of withdrawal of prosecution lies within the sole discretion of the Public Prosecutor who should -independently form his opinion in the interests of administration of justice and that he should not blindly obey the order of an executive officer in that behalf.

15. In : 1980CriLJ324 . Subhash Chander v. State- it was held that the consent of the Court Under Section 321 as a condition for withdrawal is imposed as a check on the; exercise of the power: given to the : Public Prosecutor and that' consent is to be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal.

16. In Section 321, Cr. P. C. it is provided that withdrawal from the prosecution is conditioned on the consent of the Court. A Court cannot be thought of apart from judicial proceeding before it. Consent has to be given with regard to a judicial proceeding before the Court. It is, therefore, obvious. that the Court cannot arbitrarily give consent to a withdrawal or pass any other order regarding a judicial proceeding without applying the judicial mind. Otherwise there would be no meaning of the condition of giving consent by the Court to such withdrawal moved by the Public Prosecutor or the Asst, Public- Prosecutor. The order of a Court, whatever it may be, with regard to a judicial proceeding must be a speaking order which means the order must be based on sufficient reasoning so that the superior court can look into the propriety or legality of the order. The mere nodding to the withdrawal petition of the Public Prosecutor by the Court cannot; be thought of if there be no application of the judicial mind of .the. Court. Whenever, therefore, the question of giving consent arises in relation to an judicial proceeding that consentmust emerge from an opinion' formed by the Court or the grounds and circumstances that may be connected with the case, A judicial opinion must be, based on, some objective materials placed before the -Court simultaneously with the, prayer. for withdrawal. The learned, counsel, foe both the sides are' at one that the' grounds for withdrawal must not be extraneous to-the interest of justice. Though the reason for withdrawal may be political or otherwise, the ultimate object must be furtherance of the interest of administration of justice. As alluded before it was stressed on behalf of the petitioner that the ultimate power to give consent or not to give consent lies with the Court regarding withdrawal from : prosecution and that this power must be exercised through the application of the judicial mind of the Court The view expressed by the learned Counsel of the opposite party was that it lies with the public Prosecutor to view the matter with judicial mind without any influence that might be exerted by the Government or any executive officer and that whenever such withdrawal is moved by the Public Prosecutor the Court has no alternative but to give consent to it.

17. It is found that although all the rulings cited by the parties at the Bar referred to above speak in different accents, they express the same spirit that runs through Section 321, Cr. P. C. A golden thread is to be observed in all those rulings which consists in the principle that advancement of the interest of, the administration of justice is the prime consideration. In that view both the public Prosecutor and the Court have their respective duties of a judicial nature to be performed in such a matter. While the prayer for withdrawal must be based on grounds that have nexus with that principle, the Court on its part has a . duty to see that those grounds or reasons are for advancement of the interest of the administration of justice despite, impediment to the interest of an individual or some individuals. That being so. certainly the Court has to apply its judicial mind and decide whether to give consent or not to give consent to a withdrawal move,

18. In the matter of withdrawal from prosecution, the initiative may come from the Government or any officer, of the Government, but merely for this reason it cannot be said that the the Public Prosecutor did not apply his free mind to decide the question of withdrawal. The crux is that the court has to see whether the Public Prosecutor applied judicial mind to the matter of withdrawal. As regards the function of 'the Court in this respect, it need embark on a probe into the truth or otherwise of the ground or grounds of the withdrawal by application of the judicial process of the court. It should confine itself to the consideration whether the ground or grounds can in all fairness be taken as advancing the cause of administration of justice in its' larger perspective. '

19. In the instant case, in the application for withdrawal filed by the Asst. Public Prosecutor, Belonia, he stated the following:—'

It appears to me from the record that proceeding with the case would be nothing but wastage of time and energy. Hence I seek your permission to withdraw the prosecution case for the interest of justice.

20. On the petition what the learned Magistrate recorded by way of his order runs as follows ;—

A. P. P. submitted a petition praying for consent of the Court Under Section 321 of Cr. P. C. to withdraw from the prosecution of the case.

Heard the learned A. P. P. who submitted that there is no merit in the case and it will be infructuous devotion of the time and energy to prosecute the case. I have gone through the relevant papers and there is no strong ground for prosecution since the State is not willing to carry on with the prosecution, so it will be futile attempt to persuade the prosecution. I feel that the withdrawal is in the interest of justice. Accordingly, I accord my consent Under Section 321 of Cr. P. C. allowing the prayer of the learned A, P. P. to withdraw from prosecution of this case in respect of all the accused persons.

Result of the withdrawal is the acquittal of all the accused persons from this case.

Sureties of the accused persons are also released from the bond.

21. Now it is found that the learned Assistant Public Prosecutor did not put forth any specific ground for withdrawal but it is found that he exercised free mind in determining the matter of withdrawal. In his view 'proceeding with the case would be nothing but wastage of time and energy,' It indicates that he applied his judicial mind independently and found that the case had no merit for success, On the other hand, the learned Magistrate recorded that he heard the learned Asstt. Public Prosecutor who submitted that there was no merit in the case. Moreover, the learned Magistrate went through the case record and found that there was no 'strong ground'1 for prosecution. He further felt that the withdrawal was in the interest of justice. He, therefore, accorded consent. It is found that the learned Magistrate applied his judicial mind and did not merely ditto the prayer of the Asstt. Public Prosecutor.

22. Consequently I find that withdrawal from prosecution as proposed by the Asstt. Public Prosecutor was in the interest of the administration of justice.

23. On behalf of the opposite party the question was raised whether the complainant petitioner could move this Court in revision against the impugned order, it having been a case charge sheeted by the police. But as it is a revision matter I find no impediment in holding that the case is maintainable. A matter of criminal revision can be initiated on knowledge from any source.

24. The result is that the revision petition fails and it is reacted.


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