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Padmanabh Narayan Inamdar Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 368 of 1973
Judge
Reported in(1976)78BOMLR366
AppellantPadmanabh Narayan Inamdar
RespondentThe State of Maharashtra
DispositionAppeal allowed
Excerpt:
criminal procedure code (v of 1898), sections 495(2), 494, 435, 439-permission to the public prosecutor to withdraw the proceedings when granted-discretionary power of the high court to examine the correctness, legality or propriety of any finding, sentence or order passed by any inferior court.;a presidency magistrate rejected an application made by the police prosecutor to withdraw the proceedings under section 495(2) of the criminal procedure code, 1898, in a case where over 180 employee of a company stood charged with various offences including being members of an unlawful assembly, rioting, and causing injury to sixteen police officers and seven others, following discontent arising out of non-payment of the employees dues. in a twenty-two page order the magistrate scanned the pros.....joshi, j.1. this revision application is preferred against an order made on november 17, 1972 in criminal case no. 408/p of 1972 by the learned presidency magistrate, 7th court, dadar, bombay, rejecting the application for permission to withdraw the proceedings under section 495(2) of the criminal procedure code. the facts giving rise to it could be briefly summarised as follows:2. the petitioner before this court mr. p.n. inamdar is the president of bharat barrel employees' union; respondent no. 2 mr. l, b. goenka is the director of the bharat barrel & drum manufacturing company, whereas respondents nos. 3 to 185 are the employees of the abovesaid company.3. on september 30, 1971 the management of the said company decided to close down the factory on account of non-availability of raw.....
Judgment:

Joshi, J.

1. This revision application is preferred against an order made on November 17, 1972 in Criminal Case No. 408/P of 1972 by the learned Presidency Magistrate, 7th Court, Dadar, Bombay, rejecting the application for permission to withdraw the proceedings under Section 495(2) of the Criminal Procedure Code. The facts giving rise to it could be briefly summarised as follows:

2. The petitioner before this Court Mr. P.N. Inamdar is the President of Bharat Barrel Employees' Union; respondent No. 2 Mr. L, B. Goenka is the Director of the Bharat Barrel & Drum Manufacturing Company, whereas respondents Nos. 3 to 185 are the employees of the abovesaid company.

3. On September 30, 1971 the management of the said company decided to close down the factory on account of non-availability of raw material and notice of closure was issued, terminating the services of opponents Nos. 3 to 185 with effect from November 1, 1971. On October 30, 1971 the petitioner (the President of the Employees' Union) and other workers collected at the company's premises to demand their dues and they were there from 2 p.m. onwards. Although a Saturday, it was a working day for the factory. Mr. Jalan, one of the Directors of the Company and opponent No. 2 Mr. Goenka, another Director, were about to leave the factory premises in the evening by about 6-45 p.m. Eight from 2 p.m. onwards the employees were demanding their legal dues. As these two directors and other office bearers did not and were not paying the dues including earned wages, the workers indulged in shouting slogans. As a result thereof the management enlisted police help. When the police arrived there, it is alleged, the workers became somewhat violent and their activities tended towards riot. It is said that about six to seven workers and sixteen police officers of different ranks were injured in some manner or the other. The police arrested the petitioner and opponents Nos. 3 to 185 and on completing the investigation they were put on a trial for offences punishable under Sections 143, 145, 147, 148, 332, 383, 341, 153, 324 and 426 read with Section 149 of the Indian Penal Code.

4. During the pendency of the trial, on August 29, 1972 the police prosecutor who was in charge of this case, made an application under Section 495 of the Criminal Procedure Code for withdrawing from the prosecution as provided by Section 494. The grounds which were pressed into service were mainly that the employees insisted on their earned wages and other legal dues from the management and they feared that their dues would not be paid because of their past experience, although the management tried to lay the blame on the shoulders of the employees. The company had not declared any date for payment in the notice. Thirdly, the earned wages were to the tune of Rs. 80,000 and although the deposit was made, the workers had received nothing because of the pending dispute. Another ground of considerable importance was that the State Government had recommended to the Central Government to take over the said concern and there was every likelihood of the Central Government acceding to such a request. The police prosecutor further submitted that but for the pressing economic demand and the consequent unemployment as a result of untimely closure such an unfortunate event would never have occurred. On emphasizing the poverty of the employees and their dependents it was alleged, if the case was allowed to be withdrawn, the workers could be utilised by the Government who was thinking of taking this factory under its control for increasing the production. Apparently the occurrences might have assumed the character of a riot, which should be viewed sympathetically in the larger interests of the society and State. The employees in their zeal to press their legitimate demands had no criminal intention whatsoever in committing any of these alleged offences. All the accused supported the withdrawal.

5. However, on September 15, 1972 opponent No. 2 Mr. Goenka who was cited as a prosecution witness and who happens to be a Director of this company, put in his objections for the withdrawal and tried to justify the conduct of the ease. On setting out the background he alleged that the date for payment was notified as required by the Payment of Wages Act and wages were payable under the law on November 3, 1971. Next, he referred to the provisions contained in Section 25FFP of the Industrial Disputes Act, 1947, under which payment of compensation could be made at any time after the closure. In view of these provisions of law, the company did not notify the date; but that made little difference to their grievances. On denying the accusation of withholding the payment in the past, Mr. Goenka alleged that for the first time the workmen had become violent and had taken the law in their own bands: when they were informed that their wages would be paid on November 2, 1971. Proceeded Mr. Goenka to deny categorically each and every ground put forth by the police prosecutor and attempted to point out that the grounds were devoid of substance. About the deposit of Rs. 80,000 and the non-payment thereof, a point was made that the matter was pending in appeal before the Small Causes Court and accounting of the withdrawals made in advance vis-a-vis the dues payable to the workers was required to be made before arriving at the legitimate dues of the workers. On denying the knowledge of any attempt on the part of the State Government to implore the Central Government to take over the factory, it was suggested that particulars of the alleged pressing demands were not given. Going a step further, it was said a little vaguely that practically all the workers were gainfully employed. Alleged Mr. Goenka next that the point of poverty or unemployment was unduly emphasized and there was no substance in the grievance of the employees that this prosecution was a hanging sword on their head. He further pointed out that being a Saturday, at about 6-30 p.m. when the incident took place it was wellnigh impossible for the management to collect the heavy cash of Rs. 80,000 and to distribute it as demanded by the workers. On pointing out certain allegations in the statement of Mr. B.A. Minocher Homji, Assistant Commissioner of Police, it was averred that many police officers were injured and the workers had freely used hard substances like nuts and bolts, grinding wheel coupling, drum covers etc. which came to their hand for indulging in a free riot. The medical certificates issued to the various injured would bear out the magnitude of the atrocities committed by the employees. In the concluding paragraph Mr. Goenka summarises that the grounds mentioned in the application were not the grounds on which the Court should give its consent for withdrawal of the case, nor was it a fit case.

6. May it be noted in this context that an objection was raised to Mr. Goenka's intervention with a submission that he had no locus standi to intervene. How ever, the learned Magistrate took the objections on record and in a very long drawn order running into twenty-two pages, he has virtually scanned the pros and cons of the grounds put forth by the police prosecutor as well as by Mr. Goenka and accepted the grounds put forth by Mr. Goenka with little reservation. The order leaves an impression that the learned Magistrate was called upon to canvass the merits and demerits of each and every ground and without adequate material before him, for reasons some of which are not clearly intelligible, he has repelled all the grounds put forth by the police prosecutor and accepted the statement of Mr. Goenka as a Gospel truth. On dismissing the various grounds put forth by the police prosecutor in his application, he has rejected the application with an observation: 'I have yet to come across a case where the withdrawal is sought even though there is abundant evidence in support of the serious charges.' It is but natural for Mr. Raje, appearing for the petitioner to critical such an approach and observation, and submit that being obsessed by certain statements made by some of the witnesses in the investigation stage, the learned Magistrate has concluded the case long beforehand. It is manifest that the so-called abundant evidence was not tested on the anvil of cross-examination and the mere bulk should not have weighed with the learned Magistrate at that stage. Moreover, the learned Magistrate, submitted Mr. Raje further, overlooked the ambit of the enquiry under Section 495 read with Section 494 of the Criminal Procedure Code.

7. Mr. Raje in his precise and well-founded arguments supported by various authorities, argued at great length that the lower Court failed to exercise jurisdiction vested in it by law, nay, improperly exercised the same in taking into account the various objections put forth by Mr. Goenka who had no locus standi. Mr. Goenka cannot be described as an aggrieved party in a case launched by the police or on the police report, nor had he any right to file any application of the present type much less could he be given an audience. The tenor of Mr. Goenka's statement would reflect considerably on the vindictive attitude with which he was urging his own demands for some ulterior ends. The powers of the prosecutor or the investigating agency to withdraw the prosecution under Section 494 and/or Section 495, Criminal Procedure Code are not subordinate to the whims or pleasures of the witnesses. At the same time Mr. Raje made it clear, and in every fairness, that the learned Magistrate is not supposed to surrender his discretion or to submit to the dictates of the prosecutor, may be public or police prosecutor; still, the very wordings of Sections 494 and 495 are wide in their import and they indicate no grounds for withdrawal. Such an application could be made for reasons not confined to judicial perspective. There may be number of extraneous considerations weighing with the State which may in a given case deem it not proper to proceed. To illustrate a few of them, Mr. Raje urged that there may be a good ground for the State not to prosecute e.g. consideration of maintaining industrial peace may be another ground. Public policy may require such an action. It is equally probable that on second thoughts the State may feel that the evidence collected by the investigating agency may not stand the test of scrutiny, or it might be possessing some credible information about the embellishment or other lacuna in the evidence collected. Merely because, as observed by the learned Magistrate, the evidence is massive or voluminous, it is no ground to dispel any of such or similar reasons prompting the State to withdraw the prosecution. No doubt, the withdrawal of the prosecution may result in discharge of the accused, but the discharge is not expected to conform to the standards of either there being no prima facie case as contemplated by Section 209 of the Criminal Procedure Code or of the other standards envisaged by Section 253 of the Criminal Procedure Code. Considering the entire scheme of these two and other sections relating to the powers of the withdrawal of a case by the State, the primary responsibility of prosecuting for serious offences lies on the executive and if in a given case the executive, on taking a survey of what has happened or what would be the after effects if the case is allowed to go ahead, may on better counsels think of dropping a curtain so as to maintain, peace and order or amity between the employer and employee. When such a case is made out and the public prosecutor shouldered the responsibility as a mouth-piece of the Government of gauging his own position at the law and scanning the evidence, there should be a very strong and impelling reason for the Magistrate to go on with the case. In any event, the Courts are not to be the tools in the hands of private individuals representing, may be, one side or the other.

8. Mr. Hattangadi who appeared for the company, on taking me through the various accusations levelled by one side against the other or vice versa, raised a preliminary objection that the State which sought the withdrawal and. whose request was rejected, has not approached the Court, but the Union leader is pressing his demand, therefore he would be also prima facie a person without any right to sue or having no locus standi and the revision on this initial score must fail. Next, he urged that the learned Magistrate was within his ambits in eliciting from the learned prosecutor as to why he felt the necessity of withdrawing the case and if he were to be convinced from other record or evidence or statement of a person like Mr. Goenka, the Director, then he would be certainly justified in rejecting the prayer. The Court is not to act as a mere rubber stamp to seal the submissions of the prosecutor. On taking me through the reasoning of the learned Magistrate he tried to justify each and every ground adumbrated in the final order. In other words, he supported the order by adopting the reasoning of the learned Magistrate more or less on similar grounds.

9. Before dwelling on the various points urged at the Bar I may mention here that Mr. Chitnis appearing for the State made it clear that the State even today insists on withdrawal of the case. It supports the cause of the petitioner and has very little to add to the various submissions made by Mr. Raje for the petitioner. With deference he disagreed with the various points pressed into service by Mr. Hattangadi and tried to justify the grounds set up by the police prosecutor in the lower Court.

10. At the outset I may dispose of the technical point raised by Mr. Hattangadi of the present petitioner having no locus standi and that the revision ought to have been preferred by the State as it could be said to be the aggrieved party. The matter has now come in revision. The revisional powers of the High Court are defined in Sections 435 and 439 of the Criminal Procedure Code. As has been repeatedly pointed out, they do not create any right in the litigant but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and subordinate criminal Courts do not exceed their jurisdiction or abuse their powers vested in them 'by the Code. There is no provision in the Code.which limits the discretionary power of the Court to examine the correctness, legality or propriety of any finding, sentence or order passed by any inferior Court. When the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu, it has the power to examine the whole question of the correctness, propriety or legality of the order which necessarily involves the examination of the order itself. It is evident that the revisional powers of the High Court are too wide and they are not limited to be invoked by one party or the other. Of its own accord the High Court can call for the record and examine the correctness of any such order. If this be the wide ambit of the High Court's power, the fact that the matter is brought to the notice by some person or the other, should make no difference. The question of the petitioner's right to come in revision or he having any locus standi really recedes to the background in view of the wider import in the language of Section 435 of the Criminal Procedure Code. The matter has now come before the High Court and it is seized of the same and it cannot be prevented by any such or similar arguments from exercising its revisional jurisdiction to find out the correctness or otherwise of the order impugned. Therefore, I find little substance in the initial attack levelled by Mr. Hattangadi for the company.

11. This takes me on to the crucial question covered by Sections 494 and 495 of the Criminal Procedure Code which deal with the withdrawal from prosecution. Section 494 lays down that 'Any Public Prosecutor may, with the consent of the Court, 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,..'. The latter part of the section speaks of the effect of such withdrawal. If it is made before a charge has been framed, the accused shall be discharged. If on the other hand, the request is made after the charge has been framed, then the withdrawal would entail into an acquittal. As one reads the section, it gives no indication as to the grounds on which the public prosecutor makes an application or the considerations on which the Court should proceed to accord its sanction or to grant its consent. It is apparent from the scheme of the section that the initiative should emanate from the public prosecutor and what the Court is called upon to decide is to consent or not and not to determine the matter judicially. The withdrawal is more or less an executive and not a judicial act. These propositions are made clear by the pertinent observations of the Supreme Court in State of Bihar v. Ram Naresh A.I.R [1957] S.C. 889 to which I will have an occasion to refer to again. The public prosecutor is really given a discretion, may be on consulting the State or its proper representative and when he makes up his mind to withdraw from the arena, his discretion is circumscribed by the consent of the Court. Therefore, the real turning point would be in what cases the Court can withhold the consent and as observed just now, it is not expected to proceed to determine all or any of the grounds judicially as if he was handling the trial of a case on merits. The section contemplates an action to be taken upon circumstances extraneous to the record of the case, some of which were already referred to Mr. Raje and to repeat the same, inexpediency of prosecution for reasons of State, necessity to drop the case on grounds of public policy, credible information having reached the Government as to the falsity of the evidence by which the prosecution is supported, and other matters of that description.

12. Now, adverting to the functions of the Court in granting the consent it could be characterised as a judicial function which has to be performed with judicial discretion; but it does not necessarily follow that the discretion has to be exercised only with reference to the material gathered by a judicial process. To put such a narrow interpretation on the language of Section 495 would be in vesting the Court granting the consent with a jurisdiction to determine this issue in a judicial manner and on the evidence then made available to him. In contrast the language of Section 494, Criminal Procedure Code is wide enough. If such a narrow interpretation is to be put on Section 494, it Would be curtailing the ambit of Section 494 which deed not seem to be the intention of the Legislature; otherwise, the Legislature would have used the words that 'on being convinced by the evidence placed before it, the Court should accord sanction or refuse the same'. No doubt the Court is expected to record its reasons, but when the prosecutor makes certain submissions, they are entitled to great weight, because it is common experience that the prosecutor acts on instructions of the State.

13. Section 495 is drawn on similar lines as Section 494. The earlier section speaks of a withdrawal from prosecution by public prosecutor, whereas Section 435 envisages the Court's powers when the police prosecutor makes such a move. It says that any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person like a police prosecutor or other officer designated differently as laid down in Sub-section (1). Sub-section (2) is of considerable importance and it lays down that any officer in charge of the case shall have the like power of withdrawing from the prosecution as provided by Section 494 and the provisions of that section shall apply to any withdrawal by such officer. In a nut-shell, it could be said that the provisions of Section 494 apply mutatis mutandis when a police prosecutor seeks the permission of the Magistrate to withdraw the prosecution. The grounds on which he can seek such permission are nowhere laid down in Section 494. As the Legislature has not defined the circumstances under which a withdrawal is permissible, no hard and fast rule can be laid down circumscribing the limits within which the withdrawal can be made. The other factors which are extraneous to the record of the ease and to which a reference has already been made more than once in, the foregoing paragraphs do come into play while dealing with a case under Section 495. This, in a nut-shell, is the scheme of both the sections and the ambit of the enquiry under the said section. If it be found on a closer scrutiny that the learned Magistrate without bearing in mind the want of checks or limitations on the powers of withdrawal passed on extraneous considerations which are not present in the evidence, were to dispose of the matter confining to the statement of one side or the other, then certainly he would be committing an error which would be patently wrong and could be set right in revision. Under Section 435 the High Court is empowered to examine not only the correctness of the order but the legality or propriety thereof. The expression 'propriety' is not without meaning. If under a certain set of circumstances the State feels that prosecution to the end is more hazardous or not palatable to the ulterior welfare of the State, then dropping at any stage would be better. Such a discretion on the part of the State would prove more advantageous than the valour of fighting the case to the end just to appease some of the witnesses or the real complainant or the persons who have suffered.

14. This necessitates an examination of few cases cited at the Bar. The earliest case relied upon by Mr. Raje was of Gopi Bari v. Emperor A.I.R [1920] Pat. 362 A broad proposition laid down was that where the prosecutor wants to withdraw the case but the complainant insists on its conduct to the end, the Court's refusal to accord sanction for the withdrawal would be without jurisdiction. Another observation worthy of note is that the complainant in all such cases has not locus standi to control the proceedings, when the matter has been taken up by the investigating agency and when it is a police case or a case lodged on police report. More or less similar observations find place in the ease of Amar Narain v. State of Rajasthan A.I.R [1952] Raj. 43. The broad principle enunciated, following a series of decisions of Patna High Court, is that where the public prosecutor appears, it is for him to decide whether he should continue the prosecution or withdraw from it. If he decides to withdraw, he has power to apply to the Court under Section 494, Criminal Procedure Code for giving consent for withdrawal. This power cannot be subject to the wishes of a third person even though he might be interested directly in the case. On referring to the question of locus standi of a third party to intervene and to oppose the withdrawal as well as the High Court's wide powers of revision, Wanchoo C.J. (as he then was) speaking for the Court observed that the better view is that it is possible for the public prosecutor to withdraw from a case for reasons which are extraneous to the record and which may, therefore, include the reasons of the State. In making these observations in para. 14 of the report His Lordship referred to a number of authorities decided by Calcutta, Patna and Madras High Courts which it is needless to detail. While dealing with the question of the reasons of the State, His Lordship has pointed out that it would be within the powers of the Court to inquire what those reasons are before it gives its consent; but if they are of a confidential nature and if a statement is made by the prosecutor that it may not be possible for him to disclose the reasons, then the Court should be slow to interfere with the discretion of the State. It does not appear from the present record that the learned Magistrate ever made any enquiries in this direction; but from the grounds put forth it would be apparent that the State in its own way was endeavouring to move the Central Government to take over the concern. That may be one of the grounds to put an end to this controversy or to drop the curtain over the imputed rancour without embittering the relations between the' employer and the employees or with a view to re-employ these employees in the same or similar concern which the Government may propose to take over or administer.

15. The Full Bench case of Patna High Court in The King y. Moule Bux (1948) 50 Cri. L.J. 488 which has been referred to in the case just cited, enunciates the same principle that the inexpediency of prosecution for reasons of State may be one of the grounds. The facts in this case were somewhat similar. It was also a case of a riot which had occurred in the office of the Electrical Engineer inside the Tata Iron and Steel Works at Jamshedpur. Seventeen persons were charge-sheeted after the police investigation and number of witnesses were examined not only at the investigation stage, but after the trial commenced. Some of the witnesses were cross-examined and after the prosecution case was closed, the defence had led some evidence and the matter was postponed for judgment. Just before the delivery of judgment the learned prosecutor on the instructions of the Government made a move for withdrawal. While dealing with the principles regarding the withdrawal, it was pointed out that it would be within the competence of the Court to ascertain from the prosecutor what the reasons were and if he is satisfied he can grant the consent and it could not be said that the Magistrate acted arbitrarily or improperly.

16. The next and most important case which crystallises the legal position is to be found in the Supreme Court pronouncement in the ease of the State of Bihar v. Earn Naresh. Jagannadhadas J. speaking for the Court, on pointing out that Section 494 is wide in its import and an enabling one and that it gives no indication as to the grounds on which the prosecutor can make an application, ruled that the primary responsibility rests on the shoulders of the prosecutor to apply for the withdrawal. While granting consent, the function of the Court is taken to be a judicial function and has to be exercised with an amount of judicial discretion. But the next important observation is that it does not follow that the discretion is to be exercised only with reference to the material gathered by the judicial method, otherwise, the wide language of Section 494 would be considerably narrowed down. Another important principle emphasised by the Supreme Court is that in this country the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the executive authorities. On referring to the stages of investigation and the duties of the Magistrate as well as his discretion to interfere at intervening stages, it is further pointed out that 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. In the same breath it is made clear that it cannot be taken to place on the Court the responsibility for a prima fade 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(7) and 253(7), Criminal Procedure Code, or of 'groundlessness' under Sections 209(5) and 253(2), Criminal Procedure Code. On giving a caution, to the lower Courts that a consent is not 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, the duties of the Court are defined. What the Court has to determine for the exercise of its discretion in granting or withholding consent, is not a triable issue on judicial evidence, It is not correct to say that where the application is on the ground of inadequacy of evidence requiring judicial consideration, it would be manifestly improper for the Court to consent to withdrawal before recording the evidence and taking it into consideration. Ultimately what is emphasised is that the Court should be cautious enough, to find out whether the withdrawal is a mere ruse to appease one side or the other or likely to entail into abuse of the powers vested in the Court. More or less the same Principle is reiterated in the case of State of Andh. Pra. v. G.S. Reddy . His Lordship, on reiterating some of the grounds referred to in the various authorities touched in the foregoing paragraphs, has emphasised one more aspect and it is the state of emergency to which no Courts can be blind. If the continuance of the prosecution, were to hamper the rapprochement between the parties and management, and for avoiding further trouble, the Court can in the proper exercise of its discretion, give consent to the withdrawal of the prosecution. A point, was made in this case by the opposite side that the move to withdraw was based merely on political reasons and it was nothing more than an attempt to save respondent No. 2 Mr. Sanjeeva Reddy from being prosecuted in a Court of law. The allegation was founded on the ground that out of party affiliations as the individual had been returned to the Assembly, Government had taken this step to save itself from the criticism of giving a ticket to a person involved in grave offences. On taking note of some of the pieces of evidence or acts attributed to certain individuals, it was pointed out that when the legitimate aim was to save a large body of workers, it could not reasonably be concluded that the entire machinery of the State was moved to save an individual. The last case on the point cited at the Bar by Mr. Raje was of Thakur Earn. v. State of Bihar : 1966CriLJ700 . On emphasizing the principle that on a police report a private party has no locus standi and that the revisional powers of the High Court under Section 435 of the Criminal Procedure Code are very wide, it has been stressed that the criminal law is not, however, to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, observed Mudholkar J. speaking for the Court,.in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. (p. 917)

17. Mr. Hattangadi tried to distinguish one and all these cases cited by Mr. Raje more on factual aspects than on legal principles. The legal principles laid down and summarised in the foregoing paragraphs now stand fairly well-recognised. The three or four principles, to recapitulate, are that when the State is a prosecuting agency the individual has no locus standi when the prosecutor seeks withdrawal of the case. The second broad proposition is that Sections 494 and 495 of the Criminal Procedure Cede are very wide in their import and have no limitations on the grounds on which the consent could be allowed or withheld. Thirdly, the Courts granting such sanction or rejecting the same should not try to determine the issues on the evidence as collected and placed before it as if it were a judicial decision to be founded on the evidence brought before the Court. The Court should take into account extraneous matters referred to in some of these decided cases viz. reasons for the State, inadvisability to prosecute, maintenance of peace or good relations between the employer and employee or the catastrophe in the long run which the conviction may bring to a handful when the matter arises out of some discontent between the employers and employees. Bearing these guidelines in mind, the learned Magistrate ought to have approached the ease rather than to decide it, as if he was trying a justifiable cause on the limited evidence placed at that stage. He seems to have been swayed away by the primary consideration of sixteen officers or seven persons being injured and has tried to defend the employers in his own way by resorting to certain legal provisions contained in the Industrial Disputes Act; but this approach, needless to add, does not seem to be sound, nor countenanced by the legal provisions.

18. Now, going back to the merits, suffice it to mention that although the lockout was declared more than a month ago, in the notice pasted at the gates, the date for clearing the arrears of earned wages was not notified in the first instance, but a vague reference was made to certain provisions contained in certain enactments. They may connote something to a man well-versed in law, but the employers ought to have taken into account the calibre of these workmen and their capacity to understand the implications of those sections. If they had, at the outset, notified the date on which the payments would be made, probably the workers would have tolerated the action for a day or two. Another singular circumstance which emerges out from the statement of Mr. Minocher Homji, the Assistant Commissioner of Police, is that before the matters took a sudden and worse turn he, accompanied by the police inspector Mr. Avasthi, had approached Mr. Goenka (opponent No. 2) whose affidavit has been largely relied upon by the learned Magistrate, and Mr. Jalan, another important office bearer, to bring- about a settlement. But the next statement made by the officer is more significant. He has said, 'Both of them were not prepared to come down and address the workers but as a result of our approach they promised to pay the workers by 2-11-1971 instead of 6-11-71. A notice to that effect was displayed on the notice board.' A little discretion on the part of these two directors to come down and to meet their erstwhile employees could have averted the calamity. The date for payment seems to have been notified at the intervention of the police official and never before that. As I read the initial notice, it barely makes a mention to certain sections which is nothing short of Greek and Latin to the workers. The other important grounds which have not been duly considered by the learned Magistrate are the submissions of the police prosecutor, One of the statements made by him was that the State Government had recommended to the Central Government to take over the concern and there was every likelihood of the workers becoming the owners. Pausing for a while here, the learned Magistrate could have done well to ascertain better particulars instead of dismissing these grounds on the written statement of Mr. Goenka, who simply said that he was not aware of them. When the police prosecutor made such a submission, it would be legitimate to infer that he was possessed of some material. Another important factor which has not been duly considered by the learned Magistrate is the plight of these 183 workers. It is common experience that in the spiral rise of the prices, a middle class man finds it extremely difficult to make both ends meet if he does not get his wages or salary in good time. And what was the demand of these workers? As I read the record, they were literally falling at the feet of the management to clear their dues in good time so as to avert starvation of their dependents. 'Words of encouragement or an assurance to clear the dues in a day or two would have averted this catastrophe; but both the directors were not prepared to leave their chambers. Such an attitude on the port of the management was bound to flare up the workers who were faced with starvation. If in the heat of moment they were to lose their balance, of mind and at the intervention of the police were to accelerate the riot to a certain extent, they alone cannot be blamed. I wish to make it clear that T am not justifying the atrocities of the workers if that are substantiated by the evidence, but these broader aspects should have been taken into account. The point of poverty was also pressed into service and a, sympathetic outlook on the part of the learned Magistrate would have been well appreciated. The Management has capitalised the deposit of Rs. 80.000, but it is a bird not in the hand but in the bush. Litigations ore pending and payment is withheld. That is no solace to the workers. It may be that some of the workers had made advance withdrawals, but the adjustment of accounts or a little payment to pacify them just to meet the needs of the morrow could have satisfied the cause and met the demand of the workers to a certain extent. Finally, as observed in some of these reported cases, there may be some extraneous grounds which unfortunately were not elicited nor placed before the Court. If elicited, the prosecutor would have thrown some light and when the State is thinking of shouldering the entire burden, it is but natural it would find little embarrassed to get some of these persons convicted. If they are convicted, the gates for re-employing them in the Government service would stand closed. This was certainly a greater calamity which was likely to befall these workers. To avert some such danger, the prosecutor, in consultation with the State, took the above steps. Therefore, this is a fit case in which the circumstances justify the grant of consent. The order made by the learned Magistrate, to my mind, is not only unwarranted but patently illegal and has little propriety. The situation demanded some sort of get-together and a compromise but it was mainly averted by the Management. For these reasons, disagreeing with the learned Magistrate, I am disposed to allow this application and sanction the withdrawal of the prosecution.

19. In the result, the application is allowed. The rule is made absolute. All the accused stand discharged.


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