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Sadanand Murlidhar Burma and ors. Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1976CriLJ68; 1974MhLJ44
AppellantSadanand Murlidhar Burma and ors.
RespondentThe State of Maharashtra
Excerpt:
- section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it si open to the accused to bring to the notice of the court that the materials do not show that the accused does not.....ordershimpi, j.1. criminal revision application no, 25 of 1974 challenges the order of acquittal of jaganlal son of kanhailal agarwal consequent to the allowing of the application by the additional sessions judge amravati, filed by the public prosecutor that consent be given by the court to withdraw the sessions case no. 49 of 1969 against the said accused jaganlal kanhailal.2. criminal revision application no. 26 of 1974 challenges the order of acquittal of baban ramchandra baipayee and madhukar dhundirai consequent to the allowing of the application by the additional sessions judge amravati, filed by public prosecutor of amravati in sessions case no. 49 of 1969 that he be allowed to withdraw the cases against the five persons named in that application. the learned additional sessions.....
Judgment:
ORDER

Shimpi, J.

1. Criminal Revision Application No, 25 of 1974 challenges the order of acquittal of Jaganlal son of Kanhailal Agarwal consequent to the allowing of the application by the Additional Sessions Judge Amravati, filed by the Public Prosecutor that consent be given by the Court to withdraw the Sessions Case No. 49 of 1969 against the said accused Jaganlal Kanhailal.

2. Criminal Revision Application No. 26 of 1974 challenges the order of acquittal of Baban Ramchandra Baipayee and Madhukar Dhundirai consequent to the allowing of the application by the Additional Sessions Judge Amravati, filed by Public Prosecutor of Amravati in Sessions Case No. 49 of 1969 that he be allowed to withdraw the cases against the five persons named in that application. The learned Additional Sessions Judge has granted permission in so far as two accused mentioned above. The grounds mentioned in the application by the Public Prosecutor in this application are that those 5 accused are students of tender 1 age and the decision of the Sessions trial was likely to affect their careers adversely. This order was passed by the Additional Sessions Judge on 11-2-1974.

3. Criminal Revision Application No. 30 of 1974 is filed by two applicants Munna alias Rameshkumar and Bans gopal son of Hiralal Agrawal who are aggrieved by the order of the Additional Sessions Judge Amravati passed in Sessions trial No. 49 of 1969 rejecting the prayer of the Public Prosecutor to allow him to withdraw from the case of these two applicants. As they arise out of the same sessions trial which is pending before the learned Additional Sessions Judge Amravati and as these applications were argued before me by the learned Advocates I am disposing them of by this common order.

4. In Criminal Revision Application No. 25 of 1974 the Public Prosecutor had filed the application for withdrawal on 27-1-1970. He had prayed that Jaganlal son of Kanhailal Agrawal of Paratwada is a student of tender age and the decision of the case is likely to affect his career and the Court should be pleased to grant to withdraw the case. It appears that the order allowing this application was passed on 30-1-1974.

5. It is necessary to refer to a few facts before I deal with the submissions urged before me. On 21st August 1968 a procession was arranged by persons re- siding at Achalpur. That procession was taken out in support of the agitation of establishment of Agricultural University in Vidarbha Area. Such agitation was carried out in the Vidarbha Region at about that time. It is the allegation of the prosecution that those members who had taken out the procession had become members of the unlawful assembly and had committed several offences such as rioting, mischief, arson and others. Ultimately a charge-sheet was filed against the present applicant and some 20 other persons in the Court of Judicial Magistrate First Class, Achalpur under Sections 147, 427, 436 and 336 of the Indian Penal Code. That case was numbered as Criminal Case No. 66/1969. It appears that four persons were discharged when the committal proceeding was pending in the Court of Judicial Magistrate First Class, Achalpur. Those four persons were students of tender age and it appears that the cases were with the consent of the Magistrate withdrawn against them and hence orders of discharge appears to have been passed. 18 persons were committed to the Court of Sessions for being tried for various charges framed against them in the committal order and the case same to be registered as Sessions Case No. 49 of 1969.

6. The applicant before us is one Dr. Burma who is the Medical Practitioner and a resident of Achalpur. He had filed Special Civil Application No. 349 of 1970 in this Court when the applications were filed by the Public Prosecutor for withdrawing cases against some accused in the Sessions Court. By that application ii was contended that the State was discriminatory against accused and because some of the accused persons were allowed to be discharged or acquitted by the Court by withdrawing cases against them and accused applicant was discriminated against because his case was not allowed to be withdrawn. This argument did not find favour with the Division Bench and ultimately the order was passed on 6-11-1973 dismissing applicant's- Special Civil Application under Article 14. It was observed by the learned Judges of the Division Bench in Sadanand v. State. H1974 Mah LJ Note 44 that 'Withdrawal of prosecution against some of the accused persons does not result in discrimination against rest of the accused who are being prosecuted. The order of withdrawal being a -judicial order cannot be called as discriminatory and cannot be interfered with unless challenged under the Criminal Procedure Code.' It appears that thereafter the stay which was obtained by the applicant was vacated and the applications for withdrawal filed in the Sessions Court were considered by the learned Additional Sessions Judge and he passed the three impugned orders which are challenged before me.

7. In respect of Jaganlal in whose favour the order is passed is the subject-matter of Criminal Revision Application No. 25 of 1974. The learned Judge in the order stated that the applicant's advocate in the Sessions trial case Mr. R, S. Padhye had no objection for the same withdrawal of the case against Jaganlal. After hearing the Advocates and the Advocate Shri Sinha who appeared for Jaganlal, the learned Additional Sessions Judge observed that Jaganlal wanted to pursue his education, joined the College but unfortunately his father died and therefore he had to 'give up further education. It was also observed by the learned Judge that there were reasonable grounds for granting the consent. The application filed by the Public Prosecutor cannot be said to have been filed with mala fide intention and that at any rate the request of the Public Prosecutor to withdraw the prosecution against Jaganlal was bona fide. In that view he granted the sanction.

8. It was contended before me by the Advocate of the applicant that the learned Additional Sessions Judge did not apply his mind to the facts and documents which were produced before him which would Bo to establish that Jaganlal was never a student at any relevant period apart from the Question as to whether he was of tender age. Shri Udhoji who appears for the applicant submitted that Jaganlal Kanhailal was a student admitted in 5th Marathi standard on 7-7-1958 but discontinued his education after failing in 9th standard in April 1965. It is to be seen that the agitation was carried on in the year 1968 and the relevant date is 21-8-1968. Thereafter it appears that when agitation came to an end and everything cooled and the question came about the students, it was decided by the Government that prosecutions against the students of tender as should be withdrawn and after such a decision was made known, it appears from Annexure A to the revision application which is the certificate dated 22-10-1971 of the Head Master of Municipal Higher Secondary School, Achalpur that this Jaganlal Kanhailal got readmitted in the school on 1-9-1969 in Class IX-A and was discharged on 19-6-1970. The other documents which are annexures to this revision application show that Jaganlal Kanhailal was a partner of an Adat Shop run under the name and style of 'Jalsingh and Jaganlal] Adat Shop', This Adat Shop was registered by depositing the amount in Treasury i. e. the licence fee on 15-10-1966 and a certificate under the Bombay Shops and Commercial Establishment Act appears to have been issued in the name of this firm on l-l-1967. It is renewed from time to time in the year 1967-68. Similarly grain licence, appears to have been obtained by this firm of Jaganlal in the year 1967. It is not that these documents are produced along with the revision application for the first time as to spraying the (spring ?) surprises on the other side but these documents were produced in the Sessions Court when the application for withdrawal filed by the Public Prosecutor was being heard by the learned Addl. Sessions Judge and it is contended by Shri Udhoji that these facts would go to show that the learned Judge has not properly applied his mind to the facts but has accepted the oral statement of the Public Prosecutor as a gospel truth and has, therefore, arrived at a manifestly wrong decision.

9. As against this Shri Sinha who appears for Jaganlal submitted that this applicant has no locus-standi to make an application and he cannot invoke the revisional jurisdiction to this Court under Section 439 of the Criminal Procedure Code. He further submitted that applicant's Advocate on one occasion had given consent by stating 'no objection' for the withdrawal. The applicant changes sides and, therefore, I should hold that the application filed by the applicant is frivolous. It was also contended that the learned Judge has not framed any issue for determination. He has prima facie considered the question and, therefore, this detailed evidence should not be considered. I have already stated that this is not a new evidence introduced for the first time here. It was a piece of evidence produced in the Sessions trial itself. At the stage of the revisional jurisdiction another certificate is produced on behalf of Jaganlal by his learned Advocate Shri Sinha. The certificate shows that Jaganlal Kanhailal who is now aged 31 years is a student studying in 9th standard in the High School of Achalpur Camp. That certificate is dated 24-10-1969 and the second is dated 13-4-1970. It will be seen from the allegations made by the applicant that Jaganlal is a person of 31 years with a wife and 4 children. Probably his children may be going to school one does not know but the father is still taking education in the 9th standard. Shri Sinha at this stage submitted that the charge-sheet filed in the year 1968 showed the age of accused Jaganlal as 21 years.

10. The learned Additional Government Pleader submitted that the Court has passed a speaking order. The Court has taken into consideration all these facts and it would be a moot Question whether this Court could in its revisional jurisdiction set aside the order of acquittal passed against Jaganlal. I would deal with all these submission after I summarise the other submissions in the other applications.

11. As regards Criminal Revision Application No. 26 of 1974 as already stated above it refers to the withdrawal of the case against two persons. The learned Additional Sessions Judge in Para. 2 of the order stated that Baban Ramchandra Baipayee was a regular student in Jagdamba Maha-Vidvalaya, Achalpur, during the year 1968-69 and was studying in Pre-University Arts in that year. He appeared for his annual Examination in March 1968 but failed. Subsequently, he appeared for his examination in March 1969. It may be at this stage mentioned that one does not know whether he was prosecuting his studies in March 1968 and April 1969 in the College and appeared as ex-student. As regards the other accused Madhukar Dhundirai Sahastrabudhe. the learned Judge observed that Madhukar Dhundirai Sahastrabudhe appeared for his B. A. examination in March 1968. He stated that he could not prepare the studies and hence he did not appear in the examination in March 1969. He thereafter joined Bhartiya Maha-Vidavalava, Amravati. From this Vidayalaya he appeared for the same examination in March 1970. From these averments which the learned Additional Session Judge gathered from Madhukar he came to the conclusion that Madhukar was a student on the date of occurrence and on the date on which the charge-sheet was filed. Hence hp was inclined t0 grant the permission.

12. The applicant has produced a certificate before the Sessions Court which Is Annexure 2 to this revision application. It is a certificate from the Amravati District Central Co-operative Bank Ltd., Amravati which goes to show that Madhukar Dhundirai Sahastrabudhe was an employee of the Bank between 2-9-1967 and 6-7-1969. This would show that this Madhukar was not a student nor a student of a tender age. In respect of Madhukar it was- contended by the applicant that from 1967 to 1969 July he was not the student of any college. He joined subsequently in July 1969, B. S. Patil College at Paratwada and it appears from the certificate produced by Shri Saraniame the learned Advocate for Madhukar that Madhukar was an invitee student of the College from Jagdamba Mahavidva-laya. Achalpur Camp from 1964-65 to 1967-68 that while he was in service he was prosecuting his studies in the college also, and after 1968 after the term of March 1968 no certificate has been produced to show that he was at any time the student in the college. The material date of the incident as I have referred is 21-8-1968 and thereafter in 1969 charge- sheet has been filed. As regards Baipayee a copy of the receipt has been produced by Shri Saraniame to show that Baipayee has deposited the fee of Rs. 47/- for registering himself as external student or appearing as ex-student. It is. therefore, seen that the evidence before the Additional Sessions Judge when he exercised his discretion was that these two persons were not prosecuting their studies and they could not be said to be students when the incident took place or when the charge-sheet was filed. Subsequently they appeared to be appearing for college examination as external students.

13. In the case of Criminal Revision Application No. 30 of 1974 the learned Judge has refused permission to two students. The learned Additional Sessions Judge held that Ramesh when ha was questioned stated that in the year 1964 he was in standard 9th. He left the school in April 1964. From April 1964 till July 1969 he did not attend any school. On 4-7-1969 he secured admission in Municipal Secondary High School in standard 9th but was discharged from that school on 14-7-1969. Thereafter he joined I. E. S. Boys High School. Paratwada in July 1969 and appeared for 9th examination and it appears that he was done his studies for Part I Arts. Whether he was going to the College or appearing externally is not clear from the order but the finding is that on November 18. 1968 Ramesh was not a student. The learned Judge in respect of Bansgopal has refused permission, Bansgopal states that he left the school in 1963 and he was not a student from 1963 till the end of 1968. Therefore the learned Judge observed that he was also not a student during the relevant period- It is further seen from the order of the learned Judge, though he has not specifically stated so. that the application made by the Public Prosecutor was not based on his own conclusion but he made that application on the basis of the order of the Government communicated to him to withdraw the case against some of the persons who are in the opinion of the Government students. The learned Judge further observed that though it was the exclusive right of the public prosecutor to make an application to withdraw the prosecution against some of the persons still the Court has to apply its mind judicially before granting the permission and the Court held that the Court was expected to examine the merit of the application at least prima facie though not in detail. The Court further observed that Court was not expected in allow the application automatically simply because an application was filed. In that view the permission prayed in the case of these two students has been refused. With res- pect to the learned Additional Session Judge if he had kept these principles in mind in respect of the applications i. e. Criminal Revision Applications Nos. 25 and 26 then I am sure that he would not have reached the conclusion which he has reached and I shall presently show that the order passed in Criminal Revisions Applications Nos. 25 and 26 appears to me as solely based on the submissions made at the Bar and not by application of mind to the facts produced before him. I shall also examine the case of these two students a little later.

14. Section 494 of the Criminal Procedure Code runs as under:

Any Public Prosecutor may. with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases 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 chares has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. It is, therefore, clear from read me the section that the public prosecutor has sot the sole power to withdraw from the prosecution of any person, He is the sole judge to decide, applying the general principles as to whether he should conduct the prosecution or withdraw from the prosecution but that order has to be with the consent of the Court because the Court may not agree to consent and in that case even if the public prosecutor withdraws the Court may ask another prosecutor to conduct the prosecution as is evident from Section 494 of the Criminal Procedure Code. Therefore, the important question for consideration would be in what circumstances the Court should consent. Whether the Court should as soon as an application is filed by the public prosecutor allow him to withdraw from the case or the Court should apply its mind to find out whether such a consent should be granted or not. State looks after the administration of justice and if the State after filing the charge-sheet comes to the conclusion when proceeding with the case that there is no evidence and it would be futile to spend the time of the witnesses as well as of the Court, then in such a case if such material is brought before the Court, the Court should grant sanction. That could be said to be an exercise of judicial discretion. But if it is found that the application for with- drawal made by the public prosecutor is not based on sound canons of judicial principle but is based on extraneous consideration then certainly the Court will have, to consider whether consent should be granted or not. There are certain principles laid down by some of the authorities as to what should be the criterion for exercising the discretion by the Court in giving its consent to the application of the public prosecutor and what is the right of the public prosecutor in withdrawing from a particular case, I shall refer to those principles' hereafter.

15. The Supreme Court had an occasion to interpret Section 494, Criminal P.C. in a case reported in State of Bihar v. Ram Naresh : 1957CriLJ567 . Placitum (a) reads as under:

Section 494 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. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be- The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the consideration on which the Court 'is to grant its consent. There- can be no doubt, however, that the resultant order on the granting of the consent, being an order of 'discharge' or 'acquittal' would attract the applicability of correction by the High Court under Sections 435, 436 and 439 or Section 417, Criminal P.C.

At this stage it may be noted that the submission of Shri Mor whether this Court has jurisdiction to ensure in the revisional jurisdiction as regards the order of acquittal and discharge passed is answered by the above observations of the Supreme Court. The observations further lay down

But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of Section 494, Criminal P.C. would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter -judicially. The section gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds. The judicial functions, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has 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 purposes. In this context it is right to remember that the Public Prosecutor though an executive officer is, in a large sense, also an officer of the Court and that he is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated 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.

The Supreme Court thereafter has discussed the part played by the Investigating Officer as well as the Magistrate with which we are not concerned in this revision application,

16. The second case relied is the Full Bench decision of the Kerala High Court reported in Dv. Accountant General v. State : AIR1970Ker158 (FB). The observations run as under:

The power to withdraw under Section 494 of Criminal P.C. is conferred on the Public Prosecutor and on no one else; and. although this is an executive power, it is a Power which he must exercise in the light of his own -judgment and not at the dictation of some other authority, however, high. The power of withdrawal conferred on the Public Prosecutor is not an absolute power. He can withdraw from the prosecution only with the consent of the Court and this curb is placed on his power in order to ensure that the power is not abused. In other words, it is not exercised for improper reasons or to serve improper ends.

These observations are made following the decision reported in State of Bihar v. Ram Naresh. : 1957CriLJ567 the observations of which I have already reproduced. It is further observed by the High Court on page 159 as follows :

It is difficult to formulate a general principle for determining the grounds on which a Public Prosecutor may legitimately seek withdrawal, or looked at from another angle, the grounds on which the Court can properly grant or withhold its consent. The only general test we can think of. namely, that consent should be withheld if the withdrawal would tend to further the mischief the law seeks to prevent and it should be granted if it is likely to have the opposite effect, is too general to be of much use in practice. The Court gives its consent in the exercise of its judicial discretion and before granting consent, it must be satisfied that the grounds stated for the withdrawal are proper grounds, grounds which, if true, would make the withdrawal a furtherance of, rather than an hindrance to, the object of the law. Further, that there is material to substantiate the grounds alleged though not necessarily material gathered by the judicial method. One of the well-established grounds on which a withdrawal can properly be based is that there is no evidence in the case which would warrant a conviction. In such a case it would certainly not further object of the law to harass the accused and waste the time of the Court, the witness, the prosecution and the defence by going on with the case.

The Supreme Court in a later decision report in Sankaranaravanan Nair v. P. V. Balakrishnan : 1972CriLJ301 ) has observed :

The section does not, however, 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. 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 dependant entirely on the facts and circumstances of each case. Nonetheless 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.

It will, therefore, be seen from the facts before us that the grounds that there is no evidence or the time of the Court and the witnesses would be spent because no adequate evidence is brought by the State to bring home the charge against the accused are not put forward. The only real son put forward is that the persons against whom withdrawal is sought are students and students of tender age. The main consideration appears to be that if these students of tender age are convicted by the evidence produced before the Courts then their future career would be marred.

17. We have, therefore, to examine whether this particular ground was fully established in support of the application by the Public Prosecutor and whether the learned Additional Sessions Judge had prima facie material before him to come to conclusion in whose case he had granted permission to withdraw that they were students and students of tender age and whether they were prosecuting the studies at the relevant period when the incident has taken place or when the charge-sheet was filed.

18. Shri Mor, Assistant Government Pleader, has submitted three decisions of the Patna High Court and one of them, in my opinion, answers his submission that this Court in a revisional jurisdiction can (not ?) interfere with the order of acquittal and discharge passed under Sec, 494 of the Code of Criminal Procedure. Therefore, I shall reproduce that observation first. It is reported in The King v. Moule Bux : AIR1949Pat233 . It is a Full Bench decision of the Patna High Court. It runs as under :

An order of acquittal or discharge passed under Section 494, consequent on the withdrawal of the Public Prosecutor from the prosecution of any person with the consent of Court, is a judicial order and liable to revision by the High Court. if the discretion vested in the Magistrate to give consent has been improperly or arbitrarily exercised. Ordinarily, the High Court is reluctant to interfere with the discretion given, but undoubtedly has power to do so, and will do so in special circumstances where the withdrawal appears to be manifestly improper.

The other cases pointed out by him from the Patna Authority are not necessary to be reproduced because they canvass the same proposition which I have reproduced from one of the authorities. He has also cited decision of the Rajsthan High Court reported in Amar Narain v. State of Rajsthan AIR 1952 Rai 421 : 1952 Cri LJ 375. That judgment has been given by Wanchoo, C. J. as he then was and the relevant placitum relied upon for canvassing that an application from third party is not maintainable is relied upon. The observations run as under:

In criminal cases it is the State which is in control of the proceedings particularly where the prosecution is launched at the instance of the State. In cases, therefore, in which the Public Prosecutor appears it is for him to decide whether he would continue with the prosecution or withdraw from it. If he decides to withdraw, he has the power to apply to the Court under Section 494, Criminal P. C . for giving consent to his withdrawal- This power cannot be subject to the wishes of a third person even though he might be interested directly in the case.

I fail to understand how these observations support Shri Mor to canvass proposition that the third party's application is not matainable.

19. I have given the relevant observations. I have also discussed the facts and the only question for me to consider is whether the discretion has been correctly exercised by the learned Additional Sessions Judge in disposing of these three applications. First of all it must be stated that application made by the Public prosecutor in Sessions Trial No. 49 of 1969 does not state except that the persons against whom the public prosecutor wants to withdraw the case are students of tender, age and their future is likely to be affected and their career would be marred. There is no allegation as I have stated that there was no evidence against the accused who were committed. The fact that 18 persons were committed goes to show that there was prima facie some evidence in the committal Court on the basis of which prima facie it committed the accused,

20. It is seen from the allegation made by the applicant that these non-applicants in Applications Nos. 25 and 26 were mentioned as culprits along with applicant Dr. Burma in the first information report and they have been identified by several witnesses whose statements during investigation have been supplied to each accused. It, therefore, followed that the ground for withdrawal is not lack of evidence. The ground is also not that Namdeo who had made the report was not ready to support the case. The ground is that they are the students. Though the public prosecutor did not state in the application the motive which prompted him to make these applications he submitted it at the Bar while arguing the applications. He told the learned Additional Sessions Judge that the State of Maharashtra passed an order to take the steps to withdraw the prosecution against some of this accused persons some time in the year 1969, According to the public prosecutor the order was communicated to him and he was informed to withdraw the prosecutions against the persons named in that order. It therefore prima facie appears that the Government took in its head that some persons were students and the cases against them should be withdrawn and accordingly the public prosecutor is instructed and he has made the applications. This submission would go to show that the applications made in all the three cases by the public prosecutor are not the results of his own thinking are not the results of his own conclusion which he has reached after the perusal of the case but are the results of some other authority which on extraneous consideration asked him or directed him to withdraw the cases. Even if the object may be not as stated in the observations of the Supreme Court but even if the object was really to look for the welfare of the students, then certainly in such political agitations where students are the first casualties the Court would have considered that application sympathetically but if persons taking advantage of the fact that cases against the students are to be withdrawn, clothe themselves subsequently as students, one cannot say that the discretion or the right exercised by the Public Prosecutor is impartial. Similarly, it cannot be said that the consent granted by the Court is on proper application of the mind to the facts of the case produced before him and. therefore it can safely be said in the cases where the persons were not students at all that the learned Additional Sessions Judge did not correctly appreciate the facts before him, did not apply his mind and. therefore, came to manifestly wrong conclusions and an erroneous finding.

21. The discussion of facts which I have shown goes to show that these persons have clothed themselves as students in order to avail of the policy of the Government. For example the opponent Jaganlal is in business from the year 1965. He left the school. He was continuing the business upto 1969. That goes to show that till the charge-sheet was filed he was doing the business but suddenly he started joining the school and joined the school in the 9th standard. The allegations in the revision petition that this person is aged 31 years and has four children have not been controverted at all. I, therefore, hold that he does not appear to be a bona fide student at all. The learned Additional Sessions Judge should have taken into consideration these facts. He should not have mechanically considered the submissions made before him and should not have relied upon no objection by accused No. 1 in the year 1970. It was urged that this applicant has changed and always changes. He is in habit of makings frivolous applications. Reliance was placed on his application which he had made as special civil application challenging the application of withdrawal on the ground that it infringes Article 14 of the Constitution. Whatever may be the motives which prompted the applicant to make that application, it is for the Court to consider whether there is adequate material prima facie to grant consent or not and this Court has a right in its revisional jurisdiction to examine whether the discretion has been properly or improperly used. It is well settled that the appellate Court or the revisional Court is always slow to interfere with the discretionary orders passed by the trial Court but if the order passed in the discretion appears to the revisional Court as inconsistent with the facts established or appears to be manifestly wrong or appears to be improperly made or capriciously made, then certainly this Court sitting as a revisional Court has a right to correct the error of the lower Court. In that view I hold that the learned Additional Sessions Judge in the case of Jaganlal has wrongly acquitted him by allowing the application of the public prosecutor, I would, therefore, set aside that order and direct that Jaganlal be tried along with others in the Sessions Case No- 49 of 1969.

22. The same observations which I have made in respect of Jaganlal apply with great force in respect of the other two mentioned as opponents in Criminal Application No. 26 of 1974. I need not repeat the very grounds which I have already stated in disposing of that petition.

23. In that view I hold that these persons were never bona fide students on the day when the incident occurred or when the charge-sheet was filed. It appears that these persons are taking advantage of the general order and want to clothe themselves as students in order to avoid porsecution. The opponents cannot be called students and they cannot at any stretch be called students of tender age In that view I hold that the learned Additional Sessions Judge has not properly exercised his discretionary order by granting consent in this case. It may be stated here that it was a composite application of 5 students. It appears from the order of the learned Additional Sessions Judge which is the subject-matter of Criminal Application No. 30 of 1974 that the principles which should guide the discretion of the Court were present in his mind. However, he has not properly applied his mind to the facts of the present case and has, therefore, come to the erroneous conclusion. In that view, I set aside the order of acquittal and direct that opponents Baban Baipayee and Madhukar Dhundirai Sahastrabudhe shall be tried in Sessions Case No. 49 of 1969.

24. As regards the application, No. 30 of 1974 made by Ramesh and Bans-gopal, it is seen that on their own admission they stand condemned that they are not students. Though it was vehemently urged by Shri Shirpurkar, the learned Advocate for the applicants, that the learned Additional Sessions Judge entirely went wrong and fell into error in following the curious procedure in examining these students. In my opinion, the learned Additional Sessions Judge followed the correct wav of approach when such an application was filed. He chose to question those who claimed to be students and they came out with truth and that truth was that they were not students. The learned Judge, therefore, rejected their application. Therefore, I see no reason to interfere with the discretionary order passed by the learned Additional Sessions Judge which is the subject-matter in Criminal Revision Application No. 30 of 1974. That revision application will have to be rejected. In the other two applications, i. e. Criminal Revision Applications Nos. 25 of 1974 and 26 of 1974 rule is made absolute.

25. At this stage. I may bring it to the notice of the learned Additional Sessions Judge that these Sessions trials arose out of an incident which took place in the year 1968. The accused were committed in the year 1969. Because of a stay granted in the Special Civil Application this Sessions Case was stayed. Now that stay is vacated because that application has been disposed of, I would direct the learned Additional Sessions Judge to expedite the hearing of this Sessions Case and dispose it of as expeditiously as possible.


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