1. This petition directed against the order dated 19th July 1978, passed by the learned Special Judge, Nasik, in Special Case No. 4 of 1976, granting application by the Public Prosecutor for permission to withdraw from the prosecution raises questions of some importance to the administration of criminal justice.
2. With regard to facts, as the trial and the recording of evidence is yet to commence, what is presently available are only the disclosures through the investigation materials which, briefly, are as follows:
In the year 1972-73 food grains including milo wheat were being despatched by the Bombay Food Corporation in the names of Collectors of Nanded, Osmanabad, Beed, Aurangabad and Parbhani. These food grains used to come to Manmad by railway. Collector's representatives unloaded these food grains at Manmad and from there took the same for storage to the Nag-pur godown from where these were transported by trucks to their destination at the respective districts. In July 1973, the Collector of Parbhani deputed one Abdul Aziz (Naib Tehsildar) along with the present accused No. 1 Kundalik Shinde (Aval Karkun) and one K. A. Latif for unloading the goods at Manmad, taking them to the Nagpur godown and then despatching the same to ultimate destinations as per allotment orders after preparing transport permits in that behalf. The responsibility was on the Aval Karkun Shinde, accused No. 1. Champalal Lalchand, accused No. 3, a resident of Vaijapur, colluded with Shinde at Manmad and took one hundred bags of milo in his truck after giving Shinde illegal gratification of Rs. 1,500/-. The said truck wag then brought to the petrol pump at Malegaon. At that stage however, the driver Mohamad Yusuf left refusing to take the truck further without a valid transport permit. Thereupon, Champalal himself started driving the truck and proceeded towards Vaijapur. However, near village Andarsul, the truck met with an accident. Champalal abandoned the truck and ran away. But on the same night he returned to Manmad. To over up his misdeeds he gave further illegal gratification of Rs. 1000/- to accused No. 1, Shinde, and this time got from him a false and forged transport permit. Information in the aforesaid behalf reached the police. A senior Police officer one Waghmare, Dy. S. P., C. I. D., Aurangabad, investigated the matter. After investigation, charge-sheet was filed against Shinde accused No. 1, Abdul Aziz accused No. 2, Sahebrao Bapurao, accused No. 3 and Champalal Lalchand accused No. 4.
3. An application was then made on behalf of the accused Abdul Aziz for discharging him on the ground that, as against him, there was no material at all for framing any charge. This was strongly opposed by the State contending that charge must be framed not only against the aforesaid accused but also against all the other accused persons. The Court, after going through the investigation papers, held by its detailed order of 31st March 1977 that there was no material against the accused Abdul Aziz and that, on the contrary, the material that was there indicated that Abdul Aziz protested against the activity and conduct of the accused Shinde and others. The Court consequently discharged Abdul Aziz and directed that charges be framed against the rest of the accused. Revision by the State' challenging the said order was dismissed by the High Court.
4. Charges were then framed against the other accused viz., Kundalik Shinde, Sahebrao Bapurao and Champalal Lalchand for offences under the Indian Penal Code viz; Section 409 - criminal breach of trust; Section 420 - cheating and dishonestly inducing delivery of property; Section 467 - forging of valuable security; Section 477-A - falsification of accounts; Section 120-B - criminal conspiracy; as also under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. However, just when the trial was about to ' effectively commence, the public prosecutor presented an application, inter alia, to the following effect:
On going through the papers of investigation, it appears that the prosecution is not likely to end in success and is likely to result in waste of public money. It is, therefore, necessary in the public interest to withdraw from prosecution.
It is, therefore, prayed that the undersigned may be allowed to withdraw from the prosecution.
Below this application the succeeding presiding Judge of the Court passed the impugned order permitting the Additional Public Prosecutor to withdraw from the prosecution. Hence this revision therefrom.
5. Contention at the outset on behalf of the accused is to the effect that this revision at the instance of the present petitioner, who was only a private complainant before the police, is not maintainable; to put differently; a private complainant has no locus in such matters. The question raised is of some importance and merits earnest consideration. I am informed at the Bar that on this question there is no direct authority, either way, of this High Court. Reference may, however, be made to certain rulings of the Supreme Court and of other High Courts. In State of Bihar v. Ram Naresh. : 1957CriLJ567 as also in M.N.S. Nair v. P.V. Balakrishnan : 1972CriLJ301 , order permitting withdrawal from prosecution was challenged by a private complainant. The said challenge was nevertheless entertained, heard and decided on its own merits de hors the locus of the person raising it. Indeed, in M. N. S. Nair v. P. V. Balakrishnan supra the private complainant was allowed to participate in the proceedings in all its stages.
6. Reliance is, however, placed on a statement in the case of State of Bihar v. Ram Naresh, supra:
There was some question raised before us as to whether the private complainants could be allowed in these proceedings at the various stages. Nothing that we have said is intended to indicate that the private complainant has a locus standi.
This, in my humble view, cannot be said to be a decision nor even an effective obiter on the concerned question much less can it be said to have the effect of being the law, declared by the Supreme Court within the meaning of Article 141 of the Constitution. On the other hand, fair and reasonable inference would be that the question was then left open. Indeed, in that very case, even while leaving open the said question, the Supreme Court did nevertheless decide on merits the correctness of the order permitting withdrawal from prosecution notwithstanding the challenge thereto by a private complainant in the instant case. Again,' even in its subsequent ruling in M. N. S. Nair v. P. V. Balakrishnan, supra, the Supreme Court again on merits heard and decided the challenge to withdrawal from prosecution notwithstanding the same being raised by a private complainant.
7. In the circumstances, though the locus of a private complainant was res integra, not expressly decided, the Supreme Court in more than one case did nevertheless go into and adjudicate upon the merits of the order relating to withdrawal from prosecution despite the fact that challenge thereto came from a private complainant. One may consequently venture to observe that if more than one precedent, albeit sub silentio, from the Supreme Court is in favour of a private complainant's locus, why should a similarly situated instant private complainant's challenge to the merits of the impugned order be rejected on the ground of locus simpliciter? Though a precedent sub silentio may not have high authoritative value, such precedents, coming as these do from the highest judicial tribunal, cannot fail to have their inevitable judicial impact on the lower-in-rank tribunals in the country - one such being the present Court.
8. Coming to rulings directly on the point, we have one of the Nagpur High Court in Satwarao Nagorao Hatkar v. Kanbarao Bhago Rao Hatkar ILR (1939) Nag 393, laying down thus:
It is competent for a private person to apply in revision against an order of discharge ...after the withdrawal of a prosecution.
Similar was the position before a Full Bench of the Kerala High Court in Deputy Accountant General v. State : AIR1970Ker158 . Indeed, the Full-Bench in paragraph 12 of the judgment observed that the High Court can be expected to exercise its revisional powers even suo motu and the locus standi of the person bringing the matter to the notice of the High Court would be of no consequence. In paragraph 18 of its judgment, the Full Bench reiterated that locus was not of any consequence for ...'this is a matter in which we would have felt bound to act irrespective of the locus standi of the parties'.
9. Directly to the contrary, however, is a Division Bench ruling of the Patna High Court in Gulli Bhagat v. Narain Singh : AIR1924Pat283 , laying down the following ratio on the question under consideration:
Finally there is a deeper and indeed a fundamental reason for noninterference which turns upon the position of a private prosecutor in prosecution for cognizable offences. In my opinion, the private prosecutor has no position at all in the litigation. The Crown is the prosecutor and the custodian of the public peace and if it decides to let an offender go, no other aggrieved party can be heard to object on the ground that he has not taken his full toll of private vengeance.
The proposition is, indeed, too broadly stated. The reason - private vengeance - may, in a given case, be a good ground on merits for not interfering with the impugned order. But to refuse interference only because of locus would, with great respect, not be the correct legal approach in matters relating to administration of criminal justice - in which field, irrespective of a private complainant's locus, the community at large is also concerned and may, in a given case, have a vital locus. Again, if one could go to the police or even to a magistrate and file a criminal complaint, whether directly affected thereby or not, why should one, on the ground of locus, be prevented or debarred from challenging a withdrawal from prosecution only because one is a private complainant? This is not to say that Court must interfere. That will depend on the facts and circumstances of each case. Indeed, it would, in a given case, be perfectly open not to interfere. But to refuse to touch merits because of locus may, in many an otherwise serious matter, jeopardise the cause of criminal justice. With respect, therefore, I find myself unable to agree with the unqualified dictum laid down in the aforesaid Gulli Bhagat's case and would prefer to follow the ratio to the contrary laid down by the Kerala High Court in the case of the Deputy Accountant General v. State supra.
10. In the circumstances, when once the impugned order is brought to the notice of the High Court, should the High Court nevertheless shut its eyes thereto merely on the ground of locus?, I see no good reason to do so. In my view, it would be open to the High Court to take notice of such order and, if necessary, rectify the same. There is no error committed if an enlightened individual or person brings to the notice of the High Court a serious lapse in the administration of criminal justice. Administration of criminal justice concerns not only the State acting as the prosecutor but also vitally affects the community at large for whose welfare the State exists and administers the laws of the land. The objection based on locus is thus of no avail and stands rejected.
11. Now, proceeding further, but before considering on merits the present application for withdrawal from prosecution together with the impugned order there below and scrutinizing the challenge thereto, it would do well to note the principles involved in a proceeding under Section 321(of the Code of Criminal Procedure, 1973) which runs thus:
321. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried, and, upon such withdrawal:
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
(Proviso omitted as not relevant). This section empowers a public prosecutor to apply for withdrawal from prosecution and also empowers the Court to grant its consent thereto. The section is a cryptic amalgam of the executive function of the prosecutor and the judicial function of the Court. Though there is no litmus test or any inflexible golden rule, it is nevertheless obvious that the drastic power under Section 321 cannot be absolute or arbitrary either with the prosecutor or with the Court but, in the very nature thereof, is to be exercised bona fide, with due care and caution, in good faith and for good reason. As held by the Supreme Court in State of Orissa v. Chandrika Mohapatra : 1977CriLJ773 :.the paramount consideration in all these cases must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice.
Involved in the correct interpretation of Section 321 of the Code are two elements viz.,
(a) The initial function of the public prosecutor; and
(b) The subsequent function of the Court.
12. The Public Prosecutor is the master of the situation till the stage of making an application for withdrawal from prosecution. Though the first signal or the initiative may come from the executive, the responsibility in terms of the very statute in question is of the prosecutor '....in charge of a case'. Executive and/or administrative directions and instructions should not grip the prosecutor into helplessness, feeling compelled to act at, the behest of the executive. Though the law ex facie is in general terms and its perimeter consequently wide, power thereunder is not to be exercised merely because the executive so desires and directs. The expediency of discontinuing a prosecution by withdrawing therefrom must be carefully analysed and weighed against the expediency of continuing it. The prosecutor must act his own part and perform his duty objectively. He must independently apply his mind to all the factors and materials and come to his own judgment therefrom. He must well remember that though there is no strait jacket formula, the condition implicit in the exercise of his power is the best interest of administration of criminal justice. That is the raison d'etre. Though representing the State, the public prosecutor is also an officer of the Court and, therefore, equally responsible for the proper administration of criminal justice.
13. Chances of a likely failure is not per se a valid ground to withdraw from prosecution. Experience does show that many a prosecution has ended in an acquittal, but acquittal or conviction is ultimately for the Court to decide. It is not for the public prosecutor to hazard a prediction on the judicial prospects of a trial and/or to conclude which way it will see its finis. At the stage of its commencement, every prosecution is, after all and in a sense, an experiment in the laboratory of law. A' prosecution once properly conceived and launched should normally run its even course. Its premature abortion may, in a given case, turn out to be a perilous course to adopt. In the words of the Supreme Court in Balwant Singh v. State of Bihar : 1977CriLJ1935 :.justice ordinarily demands that every case must reach its destination, not interrupted en route.
It is normally the duty of the prosecutor to proceed ahead with the trial regardless whether it will ultimately terminate one way or the other because, in either case, the end result would be the same predetermined and paramount object of administration of criminal law viz., justice. Administration of criminal justice is a collective endeavour by the prosecutor and the judge to attain justice which is irrespective of whether the trial ends in conviction or acquittal.
14. Likewise, expense is also not by itself a valid ground. Expenditure of public money is inevitable in public prosecutions. A crime once discovered must be dealt with according to law and if established, must be punished under the law notwithstanding the expense. Indeed, maintenance of law and order as also detection and punishment of crimes is one of the primary functions of a State, irrespective of the expense involved. Turning a Nelson's eye to this high obligation of the State, for any reason whatsoever, much less on the ground of expense, is fraught with great risk undercutting the very substratum of the rule of law and administration of justice.
15. If the public prosecutor makes an application, the function of the Court in that behalf then commences, not ends. It is a judicial function. Merely because withdrawal is asked for, the Court is not obliged and enjoined to grant it. Power of withdrawal under Section 321 of the Code of Criminal Procedure is not in pari materia with the authority to enter a nolle prosecutor which per se halts and ends a trial. Order below such an application is not to be passed mechanically and/or by way of a mere consequential seal to a fait accompli. Withdrawal from prosecution, particularly in cases of major crimes, is, indeed, a serious matter and, in a given case, can affect even the larger interests of the community. Much also depends on when i. e. at what stage of the prosecution an application for its withdrawal is made. Again, though the power to grant consent does not place on the Court, as by way of sine qua non, the responsibility for a prima facie determination of a triable issue on judicial evidence, such power is nevertheless coupled with the duty entailing a careful scrutiny of the ground for withdrawal. The requirement of Court's consent is a visible inbuilt judicial safeguard in Section 321 of the Code.
16. The Court must consider whether justice - the touchstone of every judicial process - will be better served or adversely affected by the grant or refusal of permission. The Court must judicially evaluate the facts and circumstances and satisfy its own judicial conscience that the executive function of the public prosecutor has been properly exercised and that it is not an attempt to wrongly stall the course of justice for reasons extraneous to the case and still it into silence. If the application is based on the ground of any public policy - an unruly horse, indeed - the said policy must not be one opposed to the law nor in disregard of the State's duty to enforce the law. Rule of law must be enforced by a court of law whatever be the views of those opposed to it. The Court must act as a vigilant watchdog in the field.
17. The function of the Court being judicial, it necessarily implies the exercise of discretion judicially. There has, therefore, to be a prior satisfaction that an authentic case qua withdrawal has been made out. Judicial discretion should, however, not turn into judicial oligarchy. It must, however, be exercised in a judicial manner and as part of the judicial process aimed at attainment of justice and not eclipse of justice.
18. Now, in the context of these tests and principles, reverting to the application herein and the impugned order there below, what do we find? All that the public prosecutor sets forth as grounds for withdrawal from prosecution is:
(a) it is not likely to end in success; and
(b) it is likely to result in waste of public money.
In the facts and circumstances of the instant case, these grounds taken, either singularly or together, fail to inspire any confidence and are not in the least convincing. On the contrary, they pale into utter insignificance reflecting the inherent weakness of the application. Considered in the entire context, irresistible reaction is that these grounds are clear afterthoughts. It is indeed strange that the prosecutor should have suddenly moved for withdrawal from prosecution when all throughout the State itself was zealously proceeding ahead therewith. The State's own vehement contention all through was that serious offences were committed by the accused, that there was ample material in that behalf, that the accused were rightly charge-sheeted and prosecuted and that they must face trial accordingly. It is, therefore, all the more enigmatic, if not also shocking, that after grave charges were, in fact, actually framed and when the trial in that behalf was also about to effectively commence, the public prosecutor should have, all of a sudden, retraced his steps, effected a mysterious about turn and asked for withdrawal from prosecution. As observed by the Supreme Court in Balwant Singh v. State of Bihar, supra:.the State should not stultify the Court by first stating that there is a true case to be tried and then make a volte face to the effect that on a second investigation the case has been discovered to be false.
The application in the present case reflects a mystic self-reversal. It is an attempt to short-circuit the even course of justice and foreclose a judicial trial. Administration of justice was being made a casualty. There was a virtual defiance of the normal judicial process. Colourable exercise of executive power was writ large on the record of this case. Res ipsa loquitur - the thing speaks for itself.
19. Under the circumstances, the learned Judge should not have permitted such an unsavoury and an unusual withdrawal from prosecution, The manner of exercise of judicial function and judicial descretion bespeaks, in this case, its own failure. The learned Judge does not seem to have fully gone through even the materials on record. His observation that 'much of the evidence was centered round' the discharged accused Abdul Aziz further indicates remiss is not going through, nay virtually ignoring, even the detail and considered order dated 31st March 1977 of his learned predecessor, which order was also confirmed by the High Court. He has also been blissfully oblivious of even the investigation disclosures which showed that Kundalik Shinde and Champalal Lalchand were, though, of course, at this stage, prima facie, the kingpins of the entire case, statement after statement revealing their involvement therein. In this entire context, the learned Judge erred in accepting the plea that the prosecution is not likely to succeed observing that going on with trial would mean waste of public time and money. Suffice to conclude that similar grounds like time, money and chances of success have been characterized by the Supreme Court as 'flimsy' not justifying grant of permission to withdraw from prosecution, vide M. N. S. Nair v. P.V. Balakrishnan supra.
20. Altogether different however is the position regarding the accused Sahebrao Bapurao against whom there is no material at all. Investigation revealed nothing against him. No part has been attributed to him at any stage. Even today, after going through the entire record, the learned Advocate, Mr. Deshpande, was unable to indicate anything even remotely against him. In this crystalline situation, no purpose bearing on the administration of criminal justice would be served by nevertheless persisting in prosecuting him. Rule of law abhors harassment and persecution of the innocent. In these circumstances, albeit for altogether different reasons, the impugned order to the extent in favour of the said accused Sahebrao will have to be maintained.
21. In the result, this revision application is partly allowed. The impugned order dated 19th July 1978, passed by the learned Special Judge, in so far as the same is in favour of the accused Sahebrao Bapurao is confirmed. However, the said order to the extent it allows withdrawal from prosecution against the accused Kundalikrao Khanderao Shinde and Champalal Lalchand Mugdiya and acquits them under Section 321 of the Code of Criminal Procedure is set aside and I direct that the prosecution, registered as Special Case No. 4 of 1976, shall proceed further against the said two accused persons to its conclusion on its own merits and in accordance with law.
22. Rule discharged as against respondent No. 2 Sahebrao Bapurao. Rule absolute as against respondent No. 1 Kundalikrao Khanderao Shinde and respondent No. 3 Champalal Lalchand Mugdiya.