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Tejinder Singh Vs. Bhavi Chand Jindal and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revn. No. 205 of 1981
Judge
Reported in20(1981)DLT78
Acts Indian Penal Code (IPC), 1860 - Sections 34, 147, 149, 186, 332 and 353; Code of Criminal Procedure (CrPC) , 1973 - Sections 494
AppellantTejinder Singh
RespondentBhavi Chand Jindal and Others
Cases Referred(See Rajender Kumar Jain v. State
Excerpt:
.....that the withdrawal from prosecution was not limited to the judicial prospects of the case- the public prosecutor might withdraw the prosecution for the wider object to subserve the administration of justice - further, the power of the public prosecutor could not be curtailed unless the permission to withdraw the prosecution was sought with the ulterior motive. - - ) vide order dated 21st december, 1979. while observing that it was not sufficient for the public prosecutor merely to say that it was not expedient to proceed with the prosecution and that he had to make out some ground which would show that the prosecution was sought to be withdrawn because, inter alia, the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution did not..........and his mother smt. meena devi jindal on 26th february, 1976. an application was also made by the public prosecutor to amend the charge against all the five accused contending that a case under sections 147, 149, 186, 353/332 ipc was made out. he also prayed for condensation of delay in filing the complaint for taking cognizance of offence under section 186, ipc. accordingly, amended charge was formed by the chief metropolitan magistrate who by then was seized of the case on 22nd january, 1977. he also condoned the delay in instituting the complaint in the interest of justice in terms of section 473 of the code. 3. before, however, the newly imp leaded accused appeared, an application under s. 321 of the code was moved by the senior public prosecutor on 5th february, 1977, for.....
Judgment:
ORDER

1. Both these revision petitions spring from the same order dated 5th May, 1981 of an Additional Sessions Judge permitting the Public Prosecutor to withdraw from the prosecution of the respondents 1 to 5. Show cause notice was issued to the State (Delhi Administration) and I have heard the learned counsel for the parties at length. Normally speaking a detailed speaking order at the stage of admission is not called for but having regard to the peculiar facts of the case and full dress arguments having been made before me, it is but meet that I record reasons for dismissing these revision petitions in liming.

2. The prosecution case succinctly is that on 20th June, 1974, a party of income tax officials, inter alai, comprising S/Shri Tejinder Singh, Assistant Director of Inspection (Intelligence), J. S. Gill, I.T.O., Vijay Kumar and S. N. Balooni, Inspectors, duly armed with search warrants issued by the Income-tax Commissioner under S. 132 of the Income-tax Act visited East Patel Nagar Branch of Central Bank of India to effect search of lockers standing in the names of S/Shri Dharam Pal Jindal, respondent No. 2 and S. L. Aggarwal, respondent No. 5 etc. The object of the search was to unearth unaccounted for money/jeweler etc. Accordingly, locker number 1114 belonging to Shri Dharam Pal Jindal was opened in the presence of the latter and his mother Smt. Meena Devi Jindal, respondent No. 3. In the meantime, Shri Bhavi Chand Jindal, respondent No. 1 Sh. S. M. Bajoria, respondent No. 4 and Sh. S. L. Aggarwal, respondent No. 5 too arrived there and before the contents of the lockers could be examined, these persons pounced upon Shri Gill and Shri Tejinder Singh. In the meanwhile, Sh. Dharam Pal Jindal passed on four diamond bangles and some other articles of jewellery to Smt. Meena Devi Jindal who concealed the same on her body. Shri Dharam Pal Jindal tried to run away with the box containing jewellery. In the process Shri Tejinder Singh was manhandled by Sh. S. L. Aggarwal and his shirt was torn, Shri Gill was pushed on the ground by Sh. Bhavi Chand Jindal. One of the Inspectors, namely, Sh. Vijay Kumar rushed to telephone Police Control Room which arrived there after about 20 minutes. In the meantime, respondents 1, 2, 4, 5 continued the scuffle with and obstructing the income-tax officials. However, on the arrival of Police force, peace was restored and Smt. Meena Devi Jindal was forced to return back the diamond bangles and two earrings. Apprehending that she might have concealed some more items or jewellery her personal search was got effected through Miss Manju Aggarwal another member of the raiding party. Personal search of Smt. Kamlesh Devi Aggarwal, whose locker was also to be searched, was too effected as it was feared that during the course of scuffle Smt. Meena Devi Jindal might have passed on some items of jewellery to her. A panchanama incorporating the details of the incident was prepared at the spot and a written complaint was lodged by Shri Tejinder Singh with the Investigating Officer at the spot. On 21st December, 1974, the police put in a chargesheet under Section 173, Criminal P.C. (hereinafter referred to as the Code) against respondents S/Shri Bhavi Chand Jindal, Shankar Lal Aggarwal and S. M. Bajoria, who were sought to be tried for offences under Sections 332 & 353, IPC. However, respondents Sh. Dharam Pal Jindal and his mother Smt. Meena Devi Jindal were mentioned in column No. 2 implying that there was no sufficient evidence for prosecuting them although they had been implicated in the complaint. The Magistrate while framing charges against the accused persons on 24th November, 1975, observed that from the police report and the other material on the record a prima facie case for an offence under Section 186, IPC was also made out against Sh. Dharam Pal Jindal and his mother. However, he could not take cognizance of the same for want of requisite complaint as required by S. 195 of the Code. Thereupon, the Deputy Director Income-tax instituted a complaint under Section 186 IPC against both Sh. Dharam Pal Jindal and his mother Smt. Meena Devi Jindal on 26th February, 1976. An application was also made by the Public prosecutor to amend the charge against all the five accused contending that a case under Sections 147, 149, 186, 353/332 IPC was made out. He also prayed for condensation of delay in filing the complaint for taking cognizance of offence under Section 186, IPC. Accordingly, amended charge was formed by the Chief Metropolitan Magistrate who by then was seized of the case on 22nd January, 1977. He also condoned the delay in instituting the complaint in the interest of justice in terms of Section 473 of the Code.

3. Before, however, the newly imp leaded accused appeared, an application under S. 321 of the Code was moved by the Senior Public Prosecutor on 5th February, 1977, for permission to withdraw the prosecution against all the accused and the same was allowed by the learned Chief Metropolitan Magistrate vide an order of even date. Feeling aggrieved Sh. Tejinder Singh, the present petitioner, filed a revision petition in this Court under Section 397 of the Code, being Cr. Revision No. 208/77. The same was allowed by this Court (D. R. Khanna, J.) vide order dated 21st December, 1979. While observing that it was not sufficient for the Public Prosecutor merely to say that it was not expedient to proceed with the prosecution and that he had to make out some ground which would show that the prosecution was sought to be withdrawn because, inter alia, the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution did not appear to be well founded or that there were other circumstances which clearly showed that the object of administration of justice would not be advanced or furthered by going on with the prosecution, his Lordship clarified that it would be open to the prosecution to move a fresh application, if so advised, bringing out judicious justification for withdrawal of the prosecution. In the meantime, the accused persons went in revision to the Court of Session against amended charges under Sections 147, 149 read with Sections 186, 332, and 353. It was, inter alia, contended by them that condensation of delay in instituting the complaint under Section 186 IPC was unwarranted by law and facts of the case. This plea found favor with the Additional Sessions Judge who vide his order dated 1st May, 1980, quashed the order of the learned Magistrate dated 22nd January, 1977, condoning the delay and amending the charge. The net result, thereforee, was that prosecution against Sh. Dharam Pal Jindal and his mother Smt. Meena Devi Jindal was dropped and the case against the other respondents was restored to its original position i.e., pre-complaint stage and they were directed to be tried for offences under Sections 353/332 IPC only.

4. The Senior Public Prosecutor, after remand of the case by this Court and obviously in view of the observations made by this Court moved a fresh application dated 25th April, 1980, for withdrawal of the prosecution. This time the Public Prosecutor sought to justify the withdrawal for reasons stated therein. However, the learned Chief Metropolitan Magistrate was not impressed with the same and he rejected the request of the Prosecutor for withdrawal vide order dated 29th September, 1980. This gave rise to two criminal revision petitions, one by the State (Delhi Administration) and the other by the accused persons. Upon hearing the parties, the learned Additional Sessions Judge has, by his detailed order dated 5th May, 1981, set aside the impugned order of the Chief Metropolitan Magistrate and has allowed withdrawal of the prosecution. Consequently, he has acquitted the accused of charges under Sections 353/332 r./w. Section 34, IPC. Feeling dissatisfied the petitioner has again come up in revision to this Court against the said order. He has, of course, filed two separate revision petitions because the impugned order purports to dispose of the revision petitions filed in the Sessions Court by the State (Delhi Administration) and the accused persons, being Criminal Revisions Nos. 124/80 and 152/80.

5. The learned counsel for the petitioners has assailed the impugned order with all the force at his command. He has made a twofold submission. In the first instance, he has canvassed with considerable fervour that the Senior Public Prosecutor had abdicated his function as envisaged in S. 321 of the Code and had filed the application for withdrawal at the behest of the State Government without applying his own mind. Secondly, he has urged that permission to withdraw from prosecution should not have been granted for the mere asking and the Court must have satisfied itself on the material placed before it that the grant of permission would serve the administration of justice. In other words, permission to withdraw from prosecution could have been accorded only in the interest of justice and not on grounds extraneous thereto. Thus, according to him, the learned Sessions Judge has slipped into grave error in according permission for withdrawal, especially when the Chief Metropolitan Magistrate in whom the judicial discretion to allow or not to allow withdrawal initially vested, had declined the request. He has also pointed out that as observed by the Chief Metropolitan Magistrate while framing the charge there was a prima facie case for putting the accused persons on trial and that finding still stands.

6. Before examining the validity/tenability of the submissions made by the learned counsel for the petitioners, it would be appropriate to notice the grounds on which withdrawal was sought by the Public Prosecutor the second application moved by him. There are :

(a) that the three independent witnesses named in the F.I.R. have refused to support the prosecution version in their statement before the police regarding use of criminal force, obstruction and assault on the part of the accused or any hurt being caused to any member of the raiding party :

(b) that the proceedings recorded by the police at the end of the FIR do not support the prosecution version regarding the alleged use of force etc. although it has been alleged by the complainant that peace was restored and the ornaments were put back in the locker after the arrival of the police.

(c) That the prosecution may not be able to produce sufficient evidence to sustain the charge and the case is weakened and is not likely to end in conviction; and

(d) that the object of the administration of justice would not be advanced by going on with the prosecution, rather, the interest of justice will be furthered if consent is given to withdraw from prosecution.

7. It may be also added that he was frank enough to mention in his application that the Delhi Administration had, vide their letter dated 14th April, 1980, asked him for withdrawal of the case assigning reasons thereafter and he had satisfied himself that the case was fit for withdrawal on the grounds specified above.

8. Evidently all these grounds are closely interlinked in the sense that they are aimed to highlight the fact that on account of the lacuna and the deficiencies mentioned therein, the prosecution case does not stand on a sure footing and is considerably weakened. The contention of the learned counsel for the petitioners, however, is that even if the bank officials who have been described as independent witnesses by the Public Prosecutor in his application for withdrawal do not support the prosecution version, there is sufficient material on the record to sustain conviction of the accused persons for the said offence. His line of argument is that the complainant Sh. Tejinder Singh and his other companions are government officials; they have no personal axe to grind and they do not bear any ill will or grudge against the accused persons. Thus they are independent witnesses in the sense in which this expression is normally understood. So, even if the bank officials do not lend support of countenance the prosecution version conviction can be well based on the evidence of income tax officials alone, more so when the panchanama has been authenticated by the bank officials, who according to the prosecution are not supporting the version of the complainants at least, have not done so in the statements under Section 161 of the Code. However, there is a fallacy in this contention in as much as it is well settled that the application for withdrawal may be legitimately made by the Public Prosecutor for reasons other than judicial prospects of the prosecution. The whole matter has to be looked at in the broader perspective of whether the permission to withdraw will subserve the administration of justice and that permission is not being sought covertly with an ulterior purpose unconnected with the vindication of the law. The legislature while enacting S. 321 has not defined the circumstances under which withdrawal under this section should be made. The Section has been expressed in very general terms and it is not intended to circumscribe the powers of the Public Prosecutor to seek permission to withdraw from prosecution in any manner. As held by the Supreme Court in the State of Bihar v. Ram Naresh Pandey, : 1957CriLJ567 :

'The function of the Court, thereforee, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. 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 S. 494, Cr.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, thereforee, 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 purpose. In this context it is right to remember that the Public Prosecutor though an executive officer is, in a larger sense, also an officer of the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function.'

9. In this context the following observations of Bhagwati, J., who spoke for the Court in State of Orissa v. Chandrika Mohapatra, : 1977CriLJ773 , are very pertinent to note :

'We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution.'

10. In M. N. Sankaranarayanan Nair v. P. V. Balakrishnan, : 1972CriLJ301 , while stating that the Section does not indicate the reason which should weigh with the Public Prosecutor to move the Court nor the grounds on which the Court will grant or refuse permission, their Lordships mentioned a few instances where the Public Prosecutor would be apparently justified in seeking such permission as in a case 'where the prosecution will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.'

11. Recently the Supreme Court had an occasion to consider all its earlier decisions and upon a re'sume' of the same it summed up the statement of law based on precedents in para 14 of the judgment (See Rajender Kumar Jain v. State (Through Special Police Establishment and others), : 1980CriLJ1084 ). The Supreme Court has, inter alia, observed that :

'........ The Public Prosecutor is an officer of the Court. He sets the Criminal law in motion in the Court. He conducts law in motion in the Court. He conducts the prosecution in the Court for the people. So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. But, where such large and sensitive issues of public policy are involved, he must, if he is right minded, seek advice and guidance from the policy makers. His sources of information and resources are of a very limited nature unlike those of the policy makers. If the policy makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative comes from the Government and thereforee the Public Prosecutor cannot be said to have exercised a free mind.'

12. The Supreme Court has further elucidated that the Court in such a situation is to make an effort to elucidate the reason for withdrawal, and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. Another salient observation made by the Supreme Court is that :

'Paucity of evidence is not the only grounds on which the public prosecutor may withdraw from the prosecution. In the past, we have often known how expedient and necessary it is in the public interest for the public prosecutor to withdraw from prosecutor arising out of mass agitations, communal riots, regional disputes industrial conflicts, student unrest etc.'

13. It is significant to note here that in the case before the Supreme Court, withdrawal was sought on the ground that the case against the accused George Fernandes and 24 others was of political nature. It was nobody's case that there was not sufficient evidence to warrant a conviction. In this context, the Supreme Court said that :

To say that an offence is of political character is not to absolve the offender of the offence. But the question is, is it a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution

13-A. The answer was given in the affirmative by their Lordships.

14. Having regard to this state of law, can it then be said that the withdrawal of the prosecution in the instant case is motivated by extraneous or mala fide reasons As contended by the prosecution, S/Shri K. K. Kapur, Bank Manager, M. L. Dhuper, Accountant in the Bank and Nirmal Anand, Custodian in charge of the locker, who were all material witnesses in the case have not lent support to the prosecution version with regard to the scuffle or the attack by the accused persons on the income tax officials. They have simply expressed ignorance about the incident. Significantly even the Investigating Officer has not recorded in the proceedings conducted by him on receipt of the complaint in question that peace was restored on the arrival of the police and Smt. Meena Devi Jindal was forced to return the bangles and the two earrings. They have not said even a word about the personal searches of Smt. Meena Devi Jindal and Smt. Kamlesh Devi Aggarwal. Thus the hesitancy on the part of the prosecution in proceeding with the trial seems to stem from a feeling that it may not be safe or advisable to pin implicit faith in the uncorroborated testimony of income-tax officials alone. It is not that there may not be sufficient legal evidence to sustain the charge and culminate in the conviction of the accused persons but it is mental reservation that the prosecution may not be treading a sure and safe path. One-sided version put forth by these officials depicting their own conduct as something meticulous and commendable as if they maintained perfect calm and restraint even in the face of grave provocation and physical assault by the accused, who are seemingly men of status, appears to put the prosecution on guard against the expediency of going ahead with the trial. This is precisely what the learned Sessions Judge has called an intrinsic infirmity from which the prosecution case suffers. Thus, it cannot be concluded by any stretch of reasoning that withdrawal of the prosecution is actuated by extraneous consideration or mala fide motive. Surely, there is neither any basis nor any justification to warrant such an inference. Needless to say that the petitioner and his colleagues seem to have made it a prestige issue and their insistence on the prosecution of the respondents is animated by a strong sentiment to vindicate their dignity and honour once they have lodged the report. So, it looks that they have made it a common cause of Income Tax Department as against the approach of Delhi Administration in withdrawing from the prosecution. In a way, thereforee, they are exhibiting partisan spirit. Viewed from this angle, can they be rated as absolutely independent and unbiased witnesses in the sense that expression is understood in legal parlance Hence taking into account all these circumstances, I am not persuaded to hold that the learned Sessions Judge has slipped into an error of either law or fact. Of course, it goes without saying that while granting consent to the withdrawal the Court is not giving any judicial finding on the merits of the case and as such the observations made herein are not intended to cast any reflection either on the credibility of the witnesses or authenticity of the prosecution version, one way or the other.

15. As a result, both these revision petitions are dismissed in liming.

16. Petitions dismissed.


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