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Chenaji Chaturji Parmar Vs. Ajitkumar Ujamshi Khanderia and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1975CriLJ1340; (1975)GLR304
AppellantChenaji Chaturji Parmar
RespondentAjitkumar Ujamshi Khanderia and ors.
Cases ReferredM. N. Sankaranarayanan Nair v. P.V. Balakrishnan
Excerpt:
.....for an illegitimate reason and was acting with an ulterior motive. these are the reasons why workers who resort to such momentary violence without any previous design or plan on account of their exasperation in a given situation cannot be dealt with like common criminals who indulge in crime on account of an aberration or their love and lure of cheap money in preference to money earned by the sweat of one's brow. these may well be the considerations of the state government for taking the view that it is expedient in the interest of the state to withdraw from prosecution so that industrial peace is maintained and rapproachment is brought about between the workers on one hand and the management on the other without leaving traces of bitterness. but if one has a sympathy for the mouse..........order according consent to withdrawal from prosecution. it appears that a request was made by the learned public prosecutor in sessions case no. 34 of 1973 for consent to withdraw from prosecution on the ground that it was expedient to do so for reasons of state, the learned assistant sessions judge, ahmedabad (rural) at narol heard the learned public prosecutor and the learned advocate for the accused in connection with the request made by the public prosecutor. chenaji chaturji parmar, the present petitioner who was at the material time employed as the security officer of the said company prayed that the consent sought by the public prosecutor should not be accorded. the learned assistant sessions judge refused to take into account the objection of the complainant on the ground that.....
Judgment:
ORDER

M.P. Thakkar, J.

1. Simple and innocent on the face of it, what it appears, it is not. This is true both of the question which has surfaced as also of the identity of the petitioner who has invoked the revisional jurisdiction of this Court under Section 439 of the Code of Criminal Procedure (hereafter called 'the Code'). The question raised is whether the High Court should interfere and quash the order passed by the Sessions Court according its consent to the withdrawal from prosecution on the part of the Public Prosecutor (in exercise of powers under Section 494 of the Code). This withdrawal is from a prosecution pending against 24 workmen of Gujarat Steel Tubes Limited (for brevity's sake referred to as the 'Company') who have been subsequently dismissed from service and one of the office bearers of a Trade Union to which the said workers belonged. And consent has been accorded in the interests of industrial peace. The petitioner is a Security Officer of the Company who is said to have sustained an injury in the course of the incident giving rise to the prosecution which occurred during an agitation stemming from an industrial dispute. In reality, however, the petition appears to have been inspired and backed by the Company which considers itself aggrieved by the order according consent to withdrawal from prosecution. It appears that a request was made by the learned Public Prosecutor in Sessions Case No. 34 of 1973 for consent to withdraw from prosecution on the ground that it was expedient to do so for reasons of State, The learned Assistant Sessions Judge, Ahmedabad (Rural) at Narol heard the learned Public Prosecutor and the learned advocate for the accused in connection with the request made by the Public Prosecutor. Chenaji Chaturji Parmar, the present petitioner who was at the material time employed as the Security Officer of the said Company prayed that the consent sought by the Public Prosecutor should not be accorded. The learned Assistant Sessions Judge refused to take into account the objection of the complainant on the ground that he had no locus standi in the matter. In the course of the submissions made before the learned Assistant Sessions Judge is was brought to his notice that the prosecution arose out of an incident which had its roots in an industrial dispute. The attention of the learned Assistant Sessions Judge was called to the attendant circumstances and it was submitted that if the permission was not granted, there would persist bitterness between the parties and that if it was granted, it would be conducive to healthy relations between the workers and the management. It was submitted that it was in the interest of maintenance of peace and order that the request be granted. The learned Assistant Sessions Judge by the impugned order granted the request. The petitioner has invoked the revisional jurisdiction of this Court under Section 439 of the Code of Criminal Procedure with the end in view to question the legality and validity of the order passed by the learned Assistant Sessions Judge according his consent to the withdrawal. Now it is provided by Section 494 of the Code of Criminal Procedure that the Public Prosecutor may, with the consent of the court, withdraw from the prosecution of any person and that if such a request is made 'before' a charge is framed, the accused shall be discharged. If such a request is made 'after' a charge is framed or when it is not required by the Code that a charge should be framed, he shall be acquitted in respect of such offence. In the present case the committal Court had committed the case to the Sessions Court. Therefore, the proper order to pass would have been to acquit the accused under Section 494(b). The learned Assistant Sessions Judge was in error in adverting to Section 494(a) and passing an order discharging the accused. That error will of course have to be rectified whether or not the order is sustained.

2. The main question is whether the learned Assistant Sessions Judge was right in according consent to the withdrawal as prayed by the learned Public Prosecutor under Section 494 of the Code of Criminal Procedure, Now, Section 494 has been widely worded and no limitations have been imposed by the statute. As to under what circumstances the Court should grant consent and what would be the germane considerations for exercising the jurisdiction under Section 494, the law has been declared by the Supreme Court in a number of cases. The question came up before the Supreme Court in The State of Bihar v. Ram Naresh Pandey : 1957CriLJ567 . The following principles emerge from the aforesaid decision:

(1) Inasmuch as the granting of consent would result in discharge or acquittal and would be subject to correction by the High Court under Sections 435, 436 and 439 or Section 417 of the Criminal P. C., the function of the Court is a judicial function.

(2) The consent must be accorded or withheld in exercise of judicial discretion.

(3) It is not essential that in exercising the discretion the Court should be restricted by the material gathered by the judicial method.

(4) The initiative is with the Public Prosecutor and the Court has only to consider the question as to whether consent should be accorded or withheld,

(5) The Court has to satisfy itself that the executive function of the Public Prosecutor has not been properly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.

(6) The functions of the Court are intended to prevent abuse of the process of law.

A similar question arose before the Supreme Court in M. N. Sankaranarayanan Nair v. P.V. Balakrishnan : 1972CriLJ301 wherein the Court has approved the principles laid down in 1957 Cri LJ 567 (SC) (supra) and has further observed as under:

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 dependent 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.

3. It is in the light of these principles that the question before the Court is required to be examined. It must be realised that the opponents who were the accused in the Sessions Case giving rise to the present petition were not ordinary criminals in the sense that they were not persons who indulged in crime as a way of life on account of a moral aberration or on account of their apathy to lead an honest life with the sweat of one's brow. They were industrial workers between whom and the management of the Company an industrial dispute was in existence. It is not necessary to enter upon an examination of the exact nature of the dispute and the attendant circumstances with a view to find out who was in the right and who was in the wrong. It is sufficient for the present purposes to realise that in the course of Trade Union activities of the opponents connected with their employment with the employer-Company certain incident arose in the course of which it is alleged that the petitioner, who was the Security Officer of the Company, and some officers of the Company were injured. Now, the parties have filed affidavits bearing on the question as to the circumstances in which the disputes between the parties had arisen. We are not very much concerned with the genesis of the dispute or with the question as to who was at fault. What is not in dispute is that there was in existence some dispute and that there was industrial unrest. It appears from the affidavit filed by the opponents that on January 23, 1971 25 workers had staged a stay-in-strike in order to protest against the alleged policy of victimization pursued by the management. According to them, initially the Vice-president of the Union was removed from service and thereafter the Treasurer of the Union was removed from service. It is alleged that on January 22, 1971 an active member of the Union was assaulted and responsibility in this behalf was attributed by the workers to the management. This according to the opponents gave rise to spontaneous and wide protest from all the workers. And the management, it is alleged, retaliated by dismissing all the 24 members of the Union. It is not necessary to examine whether the allegations are true or untrue. For the present purposes it will be sufficient to bear in mind the background of the atmosphere which obtained prior to the incident. According to the petitioner, the incident giving rise to the prosecution occurred on 14th September, 1971. It is alleged that the opponent No. 1, the Secretary of the Union delivered an exciting speech and that thereafter the workers rushed into the compound and indulged in acts which gave rise to their prosecution. It is alleged that five persons sustained injuries at the hands of the crowd which had entered the premises of the factory and indulged in the incident.

4. The question we have to consider in the background of these allegations is whether the learned Assistant Sessions Judge acted properly in the exercise of his judicial discretion in according his consent to the withdrawal of the prosecution on the ground of it being expedient in the interest of the State and in the interest of maintenance of peace in the industry so that normalcy was restored between the management and the workers. The considerations which should weigh with the Court have been enumerated in the principles culled from the aforesaid two decisions of the Supreme Court. Can it be said that the executive discretion exercised by the Public Prosecutor constitutes an abuse of the process of law? The answer is clearly no. If the Public Prosecutor had withdrawn the prosecution in order to shield some influential person by way of nepotism or favouritism or to protect someone who was guilty of an anti-social offence like smuggling, tax-evasion, adulteration or the like, one could have said that he was acting for an illegitimate reason and was acting with an ulterior motive. Here withdrawal from the prosecution was sought in connection with a prosecution instituted against workers who were engaged in Trade Union activities under-taken for the betterment of their working conditions. Surely the workers had a right under the Constitution to organize and to engage in legitimate Trade Union activities and to fight for the betterment of their living conditions. It was their right to agitate for bringing about a more just social order and to bring about a situation where economic justice was meted out to them. Surely they cannot be treated on par with persons who engage in criminal activities in the sense in which it is understood generally. In a way they were promoting the Constitutional objective of an egalitarian society informed with socio-economic justice through the medium of Trade Union activities. It is no doubt true that according to the prosecution violence was resorted to by some of the workers in the course of this agitation. Violence must of course be deprecated strongly deprecated. No civilized system of Government can approve of violence. Nor can the Courts countenance violence as a means of settling disputes. Violence cannot, therefore, be tolerated. But it is one thing to say that violence should not be resorted to. It is another to say one must turn a blind eye to the circumstances in which some violence came to erupt. Violence cannot be approved, but the circumstances in which the violence erupted can certainly be understood. The doctrine of right of private defence for instance is recognised by all systems of jurisprudence. A person can in exercise of the right of private defence react with violence and cause injuries to the extent recognised by the Penal Code. If a person is clutched in a physical grip and physical violence is employed to throttle him, he may use violence in exercise or right of private defence. The penal law of course does not recognize a similar right when persons are clutched in the economic grip and sought to be throttled or suffocated by employing economic force. But rationally speaking there is little to distinguish between the two for one may react violently under the same impulse of self-preservation in either case. Law and order must of course be preserved. But then in point of fact it can be preserved only provided every one by and large has a vested interest in the preservation of law and order. It would be difficult to persuade the common man and the workers to preserve law and order just to enable big business, the black-marketeers, the hoarders and profiteers and the affluent sections to enrich themselves at the cost of the common man and the workers. If as a result of the activities of the big business, the hoarders and the profiteers, a situation is created in which the workers are exasperated, they might on the spur of the moment indulge in violence notwithstanding the provisions contained in the Penal Code, Even when persons indulging in violence are found guilty, the object of punishment is to reform them or to deter them. Where resort to violence takes place in the aforesaid circumstances, there would be no question of reforming the persons indulging in momentary violence on account of their distress (rather than reforming their tormentors). It is, therefore, necessary in the interest of law and order problem itself that offences which take place in peculiar circumstances are dealt with some understanding. These are the reasons why workers who resort to such momentary violence without any previous design or plan on account of their exasperation in a given situation cannot be dealt with like common criminals who indulge in crime on account of an aberration or their love and lure of cheap money in preference to money earned by the sweat of one's brow. If under these circumstances some violence takes place and instead of making an Understanding approach the employers or society insist on extracting its pound of flesh, the policy will be self-defeating. These may well be the considerations of the State Government for taking the view that it is expedient in the interest of the State to withdraw from prosecution so that industrial peace is maintained and rapproachment is brought about between the workers on one hand and the management on the other without leaving traces of bitterness. It was at one stage suggested by counsel for the petitioner that the withdrawal was not as a result of bona fide exercise of executive power but was actuated by the sympathy of the then Labour Minister, Shri Sanatkumar Mehta on account of his past association with the Union concerned. But when it was realised in view of the affidavits of the other side that the decision was in reality taken after Shri Sanatkumar Mehta was dropped from the Cabinet and much after some other Minister took over the portfolio, counsel could say no more about it. There is no material to buttress the suspicion which seems to be oppressing the Company. But assuming that as between the Company and the workmen the State has sympathy for the workmen, it will not ipso facto vitiate the decision. One can speak from the commanding heights of philosophy in a high brow attitude about absolute equality. But if one has a sympathy for the mouse which is being chased by the cat, as between the mouse and the cat, little fault can be found with the sympathizer, for, absolute equality may well land the mouse within the inside of the cat before the philosophical issues are settled. One may bona fide doubt the principle of absolute equality in a race between a one-legged man (workers who are exploited) and an able bodied man not suffering from any such handicap (the affluent employer). Even if the decision is to some extent (influenced by sympathy), the Courts will not nullify it merely for that reason - unless the Courts do not care even if they lose credibility in the eyes of the common man for whose benefit the whole structure of society is supposed to have been erected and do not mind if their profile becomes unaesthetic. It is true that in the present case the management is unhappy at the decision of the State to withdraw the prosecution. But then the State is not acting as the mere agent of the injured person or the management whilst discharging its functions to prosecute the accused or to withdraw from the prosecution. These functions are discharged by the State, for and on behalf of the society for the larger interests of the society. The injured person or the Company may assume a vindictive attitude. But the State cannot take into account the attitude of the injured person or the management if the larger interests of the society or the larger interests of law and order demand that the prosecution against the workers should be withdrawn or that the Public Prosecutor should withdraw from the prosecution of the aforesaid persons. In the present case the petitioner is the Security Officer of the Company. But it appears that it is the Company which is really at the back of this petition as is evident from the fact that the affidavits have been filed by high officers of the Company such as Administrative Manager and from the fact that correspondence passing between the Chief Minister and the Company has also been placed on record. In fact, therefore, the petitioner does not appear to have acted on his own though he is himself an injured person and can be said to be aggrieved by the order of consent accorded by the Court. In fact though it is the petition instituted by the Security Officer he appears to be acting as the alter-ego of the Company itself. The grounds set out in the affidavit also make interesting reading. In paragraph 11 of the affidavit sworn by Shri Ismail Eusufji Patel, the Administrative Manager of the Company, reliance is placed on the circumstance that the Union had addressed, a letter dated October 3, 1973 demanding implementation of the Wage Board Recommendations. Reliance is also placed on a letter dated December 27, 1973 demanding 100 per cent, neutralization of the dearness allowance as in the case of Ahmedabad Textile Industry. Now, how is the petitioner who claims to have been injured in the course of the incident concerned with the aforesaid letters addressed by the Union? In fact it is perfectly legitimate for the Union to press for implementation of the Wage Board Recommendations or to claim for a 100 per cent, neutralization of the dearness allowance so that the real wages of the workers do not continuously fall. The fact that these circumstances are set out to persuade the Court to interfere in exercise of its revisional powers shows that the petition itself is lacking in bona fides and the machinery of the Court has been used by the Company through the instrumentality of the Security Officer for the private ends and purposes of the Company itself. The affidavits disclose that at one stage the Company dismissed all of its 800 employees in connection with theft agitation. One wonders whether the present petition is at all motivated by the sole desire for justice entertained by the injured petitioner. The workers may be excused if they feel that it is energized by the not so lofty desire of the Company which hides behind the petitioner in order to persecute and terrorize them. Be that as it may, the Court cannot say that maintenance of the peace in the industry or bringing about a rapproachment between the workers and the management are undesirable objects. And if consent has been accorded by the learned Assistant Sessions Judge in obeisance to the aforesaid considerations, it is specious to suggest that consent has been accorded otherwise than on sound principles. Certainly Court cannot take exception to the considerations which have obtained with the learned Assistant Sessions Judge. The discretion appears to have been properly exercised on legitimate considerations and for a desirable objective. Making a different approach, while a discerning parent will disapprove of the misdemeanour of a child irrespective of whether the erring child who commits the act happens to be the starving child who does so to appease his hunger or the greedy one who does so to purchase the tenth cone of ice cream, with the former he will understandably be sympathetic though he may be extremely strict with the latter. If the State does likewise the Court need not command otherwise. If the Sessions Court evinces awareness of this dimension, the High Court will approve rather than disapprove of the approach.

5. So far as the prayer for setting aside the order according consent to withdrawal of the prosecution is concerned, it must, therefore, be refused. Since, however, it has come to the notice of the Court that a technical error has been committed by the learned Assistant Sessions Judge by referring to Section 494(a) instead of Section 494(b), the impugned order must be rectified to the necessary extent by modifying it. The impugned order is modified by holding that the consent be granted under Section 494 and that inasmuch as charge has been framed, the withdrawal from the prosecution will operate as acquittal of the opponents within the meaning of Section 494(b).

6. The impugned order passed by the learned Assistant Sessions Judge in Sessions Case No. 34 of 1973 granting consent to the withdrawal of the prosecution against the opponents is confirmed. The order is, however modified by substituting Section 494(b) instead of Section 494(a) of the Criminal Procedure Code in order to correct the technical error. It will also be modified by directing that the withdrawal will operate as acquittal of opponents within the meaning of Section 494(b) instead of operating as discharged as mentioned in the impugned order.


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