M.K. Shah, J.
1. An interesting question touching the interpretation of Section 321 of the Criminal Procedure Code is raised in this special criminal application which arises from the criminal proceedings which were instituted against opponent No. 1-original accused at the instance of the applicant who lodged information with the police that the accused had trespassed into the premises which were in his occupation as a tenant and that theft of certain articles was committed by the accused from the said premises. After police investigated into the matter, the accused was charge-sheeted for the offences punishable under Section 457 and 380 of the Indian Penal Code, in the court of the Judicial Magistrate, First class, Kaira-Mehmedabad. On 13th January 1978, the Assistant Public Prosecutor gave an application (ex. 9) inter alia stating that a communication has been received from the District Magistrate, Kaira dated 5th January 1978, for withdrawing the said case against the accused which had stood adjourned to 9th February 1978. The Assistant Public Prosecutor, therefore, asked for permission to withdraw the said case. The learned Magistrate fixed the said application for reading on 9th February 1978 which was the adjourned date of the case. But it seems, in the meanwhile, on 18th January 1978, the accused submitted application, Ex. 8 inter alia stating therein that he was a public social worker; that the Government had decided to withdraw the case; that an application had been made in this behalf by the Assistant Public Prosecutor and that the case should, therefore, be immediately taken up for the purpose of considering the said application for withdrawal, Ex. 9. Be it noted that the District Magistrate in his said communication dated 5th January, 1978 had inter alia stated that the Government had decided to withdraw the case for reasons of the State. The learned Magistrate, after receiving the said application of the accused, Ex. 8, heard the application Ex. 9 and after hearing the Assistant Public Prosecutor, he passed the order granting him permission to withdraw the same, and consequently acquired the accused for the offences with he was charged, that is the offences under Sections 457 and 380 of the Indian Penal Code, in view of the provisions of Section 321(b) of the Criminal Procedure Code. He also passed an order for return of articles Nos. 1 to 54 to the present applicant, that is the original first informant.
2. The first informant aggrieved by this order, carried the matter in revision to the Court of Sessions Judge of Kaira at Nadiad. The learned Sessions Judge rejected the said application on a technical ground that he was powerless to redress the grievance of the applicant because the order passed by the learned Magistrate amounted to an order of acquittal as, laid down in Section 321(b) of the Code, and the Sessions Court would not be a proper forum for the complainant to ventilate his grievance for which he should approach the appropriate forum. After this order of the Sessions Court was passed, the applicant filed the present special criminal application under Articles 226 and 227 of the Constitution challenging the said order of the learned Magistrate dated 20th January 1978 as also the judgment and order of the learned Sessions Judge of Kaira at Nadiad dated 15th June 1978.
3. Mr. J.B. Patel, the learned Advocate appearing for the applicant submits that the order passed by the learned Magistrate is bad on the face of it and requires to be set aside. Section 321 of the Code provides 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, I 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) x x x x x x x(b) if it is made after a charge has been framed, or when under this Code no 1 charge is required, he shall be acquitted in respect of such offence or offences.
The proviso is not relevant for our purpose. Mr. Patel submits that the court while giving permission to withdraw has to apply its mind and be Satisfied that this is a fit case in which permission sough for should be granted in the interest of justice. The act of the learned Magistrate should not be a mechanical act. Mr. Patel further submits that in the instant case, the learned Magistrate has, without applying his mind, passed the impugned order on the basis that the Assistant Public Prosecutor had applied for withdrawal of the prosecution at the instance of the District Magistrate who had communicated that the same was necessary for the reasons of State. There are two decisions of the Supreme Court interpreting the provisions of Section 494 of the old Code, that is the Code of 1898 and Section 321 of the new Code. The provisions in these two sections are almost identical. As held by the Supreme Court in M.N. Sankaranarayanan Nair v. P.V. Balkrishnan : 1972CriLJ301
The power contained in Section 494 gives a generai executive direction to withdraw from the prosecution subject to the consent of the court which may be determined on many possible grounds and is therefore wide and uncontrolled by any other provision in the Code. But 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 of that subsequent information before prosecuting 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.
Then follow the important observations by the Supreme Court which appear at page 499:
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.
In the case before the Supreme Court, in the opinion of the Public Prosecutor, the matter was of a civil nature, the witnesses were from far off places and their evidence would incur huge expenses for the State and the case was dragging on for a very long time. Rejecting these considerations, the Supreme Court observed at page 501:
It is clear that prima facie none of these grounds or even the cumulative effect of all these grounds would justify the withdrawal from the prosecution. It may be that the Acts of the respondent may make them both liable under the civil law as well as under the criminal law but it does not justify either the seeking of the permission to withdraw from the prosecution or granting of it unless the matter before the criminal court is of a purely civil nature.
4. The second decision relied upon by Mr. Patel is Bansi Lal v. Chandan Lal and Anr. : 1976CriLJ328 Relying on the earlier decision of the Supreme Court in M.N. Sankaranarayanan's case (supra) the Supreme Court observed that 'permission to withdraw from the prosecution should not be granted for the mere asking but the court must be satisfied on the materials placed before it that grant of permission would serve the administration of justice'. It also observed:
Where the prosecution has reached the stage of framing charges in the Sessions Court and no occasion for the defence to make out a case has arisen and there is no material before the court justifying withdrawal of the case against some accused, the order granting permission is wrong in law. Consenting to the withdrawal of the case on the view that the attitude displayed by the prosecution made it 'futile' to refuse permission does not certainly serve the administration of justice.
5. These two decisions of the Supreme Court do contain guidelines for granting permission for withdrawal of prosecution. Now, applying the ratio laid down by the Supreme Court, in these two decisions, can it be said that in the instant case, the essential consideration for grant of permission was in the interest of administration of justice? The answer is obviously-No. This appears to be a case in which the learned Magistrate without applying his mind has granted permission for the mere asking, which practice is deprecated by the Supreme Court in Bansi Lal's case (supra). The learned Magistrate has erred in not considering whether there was material on record justifying grant of permission. The condition precedent to the grant of permission is that the court must be satisfied on the materials placed before it that the grant of permission would serve the administration of justice.
6. The order passed by the learned Magistrate ex-facie discloses an error apparent on tile-face of the record. The order passed by him is not in accordance with the principles laid down by the Supreme Court which should govern grant of permission sought for; Withdrawal of the prosecution under Section 321 of the Code. The impugned order therefore, is not sustainable and has to be quashed. So far as the order of the learned Sessions Judge is concerned, as the learned Sessions Judge has refused to interfere on the ground that he has no power, it would not be necessary to quash and set aside the said order. The result will be the following order.
7. Rule absolute. Order of the learned Magistrate dated 20th January, 1978 quashed. The learned Magistrate is directed to hear the application of the prosecution for withdrawal according to law and in the light of the observations mad: above, after giving an opportunity to the, prosecution to place before the court any material on which it wants to rely in support of its application. The learned Magistrate may also, if he so deems fit, consider any material which may be brought before him by the applicant-first informant, and then dispose of the application according to law, after hearing both the sides.