Mahendra Alias Mahendra Singh And ... vs State Of U.P. And Anr.
2015 Latest Caselaw 2193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
(Reserved)
 

 

 
Case :- CRIMINAL REVISION No. - 835 of 2014
 

 
Revisionist :- Mahendra Alias Mahendra Singh And Anr.
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Gopal Singh,K.P.Singh,N.K.Mishra
 
Counsel for Opposite Party :- Govt. Advocate,Vivek Singh
 
Hon'ble Sudhir Kumar Saxena,J.

1.This criminal revision has been filed under Sections 397/401 Cr.P.C. against the order dated 05.03.2014 passed by Chief Judicial Magistrate, Hamirpur, dismissing the application moved by Public Prosecutor under Section 321 Cr.P.C. seeking withdrawal of the Case Crime No. 328 of 2010, under Sections 307, 504 I.P.C. and Section 3(1)10 SC/ST (Prevention of Atrocities) Act, 1989, Police Station Chikasi, District Hamirpur.

2.I have heard Sri K.P. Shukla, learned counsel for the revisionists and learned A.G.A. for the respondents.

3.Briefly stated relevant facts of the case are that an application was filed by Ram Swaroop under Section 156(3) Cr.P.C. alleging that revisionists had assaulted Ram Swaroop (respondent no. 2) and fired upon him on 07.03.2010 causing gun shot injuries on left hand and chest; as report was not written due to money and political pressure, he informed higher authorities and got injuries examined by the doctor on the same night.

4.Learned Magistrate ordered the investigation of the case. Whereupon, an F.I.R. was registered under Sections 307, 504 I.P.C. and Section 3(1)10 of SC/ST Act. After investigation, chargesheet was submitted against the revisionists. Public Prosecutor moved an application for withdrawing the case on the ground that public interest warrants withdrawal of the case. This application has been rejected by learned Magistrate vide order dated 05.03.2014 which has been impugned in this revision.

5.Submission of Sri K.P. Shukla is that report was called from the Police, which stated that entire incident is false, injuries have been fabricated and no internal damage has been reported by the doctor. Moreover, firing is said to have been done by revisionist no. 2 and not by revisionist no. 1. Revisionist no. 1 is a 'Shiksha Mitra' associated with School of his village and revisionist no. 2 is a retired teacher of Basic Education Department. Case has been lodged on account of village party-bandi as a counterblast to an F.I.R. lodged in respect of incident dated 02.03.2010 against Nirpat Singh who had pressurized the revisionist no. 1 to withdraw his candidature from the election of 'Pradhan'.

6.Learned A.G.A. did not oppose the revision.

7.Learned Magistrate found that after investigation, a chargesheet has been submitted against the revisionists under Sections 307, 504 I.P.C. and Section 3(1)10 SC/ST Act. Pellet injuries were found on the chest and left hand, therefore, it cannot be said that prima facie offence was not made out. Revisionist no. 1 is a life convict, currently on bail under the orders of this Court. Accused had challenged the chargesheet by means of Petition under Section 482 before this Court, wherein this Court directed them to surrender before the courts below within 30 days but they have not complied with the order. Thus, learned C.J.M. came to conclusion that neither revisionists have complied with the order of Hon'ble High Court, nor surrendered. Consequently, there is no public interest involved in withdrawing the case.

8.Submission of Sri K.P. Shukla, learned counsel for revisionists is that Section 321 Cr.P.C. gives absolute discretion to the Public Prosecutor to withdraw the prosecution in view of the decision given by Hon'ble Apex Court in the case of Ghanshyam Vs. State of M.P. and others [(2006) 3 SCC(Cri) 602]. Relevant paragraph 14 is quoted below:

"The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations."

(emphasis supplied)

9.In the above case, High Court had permitted withdrawal which was sought to be challenged after more than 15 years. Moreover, material was found to be insufficient warranting conviction.

10.Offence of attempted murder is an offence against the society, therefore, society calls for punishment of offender. If Public Prosecutors are allowed to withdraw the cases at their whim, anarchy will be the result. Apex Court has been cautioning Public Prosecutors regularly that Prosecutor should apply his mind in judicious and neutral manner. In these matters, he should not be guided by political or extraneous consideration. It is not clear what public purpose would be served by withdrawing instant case against the person who is not only a life convict but also involved in the case of attempt to murder, which can never be the import of Section 321 Cr.P.C.

11.Section 321 Cr.P.C. is being reproduced below:

321. Withdrawal from prosecution.

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; ..........

12.Section 321 Cr.P.C. has been interpreted by Constitution Bench of Hon'ble Apex Court in the case of Sheonandan Paswan Vs. State of Bihar and others [(1987) 1 SCC 288]. Hon'ble Court while examining the role of Public Prosecutor has observed as under:

Para-30: "If that be so, we do not think that in a warrant case instituted on a police report the public prosecutor should be entitled to make an application for withdrawal from the prosecution on the ground that there is insufficient or no evidence in support of the prosecution.

When the prosecution is allowed to be withdrawn there is always an uneasy feeling in the public mind that the case has not been allowed to be agitated before the court and the court has not given a judicial verdict."

Para-32 "The ultimate test which must be applied by the court in order to determine the validity of the grounds in a particular case is that the requirement of public justice outweighs the legal justice of that case so that withdrawal from the prosecution could be permitted in the larger interest of public justice. The same considerations which we have discussed while determining what are the legitimate grounds on which an application may be made by the public prosecutor for withdrawal from the prosecution must also apply in guiding the court as to whether consent for withdrawal of the prosecution should be granted or not. We may again emphasise that the imperative of public justice provides the only relevant consideration for determining whether consent should be granted or not. It is not possible to provide an exclusive definition of what may be regarded as falling within the imperative of public justice nor is it possible to place the concept of public justice in a strait-jacket formula. Every case must depend on its peculiar facts and circumstances because there may be a myriad situation where this question may have to be considered by this court. The paramount consideration must be the requirement of public justice and some of the grounds which would bring the case within the fabric of public justice have already bee discussed by us in the preceding paragraphs and we need not repeat them. The same grounds may be regarded as germane and relevant to the requirement of public justice and if they exist, the court would be justified in granting consent to withdrawal from the prosecution."

(emphasis supplied)

13.Matter has been summarized as under:

Para-44 "I respectfully agree with the legal position flowing from section 321 of the Code of Criminal Procedure as explained by Krishna Iyer and Chinnappa Reddy, JJ. In respect of cases relating to Bansi Lal and Fernandes in R.K. Jain etc. v. State through Special Police Establishment and Ors., etc. etc., [1980] 3 S.C.R. 982. In that case Chinnappa Reddy, J. has summarised the true legal position thus:

"1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.

2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.

3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes Sans Tammany Hall enter prise.

6. The Public Prosecutor is an officer of the Court and responsible to the Court.

7. The Court performs a supervisory function in granting its consent to the withdrawal.

8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.

We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the Prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of s.321 Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone' must have control over the case and decide what is to be done in each case."

(emphasis supplied)

14.So far as Court's power to give consent is concerned, Hon'ble Court held that is not a matter of routine. There has to be an application of mind to arrive at the satisfaction that executive function of Public Prosecutor has been properly exercised and not actuated by illegitimate reasons or purposes. Relevant paras 74, 78 and 79 are quoted below:

"While construing s.321, it is necessary to bear in mind the wide phraseology used in it, the scheme behind it and its field of operation. True, it does not give any guideline regarding the grounds on which an application for withdrawal can be made. But since it was enacted with a specific purpose, it would be doing violence to its language and contents by importing into the section words which are not there or by restricting its operation by fetters in the form of conditions and provisos.

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. 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 judicial function 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.

The Court's function is to give consent. This section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines consent. The section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the materials available, the order giving consent has necessarily to be upheld."

15.In the case of Rahul Agarwal Vs. Rakesh Jain and another [(2005) SCC(Cri) 506] in para 10 of the judgment, Hon'ble Apex Court has summarized the issue as hereunder:

"From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."

16.State Government is supposed to be guardian of society which comprises its citizens. A sovereign State is not the name of one or two persons but it represents all the citizens of the State and collectively society. If withdrawal of a case is causing damage to the morale of Society, then it cannot be said to be at all in the public interest. Injustice to society can never be public justice. If interest of society is not kept in mind, public outrage would be the necessary outcome which will never advance the course of the public justice.

17.A citizen's claim to equality before the law is a claim of justice. Justice has been termed as the highest virtue. It has also been equated with fairness. Fairness connotes fairness to all i.e. equal treatment to all. Sense of injustice is a powerful human emotion. It is strongest when a person's own interests are harmed, but it also aroused in civilized people when they witness wrongs done to others. Ultimate object of every legal system is to secure justice which is at the centre of moral and social philosophy. The instinct for justice leads us to believe that right, and not might, is the true basis of society. The principles of justice that define duties and rights should be neutral with respect to compacting conception of good life. Withdrawal of prosecution of heinous offences is bound to result in injustice which produces conflict within the individual and sets him at variance with himself and with all who are just. Injustice is inseparable from virtue which consist of ethics and justice in universal sense. Injustice in the particular sense is the injustice that causes harm to others. Virtue based approach connects justice to reflection about good life. This approach ensures that justice means giving people what they morally deserve-allocating goods to reward and promote virtue. It is thus apparent that the concept of justice lies at the heart of moral philosophy where righteousness, fairness and truth are the basic values and it should include people from all walks of life. Therefore, it is safe to conclude that wellbeing of the community takes precedence over the liberty and preventing injustice would always be a pursuit of justice. Leaving society to live with criminals would be an affront to the dignity of human beings and tends to promote anarchy and unrest in society which is sure to defeat the ends of justice.

18.'Consent' occurring in Section 321 Cr.P.C. does not mean the seal of approval to application of Public Prosecutor. It contemplates conscious act of granting assent. When a judicial officer is supposed to give consent for the withdrawal of prosecution, he is obligated to apply his mind and see whether withdrawal of the prosecution will actually serve any public purpose. Right to give consent includes right to refuse as well. He cannot be restricted to the merits of the application. He has a right to examine the merits for satisfying himself whether action of Public Prosecutor is bonafide and will advance the course of public justice. For this purpose he has to examine the material available on record and thereafter form his opinion whether to give consent or decline so as to ensure best interests of society.

19.It is not an act done in mechanical manner on the mere asking of Public Prosecutor. Neutrality of Public Prosecutor is seriously in question as appointments are made on political considerations as a result duty of the court becomes greater and court is duty bound to examine the facts and circumstances and entire material available on record to assure itself about the bonafides of the allegations and the genuineness of the public purpose to be served by withdrawal. Court is to see what is in the best interest of society.

20.Shot was fired by revisionist no. 2, or that both the accused are educated or that no internal damage was caused by the injuries are the factors to be examined during trial or at the stage of bail. Such grounds are not contemplated under Section 321 Cr.P.C. Prima facie, offence under Section 307 I.P.C. is made out. Chargesheet was not quashed by the High Court under Section 482 Cr.P.C.

21.This satisfaction of the court is revisable. Consequently, revisional court acting under Section 397/401 CrP.C. has a right to satisfy itself with regard to correctness, propriety or legality of the opinion formed by the inferior criminal court.

22.Two grounds have been taken in the application filed by Public Prosecutor (1) Case has been filed on account of enmity (2) Report was lodged under Section 156(3) Cr.P.C.

23.So far as enmity is concerned that is very often cause of offence. This alone cannot be the ground to say that charge is fake especially when Police has submitted chargesheet. Apex Court in Sheonandan Paswan (supra) has stated as under:

"The political motivation or vendetta of Sheonandan Paswan could not possibly be a valid ground for granting consent for withdrawal of the prosecution if otherwise on the facts and circumstances of the case it was improper and invalid. It is a well-established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides, or political vendetta of the first informant or the complainant.

It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book."

24.So far as second ground is concerned, Section 156(3) Cr.P.C. provides a statutory mode whereby investigation is ordered. It has come on record that in the same evening he moved application which was enquired by Police. And on the same night informant/injured was medically examined in a Govt. Hospital. When F.I.R. is not registered then informant approaches Magistrate under Section 156(3) Cr.P.C. who orders investigation. After investigation C.O. Sarila submitted chargesheet. What was wrong or illegal in the process is not clear ? After filing of chargesheet all cases are to be treatd similarly whether F.I.R. was registered by Police of its own or on the order of Magistrate under Section 156(3) Cr.P.C. Thus, second ground taken in the application is legally nonexistent for the purpose of Section 321 Cr.P.C. Whether Public Prosecutor will withdraw all the cases investigated in pursuance of order passed under Section 156(3) Cr.P.C ?

25.Paucity of evidence has not been taken as a ground by Public Prosecutor. Matter is being opposed seriously as such it cannot be said that withdrawal will bring peace in society.

26.In this case it has come that revisionists have approached this Court earlier twice by means of petitions under Section 482 Cr.P.C. but this Court did not quash F.I.R. or chargesheet. On the other hand, Court directed revisionists to surrender within 30 days. This order was passed in 2013. But instead of surrendering and submitting to the process of court, they have adopted the route of prosecution withdrawal.

27.It is, thus, manifest that one of the accused is life convict, chargesheet has been submitted against both under Section 307/504 I.P.C. and 3(1)10 SC/ST Act, they have not surrendered so far despite order of this Court and the grounds mentioned for withdrawal of prosecution are irrelevant and nonexistent. If in this background, learned Magistrate has rejected the application under Section 321 Cr.P.C. by refusing consent, no illegality has been committed by him.

28.Consequently, this Court is of the opinion that there is no error in the order dated 05.03.2014 passed by Chief Judicial Magistrate, Hamirpur.

29.Revision is dismissed. C.J.M. is directed to proceed against revisionists in accordance with law.

Order Date :- 8/9/2015

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