Kiran Chaudhary vs State
2003 Latest Caselaw 776 Del

JUDGMENT

J.D. Kapoor, J.

1. Through this petition, combined order passed by Ms.Kamini Lau, Metropolitan Magistrate in case FIR Nos.336/93 and 337/93 whereby the applications of the learned Assistant Public Prosecutor moved under Section 321 Cr.P.C for withdrawal of the cases were declined, has been assailed. Both the cases were registered on the complaints of rival political parties viz. BJP and Congress.

2. About a decade back there were elections in Delhi Cantonment area. Leaders and workers had collected in their respective camps. Petitioner Smt.Kiran Choudhary of Congress was at her election office when the procession of the BJP Workers was proceeding with long line of vehicles who were raising slogans at highest pitch in threatening tones. She requested the police to stop them but all of a sudden crowd passing in front of her office started pelting stones not only at the office but also at the photographers who were taking their pictures. The mob then descended with sticks which had flags on them and started criminally intimidating the workers of the petitioner. Similar report was received by the local police from one Sh.Inder Sen Mangal, Election Officer of BJP regarding attack by the office bearers and workers of Smt Kiran Chaudhary on them. When the rally reached her office there was lot of hue and cry in the entire bazar and vehicles which were going back were stopped by her workers by putting an ambassador car on the road. They also are alleged to have pelted stones on the said vehicles and attacked BJP workers with lathis.

3. As a consequence cases were registered against both of them and their workers and charge sheets were filed in the court of MM for various offences. For more than 10 years, the proceedings have remained stand still without any tangible progress. The matter was considered by the State Government for the purpose of withdrawal of the cases in order to create a congenial and peaceful atmosphere in the area and preferably to avoid furtherance of enemity between the workers of respective political parties. Consequently, the learned APP moved an application under Section 321 Cr.P.C for withdrawal of the cases.

4. Learned MM dismissed the application mainly on the premise that nowhere in the application it is disclosed whether the cause of public interest would be advanced or retarded by the withdrawal or continuance of the prosecution as the sole consideration for which the APP when he decides to withdraw from the prosecution is larger factor of administration of justice-not political favors nor party pressures nor like concerns and since it is the duty of the court while granting permission to the public prosecutor to withdraw from the prosecution to satisfy itself that the public function of the PP has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes and further where the prosecution is at the initial stage and the acts of violence or destruction of State Property are alleged then it is required to be seen as to what ends of the public justice would serve when such case is withdrawn and since the grounds raised by APP go to suggest that election violence is being justified to some extent, the request for withdrawal was not bonafide and made with ulterior motive only to assist political aspirations of accused persons.

5. The close scrutiny and scanning of the impugned order shows that the learned MM was swayed and persuaded more by extraneous factors than the actual facts and considerations relavant for dealing with application under Section 321 Cr.P.C. Section 321 Cr.P.C provides as under:-

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;

(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;

Provided that where such offence-

(i)was against any law relating to a matter to which the executive power of the Union extends, or

(ii)was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii)involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv)was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

6. Said extraneous factors appear to have found their way in the following paras:-

" At this stage, it is necessary to highlight that after the amendment in the Representation of People Act, 1951. Section 8 provides disqualification for conviction for certain offences and Section 8 sub clause 3 provides that a person convicted of any offence and sentenced to imprisonment for not less than two years other then any offence referred to sub section 1 or sub section 2 shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years till his release.

The APP has also lost sight of the fact that the Representation of People Act provides for a disqualification in case of conviction and sentence for imprisonment of sentence for not less than two years and prima facie section invoked are punishable for almost three years. By resorting to the provision of section 321 of Cr.P.C, this court can not allow the interference with the normal course of justice and also can not allow the process of law to be thwarted or stifled.

Permission granted would only subserve the administration of justice & it has been sought covertly with ulterior motive only to assit political aspirations as apparently one of the accused namely Smt.Kiran Choudhary is a sitting member of the Legislative Assembly in Delhi and also the Deputy Speaker. In view of the above, the application of the prosecution for withdrawal of the case is disallowed.'

7. Without adverting to the principles culled out by the learned Magistrate for dealing with the application under Section 321 CrPC, I straightaway refer to the judgment of the Supreme Court reported as Abdul Karim and others Vs. State of Karnataka and others (2000) 8 SCC 710 wherein the broad principles governing the refusal or grant of the application under Section 321 CrPC were reiterated as laid down in Sheonandan Paswan v. State of Bihar . These are in short as under:-

(i) When an application under Section 321 is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. What the court has to see is whether the application is made in good faith, in the interest of pubic policy and justice and not to thwart or stifle the process of law.

(ii) The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given.

(iii) When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and on such consideration, must either give consent or decline consent.

(iv) Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest.

(v) Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor had acted in good faith and the exercise of discretion by him is proper.

(vi) Though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest,and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice."

(vii) 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 material available, the order giving consent has necessarily to be upheld.

8. Near identical case is incidently a case of feud ensued amongst the workers of two rival political parties viz. AIADMK and DMK. The case is reported as Durai Murugan and others v. State 2001 Crl.L.J 215. The relevant facts of the said case are as under:-

"On 14.5.91 at about 7 p.m, the AIADMK partymen were playing songs from recorded music through loud speakers supporting their election campaign at the stage erected for public meeting near Latteri bus stand. At that time the accused who belonged to DMK party were campaigning in support o their candidate through loud speaker attached to an Autorickshaw. When the first accused started to address through loud 'speaker, AIADMK partymen did not stop playing recorded music and thereafter the other accused armed with stick and iron rods and bricks caused damage to the tubelights and loud speaker. The accused were charged under Sections 147, 148, 427 read with 149 IPC and a case was taken on file as C.C.No.107/91.

On the same day at about 7.30 p.m., while DMK party candidate was campaigning in an autorickshaw, accused who belonged to AIADMK party increased the sound in their loud speaker. When the DMK partymen requested to reduce the sound,the first accused armed with knife and other accused armed with sticks and bricks attacked and intimidated the DMK party candidate and others and in that transaction injuries were caused to some of the witnesses and they also caused damage to thaneer pandhal. Therefore,the accused were charged under Sections 147, 148, 323, 324, 435 and 506 Part(2) read with 149 IPC and the case was taken on file as C.C.No.108/92."

9. The Madras High Court took the following view:-

"The incident is said to have occurred in an election meeting. In the above circumstances, in order to maintain peace and cordial relationship in the locality, the Government thought it fit to withdraw the case from prosecution. Hence, it is not open to the Court to impute any motive on the State or Public Prosecutor in filing application for withdrawal under Section 321 CrPC."

10. In an earlier case the Supreme Court has held that if the policy makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentus public policy are involved, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind.

11. Facts of the instant cases are self same and speak for themselves. In the heat of passion, slogan, shoutings the workers of two rival political parties indulged in riotous conduct by pelting stones and damaging each others vehicles. Winning party was taking procession and seemed to have overtaken by the victory while the loosing party and their workers were overworked by the slogan shoutings. These are not ordinary cases. Political rivalries cannot and should not be permitted to spoil the future relations as political workers and cordial relations in democratic set up. For ten long years nothing has happened. Even trial has not commenced in the right earnest. How many more years it will take to conclude is anybody's guess.

12. In such circumstances, to impute motives to the State Government and the APP that the permission granted would only subserve the administration of justice and it has been sought covertly with ulterior motive only to assist political aspirations is highly preposterous and irrelevant. Such an inference is wholly irrational and without any basis. In law there is no place for surmises or conjectures or introduction of personal opinion of the Court.

13. There is judicial unanimity that an elected Government sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched. In such matters only the Government and none else can and should decide in the first instance whether it should be baneful or beneficial to launch or continue prosecutions.

14. As is apparent the effect of impugned order would be to perpetuate the enemity between the two rival groups instead of maintaining the peace and restoring the cordial relationship in the locality. By no stretch of imagination the mind of the APP can be said to have been vitiated by any motive or malice as both the cases are pending since 1993 and trial has still not commenced. In the consequence it is held that the learned trial court has failed to exercise its discretion in giving consent for withdrawal of the prosecution as the erroneous approach is writ large and therefore it is necessary for this court to interfere and set aside the impugned order. As a consequence the application under Section 321 moved by the APP is allowed and both the cases shall stand withdrawn.