Delhi High Court
Vikas Tanwar vs Govt Of Nct Of Delhi & Ors on 30 August, 2012
Author: Manmohan
23
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 542/2010 & CRL.M.A. 4699/2010
VIKAS TANWAR ..... Petitioner
Through: Mr. Ajit Nair, Advocate.
versus
GOVT OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Saleem ahmed, ASC for State with
Ms. Charu Dalal, Advocate.
Insp. M. Haroon, PS Kirti Nagar, Delhi.
Mr. Jagdeep Kr. Sharma, Advocate for
respondents No.3 to 9.
% Date of Decision : 30th August, 2012
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J : (ORAL)
1. Present petition has been filed under Articles 226 and 227 of
the Constitution of India for quashing the letter No.
F14/15/2009/HG/496 dated 01st February, 2010 issued by Deputy
Secretary Home(G) regarding approval for withdrawal of prosecution
under Section 321 Cr.P.C. of proceedings titled as "State vs. Ram
Sharan & Ors." arising from FIR No. 376/2007 registered with police
station Kirti Nagar, Delhi under Sections 323/448/452/506/34 IPC as
well as the order dated 20th March, 2010 passed by the Court of Ms.
Shelly Arora, Metropolitan Magistrate, Delhi.
2. The brief facts of the present case are that upon an application
filed by the Public Prosecutor under Section 321 Cr.P.C., the
Metropolitan Magistrate allowed the prosecution to withdraw FIR No.
376/2007. The relevant portion of the application filed under Section
321 Cr.P.C. is reproduced hereinbelow:
"1. That the aforesaid case is pending before the Hon'ble
Court for adjudication and listed for framing of charge of
NDOH.
2. That the government of NCT of Delhi was recommended
for withdrawal from prosecution of the aforesaid case.
3. That in the interest of the public and society no purpose
will be served to further proceed with the case and hence
state government want to withdraw the case from
prosecution.
It is, therefore, prayed that in view of the above fact
and circumstances a permission may kindly be given to the
prosecution to withdraw the case, in the interest of justice."
(emphasis supplied)
3. The admitted position is that the aforesaid application was filed
on the basis of a letter dated 01st February, 2010 issued to the Director
of Prosecution by the Home(G) Department, Government of NCT of
Delhi. The relevant portion of the aforesaid letter is reproduced
hereinbelow:-
"Sub: Regarding approval for withdrawal of prosecution
under section 321 of the Cr.P.C.
Sir,
The Government of NCT of Delhi has
recommended the withdrawal of the following case from
prosecution:-
S.No. Name of the FIR No. Police Sections of law
Accused Station under which
case registered
1 Ram Saran & 376/2007 Kirti Nagar 448/452/506/34
Ors. IPC
In view of the above, I am directed to say that in exercise
of powers conferred under section 321 of the Code of
Criminal Procedure, 1973 (Act No. 2 of 1974) read with
the Government of India, Ministry of Home Affairs
Notification No. U-11011/2/74/-UTL(I) dated 20.03.1974
regarding the withdrawal of prosecution proceedings, the
Lt. Governor of Delhi, being satisfied that it is in public
interest to do so, has decided, after keeping the
provisions contained in proviso to Section 321 of the
Code of Criminal Procedure, 1973 in view, that the
Public Prosecutor in the above case may permitted to
move the appropriate courts of law for granting their
consent to the withdrawal of the prosecution in above
case.
It is, therefore, requested that the A.P.P.
concerned may please be asked to move the application
in the court of competent jurisdiction for withdrawal of
these aforesaid case and intimate the position to this
Government."
(emphasis supplied)
4. Learned counsel for petitioner submits that the Metropolitan
Magistrate overlooked the fact that the Public Prosecutor had acted
only on instructions and that too as a post office of the respondent
No.2 in filing the application for withdrawal. He submits that under
Section 321 Cr.P.C., the prosecution could be withdrawn only by the
Public Prosecutor and that too after he had applied his own mind.
5. On the other hand, learned counsel for respondents No.3 to 9
submits that in the present case, after a detailed inquiry, the State
Government had come to the conclusion that the police officials had
abused their powers and foisted a false case upon his clients.
According to him, the State Government to secure the ends of justice,
had taken a decision to withdraw the aforesaid case. He further points
out that all the erring police officials had even been departmentally
prosecuted.
6. Having heard the parties, this Court is of the view that the
impugned order passed by the Metropolitan Magistrate is untenable in
law.
7. In the opinion of this Court, Section 321 Cr.P.C. confers
exclusive discretion upon the Public Prosecutor to withdraw the
prosecution. He cannot surrender that discretion to anyone else.
Section 321 Cr.P.C. reads 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."
8. The Supreme Court in Rajender Kumar Jain vs. State through
Special Police Establishment and Others, 1980 (3) SCC 435 has held
as under:-
"14. Thus, from the precedents of this Court, we gather:
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 enterprise.
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."
9. Moreover, this Court in State vs. Ibotombi Sapam W.P.(Crl.)
1712/2005 decided on 27th May, 2009 has held as under:-
"17. From the above decisions, it is clear that under
Section 321 Cr.P.C., the public prosecutor performs an
executive function when he decides to withdraw from the
prosecution. The court, before whom an application for
withdrawing from the prosecution is made by the public
prosecutor, performs a supervisory function in granting
consent. It is also clear that the Government may
suggest to the public prosecutor that he may withdraw
from the prosecution, but cannot compel him to do so."
(emphasis supplied)
10. Keeping in view the aforesaid mandate of law as well as the
withdrawal application filed by the Public Prosecutor, this Court is of
the view that in the present case, the Public Prosecutor has not applied
his mind independently to the facts of the present case.
11. Consequently, the impugned order as well as the application
filed by the Public Prosecutor under Section 321 Cr.P.C. are set aside.
However, the Public Prosecutor is directed to independently consider
the aforesaid letter written by the Delhi government dated 01st
February, 2010 as a recommendation and not as a binding direction.
It is clarified that the Public Prosecutor shall have the option either to
reject or to accept the suggestion given by the Delhi Government.
12. The Public Prosecutor is directed to take a decision within three
months.
13. With the aforesaid directions, present petition and pending
application stand disposed of.
MANMOHAN, J
AUGUST 30, 2012
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