Delhi High Court
Vipul Gupta vs State And Ors on 14 June, 2012
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 30 .05.2012
% Judgment delivered on: 14.06.2012
+ W.P.(C) 3470/2012 and C.M. Nos. 7318-19/2012
VIPUL GUPTA ..... Petitioner
Through: Mr. Arvind K. Nigam Senior
Advocate, with Mr. Vijay Aggarwal,
Mr. Gurpreet Singh & Mr. Rayjith
Mark, Advocates.
versus
STATE AND ORS ... Respondents
Through: Mr. Najmi Waziri, Standing Counsel
along with Ms. Neha Kapoor,
Advocate for the respondents No.
1, 3, 4 & 6.
Mr. Ruchir Mishra & Mr. Mukesh
Kumar Tiwari, Advocates for the
respondent No. 2/UOI.
+ W.P.(C) 3471/2012 and C.M. Nos. 7320-21/2012
VIPUL GUPTA ..... Petitioner
Through: Mr. Sudhir Nandrajog, Senior
Advocate, with Mr. Vijay Aggarwal,
Mr. Gurpreet Singh & Mr. Karan
Heera, Advocates.
versus
STATE AND ORS ..... Respondents
Through: Mr. Najmi Waziri, Standing Counsel
along with Ms. Neha Kapoor,
Advocate for the respondents No.
1, 3, 4 & 6.
Mr. Ruchir Mishra & Mr. Mukesh
Kumar Tiwari, Advocates for the
respondent No. 2/UOI.
W.P.(C) 3470/2012 Page 1 of 20
+ W.P.(C) 3472/2012 and C.M. Nos. 7322-23/2012
PRADEEP DHINGRA ..... Petitioner
Through: Mr. Rakesh Tiku, Senior Advocate,
with Mr. Vijay Aggarwal,
Mr.Gurpreet Singh & Mr. Rayjith
Mark, Advocates.
versus
STATE AND ORS ..... Respondents
Through: Mr. Najmi Waziri, Standing Counsel
along with Ms. Neha Kapoor,
Advocate for the respondents No.
1, 3, 4 & 6.
Mr. Ruchir Mishra & Mr. Mukesh
Kumar Tiwari, Advocates for the
respondent No. 2/UOI.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. The aforesaid writ petitions have been preferred by the
petitioners, assailing the communication dated 13.12.2011 issued by
the Director of Prosecution, Delhi, to the Principal Secretary (Home)
bearing No. 4383/DOP/2011 Dated 13.12.2011, whereby the Director of
Prosecution sought instructions whether the concerned APP has to
press the application filed before the court of the Learned ACMM, Tis
Hazari Courts, Delhi Under Section 321 Cr.P.C. for withdrawal from
prosecution in case FIR Nos. 90/2000, 99/2002 and 148/2002
registered at P.S. Connaught Place and Defence Colony. The
petitioners also assail the order passed by the Hon'ble Lieutenant
Governor on 15.12.2011 agreeing with the proposal not to press the
applications for withdrawal of the aforesaid cases under Section 321
Cr.P.C. before the competent court, so that the trial may be allowed to
proceed on merits. The petitioners also seek orders declaring that the
revocation of the previous decision to withdraw prosecution in the
aforesaid cases registered against the petitioners is unconstitutional on
the ground that sanction has not been taken from all the departments.
2. As per the case of the prosecution, the petitioners, who are
stated to be the Directors of M/s Sunair Hotels Limited, approached M/s
VLS Finance Limited around December, 1994 with a proposal to finance
a hotel project likely to be set up in Gol Market Area, Connaught Place,
New Delhi. The petitioners represented that they would invest Rs.21
crores towards equity shares capital in the company, namely, M/s
Sunair Hotels Limited, in case VLS Finance Ltd invests Rs.7 crores
towards 25% equity share capital in M/s Sunair Hotels Ltd. It appears
that VLS Finance Ltd invested the said amount of Rs.7 crores. VLS
Finance Ltd. made complaints alleging the commission of offences
under various sections of the IPC by the petitioners, on the ground that
the petitioners had not made their contribution of Rs.21 crores in the
equity share capital of M/s Sunair Hotels Pvt. Ltd., and had
manipulated their accounts to show the making of such share capital
investment. On the basis of the complaints made by the complainant
M/s VLS Finance Ltd, the aforesaid FIRs came to be registered and
investigated. The details of the FIRs are as follows:
Sl. FIR No/Date Police Accused Persons- Sent Under
No. Station for Trial Sections (as
(as per charge-sheet) per charge-
sheet)
1. 90/2000 Connaught 1. Satya Pal Gupta 420/406/
14.02.2000 Place 2. Kaveen Gupta 409/468/471
3. Vipul Gupta 477-A/120-B
4. M/s. Sunair Hotels IPC
Ltd. through its
director Satya Pal
Gupta
2. 99/2002 Connaught 1. S.P. Gupta 120B/406/40
19.02.2002 Place 2. Kaveen Gupta 9/420/424/4
3. Vipul Gupta 67/468/471/
4. V.K. Bindal 477A IPC
5. Sanjiv Kr Bindal
6. Pradeep Kr Dhingra
7. Birender Kumar
8. Asha Ram Kakar
3. 148/2002 Defence 1. S.P. Gupta 384/406/409
28.02.2002 Colony 2. S.H. Siddiqui /417/422/46
3. Giriraj Singh 5/468/471/5
4. Pradeep Kumar 00/120-B IPC
Dhingra
3. The charge-sheets also stand filed in these cases against the
accused persons (petitioners herein) in the concerned court of the
Learned Metropolitan Magistrate.
4. It appears that the petitioners assailed the aforesaid FIRs before
this Court by filing Criminal M.C. Nos. 2142/2007 and 911/2003 (in
respect of FIR No. 99/2002 and FIR No. 90/2000 respectively, wherein
Sh. Vipul Gupta, the petitioner in W.P.(C) No.3470/2012 and W.P. (C )
No. 3471/2012 is named as the accused), and W.P. (Crl.) No. 498/2005
(in respect of FIR No. 148/2002 wherein Sh. Pradep Dhingra, the
petitioner in W.P. (C ) No. 3472/2012 is named as the accused). The
aforesaid petitions were disposed of by similar orders by this court on
4th March, 2010. The petitioners withdrew the said petitions with
liberty to raise all the issues before the Trial Court at the appropriate
stage i.e. at the stage of hearing of arguments on charge. That stage
has not yet arrived.
5. It appears that the petitioners kept representing to the
respondents for withdrawal of prosecution against them on various
grounds. The petitioners have narrated in their petition the various
internal departmental correspondences which took place on the said
plea made by them. The petitioners state that a Screening Committee
was constituted to consider their cases, along with other cases,
comprising of; i) Sh. Arvind Ray, Principal Secretary (Home), ii) Sh. S.P.
Garg, Principal Secretary, iii) Sh. B.S. Joon, Director of Prosecution, iv)
Sh. Sandeep Goal, Joint C.P. (Crime) and v) Sh. B.M. Jain, Dy. Secretary
(Home). The petitioners state that on 03.06.2011 the Screening
Committee considered the cases against the petitioners in the
aforesaid FIRs. The Minutes of the Meeting of 3rd June, 2011 placed on
record show that the observations of the Ministry of Home Affairs
placed before the Screening Committee, inter alia, read as follows:-
"It was decided in HMA to consult the Deptt. Of Legal
Affairs, Ministry of Law & Justice, who after carefully
examining various issues involved in these cases,
opined that as the Courts are generally not interfering
during the course of investigation, it would not be
appropriate to take steps Under Sections 173(8) Cr.
P.C. as requested by Sh. S.P. Gupta in his
representations. Moreover, from the status report
submitted by the Delhi Police It is observed that the
charge sheets/supplementary charge sheets have
already been filed by the Delhi Police in the Courts and
the three cases are at various stages. The Deptt. Of
Legal Affairs, Ministry of Law & Justice has, however,
opined that the power UNDER SECTION 321 Cr.P.C.
vested in Government can be exercised in such cases
in the interest of proper administration of Justice and
the paramount consideration in such cases is the
administration of justice.
The matter has been considered in detail
carefully in MHA. As per the advice tendered by
the Department of Legal Affairs, Ministry of Law
& Justice keeping in view the facts of these
cases, the Home Department of Government of
NCT of Delhi should urgently scrutinize the
above cited case FIR No. 90/2000, FIR No.
99/2002, FIR No. 148/2002 registered by the
Delhi Police for taking action UNDER SECTION
321 of Cr.P.C. for withdrawal of prosecution
immediately. This has the approval of Union
Home Minister."(emphasis supplied)
6. The recommendations made by the Screening Committee were
to the effect that the relevant record of the cases not being available,
it was premature to decide the issue of withdrawal of prosecution in
the absence of the full facts of the case. Consequently, its decision
was deferred by the said Committee.
7. The petitioners further state that another meeting of the
Screening Committee was held on 13.09.2011. In this meeting the
Committee recommended that action be taken under Section 321
Cr.P.C. for withdrawal of prosecution in respect of the aforesaid three
FIRs immediately. The petitioners have placed on record the copy of
the minutes of the said meeting of the Screening Committee held on
13.09.2011. The recommendation made in respect of each of the
aforesaid FIRs is identical, with the minor change of the number of the
FIR. In respect of FIR No.90/2000, the same reads as follows:-
"The Committee observed that the withdrawal of case FIR
No. 90/2000 from prosecution was considered by the
Committee in its previous meeting held on 3.6.2011 and
the matter was deferred for want of the relevant record of
the case. However the details/records received from
Police Department and Director of Prosecution were
viewed by the Committee and it was observed that
Ministry of Home Affairs has already examined the case in
consultation with the Department of Legal Affairs, Law
and Justice who with the approval of Union Home
Minister, has directed the Home Department to urgently
scrutiny scrutinize the above case for taking action under
Section 321 Cr.P.C. for withdrawal of Prosecution
immediately.
In view of the above the Committee decided to
recommend the case for withdrawal from Prosecution."
8. The petitioners further state that on 18.11.2011 the Hon'ble
Lieutenant Governor granted his approval to the recommendations of
the Screening Committee for withdrawal from prosecution in respect of
the aforesaid FIRs. Accordingly, on 23.11.2011 the Government of NCT
of Delhi Home (General) Department issued a communication to the
Director of Prosecution, Govt. of NCT of Delhi communicating the said
decision. In this communication, the Government of NCT of Delhi, inter
alia, stated as follows:-
"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 20.3.1974
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 be 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 APP concerned
may please be asked to move the application in the
court of competent jurisdiction for withdrawal of
the above mentioned case and intimate the
position to this Government." (Emphasis supplied)
9. Based on the aforesaid, the Director of Prosecution, Govt. of NCT
of Delhi moved applications in each of the three cases before the
Learned Metropolitan Magistrate under Section 321 Cr.P.C. to seek
withdrawal from prosecution. Notice was issued on these applications.
10. The grievance of the petitioners is that on 13.12.2011 Sh. B.S.
Joon, Director of Prosecution, who was one of the members of the
Screening Committee, sent a letter to the Principal Secretary (Home),
inter alia, stating that :
"After perusal of the charge sheets of the aforesaid
cases, it has been revealed that there is sufficient
evidence on record against the accused persons.
Keeping in view the evidence on record, there is every
likelihood, that the concerned Court may not allow the
application of the State moved u/s 321 Cr.P.C. which is a
pre-requisite condition, for withdrawal from the
prosecution of any case."
11. He also requested that necessary instructions may be issued i.e.
whether the concerned APP has to press the aforesaid applications
under Section 321 Cr.P.C., or not. The petitioners submit that on the
basis of the said letter dated 13.12.2011, a noting dated 14.12.2011
was made by the S.S. (Home) Sh. Arvind Ray, to the effect that the
present are fit cases for revoking the recommendation of withdrawal
from prosecution. Sh. Arvind Ray further sought the orders of the
Hon'ble Lt. Governor on the said proposal. The petitioners state that on
15.12.2011 the Hon'ble Lt. Governor noted that he has considered the
communication of the Director of Prosecution dated 13.12.2011, and
the note of the Principal Secretary (Home) dated 14.12.2011, and that
he agrees with the proposal that the earlier recommendation of
withdrawal from prosecution of the cases in question may not be
pressed before the competent court, and the trial may be allowed to
proceed on merits.
12. The petitioners submit that on the basis of the aforesaid notation
and approval, the Joint Secretary (Home), Govt. of NCT of Delhi, Home
(General) Department, shot out a communication dated 15.12.2011 to
the Director of Prosecution informing him of the latest decision and
stating that the applications for withdrawal from prosecution in the
three cases be not pressed before the competent court, so that the
trial of the said cases are allowed to proceed on merit.
13. The submission of learned Senior Counsel Mr. Arvind Nigam, who
appears for the petitioner in W.P.(C) No.3470/2012, (which covers the
submissions made in all the three cases), is that the subsequent
decision taken by the respondents on the basis of the communication
dated 13.12.2011 issued by Sh. B.S. Joon, Director of Prosecution,
Delhi, is illegal and incompetent. He submits that the earlier
recommendation made by the Screening Committee in its meeting
held on 13.12.2011, was made after due consideration of all the
relevant materials and aspects by the committee of five senior and
responsible officers. Sh. B.S. Joon, Director of Prosecution was a
member of the said Committee. Sh. B.S. Joon did not voice his dissent
when the earlier recommendation was made. The unanimous
recommendation of the Screening Committee was also approved by
the Hon'ble L.G on 17.11.2011. On that basis applications were also
moved in the concerned court under Section 321 Cr.P.C.
14. It is submitted that the subsequent decision taken by the L.G. is
based on the communication dated 13.12.2011 of Sh. B.S. Joon,
Director of Prosecution, and it is not explained as to what were the new
facts or circumstances, which came to the notice of Sh. B.S. Joon, to
initiate the process of reconsideration of the earlier recommendation.
He submits that the Screening Committee did not even meet before
recommending reconsideration of the earlier recommendation made in
the Screening Committee meeting on 13.09.2011. The said
communication was sent only to the Principal Secretary (Home) who,
without recording any reasons, agreed with the recommendation to
revoke the earlier recommendation dated 13.09.2011. According to
the petitioners, the Screening Committee should have been
reconvened before recommending to the Hon'ble Lt. Governor that the
earlier recommendations be reviewed. Consequently, the remaining
members of the Screening Committee were not taken into confidence,
and their views were not taken on the issue whether the earlier
recommendation of 13.09.2011 should be reconsidered for any reason.
15. Mr. Nigam submits that the procedure adopted by the
respondents for reviewing the earlier recommendation of the
Screening Committee, and the earlier decision of the Hon'ble Lt.
Governor, is arbitrary and illegal.
16. Mr. Nigam submits that the learned Additional Public Prosecutor,
while discharging his functions under Section 321 of the Cr.P.C. acts
independently, and not on the instructions of the State/Director of
Prosecution. It was for the Additional Public Prosecutor to assess the
merit of the case and to decide whether, or not, to proceed to move an
application for withdrawal from prosecution in a given case. According
to Mr. Nigam, the Additional Public Prosecutor in the present cases
made a conscious decision to move for withdrawal from prosecution.
However, the subsequent instruction issued to the Additional Public
Prosecutor, not to press the application for withdrawal was illegal, as
the Public Prosecutor, on this occasion, did not act independently but
on the dictates of the Director of Prosecution. In this regard he places
reliance on the decision of the Supreme Court in Sheonandan
Paswan V. State of Bihar and Others, AIR 1983 SC 194. This
decision, in turn, referred to the Supreme Court Judgment in Rajender
Kumar Jain v. State, AIR 1980 SC 1510, wherein the following
observations were made:-
"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 Prosecution
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."
(emphasis supplied)
17. Mr. Nigam submits that this court, while exercising writ
jurisdiction, is not concerned with the decision on merits, but with the
decision making process which has been adopted to arrive at a
particular decision. It is submitted that in this case the said process is
fundamentally flawed, as explained hereinabove.
18. Having heard learned Senior Counsels for the petitioners and
perused the records of the cases, I am not inclined to entertain these
writ petitions, or to grant any relief to the petitioners in the exercise of
the discretionary jurisdiction of this court under Article 226 of the
Constitution of India.
19. At the outset, I may observe that this Court while exercising
jurisdiction under Articles 226 and 227 of the Constitution of India is
not obliged, in every case involving irregularity or illegality of
procedure, to interfere, if it appears to the Court that the said
irregularity or illegality has not resulted in failure of justice, and it
appears to the Court that the petitioner has not suffered substantial
injustice due to the complained irregularity or illegality. The Supreme
Court in D. N. Banerji V. P.H. Mukherjee and Others AIR 1953 SC
58, observed that unless there was grave miscarriage of justice or
flagrant violation of law calling for intervention, it is not for the High
Court under Article 226 and 227 of the Constitution of India to
interfere. The Supreme Court in Sangram Singh v. Election
Tribunal Kotah and Another AIR 1955 SC 425, while dealing with
the scope of jurisdiction under Article 226 of the Constitution of India,
observed as follows:-
"That, however is not to say that the jurisdiction will be
exercised whenever there is an error of law. The High
Courts do not, and should not, act as Courts of appeal
under Article 226. Their powers are purely discretionary
and though no limits can be placed upon that discretion
it must be exercised along recognized lines and not
arbitrarily; and one of the limitations imposed by the
Courts on themselves is that they will not exercise
jurisdiction in this class of case unless substantial
injustice has ensued, or is likely to ensue. They will not
allow themselves to be turned into Courts of appeal or
revision to set right mere errors of law which do not
occasion injustice in a broad and general sense, for,
though no legislature can impose limitations on these
constitutional powers it is a sound exercise of discretion
to bear in mind the policy of the legislature to have
disputes about these special rights decided as speedily
as may be. Therefore, writ petitions should not be lightly
entertained in this class of case."
20. This is the settled position of law, and there is no need to
multiply earlier precedents. In the present cases, the petitioners had
first approached this court by filing petitions under Sections 482 Cr.P.C
and Article 226 of the Constitution of India to seek the quashing of the
FIRs registered against them. However, they gave up the said
challenge at the time of hearing, and withdrew that petitions on
4.3.2010, while reserving their right to raise all the issues at the time
of hearing of the arguments on charge. Pertinently, the charge sheets
stand field by the police before the Learned M.M. dealing with the
cases, but the hearing on charge is yet to take place. The petitioners
are free to raise all their submissions, at the stage of hearing on
charge.
21. A perusal of the impugned communication dated 13.12.2011
shows that, apparently, the charge sheet was not expressly considered
by the members of the screening committee when they decided to
make their recommendation for withdrawal from prosecution under
section 321 Cr PC. The Director of Prosecution in his said
communication dated 13.08.2011 states that after perusal of the
charge sheets in these cases "It has been revealed that there is
sufficient evidence on record against the accused persons"
(emphasis supplied). Therefore, it appears the revelation that there is
sufficient evidence on record against the accused persons came only
on a perusal of the charge sheets. When this communication was
issued to the Principal Secretary (Home), he did not join issues with the
Director of Prosecution. He did not state that the charge sheets in
these cases had been considered, or that there had been application of
mind to the charge sheets when the earlier recommendation was made
by the screening committee on 13.09.2011. On the contrary, the
Principal Secretary (Home) agreed with the said proposal made by the
Director of Prosecution in the impugned communication dated
13.12.2011.
22. The aforesaid position with regard to non consideration of the
charge sheets by the screening committee on the earlier occasion,
when the recommendation for withdrawal from prosecution was made
in the meeting held on 13.09.2011, gains support from the fact that
the committee apparently proceeded on the basis that the Ministry of
Home Affairs had already examined the case in consultation with the
Department of Legal Affairs, Law and Justice with the approval of the
Union Home Minister. Consequently, the committee made the
recommendation for withdrawal from prosecution in these cases.
23. A reading of the minutes of the meeting of the screening
committee dated 13.09.2011 shows that the committee apparently did
not apply its own mind, or take up a thorough scrutiny of, inter alia, the
charge-sheets filed in these cases. It heavily relied upon the
examination of these cases by the Ministry of Home Affairs and
Department of Legal Affairs, Law and Justice with the approval of the
Union Home Minister. Pertinently, the observations of the Ministry of
Home Affairs (reproduced in para 5 above) do not demonstrate any
specific consideration of the charge-sheet by either the Department of
Legal Affairs, Ministry of Law and Justice or by the Ministry of Home
Affairs. In fact, the MHA required the Home Department of the GNCTD
to scrutinize the cases for withdrawal from prosecution under Section
321 Cr.P.C. This exercise was not undertaken by the Screening
Committee in its meeting held on 13.09.2011. There is not a whisper
in the minutes of the meeting of the Screening Committee of
13.09.2011 to say that they have examined the charge-sheets in these
cases and, on a perusal of the same, the Committee is of the opinion
that these are fit cases for withdrawal from prosecution.
24. Though there may be some irregularity in the procedure adopted
for reconsideration of the earlier recommendation of the screening
committee made on 13.09.2011, followed by the decision of the
Hon'ble Lt. Governor dated 17.11.2011, the same has no significance,
inter alia, for the reason that the ultimate authority to take a decision
on the issue whether, or not, the state should move the proposal for
withdrawal from prosecution vested in the Hon'ble Lt. Governor, and
he has reviewed his decision on 15.12.2011 based on the
communication dated 13.12.2011 and the note of the Principal
Secretary (Home) dated 14.12.2011. The screening committee is not
shown to be a statutory creation. The screening committee was formed
only to aid and assist the Hon'ble Lt. Governor. He was not bound by
any recommendation of the screening committee. Therefore, the
failure to reconvene the screening committee to reconsider the
proposal mooted by Shri B.S. Joon cannot be said to be illegal. Mr. B.S.
Joon, Director of Prosecution, was also not precluded from moving the
proposal that he moved on 13.12.2011 after studying the charge-
sheets in these cases, merely because he was part of the screening
committee which had earlier recommended withdrawal from
prosecution on 13.09.2011.
25. The aforesaid irregularity of procedure in any event has caused
no prejudice to the petitioners. Independent of the aforesaid remedies
available to the petitioners, their right to be heard at the time of
framing of the charge and to raise challenge to an order on charge, as
permitted by law, is also preserved. I am, therefore, of the view that
the so-called irregularity or illegality, in any event, has not led to
failure of justice. It cannot be said that substantial injustice has been
caused to the petitioners on account of the review of the earlier
decision taken by the Hon'ble Lt. Governor.
26. The contention of the petitioners that the earlier decisions to
move the applications under Section 321 Cr. P.C., in these cases, were
taken independently by the learned Public Prosecutor though on the
suggestion of the Director of Prosecution, whereas the decisions not to
press the applications for withdrawal of prosecution was imposed or
thrust upon the Additional Public Prosecutor, has no merit.
27. I have already narrated hereinabove, the communication issued
on 23.1.2011 by the Government of NCT of Delhi Home (General)
Department of the Govt. of NCT to the Director of Prosecution, which
clearly shows that the Govt. of NCT of Delhi did not seek the approval
of the Learned P.P. or his view on the proposal whether, or not, to
move an application for withdrawal from prosecution under Section
321 Cr.P.C. It was a very clear, categorical and emphatic instruction
issued to the APP concerned to move applications in the court for
withdrawal of the cases aforesaid, and to intimate the position to the
Government.
28. Reliance placed on the decision in Sheonandan Paswan
(Supra) does not advance the petitioners' case. In this case the
Supreme Court observed:
"Section 321 of the Code enables the Public Prosecutor or
Assistant Public Prosecutor in charge of a case to
withdraw from the prosecution with the consent of the
court. The appellant submits, in our opinion correctly,
that before an application is made under Section 321 of
the Code, the Public Prosecutor has to apply his mind to
the facts of the case independently without being subject
to any outside influence; and secondly, that the court
before which the case is pending cannot give its consent
to withdraw without itself applying its mind to the facts of
the case. But it cannot be said that a Public Prosecutors
action will be illegal if he receives any communication or
instruction from the Government... He is an appointee of
the Government, Central or State (see Sections 24 and
25, Cr.P.C.), appointed for conducting in court any
prosecution or other proceedings on behalf of the
Government concerned. So there is the relationship of
counsel and client between the Public Prosecutor and the
Government. A Public Prosecutor cannot act without
instructions of the Government; a Public Prosecutor
cannot conduct a case absolutely on his own, or contrary
to the instruction of his client, namely, the Government...
Section 321 of the Code does not lay any bar on the
Public Prosecutor to receive any instruction from the
Government before he files an application under that
section. If the Public Prosecutor receives such
instructions, he cannot be said to act under extraneous
influence. On the contrary, the Public Prosecutor cannot
file an application for withdrawal of a case on his own
without instruction from the Government."
29. Either the instruction given to the learned APP on both occasions
would have to be treated as mere proposals, or on both occasions
would have to be treated as definite instructions from a client to the
counsel. The Supreme Court in Sheonandan Paswan (Supra) has
stated the legal position with regard to the scope of responsibility of
the Public Prosecutor under Section 321 Cr.P.C. The facts of the
present case, however, show that definite instructions were issued to
the APP for withdrawal from prosecution, and it was not left by the
respondents to the Learned APP to decide whether, or not, he should
withdraw from prosecution.
30. There is no basis for the petitioners to contend that the decision
of the learned APP to file an application under section 321 Cr.P.C was
taken independently by him, whereas the subsequent decision after
pursuing application under section 321 Cr PC was under the dictates of
the respondent. It could also be argued that the earlier decision to
move applications under Section 321 Cr.P.C was a binding instruction
to the APP, whereas, the subsequent instruction given to him was to
act according to his own judgment/conscience and decide whether or
not to press the applications under section 321 Cr.P.C.
31. It is not disputed by the petitioners that, in the meantime, the
learned M.M. has permitted the withdrawal of the application under
Section 321 Cr.P.C. vide order dated 07.01.2012. It is not disputed by
the petitioners that they opposed the withdrawal of the said
applications under Section 321 Cr. P.C. and that they were heard by
the Leaned M.M. on the said applications. It is also not in dispute that
the petitioners have already preferred the remedy available to them in
respect of the orders passed by the Ld. M.M., permitting the
withdrawal of the applications under Section 321 Cr.P.C. Therefore,
the petitioners have not only had the occasion to raise all the issues
raised before this court, before the Ld. M.M., but still have the right to
pursue the matter further and to raise all the issues available to them
in appropriate proceedings.
32. For all the aforesaid reasons, I find no merit in these petitions
and I am not inclined to exercise the discretionary jurisdiction vested in
this Court under Article 226 of the Constitution of India in the facts and
circumstances of these cases. The petitions are, accordingly,
dismissed.
VIPIN SANGHI, J
JUNE 14, 2012
pkv
