Delhi High Court
S P Gupta vs State on 30 July, 2015
Author: Sunil Gaur
$~26 to 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 30th July, 2015
+ (i) CRL.M.C. 2055/2015 & Crl.M.A.Nos.7312/2015 &
Crl.M.A.No.8431/15
S P GUPTA ..... Petitioner
Through: Mr. Sudhir Nandrajog, Senior
Advocate, with Ms. Kanika Singh,
Advocate
versus
STATE ..... Respondent
Through: Mr.P.K. Mishra, Additional Public
Prosecutor for respondent-State
with
Mr. Aman Lekhi and Mr. Mohit
Mathur, Senior Advocates, with
Mr. Harish Pandey and Mr. Ashok
Kumar Sharma, Advocates for
complainant/first informant
+ (ii) CRL.M.C. 2054/2015 & Crl.M.A.No.7310/2015
S P GUPTA ..... Petitioner
Through: Mr. Tarun Chandiok, Advocate
versus
STATE ..... Respondent
Through: Mr.Karan Singh, Additional Public
Prosecutor for respondent-State
Mr. Aman Lekhi and Mr. Mohit
Mathur, Senior Advocates, with
Crl.M.C.Nos. 2053; 2054 & 2055 of 2015 Page 1 of 10
Mr. Harish Pandey and Mr. Ashok
Kumar Sharma, Advocates for
complainant/first informant
+ (iii) CRL.M.C. 2053/2015 & Crl.M.A.No.7307/2015
S P GUPTA ..... Petitioner
Through: Mr. Tarun Chandiok, Advocate
versus
STATE ..... Respondent
Through: Mr.Karan Singh, Additional Public
Prosecutor for respondent-State
Mr. Aman Lekhi and Mr. Mohit
Mathur, Senior Advocates, with
Mr. Harish Pandey and Mr. Ashok
Kumar Sharma, Advocates for
complainant/first informant
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
%
Whether an application for withdrawal from prosecution can be
withdrawn at any time at the sweet will of Public Prosecutor, is the
question raised in the above-captioned three petitions.
Petitioner is an accused in three FIRs i.e. FIR No.90/2000; FIR
No.99/2002 and FIR No.148/2002, registered for the offences of
cheating, etc., in which the State through the Public Prosecutor had filed
applications under Section 321 of Cr.P.C. for withdrawal from the
prosecution. These applications were filed on 24th November, 2011 and
then abruptly withdrawn on 16th December, 2011 by moving another
application but under which provision of law, is not disclosed. Trial court
vide common impugned order of 7th January, 2012 has permitted the
Public Prosecutor to withdraw the applications under Section 321 of
Cr.P.C.. The aforesaid order was challenged by way of three separate
revision petitions by petitioner which stand dismissed vide common
impugned order of 15th November, 2014.
Since the subject matter of these three petitions is identical and the
grounds on which quashing of the common impugned order is sought, are
also on the same lines, therefore, these three petitions were heard together
and by this common judgment, they are being disposed of.
The question which came up for consideration before the revisional
court was whether Public Prosecutor had acted independently while filing
application under Section 321 of Cr.P.C. and the subsequent application
seeking withdrawal of the earlier application under Section 321 of
Cr.P.C..
The learned Revisional Court in the impugned order has relied
upon a decision of 14th June, 2012 of a Coordinate Bench of this Court in
W.P.(C) No. 3470/2012 Vipul Gupta Vs. State & ors. wherein the
challenge to the legality of order of 15 th December, 2011 of the
Lieutenant Governor of Delhi , agreeing with the proposal of Director of
Prosecution not to press application for withdrawal of the case against the
petitioner was considered and repelled. However, it was made clear in
the aforesaid order that the right of independent consideration as to the
legality of the withdrawal of the application was left open by observing as
under:-
"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."
At the hearing, learned senior counsel for petitioner assailed the
impugned orders on the ground that there is no provision under which
application under Section 321 of the Cr.P.C. can be withdrawn. To
submit so, reliance was placed upon Apex Court's decisions in Patel
Narshi Thakershi & ors. Vs. Pradyuman Singh ji Arjun Singh ji AIR
1970 SC 1273; R.R. Verma & ors. Vs. Union of India & ors. (1980) 3
SCC 402 & Subhash Chander Vs. State (Chandigarh Administration) &
ors. AIR 1980 SC 423, wherein it has been declared that when quasi
judicial power is exercised, then power of review must be conferred by a
statute either specifically or by necessary implication.
It was vehemently submitted that without any change of
circumstances, application for withdrawal from prosecution was
extraneously withdrawn by the public prosecutor and the courts below
have erred in permitting withdrawal of the application without any
application of mind. It was further submitted that both the courts below
have gravely erred in misinterpreting the dictum of the Apex Court in
Sheonandan Paswan Vs. State of Bihar & ors. AIR 1983 SC 194.
Reliance was also placed upon decisions in Cr. Rev. P. No. 1115/2012
Mohanlal Rao & ors. Vs. State of Rajasthan, rendered on 19th March,
2012 & M. Ramappa Vs. The State ILR (1963) AP 126 to submit on
behalf of petitioner that both the applications ought to have been
considered and decided on their own merits and simplicitor withdrawal of
application under Section 321 of the Cr.P.C. by a cryptic order is
impermissible in law. Learned senior counsel for petitioner also
submitted that courts below have hastily allowed the prosecution to
withdraw the application under Section 321 of the Cr.P.C. and a cryptic
dismissal of petitioner's application under Section 91 of the Cr.P.C. to
summon the relevant documents to show that the application for
withdrawal of application under Section 321 of the Cr.P.C. was wholly
unjustified.
On behalf of respondent-State as well as complainant of this FIR, it
was contended that the impugned orders do not suffer from any illegality,
as it is the prerogative of the State whether to withdraw the prosecution
or not and the ultimate decision to withdraw the prosecution or not, is of
the Public Prosecutor and the application for withdrawal of the
application under Section 321 of the Cr.P.C. was duly supported by the
consent of the Government and so, the decisions relied upon by petitioner
are of no avail and there is no substance in these petitions, which ought to
be dismissed out-rightly, as there is no requirement of passing reasoned
orders while dealing with such applications.
In addition, it was submitted on behalf of the respondent-
complainant that the application under Section 321 of the Cr.P.C. by the
learned Public Prosecutor was fraudulent and not maintainable on facts
and in law. Thus, dismissal of these petitions is sought.
The submissions advanced by both the sides have been duly
considered in the light of the decisions cited and the impugned orders
have been scrutinized. No doubt the withdrawal from prosecution is an
executive and non-judicial act but there is a wide discretion with the
court, which ought to be exercised judicially on well established
principles. That is to say, the court has to be satisfied that the executive
function of the Public Prosecutor has not been improperly exercised or
that it is not an attempt to interfere with the course of justice for
illegitimate purposes. It is within these parameters, the judicial discretion
is to be exercised. It is so mandated by the Apex Court in State of Bihar
Vs. Ram Naresh Pandey AIR 1957 SC 389. In Ouseph Yakob Vs. Jose &
ors. 1959 Crl.L.J. 1170, it has been ruled that the reason for withdrawal
must satisfy the judicial conscience of the court. It cannot be lightly
given merely because Public Prosecutor has asked for it. It stands
reiterated in Anees Mohinuddin @ Ameer @ Abu Ayub Ansari Vs. The
State of Andhra Pradesh 2008 Crl.L.J. 1476 that the exercise of power of
the court is judicial to the extent that the court, in according or refusing
consent, has to see (i) whether the grounds of withdrawal are valid and
(ii) whether the application is bona fide or is collusive. It must be
remembered that the same yardstick is to be followed when application
for withdrawal of application under Section 321 of the Cr.P.C. is filed.
Particularly when, it was not brought to the notice of this Court during
the course of hearing that there was any change of circumstances which
led to filing of application seeking withdrawal of the application under
Section 321 of the Cr.P.C.
The true purport of dictum of Apex Court in Sheonandan Paswan
(supra) is that it has to see whether the Public Prosecutor has applied his/
her mind as a free agent uninfluenced by irrelevant and extraneous
considerations. A bare perusal of trial court's order reveals that it had
shirked the bounden responsibility of looking into bona fides of the
Public Prosecutor in abruptly withdrawing the application under Section
321 of the Cr.P.C. after a few days, particularly when in the application
under Section 321 of the Cr.P.C., Public Prosecutor has averred in no
uncertain terms that a commercial transaction in between the parties is
sought to be given a criminal colour and there is no likelihood of
conviction on the basis of charge-sheet filed for the offence of criminal
misappropriation etc. Strangely, in the second application seeking
withdrawal of the first application under Section 321 of the Cr.P.C., the
same very Public Prosecutor after a few days has averred that after a
thorough examination of the case file and the evidence on record, he
found sufficient evidence against the accused persons. The contrast stand
taken by the same very Public Prosecutor within a span of a few days
certainly calls for examining the bona fides of the second application.
Trial court has ducked the real issue by observing that the need to
examine the bona fides of the Public Prosecutor stands obliterated in the
event of prosecution seeking withdrawal of the application under Section
321 of Cr.P.C. and petitioner's application under Section 91 of Cr.P.C.
has been summarily dismissed by observing that it is unwarranted. Not a
word has been said by trial court in its order as to how it is unwarranted.
Surprisingly, the learned Revisional Court has gone much ahead of
trial court in not only justifying the withdrawal of the application under
Section 321 of the Cr.P.C. by observing that the change in mind of Public
Prosecutor on the dictates or under the influence of another by itself does
not justify the consideration of application under Section 321 of the
Cr.P.C.
By relying upon observations made by a Coordinate Bench of this
Court in Vipul Gupta (supra), the courts below have disclosed utter non-
application of mind, as in Vipul Gupta (supra), it has been categorically
held as under:-
"29. XXXXX
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."
The afore-noted factual position runs contrary to the mandate of
Section 321 of the Cr.P.C. which requires that Public Prosecutor must
independently apply his mind as to whether or not, to withdraw
prosecution. In Sheonandan Paswan (supra), it has been categorically
declared as under:-
"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."
The afore-noted dictum holds the field today as well. Thus,
indisputably it is the Public Prosecutor who has to take the call and not
the Government or the Lieutenant Governor. So, dismissal of writ
petition against grant of consent by Lieutenant Governor to the
withdrawal of application under Section 321 of Cr.P.C. has been
erroneously relied upon by the courts below, particularly when right to
pursue remedies before the criminal courts was preserved while deciding
the writ petition. The legal position, as highlighted in Ouseph Yakob
(supra) and in M. Ramappa (supra), as reiterated in Anees Mohinuddin
(supra), has been totally ignored by both the courts below thereby
rendering the impugned orders perverse.
Consequentially, impugned orders are quashed with direction to
the trial court to decide within four weeks the second application of 16th
December, 2011 (Annexure P-13) i.e. the one for withdrawal of
application under Section 321 of the Cr.P.C. in the light of the legal
position as highlighted above and after taking it into consideration, the
document(s) filed by petitioner along with application under Section 91
of Cr.P.C.
With aforesaid directions, the above captioned three petitions and
applications are disposed of.
(SUNIL GAUR)
JUDGE
JULY 30, 2015
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