Rajasthan High Court - Jodhpur

Deva Ram vs State on 29 July, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 8369/2021

Deva Ram S/o Kana Ram, Aged About 53 Years, Village Salagnada, At Present Ramnada Tausar, P.s. Kotwali, Nagaur. (At Present Lodged In District Jail, Nagaur).

                                                                  ----Petitioner
                                   Versus
State, Through Pp
                                                                ----Respondent


For Petitioner(s)        :     Mr. RS Choudhary
For Respondent(s)        :     Mr. Farzand Ali, GA-cum-AAG
                               alongwith Mr. AR Choudhary, PP
                               Mr. Vijay Bishnoi, for the complainant
                               Mr. Brijendra Singh, SI
                               SHO, P.S. Kotwali, Nagaur.



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                    Order

29/07/2021

In wake of second surge in the COVID-19 cases, abundant

caution is being maintained, while hearing the matters in Court,

for the safety of all concerned.

Hon`ble Division Bench of this Court passed certain orders

for removal of encroachments and while the encroachment

removal drive was being undertaken, it is alleged that public

representatives incited and instigated mob to attack the team of

administration which had gone for removal of encroachment. The

JCB Driver, who was part of the team, was killed at the spot as a

result of fury created by the mob violence.

Counsel for the petitioner submits that it is mockery of

justice that on the one side petitioner, being a poor driver, is being

subjected to prosecution whereas on the other side politically

(2 of 5) [CRLMB-8369/2021]

powerful persons are being discharged from the offence alleged by

moving application under Section 321 Cr. P.C.

Counsel for the petitioner has drawn attention of this Court

to order dated 20.02.2021 issued by Special Secretary (Home),

Government of Rajasthan, Jaipur.

Counsel for the petitioner submits that this order for moving

application under Section 321 Cr. P.C., before the learned court

below creates serious prejudice to persons like present petitioner,

who is being victimized for his presence at the spot even when he

has actually not committed the crime in-question.

Upon such submission, this Court asked learned Public

Prosecutor to procure details of such report in pursuance of order

dated 20.02.2021 and a certified copy whereof has been furnished

today. Order dated 20.02.2021 and the application under Section

321 Cr. P.C, for withdrawal from prosecution in consequence of

order dated 20.02.2021 both are taken on record.

This Court after perusing order dated 20.02.2021 and the

application under Section 321 Cr. P.C., directs learned Additional

Advocate General cum Government Advocate to get an affidavit

of the Special Secretary (Home), Government of Rajasthan, Jaipur

who is author of order dated 20.02.2021 as to what was the public

interest involved whereby this decision has been taken to move

application under Section 321 Cr. P.C. The same be produced

before this Court on the next date.

This Court takes note of the parameters laid down by

Hon`ble Supreme Court in The State of Kerala Vs. K. Ajith &

Ors., reported LL 2021 SC 328, particularly, the relevant paras 23

& 24 of which reads as follows :-

(3 of 5) [CRLMB-8369/2021]

23. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution Under Section 321 of the Code of Criminal Procedure can now be formulated:

(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:

(a) The 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;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

(d) The grant of consent sub-serves the administration of justice; and

(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction Under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-

(4 of 5) [CRLMB-8369/2021]

settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.

C.2 Immunities and Privileges of MLAs

24. Articles 105 and 194 of the Constitution provide in similar terms for the privileges and immunities of Members of Parliament14 and MLAs respectively. Article 194 of the Constitution is extracted below:

194. Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof

(1) Subject to the provisions of this Constitution and to the Rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution forty fourth Amendment Act, 1978.

(4) The provisions of Clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature. (emphasis supplied)"

As per judgment passed by Hon`ble Apex Court in The State

of Kerala Vs. K. Ajith & Ors. (supra), formulation of independent

opinion by Public Prosecutor is must, which is not evident from the

application filed under Section 321 Cr. P.C., in July, 2021 by the

Prosecution Officer, CJM Court, Nagaur before the court of learned

Chief Judicial Magistrate, Nagaur. The Prosecution Officer, CJM,

Nagaur shall also be required to file an affidavit as to whether he

has complied with the judgment The State of Kerala Vs. K. Ajith &

Ors. (supra).

(5 of 5) [CRLMB-8369/2021]

Since counsel for the petitioner wants to argue the bail

application on merits but before doing so, this Court seeks proper