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Malkiat Singh vs State Of Haryana And Others on 12 March, 2010 Cites 19 docs - [View All] The Code Of Criminal Procedure, 1973 The Indian Penal Code, 1860 Section 209 in The Code Of Criminal Procedure, 1973 Section 253(1) in The Code Of Criminal Procedure, 1973 Section 321 in The Code Of Criminal Procedure, 1973 Punjab-Haryana High Court CRM No. M 20686 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 20686 of 2008 Date of decision: 12.03.2010 Malkiat Singh ........ Petitioner Versus State of Haryana and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Surinder Mohan Sharma, Advocate for the petitioner Mr. Pardeep Virk DAG, Haryana for the respondent - State Mr. K S Sidhu, Senior Advocate with Mr. A S Sullar, Advocate for respondents No. 2 to 5 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C. for quashing of the orders dated 05.05.2008 passed by the Additional Sessions Judge, Ambala and order dated 05.10.2007 passed by the Judicial Magistrate Ist Class whereby an application under Section 321 Cr.P.C. moved by the Public Prosecutor for withdrawal of the cases has been allowed. Facts as recorded by the Additional Sessions Judge, Ambala are CRM No. M 20686 of 2008 2 as under: "FIR No. 44 dated 11.04.2004 was registered against respondent No. 2 to 5 by the authorities of P S Ambala Sadar on the complaint of the revisionist for alleged commission of offences punishable under Sections 506/447/379 IPC read with Section 34 IPC. The allegations into FIR was duly investigated and report under Section 173 Cr.P.C. was prepared on 20.06.2004 and challan against the respondents No. 2 to 5 was presented in the court of Illaqa Magistrate. Vide order dated 16.10.2006, learned trial Court ordered the framing of charges against respondents No. 2 to 5 for the commission of offences punishable under Sections 447/506/379 IPC read with Section 34 IPC to which respondents No. 2 to 5 had pleaded not guilty and had claimed trial. While the evidence of the prosecution was in progress and one of the witnesses had already been recorded but his cross examination was deferred, prosecution moved an application under Section 321 Cr.P.C. The said application under Section 321 Cr.P.C. was moved by APP for the State with the sanction of the government obtained on 08.06.2007 and prosecution agency sought withdrawal from the prosecution. Ld. Trial court issued the notice of the petition under Section 321 Cr.P.C to the complainant who objected to the same but vide impugned order, learned trial Court found that Section 321 Cr.P.C gives Public Prosecutor the power for withdrawal of any case at any stage and if it is shown that the Public Prosecutor submitted the application without any influence and his decision to withdraw from prosecution is bona fide then withdrawal must be done. While making these observations learned trial Court permitted the prosecution for withdrawal of the case against the CRM No. M 20686 of 2008 3 respondents No. 2 to 5". Thereafter, the petitioner filed Criminal Revision No. 2429 of 2007 before the High Court. The said revision petition was dismissed as withdrawn vide order dated 07.01.2007 with liberty to the petitioner to file revision petition within two weeks before the District Judge. However, the said revision petition was filed after almost one year and one month i.e. on 13.02.2008 without any application for condonation of delay. Although, the Additional Sessions Judge, Ambala observed that the revision was not maintainable and only appeal could have been filed in the facts of the present case, nevertheless, the said revision petition was decided on merits. The said revision petition was dismissed by holding as under:- "10. I have considered the rival contentions of the parties and I am of the view that the public prosecutor can withdraw from the prosecution. The discretion in the present case has been judicial exercised by the ld. Trial court and the powers of this court as the revisional court are quite limited......." Therefore the present petition under Section 482 Cr.P.C. for quashing of the orders dated 05.10.2007 passed by the Judicial Magistrate Ist Class as well as the order dated 05.05.2008 passed by the Additional Sessions Judge, Ambala. While seeking quashing of the aforesaid orders, learned counsel for the petitioner submitted that in the present case, the Public Prosecutor has not applied its judicious mind nor he has considered the facts of the case. The Courts have time and again suggested that the public prosecutor has to apply his own mind and not merely act at the behest of any authority, however, high, whereas, in the present case the Public Prosecutor withdrew CRM No. M 20686 of 2008 4 the prosecution only at the behest of government and on account of the letter dated 30.03.2007 received from Financial Commissioner and Principal Secretary to Government Haryana which reads as under :- From Financial Commissioner and Principal Secretary to Government of Haryana To District Magistrate Ambala Sub: Withdrawal of FIR No. 44 dated 11.04.2004 u/s 148,149,506, 447, 379 of Indian Penal code, Police Station Sadar Ambala against Harsher Singh, Kamaljit Singh Jaspal Singh and Jangsher Singh r/0 Village Sullar, District Amabala. Reference subject noted above. 2. It has been decided by Govt. to withdraw from prosecution the case of FIR No. 44 dated 11.04.04 u/s 148,149,506, 447, 379 of Indian Penal code, Police Station Sadar Ambala against Harsher Singh, Kamaljit Singh Jaspal Singh and Jangsher Singh r/0 Village Sullar, District Amabala. 3. You are requested to take necessary action to withdraw the case from the concerned Court under intimation to Government (in Home Deptt.) Sd/- Under Secretary, Jails and Judicial for FC and PS to Govt. Hr Administration of Justice Deptt." Reliance was placed by the learned counsel for the petitioner on the judgement rendered by the Apex Court in the case of Rahul Agarwal v. Rakesh Jain reported as 2005 (1) RCR (Criminal) 700 to contend that the Court may allow the withdrawal only in following circumstances. CRM No. M 20686 of 2008 5 1) If it would advance cause of justice and if case is likely to end in acquittal and was causing harassment to accused. 2) If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties. as well as on the judgement rendered by the Apex Court in the case of Abdul Karim v. State of Karnataka reported as 2000 (4) RCR (Criminal) to substantiate that:- " Section 321 contemplates consent by the court in a supervisory and to 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." Learned counsel for respondents No. 2 to 5, on the other hand, submitted two fold arguments. Firstly, that Assistant Public Prosecutor moved the application under Section 321 Cr.P.C. only after applying his independent legal mind and coming to the conclusion that the evidence in this case is not sufficient. It was further submitted that once Asstt. Public Prosecutor comes to an independent conclusion that prosecution is an abuse of process of law, he is well within his right to withdraw from the prosecution. Hence, the filing of the application was justified under Section 321 Cr.P.C. by the Public Prosecutor. Secondly, the present petition under section 482 Cr.P.C. amounts to second revision as the order passed by the Ld. JMIC Ambala has been affirmed by the ld. Addl. Sessions Judge, Ambala where the revision petition filed by the petitioner was dismissed and the instant petition amounts to second revision which is specifically barred and hence liable to be dismissed on this score also. CRM No. M 20686 of 2008 6 Learned counsel for the parties were heard at length. Section 321 of Criminal Procedure Code, 1973 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 judgement 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 CRM No. M 20686 of 2008 7 granted by the Central Government to withdraw from the prosecution." In the case of Ghanshyam v. State of M.P. and others, reported as 2006(4) RCR (Criminal) 653, Public Prosecutor made reference to the Government Letter but independently came to the conclusion that it was in the totality of the circumstances and in the interest of general public that he deemed it proper and necessary that the prosecution should be withdrawn from the Court. While upholding the withdrawal of prosecution, Hon'ble the Supreme Court observed as under:- "13. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. The High Court while deciding the revision petition clearly observed that the material already available on record was insufficient to warrant conviction. The flow of facts and the possible result thereof as noticed by the Public Prosecutor and appreciated by the Courts below, constituted the public interest in the withdrawal of the said prosecution. The High Court clearly came to the conclusion that the application for withdrawal of the prosecution and grant of consent were not based on extraneous considerations." In the case of "Vijay Kumar Baldev Mishra alias Sharma v. State of Maharashtra reported as 2207(3) RCR (Criminal) 269, the Apex Court relied on the judgement rendered in the case of Sheonandan Paswal v. State of Bihar (1987)1 SCC 288, which stated that:- CRM No. M 20686 of 2008 8 "90. Section 321 CrPC is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis." 16. Noticing that no guidelines have been provided for in the matter of grant or withdrawal of the consent by the Court, the Constitution Bench referred to the ratio of its earlier decision in State of Bihar vs. Ram Naresh Pandey [1957 (1) SCR 279] wherein it was held: "His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by court. It cannot be taken to place on the court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of 'no prima facie case' under Sections 209(1) and 253(1) or of 'groundlessness' under Sections 209(2) and 253 (2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made." CRM No. M 20686 of 2008 9 17. While refusing to grant permission, the Designated Court, in our opinion, was not correct in expressing its opinion in the merit of the matter and the effect of confessions made in terms of the provisions of TADA. It was, however, also not necessary to consider as to whether, the action of the public prosecutor as also the State was bona fide or not. Moreover, bona fide on the part of the public prosecutor itself cannot automatically lead to grant of consent. There are other circumstances also which are required to be taken into consideration. 18. For the reasons aforementioned, the appeal is allowed. The application filed by the State for withdrawal of the charges under TADA against the appellant shall stand allowed. The learned Designated Judge may now proceed with the matter in accordance with law." Thus, the Apex Court held in no uncertain term that for the discharge, there need not to always conform to the standard of 'no prima facie case' under Sections 209(1) and 253(1) or of 'groundlessness' under Sections 209(2) and 253(2). Reference has also been made to the judgements rendered in the case of Sheonandan Paswal v. State of Bihar (1987)1 SCC 288 and Abdul Karim v. State of Karnataka (supra) wherein it was consistently held that in appeal against the consent, the Supreme Court would not assess the evidence as to whether the case would have ended into conviction or acquittal nor it would order re-trial. From the above arguments and discussion, it is apparent that there is no dispute with the proposition of law that the Public Prosecutor has to arrive at an independent conclusion that the withdrawal from prosecution is justified. CRM No. M 20686 of 2008 10 The case in hand has to be considered in the light of the above guidelines laid down by the Apex Court in their various judgements. There is no doubt that letter dated 30.03.2007 has been sent by the Financial Commissioner and Principal Secretary to Government of Haryana requesting the Public Prosecutor to withdraw the cases from the concerned Court. However, the said application was moved by the Public Prosecutor. In the said application dated 01.05.2007, there is no reference to the letter dated 30.03.2007. Para 2 of the application for withdrawal reads as under:- "2. That after perusal of file and facts mentioned therein, it is decided that it is in public interest to withdraw the aforesaid case from prosecution against the accused persons." A fair reading of the application shows that in spite of the letter of the Government, the Public Prosecutor applied his mind before moving the Court for withdrawal as he has specifically stated in the application that "after perusal of file and facts mentioned therein, it is decided that it is in public interest to withdraw the aforesaid case from prosecution against the accused persons." Thus, it is apparent that the Public Prosecutor applied his mind to the issue and considered the record, evidence on the file and facts mentioned therein and then arrived at an independent conclusion that the withdrawal of the the prosecution was in 'the public interest'. Thus, the said application is in accordance with law. In the case of Abdul Karim (supra) relied upon by the learned counsel for the petitioner, it was held:- CRM No. M 20686 of 2008 11 "iii) 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." The Court found the application for withdrawal by the Public Prosecutor has been made 'in good faith' and 'in public interest'. The Public Prosecutor duly considered the circumstances and the record before moving the application. Thus,the said prayer for withdrawal was made in 'public interest'. Even otherwise, this petition has been filed under Section 482 Cr.P.C. There is merit in the preliminary objections raised by the learned counsel for the respondents. Second revision petition is not maintainable. The second revision before the High Court under the garb of invoking inherent power under Section 482 Cr.P.C. cannot be permitted as held by the Apex Court in the case of Dharampal v. Ramshri reported as 1993(1) RCR (Criminal) 696 as well as in Rajan Kumar Manchanda v. state of Karnataka reported as 1988(2) RCR (Criminal) 662. The Apex Court in the case of Dharam Pal (supra) held as under:- "6. There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Sessions Judge. It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate. The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders CRM No. M 20686 of 2008 12 of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier. Let that be as it is. The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revision application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr.R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397 (3) bars a second revision application by the same party. It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short ground itself, the impugned order of the High Court can be set aside." However, it is also a well settled principle of law that provisions of Section 482 Cr.P.C. can be invoked in stead of filing of second revision petition, in case, there is apparent injustice. There is nothing on record to show as to what injustice has been caused to the present petitioner by the withdrawal of the prosecution. Moreover, while dismissing the revision petition, the Court granted the liberty to the petitioner to file a criminal complaint, if he so desired. Thus, the facts of the present case do not warrant any interference under Section 482 Cr.P.C. being a second revision under the CRM No. M 20686 of 2008 13 garb of Section 482 Cr.P.C. If it was permitted then every petition facing the bar under Section 397(3) could be challenged under Section 482 Cr.P.C. Thus, the present petition is neither maintainable nor is there any merit in the same. Accordingly, the present petition is dismissed on both counts i.e. on the question of maintainability as well as on merits. (Nirmaljit Kaur) Judge 12.03.2010 mohan

YES, IT CAN BE WITHDRWAN BY THE COMPAINANT AND THE POLICE WILL FILE "B" REPORT.

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BANGALORE

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