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PETITIONER: TEKCHAND & ANR.

       Vs.

RESPONDENT: TEKCHAND, SUPDT. OF POLICE & ORS.

DATE OF JUDGMENT28/11/1986

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1987 AIR  349            1987 SCR  (1) 376  1986 SCC  Supl.  533     JT 1986   943  1986 SCALE  (2)906

ACT:     Withdrawal  of Prosecution--Chances of  conviction  far- fetched  and bleak and evidence not forthcoming as  per  the report  under  section  173(8)  of  the  Criminal  Procedure Code--Whether  the grant of permission for  nolles  prosequi under section 321 of the Code in order.

HEADNOTE:     In respect of certain incident dated 2.4.1974, the First Information  Report  has  been registered suo  motu  by  the Police  after  3 1/2 years, on the basis of  the  report  of Commission of Inquiry. The victims of the injuries were also accused of criminal offences said to have taken place at the same  point  of time who were produced before  the  Judicial Magistrate  of  Bhiwani on 2.4.74 and  were  also  medically examined.  They did not file any private  complaint,  though released  on bail. Based on the report of the  Investigating Agency  under section 173(8) of the Code of Criminal  Proce- dure Code, the Public Prosecutor filed an application  under section  321 of the Code for withdrawal of  the  prosecution case  which  was granted by the Chief  Judicial  Magistrate, Bhiwani. The High Court also affirmed the said order.  Hence the Special Leave Petitions. Dismissing the petitions, the Court,     HELD: In the facts and circumstances of the case, it  is in  public interest that the Prosecution should not  proceed with  the prosecution. A report under section 173(8) of  the Code  of  Criminal  Procedure by  the  investigating  agency indicated that adequate evidence has not been forthcoming to support the prosecution which was commenced suo motu on  the basis  of  a report of the Commission of  Inquiry  on  whose finding  no conviction can lie. The victims  themselves  who were  the  accused of criminal offences said to  have  taken place at the same point of time did not complain before  the Magistrate  concerned and did not file  private  complaints. The  pica that one of the accused persons was the son  of  a political figure wielding influence did not deter the Magis- trate  in ordering release the victims in the earlier  case. Further chances of conviction are too far-fetched and bleak. [378E, B]

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JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Special Leave  Petition (Crl). Nos. 1682 And 3120 of 1983. 377     From  the  Judgment  and Order dated  12.4.1983  of  the Punjab  and Haryana High Court in Crl. Revision No.  1427  & 1428 of 1980. Govind Mukhoty and Sarva Mitter for the Petitioners.     M.C. Bhandari, Harbans Lal, Dr. Y.S. Chitale, C.V. Subba Rao,  S.K. Bisaria, Ravindra Bana and N.S. Das Bahl for  the Respondents. The Order of the Court was delivered by     These  two special leave petitions and a  writ  petition were filed for a common purpose--the writ petition question- ing the vires of section 321 of the Code of Criminal  Proce- dure of 1973 and these two special leave petitions question- ing the correctness of the order of the (High Court by which it  affirmed the order of the Chief Judicial  Magistrate  of Bhiwani, according permission under the same section 321 for withdrawal of a prosecution against the respondents  except- ing the State of Haryana. We have already dismissed the writ petition  and  now proceed to dispose of the  special  leave applications. As lengthy arguments were advanced we  propose to make a brief but speaking order.     Having  heard  learned counsel for the  parties  we  are inclined to think that the order of the learned Chief  Judi- cial Magistrate was perhaps not appropriate in law. The High Court  did  go into the question afresh  in  its  revisional jurisdiction but there could also be some arguments possible with  reference  to what the High Court has  said.  We  are, however, definitely of the view that no useful purpose  will be  served in setting aside the order of the Chief  Judicial Magistrate  as affirmed by the High Court and  in  directing the  prosecution to proceed as there is, in our opinion,  no chance  of ultimate conviction. Allowing such a  prosecution to proceed will only be harassment to the parties and  wast- age of public time. Now we briefly indicate some features to justify this conclusion of ours. The incident is dated 2.4.1974. The First Information Report has  been  registered  suo motu by the  police  in  November 1977--after  a gap of more than 3 1/2 years. The victims  of the injuries were also accused of criminal offences said  to have taken place at the same point of time and were produced before  the Judicial Magistrate of Bhiwani on 3.4.1974.  The Judicial  Magistrate enlarged them on bail and  finding  in- juries on their persons directed them to be medically  exam- ined.  There is no material before us to show that the  vic- tims had complained to the learned Judicial Magistrate  that the present accused persons were the authors of the injuries on  them. We gave an opportunity to the petitioners to  pro- duce such material but with no result. For the first time, 378 witnesses to the occurrence were examined towards the end of 1977 and beginning of 1978 during investigation.     The learned counsel drew our attention to the fact  that one of the accused persons happens to be the son of a polit- ical  figure wielding influence. We find that this fact  did not deter the Judicial Magistrate in ordering release of the victims who had been produced before him as accused persons. The learned Magistrate also made an order for their  medical examination and that was carried out. There is no justifica- tion as to why a private complaint was not made  contempora- neously  and  the  matter had to wait for 3  1/2  years  for

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investigation on the basis of the First Information Report.     The learned counsel also pointed out that Emergency  had intervened  and  during that period  a  situation  prevailed where  the victims could not open their mouths. A period  of more  than 14 months intervened between the  occurrence  and the promulgation of emergency.     A  Commission was set up after the emergency  had  ended and  holding a fresh elections, a different political  party had  come to power. Following the report of  the  Commission this prosecution had been launched. The petitioners’ learned counsel did not dispute the position that the finding of the Commission is not evidenced and no conviction can lie on the conclusion  either. In these circumstances, chances of  con- viction are too far-fetched and bleak. We do not think it is in  public interest that the prosecution should proceed.  We may  add that in a report under section 173(8) of the  Code, the  investigating agency has also  indicated  that-adequate evidence  has not been forthcoming to support  the  prosecu- tion.  It is thus not necessary to examine the legal  aspect canvassed  in the special leave petitions and argued  during hearing. Both the petitions are dismissed. S.R.                                               Petitions dismissed. 379