http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (crl.)  1017 of 2006

PETITIONER: Ghanshyam                                        

RESPONDENT: State of M.P. & Others                   

DATE OF JUDGMENT: 29/09/2006

BENCH: S.B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T [Arising out of SLP (Cr.) Nos.185-186 of 2006]

Dalveer Bhandari, J.

       Leave granted.

       This appeal is directed against the judgment dated  08.8.2005 passed in Writ Petition No.1356 of 2004 by the  M.P. High Court of Judicature at Jabalpur, Bench at  Gwalior, M.P.           Brief facts which are necessary to dispose of the  appeal are recapitulated as under:

       A writ petition was filed by respondent no.3 Surya  Prasad son of Hariram, aged about 82 years, in which he  had complained about the inaction on the part of the  police authorities of the police station, Morar in not  registering his complaint and taking action against the  persons who had caused injuries to him and his sons.  It  was stated in the writ petition that on 8.11.1986,  respondent no.3 and his sons were attacked.  They  sustained injuries and thereafter respondent no.3 was  medically examined.  In spite of filing the complaint, the  police authorities of the Morar police station neither  registered any case nor took any action against the  accused but in fact the police people protected the  accused persons.  In the writ petition, he had prayed that  justice be done to him and the accused be punished.   

       Learned Single Judge of the High Court after  considering the facts and circumstances of the case,  issued notice in the writ petition and directed the  Director General of Police, Madhya Pradesh, Bhopal to  appoint a senior officer from the Police Headquarter to  conduct an enquiry into the matter.  Accordingly, the  Deputy Inspector General of the Central Intelligence  Department, Gwalior (for short "DIG, CID") conducted an  enquiry and submitted a report.  Respondent no.3 herein  (petitioner in the writ petition) submitted an objection  indicating that instead of getting the matter inquired  from the Police Headquarter, the respondents improperly  had got the investigation carried out from the local police  officer.  The learned Single Judge held that once it was  established that respondent no.3 had sustained injuries  in the incident and injuries on his person were confirmed  on the medical examination, the police authorities of the  Morar police station ought to have registered a case and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

taken appropriate steps in accordance with law.  On the  basis of the final report of the inquiry, the learned Single  Judge directed the Superintendent of Police, Gwalior to  register a case in the Police Station of competent  jurisdiction and take action in accordance with law.

       The appellant had filed an application bearing  M.C.C. No.473 of 2005 for recalling of an order dated  08.8.2005 passed by the learned Single Judge in the writ  petition no.1356 of 2004 whereby respondent no.2, the  Superintendent of Police, Gwalior, M.P. was directed to  register a case and  conduct investigation.  After hearing  the appellant, the learned Single Judge arrived at definite  finding that there was no ground to recall the order and  dismissed the petition.

       Being aggrieved by the order dated 08.8.2005  passed in the Writ Petition No.1356 of 2004 and the  order dated 23.9.2005 passed in M.C.C. No.473 of 2005,  the appellant has preferred this appeal.

       According to the appellant, he was residing in the  house situated at Company Bagh Road, Morar, Gwalior,  as a tenant since the time of the grandfather of  respondent no.3.  Now, the landlord of the house is  respondent no.3.  According to the appellant, respondent  no.3 attempted to illegally evict the appellant from his  rented house with the help of anti-social elements who  came to his house armed with weapons on 8.11.1986.    Respondent No. 3 along with his men started dismantling  the house of the appellant without prior permission  and/or notice to him.  The appellant was seriously  injured when he tried to obstruct them from dismantling  the house.  The appellant lodged an FIR No.654/86  under Section 147/307 IPC against respondent no.3 and  his men.  A charge-sheet was filed against respondent  no.3 and his men under Section 147/307 IPC and then  the trial commenced.            It may be pertinent to mention that after some time  the Public Prosecutor filed an application under Section  321 of the Code of Criminal Procedure for the withdrawal  of the prosecution.  The learned Additional Sessions  Judge granted permission to withdraw the prosecution  on the application filed by the Public Prosecutor.  It was  urged by the appellant that respondent no. 3, being a  former Member of Parliament, managed to get an order  from the government directing the Public Prosecutor to  withdraw the criminal prosecution.

       The appellant is aggrieved by the order of  withdrawal of the prosecution against respondent no. 3.    The appellant’s main grievance is that respondent no. 3,  after a lapse of number of years, had filed a writ petition  before the High Court and obtained an order by which  the Court directed the Superintendent of Police, Gwalior  to take action for registering the case and conduct an  enquiry/investigation in accordance with law.    

       It may be pertinent to mention that the appellant  had preferred a criminal revision petition before the High  Court against the order passed by the learned Additional  Sessions Judge, Gwalior granting consent for withdrawal  of the prosecution on the application of the Public  Prosecutor under section 321 of the Code of Criminal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Procedure.  Section 321 of the Code of Criminal  Procedure reads as under: "321. Withdrawal from prosecution. \026 The  Public Prosecutor or Assistant Public Prosecutor  in charge of a case may, with the consent of the  Court at any time before the judgment 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 in the misappropriation of  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  granted by the Central Government to withdraw  from the prosecution."

According to the scheme of section 321 Cr.P.C., the  Public Prosecutor at any stage before the judgment can  move the Court for withdrawal of prosecution.  The High  Court was not oblivious of the fact that an application  under Section 321 Cr.P.C. had to be carefully scrutinized  and ensured that no extraneous consideration had  prevailed in moving such an application.  The High Court  also took note of the fact that the proceedings under  section 107 Cr.P.C. were initiated between the parties.  In  the criminal revision petition, relevant observations of the  High Court are reproduced as under:- "Now coming back to the given case, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

complainant and the accused party both were also  proceeded against by the State as the preventive  action was taken under Section 107 Cr.P.C.,  therein, the petitioners statement on oath was  recorded as quoted above which does not attribute  the act of causing of injuries to accused non- petitioners and further shows that injuries were  received accidentally and in his version, there is  also no explanation of the injuries, received in the  same incident by the accused party,  and in such  circumstances if the Prosecution was sought to be  withdrawn, it cannot be said that any favour was  shown to any accused, or that such proposal came  because the non-petitioner has been a Congress (I)  Member of Parliament.  If the non-petitioner has  been a Member of Parliament, a people’s  representative, that should not put him to  disadvantageous position.  If on merits, the case  deserved withdrawal, it could not be continued  merely because amongst the accused one has  been a Member of Parliament and that such  withdrawal may be meant or taken as a favour to  accused."

       In the revision petition, the High Court observed as  under:  "In the instant case the prosecutor himself has  made reference to the Government letter, the copy  of which has been filed on record and having  perused it, I am satisfied that letter is only  advisory in character and there is nothing to show  that the Public Prosecutor was directed by the  Government to move for withdrawal.  A fair  reading of the application for withdrawal shows  that the Prosecutor applied his mind before  moving the Court for withdrawal as he has so  stated in the application, that :- ’In the totality of  the circumstances and in the interest of general  public, I deem it proper and necessary that the  prosecution be withdrawn from the Court’.   Therefore, he made the prayer for the Court’s  consent.  From the above it is clear that the  Prosecutor applied his mind to the issue,  considered all the circumstances and came to the  conclusion that prosecution be sought to be  withdrawn, notwithstanding, that an accused has  been a Member of Parliament, i.e., a people’s  representative."

      On careful scrutiny of the impugned judgment of the  High Court passed in the criminal revision petition No.  84 of 1989, it is abundantly clear that the court was not  oblivious of its  supervisory duty while adjudicating the  application under section 321 Cr.P.C. filed by the Public  Prosecutor.  The relevant observations of the court are as  under: "There are social and economic reasons behind  every crime.  However, if the Public Prosecutor  feels that withdrawal of prosecution fulfills the  social purpose completely, then it will be proper to  accept the application for withdrawal of  prosecution.  It is also to be seen that Public  Prosecutor is not misusing his wisdom while  withdrawing the case for prosecution."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

       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.  

The appellant aggrieved by the order by which the  court’s approval was granted for withdrawal of the  prosecution, preferred a criminal revision petition in the  High Court.  The High Court by a detailed and  comprehensive judgment on 28.9.1991 dismissed the  revision petition.  The said judgment of the High Court  became final and binding on the parties because the  appellant had never challenged that judgment.  In other  words, the appellant had no further surviving grievance  against respondent no.3.

       It is relevant to mention that only when respondent  no.3, Surya Prasad filed a writ petition in the High Court  in the year 2004 in which he had complained of inaction  on the part of the police authorities in not registering a  case against the accused who had caused serious  injuries to him and his sons, the High Court on the basis  of  the report of the Deputy Director General, Intelligence  of the Central Intelligence Department, Gwalior, M.P. and  averments incorporated in the writ petition, directed the  Superintendent of Police, Gwalior to take action for  registration of the case and conduct the investigation and  inquiry in accordance with law.    The appellant obviously was aggrieved by the said  order of the High Court because he feared that now a  case would be instituted against him, therefore, he had  moved the High Court for recalling of the order dated  8.8.2005 passed in Writ Petition No. 1356 of 2004.  The  said application for recalling the order was dismissed by  the High Court.  The appellant is now seriously aggrieved  by the judgment and order passed in the writ petition  and thereafter in the application for recall respectively,  has preferred these appeals before this Court.

According to the appellant, the High Court ought  not to have passed any direction in the writ petition filed  by respondent no. 3 because it was filed after undue  delay.  

The appellant urged that the High Court did not  consider the incident which had taken place in the year  1986 in the proper perspective. He also contended that  respondent no.3 himself was involved in a case  emanating from the FIR No. 654 of 1986 under Section  307 I.P.C. registered against the respondent.  In the  backdrop of the case, according to the appellant, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

impugned order of the High Court is unsustainable.

It would be appropriate to mention at this juncture  that the Additional Sessions Judge permitted withdrawal  of the prosecution on an application moved by the Public  Prosecutor under section 321 Cr.P.C.   The appellant had  moved a criminal revision petition before the High Court.   The order of the High Court was passed in the year 1991  and the appellant never challenged that order in the last  15 years before this Court.  Therefore, the appellant is  wholly unjustified in making any grievance in respect of  the prosecution which had already been withdrawn  against the respondent no.3 a long time ago and the said  order was affirmed by the High Court and no proceedings  were taken against the said judgment of the High Court.    

It may be pertinent to mention that the order of the  High Court was primarily based on the report of the DIG,  CID, Gwalior who had conducted the inquiry at the  instance of the Court and submitted the report.  On the  basis of the inquiry report, the High Court directed the  Superintendent of Police, Gwalior to take action for  registration of the case and conduct the investigation and  inquiry in accordance with law.    

We have carefully examined the impugned judgment  of the High Court and heard the learned counsel for the  parties at length.  We do not find any infirmity in the  order dated 8.8.2005 passed in Writ Petition No. 1356 of  2004 and the order dated 23.9.2005 in MCC No. 473 of  2005 passed by the Madhya Pradesh High Court of  Judicature at Jabalpur, Bench of Gwalior.

In the backdrop of the peculiar facts and  circumstances of the case, no interference is called for.   These criminal appeals are accordingly dismissed being  devoid of any merit.