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CASE NO.: Appeal (crl.)  559 of 2003

PETITIONER: Rahul Agarwal                                            

RESPONDENT: Rakesh Jain & Anr.                                               

DATE OF JUDGMENT: 18/01/2005

BENCH: K.G.BALAKRISHNAN & B.N. SRIKRISHNA

JUDGMENT: J U D G M E N T

K.G. BALAKRISHNAN, J.

       The appellant herein challenges the order passed by the learned  Single Judge of the High Court of Madhya Pradesh whereby he allowed the  withdrawal of a case pending against the first respondent herein before  the Judicial First Class Magistrate, Katni, Madhya Pradesh.  The appellant  herein is the de-facto complainant in the police-charged case.  The  appellant’s case is that he purchased an extent of 1.30 acres of land in  1987 in the name of his mother,  Lacchu Nai.  The first respondent and  one Dinesh Chaudhary had settled rights over this property and they,  according to the appellant, manipulated certain village records.   Appellant’s father filed a  civil suit through the appellant,  who was a  power of attorney holder.  An order of injunction was passed in favour of  the plaintiff in the suit and  the same was confirmed by the Additional  District Judge.  The appellant further contended that the first respondent  and Dinesh Chaudhary along with 20-25 persons came  to the suit  property  and removed a shed constructed  there and  caused damage to  the boundary wall.  It was also alleged that in December 1992, the first  respondent and his friend Dinesh Chaudhary assaulted the appellant and  held a revolver against the chest of the appellant and   threatened him.  The appellant filed a complaint and on that basis a case was registered.  After investigation,  the police filed a final report alleging the commission  of offences under Section 341, 294 and 506(2) read with Section 34 of the  Indian Penal Code.

       On the appellant’s side, five witnesses were examined and the case  was posted for examination of the accused.  Then the Assistant Public  Prosecutor moved an application for withdrawal of the prosecution.  The  Magistrate dismissed that application and a revision was filed by the first  respondent.  The Additional Sessions Judge dismissed the revision   whereupon  the first respondent moved the High Court and by the  impugned judgment the learned Single Judge allowed the withdrawal of  the prosecution.

       We heard the appellant’s learned counsel and the learned counsel  for the respondents.

       Not many reasons are given in the impugned order as to why the  court allowed the withdrawal of the prosecution under Section 321 Code of  Criminal Procedure.   It is only stated that looking at the facts and  circumstances of the case, permission should have been granted for  withdrawal as the petitioner therein had been harassed mentally and  suffered continuously for   seven years during the trial.  The fact that the  trial was not over and the case was posted for the examination of the  accused was not noticed by the High Court.  In the application filed by the  Public Prosecutor,   the only reason given for withdrawal of the

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prosecution was that the accused was not a habitual criminal and,   therefore,  the prosecution must be withdrawn.

       The order passed by the High Court permitting the withdrawal of  the prosecution is not legally sustainable.  The reasons given in the  impugned order are either irrelevant or incorrect.  The learned Single  Judge did not verify the facts and also did not make any inquiry as to why  the case was pending for  over seven years.     It may be noticed that  after the appellant filed the complaint, police took about  three years to  file a final report.  Though the appellant had been cooperating with the  completion of the prosecution, the case was being adjourned from time to  time and ultimately when the prosecution evidence was about to be over  at any point of time,   the withdrawal of the prosecution at the instance of  the Public Prosecutor had been rightly rejected by the Magistrate as well  as the Sessions Court  and the High Court should not have interfered with  such an Order.  The law regarding withdrawal of prosecution has been  explained  in detail  in a  series of decisions rendered by this Court.

In State of Bihar v. Ram Naresh Pandey AIR 1957 SC 389, this  Court held:-

"\005The function of the court, therefore, in granting its  consent may well be taken to be a judicial function. It  follows that in granting its consent may well be taken to be  a judicial function. It follows that in granting the consent the  court must exercise a judicial discretion. But it does not  follow that the discretion is to be exercised only with  reference to material gathered by the judicial method. "

In State of Orissa v. Chandrika Mohapatra (1976) 4 SCC 250,  P.N. Bhagwati, J., as he than was, speaking for the three-Judge Bench,  observed:-

"The paramount consideration in all those cases must be the  interest of administration of justice. No hard and fast rule  can be laid down not can any categories of cases be defined  in which consent should be granted or refused. It must  ultimately depend on the facts and the circumstances of  each case in the light of what is necessary in order to  promote the ends of justice, because the objective of every  judicial process must be the attainment of the justice."   

In Balwant Singh v. State of Bihar, AIR 1977 SC 2265, it was  observed:

"The statutory responsibility for deciding upon withdrawal  squarely vests on the public prosecutor. It is non-negotiable  and cannot be bartered away in favour of those who may be  above him on the administrative side. The Criminal  Procedure Code is the only master of the public prosecutor  and he has to guide himself with reference to Criminal  Procedure Code only. So guided, the consideration which  must weigh with him is whether the broader cause of public  justice will be advanced or retarded by the withdrawal or  continuance of the prosecution."  

       Recently, in Abdul Karim Vs. State of Karnataka, (2000) 8 SCC  710, relying on the earlier decision of the Constitution Bench in  Sheonandan Paswan Vs. State of Bihar 1987 (1) SCC 288, this Court  made the following observations regarding withdrawal of case under  Section 321 Code of Criminal Procedure:

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"\005.What the court has to see is whether the application is  made in good faith, in the interest of public policy and  justice and not to thwart or stifle the process of law. The  court, after considering the facts of the case, has to see  whether the application suffers from such improprieties or  illegalities as would cause manifest injustice if consent was  given. When the Public Prosecutor makes an application for  withdrawal after taking into consideration all the material  before him, the court must exercise its judicial discretion by  considering such material before him, the court must  exercise its judicial discretion by considering such material  and, on such consideration, must either give consent or  decline consent. The section should not be construed to  mean that the court has to give a detailed reasoned order  when it gives consent. If, on a reading of the order giving  consent, a higher court is satisfied that such consent was  given on an overall consideration of the material available,  the order giving the consent has necessarily to be upheld.  Section 321 contemplates consent by the court in a  supervisory and not 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 to withdraw from the prosecution of any  accused. The discretion exercisable under Section 321 is  fettered only by consent from the court on a consideration  of the material before it. What is necessary to satisfy is to  see that the Public Prosecutor has acted in good faith and  the exercise of discretion by him is proper."

       From these decisions as well as other decisions on the same  question,   the law is very clear that the withdrawal of prosecution can be  allowed only in the interest of justice.    Even if the Government directs  the Public Prosecutor to withdraw the prosecution and an application is  filed to that effect,   the court must consider all relevant circumstances  and find out whether the withdrawal of prosecution would advance the  cause of justice.  If the case is likely to end in an acquittal and the  continuance of the case is only causing severe harassment to the accused,  the court may permit  withdrawal of the prosecution.     If the withdrawal  of  prosecution is likely to bury the dispute and bring about harmony  between the parties and it would be in the best interest of justice, the  court may allow the  withdrawal of prosecution.  The discretion under  Section 321 Code of Criminal Procedure is to be carefully exercised  by the  Court  having due regard to all the relevant facts and shall not be  exercised to stifle the prosecution which is being done at the instance of  the aggrieved parties or the State for redressing their grievance.  Every  crime is an offence against the society and if the accused committed  an  offence, society demands that he should be punished.  Punishing the  person who perpetrated the crime is an essential requirement for  the  maintenance of law and order and peace in the society.  Therefore, the  withdrawal of the  prosecution shall be permitted only when  valid reasons  are  made out for the same.

       In the instant case, the reason given by the learned Single Judge in  the impugned order is not correct,  and when the case was about to be  over  the same should not have been  allowed to be withdrawn by holding  that the trial  had been pending for over seven years.

       In the result, we set aside the impugned order and direct the  Judicial First Class Magistrate, Katni,  to restore the case to the  file,  proceed in accordance with law and dispose of  the same  on merits  at an  early date.

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