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2016 (2) TMI 1382 - SC - Indian LawsWithdrawal of Prosecution proceedings granted approval - Section 321 Code of Criminal Procedure - jurisdiction of Magistrate to allow the prosecution from preferring the application for withdrawal - HELD THAT - The application for withdrawal of the application preferred Under Section 321 Code of Criminal Procedure was taken up by the learned Magistrate who vide order on 07.01.2012 opined that nothing precluded the prosecution from filing such an application and no right had accrued to the defence on that score, for it was the duty of the Court to deal with such an application as per the established parameters of law. Be it stated, the learned Magistrate further opined that the application preferred by the accused persons Under Section 91 Code of Criminal Procedure did not warrant any consideration and accordingly allowed the prayer. Thereafter, the matter was adjourned to another date for consideration of charge. Regard being had to the language employed in Section 321 Code of Criminal Procedure, reference made to the Constitution Bench decision in Sheonandan Paswan v. State of Bihar and Ors. 1986 (12) TMI 388 - SUPREME COURT wherein the Court referred to Section 333 of the old Code and after taking note of the language employed Under Section 321 of the present Code came to hold that Section 321 enables the Public Prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced, but the application for withdrawal has to get the consent of the court and if the court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. In the case at hand, when the order passed by the Lt. Governor was assailed in Writ Petition, the learned single Judge analyzing the communication and other facts referred to all the decisions earlier taken by the Committee and its recommendations made for withdrawal from the prosecution in the cases. Thereafter, the learned single Judge scrutinized the minutes of the meeting and took note of the fact that the Screening Committee on 13.09.2011 had apparently not apply its own mind or made a thorough scrutiny of the charge-sheets filed in the cases but heavily relied upon the examination of the cases by the Ministry of Home Affairs, Department of Legal Affairs, Law and Justice with the approval of the Union Home Minister. In the impugned order herein, the learned single Judge has observed that no doubt the withdrawal from prosecution is an executive and non-judicial act but there is a wide discretion with the court, which ought to be exercised judicially on well established principles. That is to say, the court has to be satisfied that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the course of justice for illegitimate purposes. In the case at hand, the learned Magistrate was directed by the High Court to consider the application filed by the Assistant Public Prosecutor seeking withdrawal of the application earlier preferred Under Section 321 Code of Criminal Procedure. In such a situation, it is difficult to appreciate how Section 91 of Code of Criminal Procedure can be taken aid of by the accused persons. In view of the same, there are no shadow of doubt that the High Court has fallen into error by permitting the accused persons to file an application Section 91 Code of Criminal Procedure. Whether the High Court was justified in remitting the matter to the learned Magistrate for reconsideration of the application seeking withdrawal of the earlier application filed Under Section 321 Code of Criminal Procedure? - HELD THAT - The learned single Judge by placing reliance on certain authorities has held that decidedly it is the Public Prosecutor who has to take the decision and not the Government or the Lt. Governor and so that dismissal of the writ petition against grant of consent by Lt. Governor to the withdrawal of application Under Section 321 of Code of Criminal Procedure had been erroneously relied upon by the courts below, particularly when right to pursue remedies before the criminal courts was preserved while deciding the writ petition. There can be no cavil over the proposition that when an application of withdrawal from the prosecution Under Section 321 Code of Criminal Procedure is filed by the Public Prosecutor, he has the sole responsibility and the law casts an obligation that he should be satisfied on the basis of materials on record keeping in view certain legal parameters. The Public Prosecutor having been satisfied, as the application would show, had filed the application - The principle stating that the Public Prosecutor should apply his mind and take an independent decision about filing an application Under Section 321 Code of Criminal Procedure cannot be faulted but stretching the said principle to say that he is to convince the court that he has filed an application for not pressing the earlier application would not be appropriate. The impugned order dated 30.07.2015 passed by the High Court is set aside. As the impugned order is set aside, consequentially the order passed by the learned Magistrate on 22.09.2015 has to pave the path of extinction - The appeals are allowed.
Issues involved:
1. Abuse of the legal process. 2. Validity of the application for withdrawal of prosecution u/s 321 of Code of Criminal Procedure. 3. Role and independence of the Public Prosecutor. 4. Jurisdiction and discretion of the Magistrate. 5. Rights of the accused and the victim in the context of withdrawal of prosecution. Summary: 1. Abuse of the legal process: The Supreme Court observed that the legal system was exploited by the Respondents, resulting in a miscarriage of justice. The Respondents repeatedly approached superior courts, causing delays and benefiting from the deferred consequences of litigation. The Appellants criticized the High Court's order, arguing that it vexed the cause of justice and affected the victim awaiting the case's progress. 2. Validity of the application for withdrawal of prosecution u/s 321 of Code of Criminal Procedure: The Supreme Court examined the chronology of events, noting that the Appellant initiated criminal proceedings by filing an FIR, leading to a charge-sheet. The Respondents challenged the summoning order multiple times, resulting in prolonged litigation. A committee recommended the withdrawal of prosecution u/s 321 Code of Criminal Procedure, which was approved by the Lt. Governor. However, the Director of Prosecution later found sufficient evidence against the accused, leading to a decision not to press the withdrawal application. 3. Role and independence of the Public Prosecutor: The Court emphasized the Public Prosecutor's duty to act independently and in good faith. The Public Prosecutor initially filed an application for withdrawal of prosecution, citing the case as a commercial transaction with no likelihood of conviction. However, upon re-evaluation, the Public Prosecutor decided not to press the application, finding sufficient evidence against the accused. The Supreme Court held that the Public Prosecutor must independently assess the material and cannot act as a post office for the government. 4. Jurisdiction and discretion of the Magistrate: The Supreme Court clarified that the Magistrate's role is to grant consent for withdrawal of prosecution after ensuring the Public Prosecutor's independent application of mind. The Magistrate cannot compel the Public Prosecutor to press the application. The Court found that the High Court erred in directing the Magistrate to consider documents filed by the accused u/s 91 Code of Criminal Procedure, as the accused have no role in contesting the application for withdrawal of prosecution. 5. Rights of the accused and the victim in the context of withdrawal of prosecution: The Supreme Court held that the accused have no role in contesting the application for withdrawal of prosecution. The victim, on whose FIR the case was instituted, is the aggrieved party. The Court emphasized that the legal process should not be abused, and frivolous litigation must be deterred to protect innocent sufferers. Conclusion: The Supreme Court set aside the High Court's order and directed the learned Magistrate to proceed with the cases in accordance with law, emphasizing the need for the Public Prosecutor's independent assessment and the proper exercise of judicial discretion. The appeals were allowed, highlighting the importance of preventing abuse of the legal process and ensuring justice for the victim.
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