2019 (9) TMI 166 - HC - Indian Laws

Smuggling - white powder/methaqualone - whether the application made under Section 169 of Cr. P.C. can be treated as application made under Section 321 of Cr. P.C.? - HELD THAT - In the present case, it is unambiguous that the application is made under Section 169 of Cr. P.C. The section itself is quoted by the prosecutor and it is mentioned that since the evidence against the accused is inadequate to adjudge their prosecution, it is respectively prayed that they be released from custody. In Section 169 of Cr. P.C. the discretion to make such application is left to officer in-charge of the police station and he may release the accused on his executing a bond with or without surety and may direct to appear if and when so required - Under Section 321(a) if before charge such withdrawal is made, then the accused shall be discharged in respect of the offence. Under Section 321(b) if it is made after the charge, then it shall be acquittal. Under Section 169 of Cr. P.C. accused is released. Thus, the terms used are to be understood with appropriate meaning, they do not carry same connotations so the effect. In the present case, the order passed by the Learned Magistrate is based on misconception of law and ex facie illegal considering the scope of Sections 169 and 321 of Cr.P.C. Sections 169 and 321 of Cr.P.C. cannot be substituted for each other. They can be invoked in different circumstances and the Court s power after invocation of these two sections are not the same and therefore, it is a fit case to be entertained under writ jurisdiction. It is the application under Section 169 of Cr. P.C. The Learned Judge has also treated the application under Section 169 and therefore, he did not mention a word about giving consent for withdrawal of the accused from the prosecution. Therefore, it is not a mentioning of mere wrong section but it is the application specifically under Section 169 of Cr. P.C. Later the Investigating officer has filed the affidavit and has stated that he did not want to release the accused and therefore, he did not want to move such application under Section 169 of Cr. P.C. The roznama discloses that Investigating officer was not present when this application was moved by the prosecutor. The Learned Judge has accepted the application as it is made by the Learned Prosecutor. Under such circumstances, the application moved by the Prosecutor under Section 169 is illegal and so the order passed therein. The status of the respondents is restored as accused in the said case - respondents/accused are already out of the prison and therefore, in all fairness, no coercive action is to be taken against them for a period of one month from the date of the filing of the complaint.

Summary

Issues Involved:
1. Legality of the application under Section 169 of Cr. P.C.
2. Applicability of Section 321 of Cr. P.C.
3. Jurisdiction and powers of the High Court under Article 227 of the Constitution of India.

Issue-Wise Detailed Analysis:

1. Legality of the application under Section 169 of Cr. P.C.:
The Union of India, through the Directorate of Revenue Intelligence (DRI), challenged the order dated 29th October 2018, which released the respondents under Section 169 of Cr. P.C. The DRI had recovered significant quantities of methaqualone and Tramadol tablets from the respondents. However, a negative CA report led the Special Prosecutor to move an application under Section 169 of Cr. P.C., resulting in the release of the accused. The DRI contended that this application was illegal as the Investigating Officer did not consent to it, making the order passed by the Learned Judge erroneous. The prosecutor's submission was deemed unauthorized because the investigation was ongoing, and the evidence was still being collected.

2. Applicability of Section 321 of Cr. P.C.:
The respondents' counsel argued that the application should be considered under Section 321 of Cr. P.C., which allows the Public Prosecutor to withdraw from prosecution with the court's consent. The counsel cited several Supreme Court judgments to support the argument that a mistake in quoting the wrong section should not render the order illegal. However, the court noted that Section 169 and Section 321 serve different legislative intents and cannot be substituted for each other. Section 169 pertains to the release of an accused when evidence is deficient, while Section 321 involves withdrawal from prosecution with the court's consent. The court emphasized that the application was explicitly made under Section 169, and thus, the provisions of Section 321 could not apply.

3. Jurisdiction and powers of the High Court under Article 227 of the Constitution of India:
The court examined its jurisdiction under Article 227, which allows for limited interference in lower court decisions unless there is a manifest error of law. The court referred to the case of Nagendra Nath Bora, which restricts the High Court's power to correct only apparent errors of law. In this instance, the court found that the application under Section 169 was grossly erroneous and based on a misconception of law, thus justifying intervention under writ jurisdiction. The court concluded that the prosecutor's application under Section 169 was illegal, and the resulting order was invalid.

Conclusion:
The court set aside the order releasing the respondents under Section 169 of Cr. P.C. It directed the prosecution to file a complaint within two weeks, restoring the respondents' status as accused. No coercive action was to be taken against the respondents for one month, allowing them to apply for bail, which the Special Court would decide on merits.

Order:
1. The order releasing the respondents is set aside.
2. The prosecution is given two weeks to file a complaint, with the delay condoned.
3. The respondents' status is restored as accused.
4. No coercive action is to be taken against the respondents for one month from the date of filing the complaint.
5. The respondents may apply for bail, which the Special Court will decide on merits.