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TMI Blog2016 (2) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal 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 Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen 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. - Dipak Misra And N.V. Ramana, JJ. For Appellant: Dushyant A. Dave, Sandu Malhotra, Sukumar Patt Joshi, Sr. Advs., Abjay Anand Jona, Ashok Kumar Sharma, Rakhi Ray, Ranjit B. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of certain amount of money. Learned Magistrate vide order dated 18.01.2003, appreciating the material on record, took cognizance of the offences in question and summoned the accused persons fixing the date of appearance on 04.09.2003. The order of issuing summons was assailed before the High Court of Delhi in Crl. M.C. No. 911 of 2003 along with the prayer for quashment of the FIR and an order came to be passed on 04.03.2003. As the factual score would reveal, the matter was pending before the High Court of Delhi and it carried on for days and, as alleged, an effort was made to derail the proceedings by filing an application for recusal of the learned Judge who had substantially heard the matter. The said application came to be dismissed and the order of dismissal was called in question before this Court in a special leave petition with no success. Thereafter, the accused persons challenged the order of summoning before the trial court which was not entertained as is evident from the order dated 27.04.2010. The said order was attacked in Crl. M.C. No. 2040 of 2010 which came to be dismissed on 04.06.2010. In the said case, the learned single Judge had taken note of the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd while rejecting the plea of the learned Counsel for the Petitioner, the High Court noticed that the summoning order was earlier challenged in petitions which had remained pending from 2003/2006/2007 till 04.03.2010 and thereafter the Petitioner had abandoned the challenge. The High Court dismissed the petition holding that it would not be proper to allow the Petitioner to raise the same questions after they had withdrawn the petitions, which had remained pending in the High Court for 3-6 years. 5. The said order came to be assailed in Special Leave Petition (Criminal) No. 6336 of 2010 which was dismissed. 6. It may be noted here that an application preferred Under Section 173(8) of the Code of Criminal Procedure (Code of Criminal Procedure) seeking re-investigation of FIR No. 90 of 2000 by the accused persons met with the fate of dismissal solely on the ground that there was ample evidence on record to bring home the charge and the re-investigation would not subserve any purpose. The futility of endeavour constrained the accused persons to file an application on 24.09.2010 for stay of the proceedings arising out of FIR No. 90 of 2000 before the Chief Metropolitan Magistrate alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawal from Prosecution. 9. In respect of FIR No. 99 of 2002 and other cases, similar recommendations were made for withdrawal from prosecution. The Lt. Governor of Delhi perused the recommendations of Screening Committee for withdrawal of cases from prosecution and ordered the following cases to be withdrawn after following prescribed procedure: 1. FIR No. 46/11 Police Station - Civil Lines registered against Govt. School Teachers Association Under Section Act/Section 188 Indian Penal Code. 2. FIR No. 148/2002 Police Station-Defence Colony registered against accused Sh. S.P. Gupta and Ors. Under Section/Act/Section 384/406/409/421/422/465/ 467/468/120-B Indian Penal Code. 3. FIR No. 90/2000 Police Station, Connaught Place, registered against accused Sh. S.P. Gupta and Ors. Under Section/Act/Section 120B/406/409/420/ 467/468/471/477-A Indian Penal Code. 4. FIR No. 99/2002 Police Station - Connaught Place, registered against accused Shr. S.P. Gupta and Ors. Under Section/Act/Section 120-B, 406, 420, 424, 467, 468, 471/477-A Indian Penal Code. Additionally, FIR No. 677/01 PS Sultanpuri Under Section 332/341 Indian Penal Code is also withdrawn. The present appeals are relatable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid applications or not. 13. Mr. Arvind Ray, who was a member of the Screening Committee gave a note. The relevant part is to the following effect: In the light of the facts which emerged from the through checking of the charge sheet by the Directorate of Prosecution, GNCT of Delhi and the department subsequently and considering the request of the Directorate of Prosecution to issue necessary directions whether the concerned APP has the press applications for withdrawal of the above said cases filed by him before the Court of Sh. Sunil Chaudhary, Ld. ACMM, Tis Hazari Court, on the next date of hearing i.e. 17.12.2011 or not. It is proposed that recommendation of withdrawal of prosecution approved earlier in respect of the above said cases may be placed before the competent authority i.e. Hon'ble Lt. Governor of Delhi for appropriate orders. 14. The Lt. Governor on 15.12.2011 on the basis of the recommendations passed the following order: I have considered the communication of Director of Prosecution dated 13.12.2011 and the note of the Principal Secretary (Home) dated 14.12.2011 and agree with the proposal that the earlier recommendation of withdrawal of the above cases wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter of intra-court appeals. The Division Bench of the High Court adverting to many a facet dismissed the appeals as not maintainable as well as barred by limitation. The legal propriety of the order passed by the Division Bench of the High Court was called in question before this Court in a Special Leave Petition (C) CC Nos. 7447-7448 of 2014 which were dismissed vide order dated 09.05.2014. 18. In the meantime, the order passed on 07.01.2012 by the learned Magistrate in various cases pertaining to the accused persons was called in question in a number of revisions before the revisional court. The learned special Judge, Patiala House Courts while dealing with the revision petition, narrated the facts in entirety, noted the contentions advanced by the learned Counsel for the parties and opined that any party who has a right to file an application/petition before a court of a Magistrate, has an inherent right to withdraw the same and as a corollary thereof the court of a Magistrate will have the jurisdiction to allow the application seeking withdrawal of application for withdrawal from the prosecution. He distinguished between the two concepts, namely, withdrawal of the order ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the courts below had erred in law in permitting the withdrawal of the application without application of mind. That apart, it was propounded that both the courts below had gravely erred in understanding the law laid down by the Apex Court, especially, Sheonandan Paswan v. State of Bihar and Ors. AIR 1983 SC 194 : 1983 (1) SCC 438 and that the learned Magistrate as well as the Special Court fell into error by not holding that application for withdrawal of application preferred Under Section 321 Code of Criminal Procedure was wholly unjustified. The learned Counsel for the State supported the action taken by the Government and the order passed by the courts below. 22. Considering the submissions raised by the learned Counsel for the parties, the learned single Judge after referring to the authorities and the role of the Public Prosecutor Under Section 321 Code of Criminal Procedure opined thus: ...indisputably it is the Public Prosecutor who has to take the call and not the Government or the Lieutenant Governor. So, dismissal of writ petition against grant of consent by Lieutenant Governor to the withdrawal of application Under Section 321 of Code of Criminal Procedure has been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid cases on 13.09.2011 made the difference. The said recommendation was approved by the Lt. Governor on 18.11.2011. On the basis of the order passed by the Lt. Governor, the application was filed seeking withdrawal of the cases. The Assistant Public Prosecutor filed an application averring that the facts of the case clearly showed that it was indicating a commercial transaction between parties but the same had culminated into a criminal offence. It was also mentioned that it was a case relating to civil transaction as well as breach of promises. The Assistant Public Prosecutor was of the view that there was no likelihood of conviction in the case and accordingly had sought withdrawal of the case in public interest. Thereafter the controversy took the centre stage when on 13.12.2011 the Director of the Prosecution communicated to the Principal Secretary, Home Ministry, stating that on a further perusal of the charge-sheet in the aforesaid case it was found that there was sufficient evidence on record to establish the charges against the accused persons and the public prosecutor should be requested accordingly. The Lt. Governor, as mentioned earlier, accepted the same a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding time have contrived intelligence to constantly play the Snake and Ladder Game . Such kind of litigations clearly show that there are certain people who possess adamantine attitude to procrastinate the proceeding in a court of law on the base that each order is assailable and each step is challengeable before the superior courts. It is not to be understood that a litigant is not entitled in law to challenge the orders, but the legal process cannot be allowed to be abused. In the case at hand the process has definitely been abused. 32. Having said so, we shall now proceed to delve into the legal aspects from which our observations be clear as noon day. We may repeat at the cost of repetition that we are not at all concerned with the allegations made in the case. The said aspect has been put to rest when this Court had declined to interfere with the order of the High Court whereby the High court had dismissed the petitions filed for quashing of the FIRs. The issues that arise for consideration are (i) whether the Assistant Public Prosecutor is entitled under law to file an application for withdrawal of the application for withdrawal of the application preferred Under Section 321 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein 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. It clothes the Public Prosecutor to withdraw from the prosecution of any person, accused of an offence, both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is 'at any time before the judgment is pronounced'. It has also been observed that the judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that if the ground urged for withdrawal of the prosecution was non-existent and there was prima facie material, if believed, to support the prosecution then the motive for launching the prosecution by itself may be of no avail. The Court also opined that the High Court missed the true import of the scope of the matter, for it went into grounds which were not even urged by the Special Public Prosecutor in his application made Under Section 321 Code of Criminal Procedure or otherwise before the Special Judge. Exception was taken to the fact that the High Court delved into administrative files of the State which did not form part of the record of the case and accepted anything which was suggested on behalf of the State Government overlooking the fact that for the purpose of Section 321 Code of Criminal Procedure it is the opinion of the Public Prosecutor alone which is material and the ground on which he seeks permission of the court for withdrawal of the prosecution alone has to be examined. 36. In Rahul Agarwal v. Rakesh Jain and Anr. (2005) 2 SCC 377, the Court while dealing with the application Under Section 321 Code of Criminal Procedure referred to certain decisions wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injustice. A court while giving consent Under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The court cannot give such consent on a mere asking. It is expected of the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the court is obliged to see is whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the Public Prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal Affairs, Law and Justice with the approval of the Union Home Minister. The learned single Judge further opined that the observations of the Ministry of Home Affairs did not demonstrate any specific consideration of the charge-sheet either by the Department of Legal Affairs, Ministry of Law and Justice or by the Ministry of Home Affairs. The High Court further took note of the fact that certain exercises were undertaken by the Screening Committee held on 13.09.2011 and thereafter proceeded to state as follows: 24...The screening committee is not shown to be a statutory creation. The screening committee was formed only to aid and assist the Hon'ble Lt. Governor. He was not bound by any recommendation of the screening committee. Therefore, the failure to reconvene the screening committee to reconsider the proposal mooted by Shri B.S. Joon cannot be said to be illegal. Mr. B.S. Joon, Director of Prosecution, was also not precluded from moving the proposal that he moved on 13.12.2011 after studying the charge- sheets in these cases, merely because he was part of the screening committee which had earlier recommended withdrawal from prosecution on 13.09.2011. xxx 26. The contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the course of justice for illegitimate purposes. It is within these parameters, the judicial discretion is to be exercised. Thereafter, the High Court has referred to the dictum of the three-Judge Bench decision in Sheonandan Paswan (supra) and opined that it is the duty of the Public Prosecutor to apply his mind as a free agent uninfluenced by irrelevant or extraneous instructions. Understanding the said principle, the High Court has ruled that the Public Prosecutor has shirked the bounden responsibility by abruptly applying withdrawing the application Under Section 321 Code of Criminal Procedure after a few days, particularly when in the application Under Section 321 Code of Criminal Procedure, Public Prosecutor had asserted in no uncertain terms that a commercial transaction in between the parties was sought to be given a criminal colour and there was no likelihood of conviction on the basis of charge-sheet filed for the offence of criminal misappropriation, etc. 43. Before we proceed to dwell upon the power of the Magistrate to grant permission for not pressing the application, we t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to seek order Under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If Under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. The aforesaid enunciation of law clearly states about the scope of Section 91 Code of Criminal Procedure and we are in respectful agreement with the same. 45. In the case at hand, the learned Magistrate was direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecutor, 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 said application was not taken up for hearing. The learned Magistrate had not passed any order granting consent for withdrawal, as he could not have without hearing the Assistant Public Prosecutor. At this juncture, the authority decided regard being had to the fact situation that the Assistant Public Prosecutor should withdraw the application and not press the same. After such a decision had been taken, as the application would show, the Assistant Public Prosecutor has re-appreciated the facts, applied his mind to the totality of facts and filed the application for not pressing the application preferred earlier Under Section 321 Code of Criminal Procedure. The filing of application not to press the application cannot be compared with any kind of review of an order passed by the court. Question of review can arise when an order has been passed by a court. Section 362 Code of Criminal Procedure bars th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dependent 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. We are disposed to think so as the learned Magistrate had not dealt with the earlier application. Therefore, 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 and we so direct. The learned Magistrate is directed to proceed with the cases in accordance with law. We may hasten to add that we have not expressed any opinion on the merits of the case. All our observations and the findings are to be restricted for the purpose of adjudication of the controversy raised. 48. Before parting with the case, we recapitulate what we have stated in the beginning and also about the indefatigable spirit of the Respondents. In that context, a passage from Subrata Roy Sahara v. Union of India and Ors. (2014) 8 SCC 470, being relevant, is extracted below: T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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