Durai Murugan & Others v. State By S.I Of Police, Latteri Police Station, Etc.

ORDER:

These revisions are filed against the order passed by Judicial Magistrate V, Vellore in Crl. M.P No. 2827/98 and 2828/98. The accused in C.C No. 107/91 have filed Crl.R.C No. 1245/94. The State has filed Crl.R.C 1290/98 and 1291/98 to set aside the order passed by the Judicial Magistrate V, Vellore.

2. The brief facts of the case are as follows:

(1) The cases relating to C.C No. 107/91 and 171/94 and 108/91 were registered under Crime No. 37/91 and 38/91 on the file of Sub-Inspector of Police, Letteri Police Station. The occurrence took place on 14.5.91 at about 7 and 7.30 p.m The cases were registered as case and counter-case. The accused in C.C No. 107/91 belonged to DMK party and the accused in C.C No. 171/94 belonged to AIADMK party.

(2) On 14.5.91, at about 7 p.m the AIADMK partymen were playing songs from recorded music through loud speakers supporting their election campaign at the stage erected for public meeting near Latteri Bus stand. At that time, the accused who belonged to DMK party were campaigning in support of their candidate through loud speaker attached to an Autorickshaw. When the first accused started to address through loud speaker, AIADMK partymen did not stop playing recorded music and thereafter the other accused armed with stick and iron rods and bricks caused damage to the tubelights and loud speaker. The accused were charged under Section 147, 148, 427 read with 149 I.P.C and a case was taken on file as C.C No. 107/91.

(3) On the same day at about 7.30 p.m while DMK party candidate was campaigning in an autorickshaw, accused who belonged to AIADMK party increased the sound in their loud speaker. When the DMK partymen requested to reduce the sound, the first accused armed with knife and other accused armed with sticks and bricks attacked and intimidated the DMK party candidate and others and in that transaction injuries were caused to some of the witnesses and they also caused damage to thaneer pandhal. Therefore, the accused were charged under Section 147, 148, 323, 324, 435 and 506 Part (2) read with 149 I.P.C and the case was taken on file as C.C No. 108/91.

(4) It is seen from the admitted facts that the case in C.C 108/91 filed against AIADMK partymen was ordered to be withdrawn. Accused in C.C No. 107/91 filed Crl. R.C 141/92 before this Court on the ground that the cases are case and counter and that prejudice would be caused to the accused in 107/91 if the prosecution is allowed to withdraw the counter case in C.C 108/91 alone. The Court allowed the said Crl.R.C by order dated 11.8.94 and as per the orders of this Court, the case was remitted to the Judicial Magistrate V, Vellore and the case was re-numbered as C.C 171/94.

3. On 13.10.1998, the prosecution filed petition under Section 321 Cr.P.C in Crl. M.P 2827/98 and 2828/98 for withdrawal of both cases. The trial Court on consideration of material declined to accord consent for withdrawing the cases. Aggrieved by the said order of the learned Judicial Magistrate, the revision is filed by both State and accused in one case. The accused in both cases are impleaded as respondents in Crl. R.C filed by the State.

4. The order passed by the learned Judicial Magistrate is challenged by both accused and Public Prosecutor on several grounds. Before proceeding further to decide the merits of the case, it would be relevant to ascertain the reasons stated by the Public Prosecutor in the withdrawal memo. The above withdrawal memo was filed by the Assistant Public Prosecutor, Vellore on 13.10.1998 The averments contained in the above memo are as follows:

(i) The above 2 cases are pending for over 7 years and there won't be any useful purpose served in conducting the prosecution in the above 2 cases.

(ii) Further many of the prosecution witnesses in C.C No. 107/91 who are accused in C.C 171/94 have crossed over to other political parties and almost all the witnesses have also turned hostile. Therefore, the prosecution in both cases will not be successful as most of the accused themselves have become one group now. The state exchequer need not be wasted in continuing this prosecution.

(iii) The above two cases were filed in order to maintain peace at the time of general elections. There is no tension prevailing in the locality as on date and the withdrawal of the case will further strengthen the cordial relationship between the political groups. Both the above cases have to be withdrawn due to changed political climate and also to maintain peace and cordial relationship in the locality.

(iv) No prejudice will be caused to any of the complaint in both cases.

Along with the above memo, the Public prosecutor also enclosed the order of the Government dated 7.10.98 whereunder the Government after careful consideration directed the authorities to withdraw the cases.

5. The trial Court dismissed the above applications giving the following reasons:

(1) The delay in the progress of the case was only due to non appearance of the accused and the stay obtained by the accused in C.C 107/91. There are no reasons or basis to hold that the prosecution will not be successful. When once the charge has been framed, the prosecution cannot ask for withdrawal on the same materials which were sufficient to frame charges. The ground that there will be waste of state exchequer cannot be a ground for withdrawal of the cases. The prosecution in C.C No. 171/904 has been withdrawn only in order to show that the withdrawal of prosecution in favour of the political group of person accused in C.C No. 107/91 was fairly done. The trial Court has also observed on point No. (ii) that the Assistant Public Prosecutor did not take the decision to withdraw the case on his own volition.

6. The learned Advocate General for the State and the counsel for the accused advanced elaborate arguments with reference to the decisions of the Apex Court. It is contended by the learned Advocate General and also counsel for the accused that the trial Court without properly considering the scope of Section 321 and power of the Public Prosecutor and the Court has declined to give consent. The attention of this Court is also drawn to the rulings of the Apex Court.

7. It cannot be disputed that the Court is competent to grant consent to the Prosecutor to withdraw the case even after framing charges. Section 321 Cr.P.C reads thus:

“321. Withdrawal from Prosecution: 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, on when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.”

It is not in dispute that the Asst. Public Prosecutor, Vellore, is in-charge of the case. Therefore, he is competent to file the application or memo for withdrawal of the case. The trial Court on point number 1 (i.e) whether the grounds alleged by the prosecution for withdrawing the case are germane, has observed that all the accused failed to appear in C.C No. 107/91 and that they also obtained stay in the High Court and that the order of the Court giving consent to withdraw C.C No. 108/91 was set aside by the High Court and that only due to the conduct of the parties, the progress in the cases were delayed and that the High Court has also directed the Court to proceed with the trial and that in the above circumstances, the reason given by the prosecution for withdrawing the case on the ground of delay cannot be accepted. The trial Court failed to read the entire averments contained in the withdrawal memo filed by the Asst. Public Prosecutor. It is significant to note that even though both cases were registered on one and the same day, the case registered against the accused in C.C 108/91 (C.C 171/94) was ordered to be withdrawn earlier. In view of the above order, the accused in C.C No. 107/91 had to file revision before the High Court stating that both cases and counter were pending in respect of one and the same transaction, and that the withdrawal of one case alone will certainly cause prejudice to the accused in another case. Therefore, the steps taken by the accused in C.C 107/91 to have the order of withdrawal set aside cannot be characterised as delaying tactics.

8. The trial Court has further alleged that three witnesses were examined in C.C No. 171/94 and that no evidence was let in C.C No. 107/91 and that, therefore, it is not possible to predict that the witnesses would turn hostile and that therefore, the grounds alleged in the withdrawal memo cannot be accepted. For coming to such a conclusion, the trial Court relied upon a decision of the Apex Court reported in AIR 1987 SC 877 (Sheo Nandan Paswan v. State of Bihar and Others). The trial Court has extracted the findings of the Apex Court in para 14 of the judgment. As rightly contended by the learned counsel for the revision petitioner and also Advocate General that the trial Court has committed error in relying upon the minority view of the Bench. The above observations extracted by the trial Court are of the findings of the minority view of the Bench. The Bench consisting of 5 Judges delivered the above Judgment. The majority ruling of the above Bench was not properly considered by the trial Court. In the above judgment, it is held thus in para 70, 71 and 72:

“Section 321 provides for withdrawal from prosecution gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. 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 normal course of justice for illegitimate reasons or purposes. When an application under Section 321 is made, it is not necessary for the Court to asses the evidence to discover whether the case would end in conviction or acquittal. The Court's function is to give consent. This Section does not obligate the Court to record reasons before the consent is given. However, it does not mean that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines consent. The Section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. All that is necessary to satisfy the Section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper.”

9. It is clear from the judgment of the Apex Court delivered by majority that Section 321 gives the Public Prosecutor the power for withdrawal of any case at any stage before judgment is pronounced. It is also held that when an application is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal and that it is also emphasised by the majority of Judges that all that the Court has to see is whether the application is made in good faith in the interest of public policy and justice. It is also held in the above judgment that the Section gives no indication as to the ground on which the Public Prosecutor may make the application or the consideration on which the Court is concerned.

10. In the above judgment, the Apex Court has also discussed the scope and importance of Section 320 Cr.P.C (i.e) composition of the offence. On considering both provisions (i.e) 320 and 321 Cr.P.C, the Apex Court has held that the State is the master of the litigation in criminal cases and that Section 321 Cr.P.C is virtually a step by way of composition of the offence by the State. It is also clear from the above judgment that Section 321 does not give any guideline regarding the grounds on which withdrawal application can be made and that those guidelines have to be decided with reference to decided cases.

11. It is, thus, seen from the above judgment of the Apex Court delivered by the majority of Judges that it is needless for the Court to embark on reving enquiry regarding the truth or otherwise of the grounds alleged by the Prosecutor for withdrawing the case.

12. It is no doubt true that the Court is not expected to give consent whenever application is filed for withdrawal. The Court has to apply its mind with reference to the ground and material for according consent for withdrawal by the prosecution. It has been repeatedly held by all the Courts that the function of the Court in giving consent is only supervisory in character and not adjudicatory. Therefore, when the Court is called upon to give or decline consent for withdrawal it is needless for the Court to make roving enquiry on the grounds set out by the Prosecutor for withdrawing the case.

13. It is admitted in this case that both cases are pending from the year 1991. The allegations that some of the witnesses turned hostile and that some of the accused joined the other group are not seriously disputed. It is seen that one case is filed against a political party and the another case is filed by the member of ruling party at that time against the members of the opposition party. It is seen from the facts that the accused are charged under Section 147, 148, 506 Part (2), 427 and 435 I.P.C It is also seen that at the time of incident, the members of both parties were campaigning for elections.

14. In the above circumstances, the act of the state in ordering for withdrawal cannot be said to be vitiated by any oblique motive. In any event, it cannot be said that the State is actuated by any malice in ordering withdrawal of the prosecution. In this context it would be useful to refer to the judgment of the Apex Court reported in AIR 1980 SC 1510. In the above judgment it is held thus:

“An elected Government sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched. In such matters who but the Government can and should decide, in the first instance, whether it should be beneful or beneficial to launch or continue prosecutions.”

The Apex Court has also held that if the policy makers move in the matter in the first instance and if they advice the Public Prosecutor to withdraw from prosecution, it is not for the Court to say that the initiative came from the Government and, therefore, the Public Prosecutor cannot be said to have exercised a free mind. Though the trial Court relied upon the above decisions, the above findings of the Apex Court on the powers conferred on the Public Prosecutor were not properly considered.

15. It is seen from the memo filed by the Public Prosecutor that only on perusal of the records and other materials he has filed the application for withdrawal of the case. As the Asst. Public Prosecutor was in-charge of the case, he was the competent authority to set out the grounds for withdrawal from the prosecution. The fact that the Government passed an order and same was placed before the Asst. Public Prosecutor cannot be a ground for holding that the Asst. Public Prosecutor took a decision to withdraw from prosecution at the dictates of the Government only. On reading the averments contained in the memo, I am unable to sustain the reason given by the trial Court that the Public Prosecutor did not act on his free volition in filing the above memo.

16. The trial Court on point No. 3 has held that it would not be in the interest of justice to give consent for withdrawal. It is no doubt true that both cases are pending due to stay order passed by the High Court and also the revision filed against order passed in C.C No. 108/91. But it cannot be disputed that the 2 cases relate to 2 different political groups. The incident is said to have occurred in an election meeting. In the above circumstances, in order to maintain peace and cordial relationship in the locality, the Government thought it fit to withdraw the case from prosecution. Hence, it is not open to the Court to impute any motive on the State or Public Prosecutor in filing application for withdrawal under Section 321 Cr.P.C The trial Court in giving answer on point No. 3 has relied upon the judgment of Supreme Court reported in AIR 1987 SC 877. The trial Court has extracted the observation of Apex Court which are found in para 21. As already stated, the trial Court failed to bear in mind the ruling laid down by majority of the Bench. Further, the Prosecutor is empowered to withdraw from prosecution on the ground that no useful process can be served by continuing the prosecution especially when most of the witnesses have turned hostile and that some of the accused joined the other group. In this context it would be useful to refer to the judgment of Apex Court reported in AIR 1977 SC 908, State of Orissa v. Chandrika Mohapatra.

“Now in the present case, the application made by the Public Prosecutor clearly shows that the incident had arisen out of rivalry between two trade unions and since the date of incident, calm and peaceful atmosphere prevailed in the industrial undertaking. In these circumstances, the State felt that it would not be conducive to the interest of justice to continue the prosecution against the respondents, since the prosecution with a possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking. We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution.”

17. It is well settled that in refusing or granting consent under Section 321 Cr.P.C, the paramount consideration must be the interest of administration of justice. On this aspect, the Apex Court in AIR 1977 SC 903 has held thus:

“No hard and fast rule be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and 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 justice.”

18. It is thus seen that the ground alleged by the Prosecutor for withdrawing the case cannot be said to be vitiated by any motive or malice. Taking into consideration the fact that both the cases are pending from the year 1991 and having regard to the fact that most of the witnesses turned hostile, I hold that the Asst. Public Prosecutor was justified in filing the memo for withdrawal of the case. In the light of law laid down in the above decisions, I hold that none of the reasons assigned by trial Court can be sustained. As already stated, the power of the Court under Section 321 in giving consent or refusing consent is supervisory in character. When both the prosecution and witnesses (accused) are not willing to continue the case, it is just and proper to withdraw both case and counter. By withdrawing the above cases, peace will be maintained among the rival groups and the cordial relationship could be restored in the locality.

19. For the above reasons, I hold that the trial Court failed to exercise its discretion in giving consent for withdrawal of the prosecution. As the order passed by the trial Court is vitiated by manifest irregularity, it becomes necessary for this Court to interfere with the said finding. I hold that the prosecution has to be permitted to withdraw both the cases.

20. In the result, the revision cases are allowed. The order of the Judicial Magistrate refusing to give consent is set aside and consequently, CMP Nos. 2827/98 and 2828/98 are allowed. As the charges are framed in both cases, the accused are acquitted under Section 321 Sub-section (b) Cr.P.C The connected Crl. M.P.S are also closed.