- Bookmark
- Share
- CaseIQ
Ram Nihore v. State of U.P.and Others
Structured Summary of Opinion — Revision by Complainant against order dated 9-8-84 (III Additional Sessions Judge, Varanasi)
Factual and Procedural Background
This revision was filed by the complainant seeking to set aside the order dated 9-8-84 of the III Additional Sessions Judge, Varanasi, which permitted withdrawal of the prosecution and discharged the accused under Section 302/34, Indian Penal Code.
The record includes an application by the Assistant Public Prosecutor (A.P.O.) seeking permission to withdraw the prosecution, indicating State Government permission. The A.P.O.'s application referred to statements by certain witnesses (including Jhalai, Shanker Harijan and Rajju) that the deceased, Radhey Shyam, was accidentally shot while allegedly cleaning a country-made pistol. The application also referred to a CBCID/C.I.D. matter and to a medico-legal opinion by Dr. Krishna Kumar Sengar dated 24-11-1983 stating that the deceased could not have sustained the injury in the circumstances recorded in the First Information Report (F.I.R.).
The learned Additional Sessions Judge's impugned order did not rest on the witness statements relied upon in the A.P.O.'s application; instead the Judge noted that several witnesses did not support the prosecution while the complainant and some family members did. The Judge considered and relied upon the opinion of Dr. K.K. Sengar regarding the probable posture and direction of fire, and observed that this medico-legal report undermined the prosecution theory of how the injury was caused.
Legal Issues Presented
- Whether the order of the Additional Sessions Judge permitting withdrawal of the prosecution and discharging the accused under Section 302/34, I.P.C. should be set aside.
- Whether reliance on the medico-legal opinion (Dr. K.K. Sengar) at the pre-trial stage to draw conclusions about the manner in which the injury was caused was appropriate.
- Whether the Additional Sessions Judge applied his mind properly to the A.P.O.'s application for withdrawal, including consideration of the materials furnished by the prosecution (witness statements, C.I.D. observations, medico-legal report) and relevant principles laid down by higher court precedents concerning withdrawal of prosecution.
Arguments of the Parties
Prosecution / State (as reflected in the A.P.O.'s application)
- The State Government had permitted withdrawal of the prosecution; the A.P.O. moved the application on that basis.
- Some witnesses (for example, Jhalai; Shanker Harijan; Rajju) stated that Radhey Shyam was accidentally hit by the firearm while cleaning it; Jhalai also gave contextual details about who was present at the time.
- The application referred to doubt expressed by the C.I.D. regarding the correctness of the local police investigation.
- The application relied upon the opinion of Dr. Krishna Kumar Sengar (dated 24-11-1983) stating that the deceased could not have sustained the injury in the circumstances stated in the F.I.R.
Complainant / Applicant's Counsel
- Dr. K.K. Sengar had not personally seen the injury and based his opinion on the post-mortem report; the doctor who conducted the autopsy had not expressed the same opinion.
- The autopsy surgeon who conducted the post-mortem was the best person to opine on whether the injury could have been caused in the manner stated by witnesses.
- The posture of the deceased at the time of firing cannot be conclusively inferred from the F.I.R. alone; the deceased's position may have changed when the assailant appeared and that detail can only be clarified after examination and cross-examination of witnesses during trial evidence.
- Consequently, it was submitted that it was premature at pre-trial stage to draw final inferences from the medico-legal opinion about the manner of injury.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M.N. Sankaranarayanan Nair v. P. V. Balakrishana and others, 1972 Cr LJ 301 | Withdrawal must be in the interest of administration of justice; Court must ensure withdrawal is not on grounds extraneous to justice and that offences are not allowed to go unpunished merely because Government directs withdrawal. | The court relied on this principle to emphasize that withdrawal must be scrutinized to ensure it advances administration of justice and is not prompted solely by governmental policy. |
| Rajender Kumar Jain v. State through Spl. Police Establishment and others, 1980 Cr LJ 1084 | It is the duty of the public prosecutor to inform the Court of reasons for withdrawal; Court must elicit the reasons and satisfy itself that the public prosecutor acted for good and relevant reasons and did not become a "stooge". | The court invoked this precedent to underscore the obligation on the A.P.O. and to require the Court to be apprised of and to examine the reasons for withdrawal. |
| State of Orissa v. Chandrika Mohapatra and others etc., 1977 Cr LJ 773 | Public prosecutor cannot merely state it is "not expedient" to proceed; he must show grounds such as inability to produce sufficient evidence or other circumstances that demonstrate prosecution would not further administration of justice. | The court cited this to require that the A.P.O.'s reasons be specific and demonstrate that withdrawal would serve the interests of justice. |
| Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877 | Section 321 does not prescribe specific grounds; Court's role is supervisory not adjudicatory — it must ensure good faith by the public prosecutor though it need not always give a detailed reasoned order; consent is not a matter of course. | The court used this authority to frame the boundaries of judicial supervision under Section 321 and to explain that the Court must ensure that the public prosecutor has exercised discretion properly and in good faith. |
Court's Reasoning and Analysis
The court examined the materials relied upon by the A.P.O., the impugned order of the Additional Sessions Judge and the submissions of the complainant's counsel. The relevant steps in the court's analysis as recorded in the opinion are:
- The A.P.O.'s application for withdrawal relied on witness statements (suggesting accidental firing), the C.I.D. reference regarding investigation, and the medico-legal opinion of Dr. K.K. Sengar.
- The Additional Sessions Judge did not rest his order primarily on the witness statements referred to by the A.P.O.; the Judge noted that several witnesses did not support the prosecution, while the complainant and some family members did.
- The Judge found that the C.I.D. Inspector had not expressed a clear opinion that the local police investigation was incorrect but had left the matter to the court.
- The Judge placed weight on Dr. K.K. Sengar's medico-legal opinion that, on the basis of the place and nature of the injury, it was more probable the shot was fired by a person sitting on the ground in front of the deceased and that injury being caused by a person standing in front of the deceased was unlikely; the Judge observed that this report undermined the prosecution narrative about how the injury was caused.
- The complainant's counsel argued that Dr. Sengar formed his opinion without seeing the injury personally and that such opinion was premature at pre-trial stage; the counsel emphasized that detailed factual positions (such as the posture of the deceased at the time) would be clarified through witness examination during trial.
- The revision court (J. C. Mishra, J.) held that at the pre-trial stage it is "highly risky to draw conclusion on the basis of medical opinion" and that whether the injury could have been caused in the manner alleged in the F.I.R. should be assessed when witness evidence is elicited at trial. The court expressed the view that a medico-legal opinion of the kind relied upon is "hardly relevant" at pre-trial stage for concluding how the injury occurred.
- The court reviewed binding and persuasive precedents governing applications for withdrawal under Section 321 (as summarized in the Table of Precedents) and concluded that the Additional Sessions Judge had not applied his mind in proper perspective in allowing withdrawal and discharging the accused.
- In consequence, the court determined that the Additional Sessions Judge should be given a fresh opportunity to reconsider the application and that the A.P.O. should be permitted to re-apply his mind after going through the entire case diary and, if desired, to add fresh grounds for withdrawal.
Holding and Implications
Holding: The revision court allowed the application and set aside the impugned order of the III Additional Sessions Judge (order dated 9-8-84). The learned Additional Sessions Judge was directed to re-consider the A.P.O.'s application for withdrawal in the light of the Supreme Court pronouncements cited and other authorities brought to his notice. The A.P.O. was to be given a fresh opportunity to re-apply his mind and, if necessary, add fresh grounds.
Implications:
- The direct effect is that the earlier order permitting withdrawal of the prosecution and discharging the accused has been vacated; the matter is remitted to the Additional Sessions Judge for fresh consideration.
- The A.P.O. and the Additional Sessions Judge are to reconsider the application consistent with the legal principles summarized from the cited authorities (duty of the public prosecutor to state reasons, the court's supervisory role under Section 321, and the requirement that withdrawal be in the interest of administration of justice).
- The opinion does not purport to lay down a new legal precedent; it instructs reconsideration in light of existing Supreme Court pronouncements and other cited authorities.
End of summary. All content in this summary is drawn exclusively from the provided opinion text.
J. C. Mishra, J.- This revision has been filed by the complainant for setting aside the order dated 9-8-84 passed by III Additional Sessions Judge, Varanasi permitting the withdrawal of the prosecution and discharging the accused under Section 302/34,I.P.C.-
2. The complainant has filed copy of the application moved by the Assistant Public Prosecutor for withdrawal of the prosecution which indicates that the State Government had permitted withdrawal of the prosecution. It has been alleged in the application that Jhalai had stated that Radhey Shyam was cleaning country-made pistol but accidentally it got fired. He had also stated that Kamal Kumar was also cleaning the country-made pistol and further at the time when Radhey Shyam died Sukhu and his son Lallan were warming themselves at the house of witness Jhalai and Vijai had gone for easing.
3. The application also refers to the statement of Shanker Harijan and Rajju who had also stated that Radhey Shyam was accidentally hi t by the fire.
4. The second ground referred to in the application was the doubt expressed by the CBCID regarding correctness of the investigation made by the local police. In this regard reference has been made to the opinion of Dr. Krishna Kumar Sengar who in his report dated 24th November, 1983 stated that the deceased could not sustain injury in the circumstances stated in the First Information Report.
5. The learned Additional Sessions Judge has not based his order on the first ground viz. some witnesses stated that Radhey Shyam was accidentally hit by the fire. In the impugned order the learned Additional Sessions Judge observed that C.I.D. Inspector examined a number of witnesses out of whom Jhalai Shanker, Rajju, Bhola, Rishimuni, Mangru, Sumeru and Lallu have not supported the prosecution case. He however, clarified that Ram Nihore, the complainant, and his other family members have supported the prosecution case. Thus the learned Additional Sessions Judge has not accepted the opinion of the A.P.O. that the withdrawal should be permitted on the ground that of the witnesses have stated that Radhey Shyarn was accidentally hit by the fire.
6. The learned Additional Sessions Judge has also not accepted the contention that C.I.D. Inspector has expressed any doubt on the investigation made by the local police. He observed that the Inspector has not expressed any opinion and had left the matter to be decided by the court.
7. The learned Additional Sessions Judge, however, considered the opinion of Dr. K.K. Sengar, Medico Legal Expert, U.P. Government, who had expressed his opinion in reply to the questionnaire sent to him that looking into the place and nature of the injury it is more probable that the shot was fired from a person sitting on the ground in front of the deceased, when the deceased was sitting on the spot. The Medico Legal Expert ruled out possibility of the injury being caused by a person standing in front of the deceased. The learned Additional Sessions Judge observed that the report of the doctor shatters the prosecution case about the injury being caused in the manner alleged by the prosecution.
8. The learned Counsel for the applicant contended that Dr. K.K. Sengar had no occasion to see the injury as he was not present at the time of post-mortem examination and he has given his opinion only on the basis of post-mortem examination report. He contended that the doctor who had conducted the post-mortem examination had not expressed such opinion. He contended that the doctor who had conducted autopsy was the best person to have given opinion whether the injury could or could not be caused in the manner stated by the witnesses. The learned Counsel also contended that merely on the basis of the First Information Report one cannot find the actual posture of the deceased at the time when he received fire-arm injury and after the witnesses are examined and cross-examined the accurate position of the deceased at the time of firing can be known. He contended that it is no doubt written in the F.I.R. that the deceased was sitting on the cot when Vijai Prasad had fired at him but it cannot be inferred at this stage that on seeing the assailants coming armed with pistol he would not have moved his body and would have continued to sit on the cot. He also contended that in the F.I.R. it was mentioned whether Vijai Prasad was running, standing or sitting when he fired at the deceased.
9. At the pre-trial stage it is highly risky to draw conclusion on the-basis of medical opinion, The prosecution case that the deceased died due to fire-arm injury as stipulated by the medical evidence. Whether the injury could be caused in the manner and fashion alleged in the F.I.R. can be considered when the details are elicited during the evidence of the witnesses. In my opinion, at the pre-trial stage the opinion in this regard is hardly relevant.
10. It is true that while permitting withdrawal the Court is not expected to enter into evidence but only to see whether the public prosecutor had acted on the instructions of the State Government or he had applied his mind. In M.N. Sankaranarayanan Nair v. P. V. Balakrishana and others, 1972 Cr LJ 301, has held that the essential consideration is that the withdrawal should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or. that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances it is the duty of the Court to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are .offences against the State go unpunished merely because the Government as a matter of general policy directs the public prosecutor to withdraw from the prosecution and the public prosecutor merely does so at its behest.
11. In Rajender Kumar Jain v. State through Spl. Police Establishment and others, 1980 Cr LJ 1084, the Supreme Court held that it shall be the duty of the public prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the public prosecutor to withdraw from the prosecution. The Court should make an effort to elicit the reasons for withdrawal and satisfy itself that the public prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. It is the duty of the public prosecutor to apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should he allow himself to become anyone's stooge.
12. In State of Orissa v. Chandrika Mohapatra and others etc., 1977 Cr LJ 773, it was observed that it is not sufficient for the public prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advance or furthered by going with the prosecution. The ultimate guiding consideration must always be the interest of justice and that is the touch stone on which the question must be determined whether the prosecution should be allowed to be withdrawn.
13. In Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877, the Supreme Court has observed that Section 321 providing for withdrawal from prosecution given 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 npt 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 assess 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 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 act in good faith and that the Magistrate is satisfied that the exercise of discretion by the public prosecutor is proper. This will be clear on perusal of some other provisions in the Code such as Sections 203, 227, 245, 257 and 258 which relate to the manner in which Courts have to exercise their jurisdiction in pending cases when applications are made for their withdrawal or when the Court finds that there is no ground to proceed with the cases and Section 320 which is a kindred section. While Sections 203,227,245,257 and 255 require the Magistrate to record his reasons for the order he passed Section 320 contemplates consent by the Court only in a supervisory manner and not in an adjudicatory manner.
14. In view of the aforesaid pronouncements I am of the view that learned Additional Sessions Judge has not applied his mind in proper perspective. It would be proper to give him fresh opportunity to consider the application. The A.P.O. shall also be given fresh opportunity to re-apply his mind by going through the entire case diary and in case he desires he may be permitted to add fresh ground, if any.
15. The application is allowed. The impugned order is set aside. The learned Additional Sessions Judge is directed to re-consider the application in the light of the pronouncements of the Supreme Court referred to above as also other pronouncements which are cited and brought to him notice Application allowed.
Alert