IMPORTANT POINTS
Litigants have a right to assail each order and challenge each step, but it cannot be permitted to abuse the process of law.
Consent of the court u/s 321 CrPC should be informed consent.
Public Prosecutor is required to apply his own mind, act in good faith and not as a post office.
Scope and ambit of section 91, CrPC.
Filing of application u/s 321 CrPC and its withdrawal being entirely in the domain of Public Prosecutor, accused persons do not have locus standi to challenge the same.

Headnote:(a) Administration of justice – Right to appeal – Litigant’s right to assail each order and challenge each step – Cannot be permitted to abuse the process of law. (Para 31)
       (b) Code of Criminal Procedure, 1973 – Section 321 – Consent of the court – Should be informed consent – Normally court should be satisfied that Public Prosecutor exercises his executive function properly – Withdrawal of prosecution should not be an attempt to interfere with normal course of justice – Withdrawal of prosecution permissible only in the interest of justice – Public Prosecutor is required to apply his own mind, act in good faith and not as a post office. (Para 34, 36, 37, 38, 39)
       (1987) 1 SCC 288; (1994) 4 SCC 299; (2005) 2 SCC 377; (2014) 10 SCC 380; (2007) 12 SCC 687 – Relied upon
       (1976) 1 SCC 421 : AIR 1976 SC 370; (1977) 4 SCC 448 : (1978) 1 SCR 604; (1980) 2 SCC 155 : (1980) 2 SCR 44; (1980) 3 SCC 435 : AIR 1980 SC 1510; 1957 Cri LJ 567 : AIR 1957 SC 389; (2004) 7 SCC 338; AIR 1970 SC 1273; (1980) 3 SCC 402; AIR 1980 SC 423; AIR 1983 SC 194 : 1983 (1) SCC 438 – Referred
       (c) Code of Criminal Procedure, 1973 – Section 91 – High Court directing Magistrate to consider application for withdrawal of application u/s 321 – At the same time permitting accused persons to file application u/s 91 – Section 91 not applicable – High Court order erroneous. (Para 45)
       (2005) 1 SCC 568 – Relied upon
       (d) Code of Criminal Procedure, 1973 – Section 321 – Public Prosecutor only filing application u/s 321 – Did not move it – It was in the domain of Public Prosecutor not to press the application or withdraw it – Court had no role at that stage – Application merely filed can be withdrawn before moving the same – Question of consent of court arises only when the application u/s 321 is moved – Withdrawing the application u/s 321 without any order having been passed cannot be compared with any kind of review of an order – Matter being entirely in the domain of Public Prosecutor, accused persons did not have locus standi to challenge the same – At the best the victim could have a say – High Court erred in remitting the matter to Magistrate and allowing accused persons to file application u/s 91. (Para 47)
       (2014) 8 SCC 470 – Referred
       Facts of the case:
       The appellant filed an FIR (No. 90 of 2000) under Sections 406, 409, 420, 424, 467, 468, 471, 477-A and 120B of the Indian Penal Code. After the investigation a charge-sheet was filed on 18.01.2003. One of the charges levelled against the accused persons pertained to the fraudulent transactions of certain amount of money.
       Learned Magistrate vide order dated 18.01.2003 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 along with the prayer for quashment of the FIR and the application was dismissed. The SLP challenging the order of dismissal was also dismissed.
       Thereafter, the accused persons challenged the order of summoning before the trial court which was not entertained. Challenge to the said order was dismissed by the High Court on 04.06.2010. In the said case, the learned single Judge had taken note of the earlier cases being Criminal M.C. Nos. 911 of 2003, 1992 of 2006, 2142 of 2007, 2229 of 2007, 1988 of 2008 and 64 of 2006 and Writ Petition (Criminal) Nos. 498 of 2005, 208 of 2006, 1191 of 2006 and 1210 of 2006 challenging the summoning order which remained pending before the High Court till 04.03.2010. On 04.03.2010 the High Court noted that the learned counsel for the petitioners therein did not want the matter to be disposed of on merits and sought liberty to raise all the points which have been raised before this Court in the trial Court at an appropriate stage/at the stage of hearing arguments on charge. The liberty was granted opining that the petitioners gave up their right to challenge the summoning order in the said petition with liberty to raise all points and issues at any appropriate stage/at the stage of hearing arguments on charge.
       The learned Magistrate held that appropriate stage did not mean that the trial court had to re-examine the summoning order itself. That apart no liberty was given to the petitioner to challenge the summoning order before the trial court. The learned Magistrate Further held that he does not have the authority to recall the summoning order.
       The said order was assailed before the High Court which was rejected. SLP thereagainst was also dismissed.
       An application seeking re-investigation of FIR No. 90 of 2000 by the accused persons also met with the fate of dismissal. Attempts of the accused persons for stay of the proceedings arising out of FIR No. 90 of 2000 before the Chief Metropolitan Magistrate along with other FIRs also became an exercise in futility.
       A committee was constituted on 03.06.2011 consisting of Principal Secretary (Home)-In Chair, Principal Secretary (Law), Director of Prosecution, Joint C.P. (Crime) and Dy. Secretary (Home) as Member Secretary. The Committee considered 60 cases for withdrawal and after some discussion, sent its recommendation in each case. Closing the FIR Nos. 90/2000, 99/2002 and 148/2002 was approved. It also recommended withdrawal of respondent’s case in respect of FIR No. 90 of 2000, FIR No. 99 of 2002 and other cases.
       On this basis application was filed u/s 321 CrPC for withdrawal of the cases.
       Subsequently, the Lt. Governor ordered for withdrawal of the section 321 application.
       This order was quashed by the High Court.
       Finding of the Court:
       Impugned order is not sustainable.
       Result: Appeals allowed.

JUDGMENT :

Dipak Misra, J.

Leave granted.

2. The obtaining factual matrix encompasses a scenario which covers quite a span of time, and the chronology of events projects horrendous picture, as Mr. Dushyant A. Dave and Ms. Indu Malhotra, learned senior counsel would submit with stirred vehemence and expressive concern on the formulation that exploitation of legal system, seemingly looking innocent, has, in fact, cultivated the path of deviation that has led to pathetic miscarriage of justice, for there has been real abuse of the process of law at every stage. Learned counsel for the appellants put the blame on the respondents, as they have visited the superior courts on many an occasion seeking intervention possibly harbouring the idea that it is a routine exercise. In such an exploration, they have not felt any desperation despite being unsuccessful, for the desire was not mitigation of the grievance but consumption of time which, by itself, is beneficial because the consequences of the litigation has been deferred. However, the last visit to the High Court has yielded some benefit which has pained the appellants to severely criticize the order impugned on many a ground apart from the submission that cause of justice has been vexed, for in such a situation besides the prosecution and the accused, there is a third party, the victim of the crime, who eagerly waits for the progress of the case, as mandated in law. The said stalling has impelled the informant to prefer appeals by special leave.

3. Presently to the facts. In the present case, the facts fresco a labyrinthine that has the potentiality to divert the mind. Hence, it is imperative to exposit facts after due filtration. The appellant set the criminal law in motion by filing an FIR No. 90 of 2000 at Police Station Connaught Place which came to be registered under Sections 406, 409, 420, 424, 467, 468, 471, 477-A and 120B of the Indian Penal Code (IPC). After the investigation by the Economic Offences Wing, Crime Branch, Delhi Police, a charge-sheet was filed on 18.01.2003. One of the charges levelled against the accused persons pertained to the fraudulent transactions 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 04.03.2010. 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 cases being Criminal M.C. Nos. 911 of 2003, 1992 of 2006, 2142 of 2007, 2229 of 2007, 1988 of 2008 and 64 of 2006 and Writ Petition (Criminal) Nos. 498 of 2005, 208 of 2006, 1191 of 2006 and 1210 of 2006 challenging the summoning order which remained pending before the High Court till 04.03.2010. On 04.03.2010 the High Court noted that the learned counsel for the petitioners therein did not want the matter to be disposed of on merits and sought liberty to raise all the points which have been raised before this Court in the trial Court at an appropriate stage/at the stage of hearing arguments on charge. After so noting, the High Court observe

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2016 Supreme(SC) 136

Cases Referred (16)