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SUPREME COURT OF INDIA
Indira Banerjee, Krishna Murari, JJ.
The State Of West Bengal & Ors. - Appellants
Versus
Dipak Mishra - Respondent
Petition(S) For Special Leave To Appeal(Crl.) No. 2669-2670/2021; (Arising Out of Impugned Final Judgment and Order Dated 05-03-2021 In Wpa(P) No. 67/2021 05-03-2021 In Wpa(P) No. 68/2021 Passed By The High Court At Calcutta)
Decided On : 26-03-2021
Criminal Procedure Code , 1973 - Section 321 - Public Interest Litigations - Public Prosecutor - Counsel appearing on behalf of petitioner has argued that even though persons who had been discharged from Criminal Cases were directed to be imp leaded in writ petition orders of discharge impugned in writ petition were stayed without hearing discharged persons including petitioner - Counsel appearing on behalf petitioner as also Counsel appearing on behalf of State submitted that Public Interest Litigations were initiated by persons belonging to political party for oblique reasons.
Finding Of The Court :
High Court has directed that petitioner and others similarly circumstanced be imp leaded order discharge of petitioner has been stayed without hearing petitioner - Since order affects petitioner adversely petitioner should have been heard more so since order of discharge of petitioner impugned in writ petition had been passed over year before writ petition was filed - Appearing on behalf respondent writ petitioner argued at length questioning propriety of decision of State as mala fide and against public interest - Writ petitions are pending in High Court and have been appearing in cause list – Court expect that Division Bench of High Court will take up writ petitions and finally decide same within week or two - It will be open to respective parties to raise all contentions before High Court.
Result : Petition disposed
ORDER
1. The Special Leave Petition (Crl.) Nos. 2669-2670 of 2021 (State of West Bengal vs. Dipak Mishra) and connected Diary No. 8430 of 2021 titled SK Supian vs. Dipak Mishra & Others Etc. were assigned to this Bench at lunch break today i.e. 26-03-2021, after the same was mentioned before the Bench presided over by Hon'ble the Chief Justice of India.
2. The papers in connection with Diary No. 8430 of 2021 titled SK Supian vs. Dipak Mishra & Others Etc. have been forwarded to this Bench, but, not the papers in connection with S.L.P.(C) Nos. 2669-2670 of 2021 (State of West Bengal vs. Dipak Mishra). We, therefore, take up only Diary No. 8430 of 2021 titled SK Supian vs. Dipak Mishra & Others Etc.
3. Diary No. 8430 of 2021
4. Permission to file the Special Leave Petitions are granted.
5. Heard the learned Counsel for the parties.
6. These Special Leave Petitions are against a common order dated 5 th March, 2021 passed by a Division Bench of Calcutta High Court, in two writ petitions filed as Public Interest Litigation (PIL) being WPA(P) No. 68 of 2021 (Nilanjan Adhikary v. The State of West Bengal and Others) and WPA(P) No.67 of 2021 (Dipak Mishra v. The State of West Bengal and Others) whereby an order dated 10 th February, 2020 passed by the Additional Chief Judicial Magistrate discharging the petitioner from Criminal Case No. 368 of 2007 and other similar orders passed on diverse dates, discharging various persons accused from criminal cases against them, have been stayed and the concerned Courts have been directed to take note of the orders of stay and to deal with the Criminal Cases accordingly.
7. Learned Counsel appearing on behalf of the petitioner has argued that even though the persons who had been discharged from the Criminal Cases were directed to be impleaded in the writ petition, the orders of discharge impugned in the writ petition were stayed without hearing the discharged persons including the petitioner herein.
8. Learned Counsel appearing on behalf of the petitioner as also Counsel appearing on behalf of the State submitted that the Public Interest Litigations were initiated by persons belonging to a political party for oblique reasons. The Public Interest Litigations should not, therefore, have been entertained.
9. While it is true that the Court is required to examine whether a litigation is really in public interest or to advance some other interest in the garb of public interest, at the same time, a Public Interest Litigation cannot be thrown out only because the petitioner belongs to a rival political party. Persons with political affiliations are, as much entitled to file a public interest litigation as any other person. Whether the litigation is bona fide or not is a different issue which has to be examined by the Court on a case to case basis, having regard to the nature of the complaint before it.
10. Learned Counsel also adverted to Section 321 of the Criminal Procedure Code to argue that the Public Prosecutor or Assistant Public Prosecutor in charge of a case might, 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.
11. In Rajender Kumar Jain v. State through Special Police Establishment and Ors. Etc. Etc. reported in (1980) 3 SCC 435 cited by the Counsel, this Court held :
"14. Thus, from the precedents of this Court, we gather:
"1. Under the scheme of the Code, prosecution of an offender for a serious offence is primarily the responsibility of the executive.
2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5. T
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