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RAJASTHAN HIGH COURT
Farjand Ali, J.
Mubarak @ Salman S/o Sultan Khan – Petitioner
versus
State of Rajasthan through Public Prosecutor and Ors. – Respondents
S.B. Criminal Revision Petition No.152/2016
Decided on 18.9.2023
(A) Criminal Procedure Code, 1973 – Section 321 – Indian Penal Code, 1860 – Sections 147, 148, 149, 435, 436, 454 and 379 – Withdrawal from criminal prosecution – Urge for basic sense of security and stability is per se a recurring process till infinity – Constitution of India does not just critically recognize this basic minimum right rather guarantees it to each and every person – Every crime committed is an act which challenges societal peace and security and such cowardly acts substantially shake societal cohesiveness and its conscience at large – Petitioner is a victim of a series of unruly and uncivilized wrongful acts so committed upon his life and liberty whereby basic elements to lead a dignified life have been ravaged by all accused respondents while showcasing their fierce audacity to rage and commit rampant acts ignoring well-established mandate of law – Alleged acts of individuals not only shake very edifice of lawfulness in society rather they are a blatant challenge to all stakeholders who are bound to ensure and protect rights of every innocent citizen. (Paras 5, 8 and 9)
(B) Criminal Procedure Code, 1973 – Section 321 – Indian Penal Code, 1860 – Sections 147, 148, 149, 435, 436, 454 and 379 – Withdrawal from criminal prosecution – Record of case speaks volumes about material so collected during course of investigation; manner and intent in which offence has been committed by all accused respondents prima facie establishes that present case is not a fit case where State government should have exercised its executive discretion to seek withdrawal of prosecution under Section 321 of Cr.P.C. – Nothing on record suggests that State Government had meticulously examined prevailing circumstances of case as well as record of case thereby directing Additional Public Prosecutor to move an application for withdrawal from prosecution under Section 321 of Cr.P.C. – Public Prosecutor is regarded as an officer of court and his duty is on a higher pedestal than any other stakeholder as his fairness and just exercise of his function in the matter goes on to materially assist Court through which justice is served in its true letter and spirit – Section 321 Cr.P.C. provides discretion to Public Prosecutor to withdraw from prosecution, with consent of Court, in such cases where he thinks such withdrawal will lead to a larger public interest being served – Withdrawal was not in interest of administration of justice – Impugned order set aside and matter remanded back to trial court. (Paras 12, 13, 21 and 23, 29 and 35)
(C) Criminal Procedure Code, 1973 – Section 321 – Withdrawal from criminal prosecution – Public Prosecutor cannot withdraw from prosecution unless court before which prosecution is pending gives its consent for such withdrawal – This is a provision calculated to ensure non-arbitrariness on part of Public Prosecutor and compliance with equality clause of Constitution – Court must act as an umpire to protect rights of accused and victims while simultaneously upholding principles of fairness and justice – Court should strike a balance between respecting bonafide decisions of Prosecutors to withdraw cases which lack merit and preventing arms of executive to encroach upon such decisions – Provision of withdrawal from prosecution is more of a legal dominant tool which can only be used for betterment of collective societal conscience and not otherwise – Withdrawal from prosecution cases present a complex scenario where victims’ rights must be considered alongside need for due process – Striking a balance is not only a legal imperative but also a moral one – A comprehensive and nuanced approach is necessary, recognizing that while rights of accused are integral to justice, acknowledgment and protection of rights of victims are equally vital for a fair and compassionate criminal justice system. (Paras 40, 46, 51, 58 and 68)
Result: Criminal Revision Petition allowed.
ORDER
By the Court:—The legality, propriety and correctness of the order dated 08.01.2016 passed by the learned Additional Sessions Judge No. 3, Chittorgarh in Criminal Case No. 52/2014 have been challenged by the petitioner whereby the criminal prosecution was allowed to be withdrawn by the learned trial Court and the proceedings against the accused-respondents were dropped.
2. Bereft of elaborate details, brief facts necessary for disposal of the instant criminal revision would be that on 23.12.2007, the respondents, in furtherance of their common object, trespassed into the house of the petitioner-complainant, ransacked and vandalized the house as a result of which the entire belongings were destroyed. The fire was of such magnitude that all the household articles got damaged. An FIR bearing No. 460/2007 came to be lodged by the petitioner at Police Station Kapasan, District Chittorgarh upon which, the investigation was conducted. The coloured photographs, site memo, the statements of the witnesses and other independent evidence prima facie made a foolproof case against the accused-respondents for the offences under Sections 147, 148, 149, 435, 436, 454 & 379 IPC and accordingly, charge sheet got submitted against them. The learned Magistrate took cognizance of the offences and since the case was not exclusively triable by Court of Magistrate, the order of committal was passed and thus, the file was received by the learned Additional Sessions Judge No.3, Chittorgarh. On several occasions, adjournments were sought by the accused- respondents to argue on the point of charge. On 18.12.2015, the learned Additional Public Prosecutor submitted an application under Section 321 of the Cr.P.C. along with a resolution issued by the Department of Home, Government of Rajasthan and thus, a prayer was made for withdrawal from the prosecution of accused-respondents. The learned trial judge kept the application for perusal and posted the matter for consideration on 08.01.2016. On 08.01.2016, the learned trial judge passed the order to the effect that since the State of Rajasthan has withdrawn the prosecution, thus, nothing survives in the trial and accordingly, directed to discharge the bail bonds of the accused- respondents and dropped the proceedings against them and consigned the file to the record as well. For ready reference, the order sheet dated 08.01.2016 is reproduced herein below:—
“(Matter in Other Language)”
3. Heard learned counsel for the petitioner, learned Public Prosecutor for the State and learned counsel for the accused- respondents. Perused the record of the case, more particularly the application filed by the Additional Public Prosecutor and the resolution taken by the Government of Rajasthan. Empowered with the power laid down under Section 397 CrPC, this Court examined the record of the proceedings for the purpose of satisfying itself to the correctness, legality or propriety of the order dated 08.01.2016. The accused are duly represented by their counsel.
4. The foundation laid by the framers of the law very conspicuously ensured recognition and protection of the legal rights of every citizen including any other individual who is otherwise not a citizen. These rights are very much engraved and solidly placed in our Constitution and are famously known as the Fundamental Rights. This theory of recognition of basic human rights regarding one’s life and liberty has evolved from the ancient times where there was conceptualization of common human dwelling with certain set of rules which were formulated so as to provide a social, habitable environment which guaranteed a sense of security and stability for every person dwelling in that social setup.
5. The urge for basic sense of security and stability is per se a recurring process till infinity. The Constitution of India does not just critically recognize this basic minimum right rather guarantees it to each and every person. The process and impact of the word ‘guarantees’
Withdrawal from criminal prosecution – Public Prosecutor cannot withdraw from prosecution unless court before which prosecution is pending gives its consent for such withdrawal.
Withdrawal from prosecution must uphold justice and victims' rights; judicial scrutiny is essential.
The Public Prosecutor's discretion to withdraw from the prosecution under Section 321 Cr.P.C must be exercised in the interest of justice.
The Public Prosecutor must independently exercise discretion in case withdrawals under Section 321 CrPC, free from governmental or political influence, to uphold the rule of law.
Withdrawal of prosecution under Section 321 CrPC is justified when the offence is trivial, the accused show reformation, and public interest is served.
The withdrawal of criminal prosecution under Section 321 Cr.P.C. requires the Public Prosecutor to act independently in the interest of justice, and while the court has the final authority to consent....
Public Prosecutor must provide reasons for withdrawing prosecution, ensuring it serves public interest and justice, particularly in cases with significant criminal histories.
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