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1987 Supreme(Gau) 12
GAUHATI HIGH COURT
S.N.Phukan, J.
Manindra Chandra Karmakar -Appellant
Versus
Stat of Tripura -Respondent
Criminal Revision No. 13 of 1982
Decided On : 19-02-1987
S.Seb, R.C.Deb Nath, M.K.Bhowmik
THE POWER TO WITHDRAW FROM THE PROSECUTION UNDER SECTION 321 OF THE CODE OF CRIMINAL PROCEDURE IS NOT AN UNFETTERED OR UNRESTRICTED POWER AND CAN ONLY BE EXERCISED WITH THE CONSENT OF THE COURT. THE COURT MUST APPLY ITS MIND AND CONSIDER WHETHER THE WITHDRAWAL IS IN THE INTEREST OF THE ADMINISTRATION OF JUSTICE.
Headnote:
WITHDRAWAL OF PROSECUTION - SECTION 321 OF THE CODE OF CRIMINAL PROCEDURE - [SECTION 321 CRPC] - THE COURT HELD THAT THE POWER TO WITHDRAW FROM THE PROSECUTION IS NOT AN UNFETTERED OR UNRESTRICTED POWER BECAUSE IT CAN BE EXERCISED ONLY WITH THE CONSENT OF THE COURT.
Fact of the Case:
THE PETITIONER, A SUB-INSPECTOR OF POLICE, WAS CHARGED WITH MURDER, ATTEMPT TO MURDER, AND CAUSING HURT IN RELATION TO AN INCIDENT WHERE A CROWD PELTED STONES AT HIM AND TRIED TO SNATCH HIS REVOLVER, RESULTING IN THE POLICE FIRING AND ONE PERSON DYING. THE PUBLIC PROSECUTOR LATER FILED A PETITION TO WITHDRAW THE CASE UNDER SECTION 321 OF THE CODE OF CRIMINAL PROCEDURE.
Finding of the Court:
THE COURT HELD THAT THE IMPUGNED ORDER WITHDRAWING THE PROSECUTION WAS LIABLE TO BE SET ASIDE AS IT WAS PASSED WITHOUT ANY REASON BEING GIVEN BY THE PUBLIC PROSECUTOR AND THE COURT DID NOT APPLY ITS MIND BEFORE ALLOWING THE WITHDRAWAL. THE COURT ALSO DIRECTED THAT BOTH CASES ARISING OUT OF THE SAME OCCURRENCE SHOULD BE TRIED BY THE SAME COURT AND DISPOSED OF AS EARLY AS POSSIBLE.
Issues: WHETHER THE IMPUGNED ORDER WITHDRAWING THE PROSECUTION WAS VALID.
Ratio Decidendi: THE COURT HELD THAT THE POWER TO WITHDRAW FROM THE PROSECUTION UNDER SECTION 321 OF THE CODE OF CRIMINAL PROCEDURE IS NOT AN UNFETTERED OR UNRESTRICTED POWER AND CAN ONLY BE EXERCISED WITH THE CONSENT OF THE COURT. THE COURT MUST APPLY ITS MIND AND CONSIDER WHETHER THE WITHDRAWAL IS IN THE INTEREST OF THE ADMINISTRATION OF JUSTICE.
Final Decision: THE COURT ALLOWED THE PETITION AND SET ASIDE THE IMPUGNED ORDER WITHDRAWING THE PROSECUTION. IT ALSO DIRECTED THAT BOTH CASES ARISING OUT OF THE SAME OCCURRENCE SHOULD BE TRIED BY THE SAME COURT AND DISPOSED OF AS EARLY AS POSSIBLE.
2) On 3rd March, 1975 at about 11 A. M. there was a law and order problem and the present petitioner, who at all relevant time, was Sub-Inspector of Police went to the place of occurrence along with necessary police force to maintain law and order. It is alleged that the crowd pelted stones, tried to snatch away the revolver from the petitioner and ultimately the police party had to resort to firing, as a result of which one person died. First Information Report was duly filed and after investigation charge-sheet was submitted. Thereafter on 12.3.75, one Mr. Sutradhar filed a complaint petition before the learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura, under sections 302/201/323 of the Indian Penal Code against the present petitioner and 7 (seven) other persons and the said case was registered as case No. C.R.49 of 1975, which is now pending for trial before the learned Additional Sessions Judge, South Tripura, and the case has been numbered as Sessions Trial No. 4 (ST/B)/81.
3) While the earlier case in which charge-sheet was submitted being case No. GR. 63/75 was pending before the learned Sub-Divisional Judicial Magistrate, Belonia, the impugned order was passed on 5.10.77 and the said order is reproduced below :-
“5.10.77 A.P.P. S.R. Biswas is present. 3 accd. persons are present. The date was for appearance of the accd. persons but L/A.P.P. by a petition prays to allow him to withdraw the case.
Heard, considered.
The case withdrawn and the accds. are discharged." The said order was passed on the basis of a petition filed by the learned Assistant Public Prosecutor (Annexure 'F' to the petition ) and the contents of the said petition run as follows :-
“In pursuance of Govt. order, 1 like to withdraw this case from prosecution with the consent of the Court."
4. The only point for consideration in the present petition is whether the impugned order dated 5.10.77 is tenable in law. Admittedly, the said order was passed under section 321 of the Code of Criminal Procedure, for short, 'the Code' which inter alia, empowers the Public Prosecutor or Assistant Public Prosecutor to withdraw any prosecution with the consent of the court. This Section 321 came up for consideration before the Hon'ble Supreme Court in different cases and the principle for withdrawal is well settled.
5. In Subhash Chander vs. State & others, (1980) 2 SCC, 155 Justice Krishna Iyer speaking for the Court pointed out that ''Even the course of criminal justice cannot be thwarted by the Executive however high the accused, however sure the Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration..........the Court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the Public Prosecutor". In M.N. Sankarayarayanan Nair v. P.V Balakrishnan & others, (1972) 1 SCC, 318 the Court held that "The essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice." Same view was also expressed in State of Orissa vs. Chandrika Mohapatra & Others, (1976) 4 SCC, 250. In Rajendra Kumar Jain vs. State, (1980) 3 SCC, 435 the Supreme Court held that it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution and the Court has a responsibility and stake in t
