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GAUHATI HIGH COURT
M.Sharma, J.
State of Assam and Another -Appellant
Versus
Niranjan Ghosh -Respondent
262 and 336 of 1994
Decided On : 29-11-1994
CRIMINAL REVISION - WITHDRAWAL OF PROSECUTION - SECTION 321 CRPC - PUBLIC PROSECUTOR'S DISCRETION - COURT'S SUPERVISORY FUNCTION - GROUNDS FOR WITHDRAWAL - PAUCITY OF EVIDENCE - SANCTION BY GOVERNMENT - RELEVANCE - JUDICIAL REVIEW.
Fact of the Case:
The State of Assam and Mr. Niranjan Ghosh filed criminal revisions challenging the order of the Special Judge, Assam, quashing the proceedings in a corruption case against Mr. Ghosh. The prosecution alleged that Mr. Ghosh, as the Managing Director of Statfed, released an amount of Rs.78.08 lacs to a firm that supplied rice below specification. The accused denied the allegations and filed a revision petition, which was closed on the assurance of the Government that the proceedings would be dropped. Later, the Public Prosecutor filed an application under section 321 CrPC seeking consent for withdrawal of the case due to paucity of evidence.
Finding of the Court:
The Court held that the Public Prosecutor has the discretion to withdraw from the prosecution and the Court's role is to supervise the withdrawal process. The Court cannot substitute its own opinion for that of the Public Prosecutor. The Court further held that the grant of sanction by the Government is not a proof of guilt and the Government can decide not to prosecute the alleged offenders. The Court also held that the Special Judge erred in considering the case diary and statements taken by the police as evidence, as these cannot be used to presume the existence of an offense.
Issues: 1. Whether the Public Prosecutor has the discretion to withdraw from the prosecution under section 321 CrPC? 2. What is the scope of the Court's supervisory function in a withdrawal application under section 321 CrPC? 3. Can the Court substitute its own opinion for that of the Public Prosecutor in a withdrawal application? 4. Is the grant of sanction by the Government a proof of guilt? 5. Can the Government decide not to prosecute the alleged offenders even after granting sanction? 6. Can the Special Judge consider the case diary and statements taken by the police as evidence in a withdrawal application under section 321 CrPC?
Ratio Decidendi: 1. The Public Prosecutor has the discretion to withdraw from the prosecution under section 321 CrPC. 2. The Court's supervisory function in a withdrawal application under section 321 CrPC is to ensure that the grounds of withdrawal are legally valid and the application is bonafide and not collusive. 3. The Court cannot substitute its own opinion for that of the Public Prosecutor in a withdrawal application. 4. The grant of sanction by the Government is not a proof of guilt. 5. The Government can decide not to prosecute the alleged offenders even after granting sanction. 6. The Special Judge cannot consider the case diary and statements taken by the police as evidence in a withdrawal application under section 321 CrPC.
Final Decision: The Court allowed both the petitions and set aside the impugned order of the Special Judge. The Court held that the Public Prosecutor had applied his mind to the relevant material and documents, and there were materials which were negative to the prosecution story. Therefore, the Court held that there was no basis for the Special Judge to refuse consent for withdrawal of the prosecution.
2. Both the revision petitions have been taken together for disposal as both involve same question for decision and both have arisen from the same impugned judgment and order.
3. The prosecution story in the case was that the Government of Assam by order No.EDB-271/87/159 dated 30.11.88 directed the State Co-operative Marketing Consumers Federation Ltd (referred as Statfed), Assam to procure 1.8 lac tonnes of levy free rice. The Executive Committee of State fixed up modalities for supply of rice by different suppliers. Accordingly by an order dated 26.12.88 M/s Imperial Trading of Guwahati was asked to supply one rack of rice and this order was subsequently modified by order jiated 1.3.89. But M/s Imperial Trading by a registered power of attorney empowered to supply rice of their order to M/s Suresh Kumar and Co who in turn entered into an agreement with M/s Baboo Ram Jagdish Kumar & Co of Punjab and on this agreement this company loaded/consigned rice in train and submitted a bill claiming 85% of payment of the order alongwith the sample of loaded rice. The quality control of the Statfed on analysis of the said sample found the rice inferior to the laid down specification with 6% excess in permissible broken percentage. That in spite of defect in the quality under required specification the accused Mr. Niranjan Ghosh, the then Managing Director of Statfed, being satisfied passed order for payment of Rs.78.37 lacs to said M/s Baboo Ram Jagdish Kumar & Co. The rice which was received by the Statfed from the Railway consignment was not according to the sample produced. After an enquiry FIR was filed to the Officer-in-charge, ACB, Guwahati implicating the accused Mr. Niranjan Ghosh.
4. The petitioner in the Criminal Revision No.336 of 1994 is the accused in the proceeding pending before the Court of Special Judge. At the relevant time he was the Managing Director of the Statfed and allegation is that in his official capacity he released an amount of Rs.78.08 lacs to a firm M/s Baboo Ram Jagdish Kumar & Co who supplied rice below specification. In this case a charge sheet in ACB PS Case No.22/89 was submitted in the Court of Special Judge, Assam, Guwahati which is pending there being Special Case No.7(A)/94 under section 13 (2) read with section 13 (1) (d) of Prevention of Corruption Act. The petitioner denied the allegation made in the charge sheet and filed a criminal revision being Criminal Revision No.422 of 1989 before this Court and by order dated 10.11.89 proceedings of the ACB PS Case No.22/89 was stayed. Later on the learned Advocate General, Assam informed the Court that the Government has decided to discontinue the impugned proceedings and withdraw the proceeding and on the basis of this assurance, by order dated 23.5.92 the said revision petition was closed. An application was filed under section 321 CrPC by the Public Prosecutor and the learned Special Judge refused to accord consent by his order dated 17.5.94. Stand of the petitioner/accused in the revision petition is that he had to deal with various essential commodities including rice, as the Managing Director of the Statfed throughout the State of Assam and that for some omission and commission he is not responsible and guilty as alleged in the aforesaid ACB PS Case No.22/89. That because of the seriousness of the allegations the petitioner himself moved the State Government on 23.4.89 to hand over the case to CBI to apprehend the actual culprit and to that effect wrote letter to the Commissioner anti Secretary, Co-operation Department referring the m
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