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High Court Of Orissa
S. C. MOHAPATRA
BALABHADRA DASH - Appellant
Versus
STATE OF ORISSA - Respondent
CRI. M. C. 529 Of 1988
Decided On : 02/22/1991
WITHDRAWAL OF PROSECUTION - SECTION 321 CR. P. C. - PUBLIC PROSECUTOR'S POWER TO WITHDRAW - COURT'S CONSENT - PRINCIPLES FOR GRANTING CONSENT - INTEREST OF JUSTICE - RELEVANCE OF EARLIER SANCTION FOR PROSECUTION - CHALLENGING REFUSAL OF CONSENT BY ACCUSED.
Fact of the Case:
Four accused persons, including an Executive Engineer, Assistant Engineer, Junior Engineer, and a contractor's representative, were charged with causing grievous injuries and deaths of laborers due to a trench collapse during a dam construction project. The State Government, after receiving a report from a committee appointed to investigate the accident, instructed the Public Prosecutor to withdraw from the prosecution against the Executive Engineer and Assistant Engineer. The Public Prosecutor filed two applications for permission to withdraw, but the Magistrate refused both times. The accused persons filed applications to quash the cognizance and the Executive Engineer and Assistant Engineer filed applications to set aside the Magistrate's order refusing permission to withdraw.
Finding of the Court:
The Court held that the inherent power under Section 482 Cr. P. C. should be exercised with great restraint and only in exceptional circumstances. The Court found that the accused persons had the opportunity to advance submissions before the Magistrate that the materials on record did not call for framing charges against them and that the Magistrate should have considered the second application for withdrawal on its merits. The Court also held that the Public Prosecutor has wide power to withdraw from prosecution under Section 321 Cr. P. C. and that the Court should consider whether consent to withdraw should be given based on the principles laid down by the Supreme Court, including whether the prosecution may not be able to produce sufficient evidence, whether the prosecution does not appear to be well-founded, or whether there are other circumstances showing that the object of justice would not be advanced by continuing the prosecution.
Issues: 1. Whether the Court should exercise its inherent power under Section 482 Cr. P. C. to quash the cognizance and the charge against the accused persons. 2. Whether the Magistrate erred in refusing permission to the Public Prosecutor to withdraw from the prosecution against the Executive Engineer and Assistant Engineer. 3. The principles to be considered by the Court in granting consent to the Public Prosecutor to withdraw from the prosecution.
Ratio Decidendi: 1. The Court held that the inherent power under Section 482 Cr. P. C. should be exercised with great restraint and only in exceptional circumstances. The Court found that the accused persons had the opportunity to advance submissions before the Magistrate that the materials on record did not call for framing charges against them and that the Magistrate should have considered the second application for withdrawal on its merits. 2. The Court held that the Public Prosecutor has wide power to withdraw from prosecution under Section 321 Cr. P. C. and that the Court should consider whether consent to withdraw should be given based on the principles laid down by the Supreme Court, including whether the prosecution may not be able to produce sufficient evidence, whether the prosecution does not appear to be well-founded, or whether there are other circumstances showing that the object of justice would not be advanced by continuing the prosecution. 3. The Court held that the earlier sanction for prosecution by the State Government is a circumstance to be considered in examining fair play while giving consent for withdrawal, but it is not a sine qua non for refusal of consent to withdraw from the prosecution.
Final Decision: The Court allowed Criminal Misc. Case No. 530 of 1988 and set aside the Magistrate's order refusing permission to the Public Prosecutor to withdraw from the prosecution against the Executive Engineer and Assistant Engineer. The Court directed the Magistrate to reconsider the question of permission to withdraw, giving opportunity to the Public Prosecutor and the accused persons to bring further materials to record.
S. C. MOHAPATRA, J.
( 1 ) ALL the four accused persons have invoked inherent jurisdiction of this Court to bring an end to the prosecution against them. Since all the applications relate to the same proceeding, they are heard together and are disposed of in this common order.
( 2 ) ON 26-1-1983, earth from a trench dug for construction of a Dam collapsed causing simple /grievous/fatal injuries to the various labourers working in the trench and nine valuable lives were lost. About three hours after. at about 3. 30 p. m. Officer-in-Charge of the Police Station received information of the accident and proceeded to the spot. He drew first Information Report on his own information and after completion of investigation, he submitted charge-sheet against the four accused persons under Sections 337/338/ 304a I. P. C. On receipt of the order of sanction under section 197 (4) Cr. P. C. against public Officers. Learned Sub-divisional Judicial Magistrate took cognizance of the offences and directed issue of processes against all accused persons for appearance to face trial. Criminal Misc. Cases 529 of 1988,144 of 1989 and 752 of 1990 have been filed by the accused persons for quashing cognizance.
( 3 ) EXECUTIVE Engineer in-charge of the Project, Assistant Engineer, Junior Engineer and representative of the Contractor who was executing the work on behalf of contractor are the four accused persons in this case. After sanction to prosecution, State Government appointed a committee to enquire and submit a report about the causes of accident. Committee in its report was of the opinion that Executive Engineer and the Assistant Engineer are not responsible for the accident. It however, reported, fixing responsibility of Junior Engineer and the contractor for the accident. After receipt of the report, the State Government instructed learned Public Prosecutor to withdraw from prosecution against the Executive Engineer and the Assistant Engineer. Accordingly, Public Prosecutor filed an application in Court on 15-12-1987 for permission to withdraw. On the finding that details are wanting, learned Sub-divisional Judicial Magistrate refused permission to withdraw. Criminal Misc. Case No. 531 of 1988 has been filed by Executive Engineer and Assistant Engineer to set aside the said order.
( 4 ) IN view of the defects pointed out by learned Sub-divisional Judicial Magistrate, learned Public Prosecutor filed another petition on 22-12-1987 for permission to with draw from prosecution against the Executive Engineer and the Assistant Engineer in which defects of the earlier petition stating material facts were removed. Learned Judicial Magistrate First Class to whom the case had been transferred by then refused permission on the ground amongst others that earlier petition on self-same facts had already been rejected. Against this order, Executive Engineer and Assistant Engineer have filed Criminal Misc. Case No. 530 of 1988.
( 5 ) SINCE all the accused persons pray for quashing cognizance in exercise of inherent power under S. 482 Cr. P. C. , I take up those applications first. Inherent power is wide in nature and this provision in Cr. P. C. having been made to secure ends of justice or to prevent abuse of the process of Court, such power is to be exercised with great restraint. Wider would be the power, greater should be the restraint. Ordinarily, trial of an accused in a criminal prosecution is to be concluded under the provisions of criminal procedure code and High Court would be reluctant to conclude the same at an interim stage as has been held in AIR 1960 SC 866 : (1960 Cri LJ 1239) (R. P. Kapur v. State of Punjab ). However, inherent power can be exercised in the circumstances indicated in the said decision. Even if, one of the conditions laid down therein would be satisfied, High Court may not exercise its discretion to interfere if accused can get the same relief which is sought for from a subordinate authority. In this respect, it can be state
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