1. Home
  2. /
  3. High Court Of Judicature at Allahabad
  4. /
  5. 1985
  6. /
  7. January

Gorey Lal Shakya vs State

High Court Of Judicature at Allahabad|30 January, 1985


ORDER V.P. Mathur, J.
1. These two criminal revisions one on behalf of the State of U. P. and the other on behalf of Sri Gorey Lal, M. L. A., are directed against an order passed by in Prem Singh, II Judicial Magistrate, Etawah on 24-10-1983 in Criminal Case No. 254 of 1981 giving rise to S. T, No. 237 of 1983, whereby the learned Magistrate allegedly rejected the prayer of the Public Prosecutor and refused to accord consent to him for withdrawing from the prosecution of the case. Since both the revisions arise out of one order and the controversy involved is the same, they are being disposed of by this common judgment.
2. Briefly stated, the facts of the matter are that a charge sheet was filed in the court of IVth Munsif Magistrate, Etawah, under Sections 332, 333, 353, IPC. read with Section 7 of the Criminal Law Amendment Act, against Sri Gorey Lal, M. L. A. The case was investigated by the CID., which submitted this charge sheet The case started on the basis of the FIR., which was lodged in the police station, Bharthana, district Etawah, on 3-12-1981 at 2.25 p.m. in respect of an occurrence that had taken place the same day at 2.05 p.m. The maker of the said report was Sri Shanker Pal Singh, Sub Divisional Magistrate, Bharthana, and, briefly stated, the allegations were that in connection with some official work the Sub Divisional Magistrate had to accompany Sri Gorey Lal Shakya, M. L. A. to some village and for that purpose the Sub Divisional Magistrate reached the house of the M. L. A. When they reached near the Jeep, the Sub Divisional Magistrate asked the M. L. A. to take his seat. Upon this, the M. L. A. got enraged and refused to sit on the back portion seat of the Jeep and insisted on sitting on the front portion. It is contended that the Sub Divisional Magistrate did riot object to it but still the M. L. A. started misbehaving with the Sub Divisional Magistrate and used unparliamentary language against him. The Sub Divisional Magistrate then returned back to his Court Room and sat on his chair and started making a telephone call to the District Magistrate with a view of apprising him with the position but before the talks could start, Sri Gorey Lal Shakya reached there, abused Sri Shanker Pal Singh, kicked the chair of the Sub Divisional Magistrate and threw him on the ground. He started giving him a beating, threw away the telephone, tore away the papers and threw them away and also tore away the table cloth. The situation was saved from deteriorating by the intervention of the Stenographer, Orderly and other Tehsil Officials. Subsequently one of the fingers of the Sub-Divisional Magistrate, the first informant, was alleged to have been found broken as a result of this Marpeet.
3. It appears that the investigation of the case was entrusted to the Criminal Investigation Department and after investigation the charge sheet was submitted.
4. While the case was at that stage. Mr. 8. S. Sharma, who was then the District Government Counsel (Criminal), Etawah, moved an application on 15-3-1983, which has been marked as Paper No. Ka 9, before the learned Magistrate, stating therein that in public interest the State did not want to prosecute the case and wants to withdraw it and, therefore, he prayed that the prosecution may be allowed to withdraw the case. While this application was still under disposal, another application dt. 3-6-1983 (Paper No. 12 Ka) was again moved by the same Counsel. It was also an application for withdrawal of the case under Section 321, Cr. P. C. and the additional ground that was taken was that the District Government Counsel had studied the case before making the earlier application dt. 30-4-1983 and had applied his mind to the facts of the case independently and was" of the opinion that it will be in the public interest if permission to withdraw the case is granted.
5. On 24-6-1983, however another application was moved before the learned Magistrate, signed by Sri O. P. Chaturvedi, Prosecuting Officer, C. B. C. I. D., Lucknow. This is paper No. 13-B on the record of the lower court. Through this application it was brought to the notice of the learned Magistrate that Sri Chaturvedi was the Assistant Public Prosecutor Incharge of this case and that the District Government Counsel (Criminal) had no locus standi to prosecute the cases in the courts of the Magistrates and hence he had no right to withdraw the case. A request was also made that Sri Chaturvedi may be permitted to conduct the prosecution of the case. On 11-7-1983 another application was moved by Sri D. P. Chaturvedi, Prosecuting Officer, C. B. C. I. D., Lucknow, through which he informed the court that the Governor has been pleaded to order the withdrawal of the case vide letter No. X-1335/Kha/16111 WC 82 by asking the prosecution to move for the withdrawal of the case and that he has studied the matter and feels that it will be expedient in the public interest to permit the withdrawal of the case. He, therefore, prayed that he may be permitted to withdraw the case. Simultaneously, he made an endorsement on his application 13 Ka, dt. 24-6-1983 that since, he had moved a withdrawal application, hence he was not pressing his earlier application, which may be rejected. The application dt. 11-7-83, moved by the Prosecuting Officer, C. B. C. I. D. and the earlier two applications moved by Sri P. S. Sharma, D. G. C. (Criminal) were amalgamated and the learned Magistrate by means of the impugned order rejected these applications and refused permission to withdraw the case. It is against this order that the present two petitions have been filed.
6. One of the grounds mentioned in the order of the learned Magistrate for refusing permission to withdraw the case is that it was not clear as to who out of the two officers who had moved applications before him, namely Sri P. S. Sharma and Sri O. P. Chaturvedi, was entitled to move the application for withdrawal. During the course of hearing of these revisions the State filed a copy of an order dt. 2-3-83, issued by the Additional Legal Remembrancer to the District Magistrate, Etawah, informing him that the State has come to the conclusion that in the public interest the case in question may be taken back and the Rajyapal accords sanction for the moving of an application in this behalf by the Public Prosecutor. Another document which has been placed on the record is the order dt. 3-9-82, issued by the Government of Uttar Pradesh, appointing Sri Prem Shanker Sharma as the District Government Counsel (Criminal). The third paper is another letter from the Deputy Legal Remembrancer, U. P. Lucknow, to the District Magistrate and is dt. Sept. 7, 1983, extending the period of service of Sri Prem Shanker Sharma as District Government Counsel (Criminal) up to 5-9-1986. A certificate of the Superintendent of Police of Crime Branch, CID., U. P. Lucknow, dt. 9-1-85 has been placed on record to show that Shri O. P. Chaturvedi is posted as Prosecuting Officer in C. B. C. I. D. and was working as Assistant Public Prosecutor Incharge of the case in question. All these documents will now clearly show that Sri O. P. Chaturvedi is the Assistant Public Prosecutor Incharge of this case and in view of the provisions of Section 321 of the Cr. P. C., he will be the competent person to move the court to obtain its consent for withdrawal from the prosecution. This aspect of the matter stands concluded and the learned Magistrate's observation that it was not established as to who amongst the two applicants was entitled to apply for withdrawal, is no more relevant now.
7. But the learned Magistrate has dismissed the application on other grounds also and the main ground is that it is not a case in which the broad ends of public justice require that permission should be given to withdraw the case.
8. In the case of Rajendra Kumar Jain v. State the Supreme Court quoted as below from its earlier decision in the case of State of Bihar v. Ram Naresh Pandey .
The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person ...The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of Section 494 would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially ...The judicial function...implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In the context it is right to remember that the Public Prosecutor (though an executive, officer...;.) is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his functions.
9. In the case of M, N. Sankaranarayanan Nair v. P. V. Balkarishnan the Supreme Court observed that the Court granting permission for withdrawal should satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. It observed that the wide and general powers conferred on the Public Prosecutor to withdraw from the prosecution have to be exercised by him "in furtherance of rather than as a hindrance to the object of the law" "and that the Court while considering the request to grant permission should not do so as "a necessary formality the grant of it for the mere asking."
10. In Subhash Chander v. State , from the precedents of the Supreme Court the following principles were gathered:
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. The public prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammany Hall enterprises.
6. The Public Prosecutor is an Officer of the Court and responsible to the Court.
7. The court performs a supervisory function in granting its consent to the withdrawal.
8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or with-holding its consent to withdrawal from the prosecution.
It was also observed:
We may add, it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution.
The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its Minister of Justice. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321, Cr. P. C. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.
11. In matter of Sheonandan Paswan v. State of Bihar it was observed that the only safeguard that should be kept in mind by the Public Prosecutor is that it should not be for an improper or oblique or ulterior consideration, and the guiding consideration should be that of vindication of public justice.
12. The object of Section 321 appears to be to preserve power to Executive Government to withdraw any criminal case on larger grounds of public policy, such as inexpediency of prosecutions for reasons of State; broader public interest like maintenance of law and order; maintenance of public peace and harmony, social, economic and political; changed social and political situation; avoidance of destabilization of a stable Government and the like. It was also expressed that the exercise of the power to accord or withdraw consent by the Court is discretionary and the discretion is to be exercised judicially. The exercise of the power of the Court is judicial to the extent that the Court in according and refusing consent has to see (i) whether the grounds of withdrawal are valid; and (ii) whether the application is bona fide or is collusive.
13. In the case Sheonandan Paswan 1983 Cri LJ 348 (SC) (supra) the trial court had ultimately considered the grounds of withdrawal and found them valid and accordingly accorded consent for withdrawal. In revision the High Court affirmed the findings of the trial Court and the Supreme Court held that there was thus no justification to disturb the findings of the courts below and to peruse the statements of the witnesses recorded or other material collected by the Investigating Officer during the cource of investigation. It was observed that if the view of the Public Prosecutor is one which could in the circumstances be taken by any reasonable man the Court cannot substitute its own opinion for that of the Public Prosecutor.
14. In the background of this law, when we look into the facts of the present case, it appears that the only ground on the basis of which the permission to withdraw was sought by the Assistant Public Prosecutor in charge of the case vide application dt. 11-7-83 was, "it is expedient in the public interest to withdraw from the prosecution of the case." No facts and circumstances to support this view were brought to the notice of the court below, No such facts and circumstances have been put forth before this Court at the time of hearing of the revisions. Normally, it is not in the public interest to withdraw a criminal case after it has been investigated, especially by the CID. How it was in public interest to withdraw from the prosecution had to be established. It was ultimately to be ensured that the broad ends of public justice and public order and peace were to be served. The ultimate guiding consideration has also to be the interest of administration of justice arid that is the touch-stone on which the question must be determined. The FIR in this case will show that a public servant was allegedly manhandled and assaulted by a representative of the people. There is no allegation on either side that if the case is allowed to proceed, there will be either upheaval from the public or any law and order situation shall arise. It is also not alleged that the witnesses are not willing to depose or that there is paucity of evidence. I am, therefore, in agreement with the Magistrate that it is not a case in which by withdrawal of the prosecution, public interest could be served. This being so, the request for withdrawal was rightly refused and consequently both the revisions stand dismissed.
Disclaimer: Above Judgment displayed here are taken straight from the court; Vakilsearch has no ownership interest in, reservation over, or other connection to them.

Gorey Lal Shakya vs State


High Court Of Judicature at Allahabad

30 January, 1985
  • V Mathur