D P MEHTA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS criminal petition is filed under S. 482, Cr. P. C. against the order dated 21-8-2002 passed by the J. M. F. C. (IInd Court), Mangalore in C. C. No. 6849/ 2000, whereby the application filed by Senior Public Prosecutor under S. 321 of Cr. P. C. came to be rejected. So feeling aggrieved by the said order, the petitioners herein have come up with this petition under S. 482, Cr. P. C.

(2.) THE prosecution case, in short, is that on 9-4-2000 an unfortunate accident occurred in the factory premises of M/s. Mangalore Chemicals and Fertilizers Ltd. , panambur, Mangalore, on account of the leaking of the Ammonia Gas, resulting in the death of 4 persons. On the basis of the information received, an enquiry was conducted by the complainant and Issued show cause notice and after receipt of reply from the Senior Inspector of Factories, Mangalore, filed a complaint against the revision-petitioners for an offence punishable u/s. 92 of factories Act and accordingly, case came to be registered. In C. C. No. 6849/2000 on the file of JMFC (II Court), Mangalore. Thereafter, summons was issued to the petitioners for violation of provisions of the Factories act and Rules. So after appearance, the petitioners herein filed an application under s. 321 of Cr. P. C. with a request to permit the State to withdraw the complaint. That application came to be rejected by an order dated 3-6-2002 passed by the J. M. F. C. II court, Mangalore, on the ground that the senior Assistant Public Prosecutor has not applied his mind in seeking withdrawal of the case. Subsequently, Senior Assistant public Prosecutor filed a detailed application on the basis of the Government notification dated 18-6-2002. After hearing both sides, the trial Court has dismissed the application on the ground that the petitioners herein have not challenged the order dated 3-6-2002. As against this, the revision-petitioners have come up with this petition under S. 482, Cr. P. C.

(3.) IN that behalf, learned senior counsel sri Chidambaram, vehemently argued that there is no bar to file a second application seeking withdrawal of the case by the Senior Assistant Public Prosecutor and the second application can be filed before the pronouncement of the judgment. Further, he has mentioned that the earlier application filed by the Senior Assistant Public Prosecutor without applying his mind and he has simply filed a memo by enclosing a Government Notification, which is at Annexure J. In support of his contentions Sri. Chidambaram, senior Advocate has relied on the following decision namely R. M. Tewari v. State (NCT of Delhi), 1996 SCC (Cri) 361 : (1996 Cri LJ 2872), wherein it has been observed by their Lordship of the apex Court that: the Public Prosecutor may apply for withdrawal from prosecution under S. 321 in accordance with law on any ground available according to settled principles; and on such an application being made, the Designated Court would decide the same in accordance with law. " the applications made under S. 321, Cr. P. C. not having been decided on the basis indicated above, fresh applications made in all such cases pursuant to the recommendations of the Review Committee or the revised opinion of the Government have to be considered and decided by the Designated courts. Therefore, the second application filed by the Senior Assistant Public Prosecutor before the trial Court is maintainable. So considering the ratio laid down by the apex Court in the aforesaid decision, the trial court is wrong in holding that the second application is not maintainable, as the Senior Assistant Public Prosecutor has not challenged the earlier order dated 3-6-2002.