STATE Vs. SYED AHMED BHUKHATIR

JUDGEMENT

(1.) This Revision petition is filed against the order dated 14th January, 1997 passed by Metropolitan Magistrate, Delhi declining the permission to the Public Prosecutor to withdraw from the prosecution against respondent No. 1 on the ground of non-application of mind by the Public Prosecutor while filing the application under Section 321 Criminal Procedure Code .

(2.) The facts giving rise to the present petition in brief are that a report under Section 193 Criminal Procedure Code . was filed against accused Syed Ahmed Bhukhari the Naib Imam of Jama Masjid of Delhi by the prosecution on the allegations that on 22.1.1993 from Jama Masjid accused brought haltered and dis-effection towards the Government established by law. It was further alleged that in a statement he attacked the constitutionally established Government, some political parties and some religious community. As per the allegations of the prosecution an offence under Section 124-A Indian Penal Code of sedition was committed. As the accused was kept in Column No.2 in the challan, he was not arrested on the ground that it would create law and order problem as the accused is a leader of the community professing a particular religion. The Court took cognizance of the offence and the accused was summoned. The summons issued could not be served resulting in the Court issuing warrants of arrest, which also remained unexecuted for the fear of law and order situation arising. In the meantime after sommoning when the warrants were issued against the respondent, the respondent challenged in this Court the said FIR by way of Crl. writ petition No. 138/96 seeking inter-alia for quashing the FIR registered against him. During the pendency of the proceedings in the said writ petition, the petitioner/State took a decision to withdraw the prosecution against the respondent for which the petitioner filed an application u/s 321 Criminal Procedure Code . before the learned Metropolitan Magistrate for withdrawing the prosecution. The Metropolitan Magistrate vide his order dated 14.1.97 dismissed the said application on the ground that the public prosecutor has not applied his mind in making the application and the allegations against the accused being grave, the withdrawal of the case at the stage was not likely to advance the interest of justice and he has further failed to share any objective description of facts with the Court.

(3.) The State has approached this Court against the order of the learned Magistrate feeling aggrieved by his declining to grant the application of the State to withdraw the prosecution. The reasons for challenging the Magistrate's order, inter alia, are that the State is the master of litigation in criminal cases. Reliance has been placed by the counsel on the majority view in the case of Sheonandan Paswan Vs. State of Bihar reported as 1987 (1) SCC, 288 (Para 90). It appears that the impugned judgment has also placed reliance on this judgment but on the minority view because the reasons adopted by the learned Magistrate appear to be those given by Hon'ble the Chief Justice, Mr. P.N. Bhagwati (as he then was). That view was contrary to the majority view which is to be found in para 90 of that very judgment and reads as under :