VIRENDRA KUMAR SINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) CRIMINAL Case No. 1541 of 1979 (State v. Balkrishan Pathak and others) was started in the Court of Chief Judicial Magistrate, Ambikapur on a complaint lodged by the applicant. Since the aforesaid prosecution has been dropped and accused persons acquitted by an order dated 29.4.1981, the applicant challenged the legality thereof by filing a revision under section 397 Cr P C, which was decided by Shri S.K. Mishra, 2nd Additional Sessions Judge, Ambikapur on 15.5.1989 (Cr, Rev. No. 79/81) dismissing the revision and upholding the order of the learned Magistrate. The applicant is not satisfied with the same and has moved this Court by filing this application under section 482 Cr P C.

(2.) IT appears that the applicant had lodged a report on 8.3.1979 to the effect that one Nandu had stabbed Kapoor at about 7.00 p.m. and, therefore, he had gone to the Police Station with the said Kapoor to lodge the report. Kapoor was thereafter sent for medical examination. He also accompanied the said Kapoor to the hospital. While he was waiting outside, non -applicants Balkrishan Pathak, Ajay Kumar Agarwal and Rajkumar Singh came on the spot and started assaulting him with an iron rod. As a result of this assault, he sustained injuries at several places all over his body. As soon as these persons assaulted him, he ran away to save himself. He made several other grievances against these non -applicants. It appears that he was medically examined on that very date and at least four injuries found on his person. The police investigated the aforesaid complaint and ultimately filed a charge -sheet on 2.11.1979 against non -applicants 2, 3 and 4 alleging commission of offences under sections 148, 149, 325, 323, 452 and 427 IPC. The non -applicants 2 to 4 were also produced before the learned Chief Judicial Magistrate and released on bail pending trial. The matter thereafter remained pending up to 29.4.1981. On 29.4.1981, the Assistant Public Prosecutor (APP), the non -applicant No.5, filed an application purporting to be under section 321 Cr.P.C. stating that the District Magistrate, Surguja by his letter dated 8.4.1981 had informed him that it was not in public interest to proceed with this prosecution. A prayer was accordingly made to withdraw the same. The letter of the District Magistrate does not seem to have been filed. The learned Chief Judicial Magistrate accepted this request and discharged the non -applicants 2 to 4. The applicant challenged the legality of this order in the revision, which remains dismissed, as noticed earlier. That is how the matter is in this Court for consideration.

(3.) ONCE the prosecutor has decided to seek consent of the Court to withdraw the prosecution, the Court has to apply its mind to the facts and circumstances of the case to decide whether to grant or withhold the consent. In The State of Bihar v. Ram Naresh Pandey and another (supra) it was clarified that the discretion given to the Court under this section should be exercised not arbitrarily, but judicially on sound legal principles, and it is not necessary that the Court should always grant the sanction. In State of Orissa v. Chandrika Meharotra and others (AIR 1977 SC 903), it was held that while granting consent to the withdrawal from prosecution, the ultimate guiding consideration must always be the interest of administration of justice and that is the touch -stone on which the question must be determined whether the prosecution should be allowed to be withdrawn. In M.N. Sankaranarayanan Nair's case (supra), the Government had taken a policy decision to withdraw criminal cases relating to mass agitation and strike. In pursuance to the said decision, the Public Prosecutor prayed for the consent. While justifying refusal of consent in such a case, the Court held that the fact that the Public Prosecutor has merely acted under the directions or with the approval of the Government or that consistent with the policy of the Government in relation to mass agitation and strike, it has decided to withdraw the case in connection therewith, is no reason for the Magistrate giving his consent to such withdrawal. Indeed, in The State of Bihar v. Ram Naresh Pandey and another (supra), it was emphasised that the act of the Court in giving its consent to the withdrawal of the prosecution was a judicial act and has to be given after a judicial consideration of circumstances. Credible information to the Government as to the falsity of the prosecution evidence has been held to be the proper reason for according sanction, as would be clear from M.N. Sankaranarayanan Nair's case (supra). At the same time, where the Court is reasonably satisfied on the materials before it that even if evidence is actually taken, a conviction is not likely to result, it would be proper to exercise discretion to give the consent. But, the fact that the trial has not taken, even though registered long before or that the prosecution would involve heavy expenditure is not a ground for permitting withdrawal. [See M.N. Sankaranarayanan Nair v. P. V. Balakrishanan and others (supra)]. 1983 MPLJ 694), this Court considered a case where the consent was granted, as it was in the public interest to permit the Public Prosecutor to withdraw the case. It was held that the term 'public interest' is vague and needed clarification. It was, therefore, the duty of the Judge granting consent to lay down facts constituting public interest. Merely because one of the accused persons was subsequently elected to the Legislative Assembly and the other accused being Municipal servants carrying out the orders of the Corporation, do not in themselves constitute public interest. On the aforesaid conclusion, the order withdrawing prosecution was quashed. It is, therefore, possible to hold that it is desirable that the order of the Magistrate granting or refusing consent, should contain reasons. Even if the order did not contain any reason, it should appear from the record of the case that there are good reasons for granting or refusing the consent. 6. Facts of the case may now be examined in the context of aforesaid legal principles to ascertain whether the impugned order suffers from any illegality. As noticed earlier, the application of the Assistant Public Prosecutor dated 29.4.1981 only mentions that: