HARIRAM SINGH THAKUR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This order will also dispose of M.Cr.C. Nos.1533/92 and 3048/92. The petitioner one of 22 accused in a murder case committed on 10-11-1989 with sharp edged weapons is a practising Advocate and a district level office bearer of Bhartiya Janata Party. He has not been arrested so far. His petition for anticipatory bail under Section 438 of the Code of Criminal Procedure is M.Cr.C. No. 1533/1992 and similar petition by 7 other co-accused is M.C.C. No. 3048/ 1992. As per the prosecution, the accused persons armed with deadly weapons fatally assaulted Sahabsingh on 10-11-1989 due to previous enmity. The assailants have been named in the F.I.R. lodged by Smt. Tarabai, widow of Sahabsingh. The petitioner's case is that he was unable to walk on the date of alleged offence due to surgical operation of a boil between his legs. He has been falsely implicated due to political rivalry. The matter was re-enquired by a D. I. G. of Police who on examining Dr. R. K. Singhai and Dr. Promod Kumar Nema of Primary Health Centre, Rehli whose statements are Annexures II and III respectively and who had treated the petitioner, concluded that the petitioner was not in a position to walk on the date of alleged incident. The public prosecutor on the basis of report of D.I.G. of Police applied to the trial Court of 4th Addl. Sessions Judge, Sagar for permission to withdraw from applicant's prosecution under Section 321 of the Code. The Court declined to accord consent vide impugned order, dated 2-4-1992, which is under challenged in this revision.

(2.) The impugned order was also challenged by the State in Criminal Revision No. 583/92. Normally both these revisions should have been linked to be disposed of simultaneously but as no one drew the attention of the Courts to this aspect of the matter the revision filed by the State was listed for admission before another bench which summarily dismissed the same on 31-3-1993 and the said order has become final. In view of this no elaborate order is called for to dispose of the present petition which must be dismissed on the short ground that two contradictory orders on the same matter cannot be passed by this Court. However, since the matter was debated in great length it is desirable that the salient aspects of the argument are discussed, more so because the other revision has been dismissed summarily.

(3.) Shri S. C. Datt, Senior Counsel, for the petitioner contended that in view of the observation of Supreme Court in Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877 : 1987 Cri LJ 793, the public prosecutor was justified in seeking to withdraw from the prosecution of the petitioner on the basis of the conclusions arrived at in the second enquiry conducted by the D.I.G. of Police. Since that enquiry established that the petitioner was physically incapacitated from walking on the date of the incident his active participation in the alleged crime was an impossibility and the falsity of his implication in the murder case was obvious. As such, the permission for withdrawal from prosecution should not have been withheld. The argument proceeds that as held by the Supreme Court in the aforesaid case of Sheo Nandan Paswan in Para-74 the State in seeking permission to withdraw from prosecution in a way compounds the offence which does not obliterate the crime and leaves the aggrieved party free to file a private complaint against the accused persons. In this view of the matter, Court's refusal to grant permission to withdraw from prosecution of the petitioner cannot be viewed to be in the interest of administration of justice. The law on this point has been enunciated by the Supreme Court in the above case of Paswan (supra) thus :