STATE OF ORISSA Vs. BIJOYARANJAN SINGH BARIHA

JUDGEMENT

(1.) A motion was made for withdrawal of a criminal proceeding which was pending before the learned Sub-Divisional Judicial Magistrate, Padampur in terms of S. 321 of the Code of Criminal Procedure, 1973 (in short, the 'Code'). The learned SDJM accepted the prayer. The informant assailed correctness of the order of the learned SDJM before the learned Sessions Judge, Sambalpur. The prayer for interference was accepted, and the order directing withdrawal of the prosecution and acquittal of the accused persons was set aside. The matter was sent back to the learned SDJM for disposal in accordance with law. The State has assailed correctness of the order of the learned Sessions Judge on the ground that the relevant legal and factual aspects were not kept in view by the learned Sessions Judge.

(2.) It is necessary to recapitulate the background facts in short. One Gountia Kumar Sahu, opposite party No. 9 in this application, lodged a first information report alleging commission of offences punishable under Ss. 147/294/506/323/149 of the Indian Penal Code, 1860 (in short 'IPC') by opposite parties Nos. 1 to 8 herein. Accusations were that they being members of an unlawful assembly, they threatened to kill him and abused him in obscene language. They assaulted him on his back and other parts of the body, and forced one Niranjan Sahu, a betel shop owner, to close his shop. Sri Gopal Chandra Sahu as the Assistant Public Prosecutor, Padampur was in charge of the case. Shri S. N. Dora, Associate Public Prosecutor was not in charge of the case. He filed a petition on 25-8-1990 in the Court of the SDJM under S. 321 of the Code seeking permission for withdrawal from prosecution on the ground that in the interest of public justice and to maintain public peace and social order in the society and to secure good relationship between the parties concerned, the Government of Orissa through Home Department had decided to withdraw the case from prosecution against the accused persons. It was also indicated that the Government after a careful consideration had decided to withdraw the case since the alleged offences were felt to have been committed by accused persons under the circumstances and in course of a political agitation like Hartal, Gherao, and had directed him as per their wireless message for withdrawal. The prayer was accepted and the informant moved the learned Sessions Judge for interference and the impugned order has been passed. The learned Sessions Judge set aside the order primarily on the ground that there was no application of judicial mind and no reason was indicated for permitting withdrawal. The application was filed by the Associate Public Prosecutor, who was not in charge of the case. Since he had filed the application for withdrawal, the Court should not have mechanically accepted the prayer for withdrawal without considering the ground for withdrawal. The grounds indicated in the petition for withdrawal were not considered to be valid grounds for withdrawal of the case.

(3.) The learned counsel for State has submitted that the Associate Public Prosecutor who had filed the application had authority to do so, and the grounds indicated were valid grounds for withdrawal. The impugned order was characterised as indefensible. The learned counsel for opp. party No. 9 supported the order.