KRUSHNA CHANDRA PATNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of the learned Sub-divisional Judicial Magistrate, Khurda allowing the application of the Public Prosecutor under section 321 Criminal Procedure Code 1973 and granting permission to withdraw from prosecution in C.R. Case No. 20 of 1982 is assailed by the petitioner in this application under section 401 read with sections 397 and 482 of the Code.

(2.) The facts relevant for the present proceeding may be shortly stated thus: In the aforementioned criminal case, opposite parties 2, 3 and 4 faced charges under sections 406/466/471/477-A/120-B, Indian Penal Code. The prosecution alleged that out of the sum of Rs. 6,030/- received in the shape of Bank draft on 27-2-81 in favour of Rameswar High School towards grant in aid for building repair and contingency for the years 1978-79, 1979-80 and 1980.81, a sum of Rs. 5214/- was misappropriated by accused Laxmidhar Sarangi (opposite party No.3) Headmaster of the School by showing false expenditure and by creating false vouchers and by falsifying accounts of the School in the Cash Book in conspiracy with the other two accused persons. The Special Public Prosecutor (Vigilance) and the Asst. Public Prosecutor (Vigilance) were in charge of the case on behalf of the prosecution. Before commencement of the trial of the case, the counsel for the prosecution filed the application under section 321,Cr. P.C. for withdrawal of the case mainly on the following grounds: (i) that there is no case for the prosecution and even if the prosecution proceeds with the case it cannot prove the allegations against the accused persons; (ii) that the prosecution witnesses cited in the charge-sheet and others had applied to the Government for withdrawal of the case; and (iii) that to restore public peace and healthy atmosphere in the School in question withdrawal of the case is highly essential, in view of larger public Interest. To this application the petitioner filed an objection stating, inter alia, that there is ample evidence in support of the prosecution case to establish all the charges against the accused persons; that the Public Prosecutor in charge of the case has filed the application for withdrawal without applying his mind to the merits of the case; that since the accused persons have committed the alleged offences in a public institution, the objector being a member of the public has got every right to oppose the attempt for withdrawal of the case by the Public Prosecutor and that the grounds taken by the Public Prosecutor in the petition under section 321 Cr. P.C. are illegal and not reasonable. It is pertinent to mention here that the petitioner, a resident of the locality where the School is located, was previously the Secretary of the School. To the objection filed by the petitioner the accused opposite parties filed a reply stating therein, as appears from the impugned order, that the objector has got no locus standi to file the objection; that the objector who was the Secretary of the School in the year 1974 was driven out from the insitution on the charge of misappropriation and other allegations; and since the accused persons alleged against the objector relating to his activities as a P.W.D. contractor which resulted in cancellation of some works entrusted to him, he has filed this objection out of vengeance towards them.

(3.) The trial court on consideration of the matter negatived the objection relating to locus standi of the petitioner to contest the petition under section 321, Cr. P.C. The Court further held that the reasons stated in the application under section 321 Cr. P.C. that the prosecution case is likely to fail is not a valid ground for withdrawal from prosecution. The Court however considered the position that withdrawal of a criminal case is an executive function of the Public Prosecutor and it is for him to be satisfied if the criminal case should be withdrawn. The function of the court is only supervisory. Applying this principle, the Court observed that since the Public Prosecutor was satisfied, as stated in the petition, that in order to restore public peace in the vicinity, for better management of the educational institution in question and for larger public interest the matter should be closed the prayer for withdrawal of the prosecution is to be allowed.