PRABHAT KR BHUYAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) This criminal revision petition is so filed under sections 397/401 read with section 482 of the Cr.P.C. against the order dated 11.12.91 passed by the learned Sessions Judge, Silchar in criminal revision No. 24(2)/90 by virtue of which he has reversed the order dated 19.4.90 passed by Asstt. Sessions Judge, Silchar, by which he has rejected the prayer so made by the learned P.P. for withdrawal of the sessions case No. 22(s-s)/1988. Since the learned Sessions Judge vide his order dated 11.2.91 has set aside the order of the Assistant Sessions Judge by which permission for withdrawal of the sessions case was not accorded and since the learned Sessions Judge has held that the sessions case in question pending before the learned Asstt. Sessions Judge is treated as withdrawal, this criminal revision petition is so filed with the prayer that the impugned order so passed by the learned Sessions Judge be set aside and the order so passed by the learned Asstt. Sessions Judge not giving the permission for withdrawal in the background, of the circumstances discussed by the learned Assitt. Sessions Judge be restored.

(2.) Mr. P.G. Baruah, leaarned counsel for the petitioner by pressing into service the grounds so taken in this revision petition for interferance of the order of the learned Sessions Judge, has submitted that at the time of filing of the petition by the learned P.P. for withdrawal of the case, the P.P. did not apply his minds the ground for withdrawal of the case is also not mentioned therein and mechanically-the said petition was so filed and thus the learned Asstt. Sessions Judge was perfectly justifying not according consent for withdrawal. On basing his findings on surmises which is thus fit to be set aside, in support of his contention the learned counsel for the petitioner Mr. Baruah has referred to some reported cases which are as follows :- Subhash Chandar-Vs-State of Chandigarh Administration and others, 1980 (2) SCC-155 were it is pointed out that withdrawal under section 321 Cr.P.C. is justified only if it is based on partinent consideration and actual application of mind by the P.P. or A.P.P. The consent of the court under section 321 of the Cr.P.C. is a condition for consideration which is so imposed as a check on the exercise of the P'.P.'s power. In the instant case it is submitted that the learned P.P. has simply obeyed the decision of the Government without applying his mind and mechanically petition for withdrawal of the case so filed by him before the Asstt. Sessions Judge which was rightly not accepted. He has referred to another decision the case of Munindra Chandra Karmakar-Vs- State of Tripura (1987) 1 G.L.R.-243. Mr Baruah has further pointed out that this power is to be exercised with reference to material before the court and not mechanically. In such case, (he prosecution represented by the P.P. must show his application of mind giving reasons for such withdrawal in his petition so moved on behalf of the prosecution seeking the consent of the court for the withdrawal which in the instant case has not been done. The third reported case which has been cited is Criminal Law Journal 1993 page 437 the State of Orissa-Vs-Bijanaranjan Singh Bariha and others. Lastly Mr Baruah has relied upon the decision of ;a recent case 1994(4) SCC-299 Achuthanandand Pillai-Vs-Balakrishna and Others. By particularly referring to its paragraph 11, it is submitted that the administrative file of the State does not form part of the record of any case and any suggestion so coming from the State Government is to be looked into by the PP. which is a material factor for his making a prayer for withdrawal of a particular case and in the instance case since there is no application of mind so made by the P.P. rather the petition be filed mechanically, the learned Assistant Sessions Judge had rightly not giving his consent for withdrawal of the case and the learned Sessions Judge as Revisional Court has erred in taking different view.

(3.) Mr J. M. Choudhury, learned counsel for the respondent has also conceded to this submission. By plain reading of the withdrawal petition so coming from the prosecution side it transpires that no where it has been incorporated therein that the learned P.P. has also applied his mind detailing the ground for withdrawal of the case.