VIVEKANAND KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) -The instant writ petition under Article 226 and 227 of Constitution of India has been filed by the petitioner, who is an accused in a case pending before the Judicial Magistrate, 1st Class. Patna, in G. R. No. 494 of 84/T. R. No. 1055 of 92 under Sections 341, 323, 324, 448 and 379 of the Indian Penal Code. He prays for quashing of the order dated 21-6-1993 passed by the Judicial Magistrate, 1st Class, Patna, in the aforesaid case, refusing to drop the criminal case pending against the petitioner. In effect, the prayer of the petitioner is that the case pending against the petitioner should be directed to be withdrawn, in view of the policy decision of the Government, as contained in the letter No. 1791 dated 30th March, 1986, of the Secretary of the Department of Law addressed to all District Magistrates.

(2.) It appears that originally ,this application was filed under Section 482 of the Code of Criminal Procedure for quashing the order of the Magistrate rejecting the application for dropping the criminal proceeding, but the Petitioner prayed for leave to convert the application into a criminal writ petition, and he same was allowed by this Court. When the matter came up before a Division Bench of this Court on 30th September, 1993, the Court was prima facie of the view that having regard to the well known distinction between withdrawal of case under Section 321 of the Code of Criminal Procedure, and the quashing of a prosecution under Section 482 of the Code of Criminal Procedure, it was not possible to quash the prosecution, in the light of the policy decision of the Government, but the Court asked for a report from the Judicial Magistrate, before whom the case was pending. about the present stage of the case and the reasons for the delay. This was apparently with a view to pass an appropriate direction for the expeditious conclusion Of the trial, which has been pending for a considerably long period.

(3.) On 15-10-1993 the Court considered the report received from the learned Magistrate, who reported that, the application filed on behalf of the petitioner on 20th March, 1993 for dropping the case and discharging him, was rejected by order dated 21-6-1993. However, no progress was made thereafter, as the petitioner himself had filed a petition to stay the proceeding, so that he may move the High Court. Having regard to these facts, this Court was inclined to fix a fresh time schedule for the conclusion of the case, but counsel for the petitioner submitted that as was done by a Division Bench of this Court in [Cr. W. J. C. No. 485 of 1993,] a direction should be issued for withdrawal of the case, in view of the policy decision of the State Government. Counsel also referred to an order passed by a learned single Judge of this Court in [Cr. Misc. No. 5688 of 1985] These two orders have been annexed as Annexures S and 6 to the instant writ petition The Court found that there was another order passed by a Division Bench of this Court in [Cr, W. J. C. No. 600 of 1992,] whereby the Court refused to quash the prosecution but observed that the authorities should take steps for withdrawal of the case. The said order has been annexed as Annexure-7 to the instant writ petition. Having regard to these decision, counsel for the petitioner submitted that the matter may be referred to a larger Bench, so that the point in issue may be authoritatively decided, and the difference of opinion between the two Division Benches of this Court may be resolved. That is how this matter has been placed before this Bench.