GUPTA KUMAR SUNDAS Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Assistant Public Prosecutor (Vigilance) filed an application under Section 321 cr. p.c. in the court of the Judicial Magistrate (East) at Gangtok for withdrawal of criminal case No. 1 of 2003 pending against the petitioner which was rejected by order dated 25/7/2003. Against the said order of rejection, the petitioner filed Criminal Revision No. 4 of 2003 in the court of the Sessions Judge (E & N) Sikkim at Gangtok. The learned Sessions Judge by order dated 25/8/2003 rejected the revision. Hence this writ petition.

(2.) The petitioner is the accused who is facing trial in the court of the Judicial Magistrate (vide criminal case No. 1 of 2003) under Sections 181/ 379/403/468/471/420/511 IPC. The allegations against the petitioner are as follows: He is a Christian by faith. In 1986-87 he married one Florence Tamang. In January, 2000 one said Bishnu Maya Tamang wife of Lopsang Tamang who had been under treatment for cardiac ailments at STNM Hospital, Gangtok was referred to AIIMS, New Delhi for treatment. On hearing this, the petitioner who was serving as the Head Master of Diphudara Primary School, Lower Khamdong contacted her and promised her to obtain financial aid from the state government. He thereafter claiming himself to be the husband of the patient applied to the state government for grant of medical advance and got sanctioned a sum of Rs. 1,35,000/- for her medical treatment at New Delhi. He also received a sum of Rs. 10,000/- as advance from the government. The petitioner in support of his claim that he is the husband of the patient Bishnu Maya Tamang induced the Pastor of Christian Revival Church, Gangtok to issue a false and backdated married certificate and obtained one indicating therein that the was married to her on 20/12/1999. He also swore an affidavit before the oath commissioner stating that the said patient is his wife and marriage between them was solemnized on 20-12-1999. In the above premises the petitioner is alleged to have committed the offences of forgery for the purpose of cheating, using as genuine a forged document, making false statement on oath and criminal misappropriation.

(3.) On the basis of charge-sheet submitted by the police, the learned Magistrate vide order dated 27-4-2001 took cognizance of offences punishable under Sections 181/379/403/468/471/420/511 IPC. Later the learned Magistrate upon hearing the prosecution and the defence, framed charge against the petitioner under the above provisions on 4-6-2001. In course of trial the prosecution examined as many as 31 witnesses in support of its case. At this juncture, two successive applications under Section 321 Cr. P.C. for withdrawal of prosecution were filed but they were rejected by the learned Magistrate on the ground stated in the orders dated 16- 12-2002 and 15-5-2003. Undaunted by such rejection, the state government asked the Assistant Public Prosecutor to move the court afresh for withdrawal of the case. The learned Assistant Public Prosecutor examined the matter and filed an application on 15-7-2003 seeking permission to withdraw the case on the following grounds: