ABDUL WAHAB K. versus STATE OF KERALA AND OTHERS on 13 September 2018

[2018] 11 S.C.R. 155

ABDUL WAHAB K.

v.

STATE OF KERALA AND OTHERS

(Criminal Appeal No. 1047 of 2018)

SEPTEMBER 13, 2018

[DIPAK MISRA, CJI, AND DR. D.Y. CHANDRACHUD, J.]

Code of Criminal Procedure, 1973:

s. 321 – Withdrawal of prosecution – Prosecution u/ss. 195Aand 506 IPC – Application by Public Prosecutor for withdrawal ofthe same – Allowed by Chief Judicial Magistrate – Revision Petition– High Court dismissed the petition on the ground that the petitionersbeing third party had no locus to file the same – On appeal, held:Chief Judicial Magistrate passed the order not within the parametersof s. 321 – Petitioners could not have been treated as strangers,and the petition was of serious nature – High Court should haveapplied its mind with regard to the correctness of the order – Matterremitted to Chief Judicial Magistrate to consider the withdrawalapplication in accordance with law.

s. 321 – Withdrawal of prosecution – Limit of – PublicProsecutor has authority to withdraw the prosecution – Such powercan be exercised at any time before the judgment is pronounced.

Public Prosecutor:

Role of Public Prosecutor – Held: Public Prosecutor isexpected to act with responsibility – They are not supposed to betotally guided by the instructions of Government – They are requiredto assist the Court.

Allowing the appeal, the Court

HELD: 1. Section 321 Cr.P.C. confers authority on the PublicProsecutor to withdraw from the prosecution of any personaccused of an offence, both when no evidence is taken and evenif the entire evidence has been taken. The outer limit forexercising the said power is guided by the expression “at anytime before the judgment is pronounced”. [Para 7][161-C; 162-A-B]

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A2. In the present case, the Chief Judicial Magistrate hasdwelt upon the merits and expressed an opinion that the case isnot likely to end in conviction. It is clearly manifest that the PublicProsecutor had not applied his mind but had only placed theGovernment notification on record. The High Court has unsuitedthe petitioners on the ground that they are third parties who areBunconnected with the case. They had filed revisions and the HighCourt has been conferred power to entertain the revisions andrectify the errors which are apparent or totally uncalled for. Thisis the power of superintendence of the High Court. Thus viewed,the petitioners could not have been treated as strangers, for theyChad brought it to the notice of the High Court and hence, it shouldhave applied its mind with regard to the correctness of the order.The revision petitions filed before the High Court were notfrivolous ones. They were of serious nature. It is a case wherethe Public Prosecutor had acted like a post office and the ChiefJudicial Magistrate has passed an order not within the parametersDof Section 321 CrPC. He should have applied the real teststipulated under Section 321 CrPC and the precedents. [Para12][164-G-H; 165-A-D]

3. There are frivolous litigations but that does not meanthat there are no innocent sufferers who eagerly wait for justiceEto be done. That apart, certain criminal offences destroy thesocial fabric. Every citizen gets involved in a way to respond toit; and that is why the power is conferred on the Public Prosecutorand the real duty is cast on him/her. He/she has to act withresponsibility. He/she is not to be totally guided by theFinstructions of the Government but is required to assist theCourt; and the Court is duty bound to see the precedents andpass appropriate orders. [Para 13][165-D-E]

4. The order of the High Court and that of the Chief JudicialMagistrate are set aside and the matter is remitted to the file ofGthe Chief Judicial Magistrate to reconsider the application inaccordance with law. [Para 14][165-F]

Sheo Nandan Paswan v. State of Bihar AIR 1987 SC877 : [1987] 1 SCR 702 – followed.

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Bansi Lal v. Chandan Lal (1976) 1 SCC 421; BalwantSingh v. State of Bihar (1977) 4 SCC 448 : [1978] 1 SCR 635; Subhash Chander v. State (ChandigarhAdmn.) (1980) 2 SCC 155 : [1980] 2 SCR 44; RajenderKumar Jain v. State (1980) 3 SCC 435 : [1980] 3 SCR982; State of Bihar v. Ram Naresh Pandey AIR 1957SC 389 : [1957] SCR 279; Rahul Agarwal v. RakeshJain (2005) 2 SCC 377 : [2005] 1 SCR 521; BairamMuralidhar v. State of A.P (2014) 10 SCC 380 : [2014]8 SCR 328; V.L.S. Finance Limited v. S.P. Gupta andanother (2016) 3 SCC 736 : [2016] 1 SCR 623 – reliedon.

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Peoples Union for Civil Liberties (Delhi) v. CentralBureau of Investigation and others 1997 Cr.L.J 3242;Rajender Kumar Jain v. State of Bihar AIR 1980 SC1510 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal no.1047 of 2018.

From the Judgment and Order dated 01.07.2013 of the High Courtof Kerala at Ernakulam in Criminal Revision No. 2021 of 2012.

ARaghenth Basant, Mithun Verghis, Ms. Namita Wali, SenthilJagadeesan, C. K. Sasi, Ms. Nayantara Roy, Mushtaq Salim, UsmanGhani Khan, Dev Prakash, Radha Shyam Jena, Advs. for the appearingparties.

The Judgment of the Court was delivered byB[[th]]

DIPAK MISRA, CJI 1. The 4[[th]] respondent faced a criminalproceeding for offences punishable under Sections 195A and 506 ofIndian Penal Code. During the pendency of the criminal case, a petitionwas filed by the Public Prosecutor to withdraw from the prosecution.The learned Chief Judicial Magistrate vide order dated 04.01.2012Callowed the application and permitted the Public Prosecutor to withdrawfrom the prosecution.

2. The said order was assailed by the appellant herein, in CriminalRevision Petition Nos.2020 and 2021 of 2012. It was contended beforethe High Court that the learned Chief Judicial Magistrate totally ignoringDthe controversy involved in the case has passed the impugned order andthat apart, he has not remained alive to the exercise of jurisdiction underSection 321 of the Code of Criminal Procedure (for short, ‘the CrPC’).The Court referred to the decisions in Sheo Nandan Paswan v. Stateof Bihar[1], Peoples Union for Civil Liberties (Delhi) v. Central Bureauof Investigation and others[2], State of Kerala v. Vijayakumar[3]andERajender Kumar Jain v. State of Bihar[4] and came to hold that theconsent to withdraw from the prosecution would jeopardize the publicinterest and public policy. The Division Bench further opined that acriminal proceeding is not a proceeding for vindication of a privategrievance but it is a proceeding initiated for the purpose of punishmentFto the offender in the interest of the society. The objective beingmaintenance of stability and orderliness in the society, private interestwill not come into picture. The punishment of the offender in the interestof the society is one of the objects behind the penal statute enacted forthe larger good of the society. After so holding, the High Court held thatthe consent of the court is a pivotal factor under Section 321 CrPC. ItGindicates that the entire process is the result of a complaint and varietyof considerations such as gravity of the crime, the effect of withdrawal 1 AIR 1987 SC 877 2 1997 Cr.L.J 3242

3 Crl.R.P. No. 3543 of 2008

4 AIR 1980 SC 1510H

from prosecution and the public confidence in the entire system. Thepublic interest and the public policy are dominant features as the objectivitydisplayed by the prosecution in making such application has serious impacton the society. Though the nature of the offence cannot be a validground for rejecting the application for withdrawal from prosecution, yetit is the duty of the court to appreciate all the grounds which promptedthe prosecution to seek withdrawal from the case. A holistic approachis required rather than adherence to a particular reason. The applicationfor withdrawal expresses the independent mind of the Public Prosecutor.The broad perspective is that public justice underlines the entire philosophycontemplated under Section 321 CrPC. The action of the PublicProsecutor in applying the mind is not only to expose its just nature butthere must also be reasonableness, as the prosecutor has to keep inmind the interest of the society against which the wrong is alleged tohave been committed.

3. After observing as aforesaid, the Division Bench of the HighCourt dealt with the principles stated in Sheo Nandan Paswan (supra)in detail, addressed to the grievance put forth in the FIR, the chargesmade against the accused persons and came to hold:- “In the above case neither an offence under Section 195 nor anoffence under Section 506 IPC is made out. If the material onrecord upon which the prosecution was based reveals that nopurpose would served even if the trial commenced in the rightdirection, such prosecution could be allowed to withdraw providedno other ulterior motive is pointed out. As a matter of fact, in theprocess of administration of criminal justice it is said; withdrawingfrom prosecution can also be treated as to sub serve administrationof justice. The decision of the prosecutor not to prosecutre theoffenders or not to proceed further with the prosecution alreadylaunched, is a decision after thorough examination of materialleading to such responsible decision. The court has to see whetherapplication is made in good faith in the interest of public policyand justice while doing the exercise it has to see it would lead tomanifestation of injustice by granting such consent. Once courtconcludes that the application is properly made and there isindependent consideration of the matter by the public prosecutorand he has acted in good faith in exercising discretion vested onhim, the court should allow from such withdrawal.”

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AAnd again:-

“Neither complainant nor charge sheet witness has any locus standiin the exercise of discretion of the Public Prosecutor to withdrawfrom the prosecution. If a citizen who has some concern deeperthan that of a busybody, the door of the court will be kept ajarBfrom him. He cannot be turned away at the gates. If the issueraised by him is justifiable, may still remain to be considered.However if it is merely a question to be gone into and examined incriminal case, registered against accused persons, it is for themand they alone to raise such questions and challenge theproceedings initiated against them at the appropriate time beforeCthe proper forum and not for third parties under the grab of publicinterest litigant. A person who is acting bonafide and havingsufficient interest in the proceedings alone can initiate PublicInterest Litigation and that the Court must not allow its process tobe abused for oblique consideration. Criminal law should not beDallowed to be used as a weapon of vendetta between privateindividuals.”

Disposing of the revision petitions, the High Court furtherproceeded to state:-

Disposing of the revision petitions, the High Court furtherproceeded to state:- “The petitioners are not de facto complainants, they are only thirdEparties. In both the petitions, petitioners have nothing to do withthe complaint, as the complaint is not a private complaint. Whende facto ocomplainant is not questioning, how a third party canquestion and what is their interest in not forthcoming. From readingof the entire material as stated above, it is crystal clear that thereFwas justification on the part of the court below in permitting theprosecutor to withdraw from the prosecution and so far as therevision petitioners, they are totally strangers to the litigation andhave no locus standi to question the same.”

4. Being of this view, the High Court dismissed the petitions.G5. We have heard Mr. Raghneth Basant, learned counsel for the

5. We have heard Mr. Raghneth Basant, learned counsel for theappellant, Mr. C.K. Sasi, learned counsel for the respondent Nos. 1 to 3and Mr. Radha Shyam Jena, learned counsel for the respondent No. 4.

6. To appreciate the controversy, it is necessary to advert to theorder passed by the learned Chief Judicial Magistrate. He has referred H

to the application filed by the Deputy Director of Prosecution wherefromit is manifest that the Government had no objection in withdrawing thecase and the decision of the Government has been filed along with theapplication. The trial court has observed that it has gone through thepetition and is satisfied that the grounds stated therein are sufficient forgiving consent to withdraw the case. He has further opined on analyzingmaterials that there is no possibility of success in the criminal case and,therefore, the withdrawal from prosecution is necessary for the betteradvancement of public justice.

7. Section 321 of the CrPC reads as follows:- “321. Withdrawal from prosecution. The Public Prosecutor orAssistant Public Prosecutor in charge of a case may, with theconsent of the Court, at any time before the judgment is pronounced,withdraw from the prosecution of any person either generally orin respect of any one or more of the offences for which he istried; and, upon such withdrawal,- (a) if it is made before a charge has been framed, the accusedshall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when underthis Code no charge is required, he shall be acquitted in respect ofsuch offence or offences: Provided that where such offence-

(i) was against any law relating to a matter to which the executivepower of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishmentunder the Delhi Special Police Establishment Act, 1946 (25 of1946 ), or

(iii) involved the misappropriation or destruction of, or damage to,any property belonging to the Central Government, or

(iv) was committed by a person in the service of the CentralGovernment while acting or purporting to act in the discharge ofhis official duty, and the Prosecutor in charge of the case hag hotbeen appointed by the Central Government, he shall not, unlesshe has been permitted by the Central Government to do so, movethe Court for its consent to withdraw from the prosecution andthe Court shall, before according consent, direct the Prosecutor A

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Ato produce before it the permission granted by the CentralGovernment to withdraw from the prosecution.”

The said provision confers authority on the Public Prosecutor towithdraw from the prosecution of any person accused of an offence,both when no evidence is taken and even if the entire evidence has beenBtaken. The outer limit for exercising the said power is guided by theexpression “at any time before the judgment is pronounced”.

8. The Constitution Bench in Sheo Nandan Paswan (supra), afterreferring to Bansi Lal v. Chandan Lal [5], Balwant Singh v. State ofBihar[6], Subhash Chander v. State (Chandigarh Admn.)[7], RajenderCKumar Jain v. State[8] and the principles stated in State of Bihar v.Ram Naresh Pandey[9], came to hold thus:-

“99. All the above decisions have followed the reasoning of RamNaresh Pandey case and the principles settled in that decisionwere not doubted.

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100. It is in the light of these decisions that the case on hand hasto be considered. I find that the application for withdrawal by thePublic Prosecutor has been made in good faith after carefulconsideration of the materials placed before him and the order ofconsent given by the Magistrate was also after due considerationEof various details, as indicated above. It would be improper forthis Court, keeping in view the scheme of Section 321, to embarkupon a detailed enquiry into the facts and evidence of the case orto direct retrial for that would be destructive of the object andintent of the section.”

9. In Rahul Agarwal v. Rakesh Jain[10], the Court while dealingFwith the application under Section 321 CrPC, referred to certain decisionswhere the earlier decision of the Constitution Bench in SheonandanPaswan (supra) has been referred and held:- “10. From these decisions as well as other decisions on the samequestion, the law is very clear that the withdrawal of prosecutionG

5 (1976) 1 SCC 421 6 (1977) 4 SCC 448 7 (1980) 2 SCC 155 8 (1980) 3 SCC 435

9 AIR 1957 SC 389H 10 (2005) 2 SCC 377

can be allowed only in the interest of justice. Even if theGovernment directs the Public Prosecutor to withdraw theprosecution and an application is filed to that effect, the courtmust consider all relevant circumstances and find out whetherthe withdrawal of prosecution would advance the cause of justice.If the case is likely to end in an acquittal and the continuance ofthe case is only causing severe harassment to the accused, thecourt may permit withdrawal of the prosecution. If the withdrawalof prosecution is likely to bury the dispute and bring about harmonybetween the parties and it would be in the best interest of justice,the court may allow the withdrawal of prosecution. The discretionunder Section 321 of the Code of Criminal Procedure is to becarefully exercised by the court having due regard to all therelevant facts and shall not be exercised to stifle the prosecutionwhich is being done at the instance of the aggrieved parties or theState for redressing their grievance. Every crime is an offenceagainst the society and if the accused committed an offence, societydemands that he should be punished. Punishing the person whoperpetrated the crime is an essential requirement for themaintenance of law and order and peace in the society. Therefore,the withdrawal of the prosecution shall be permitted only whenvalid reasons are made out for the same.”

10. In Bairam Muralidhar v. State of A.P[11], while appreciatingthe said provision, it has been laid down that:- “18. … it is the obligation of the Public Prosecutor to state whatmaterial he has considered. It has to be set out in brief. The courtas has been held in Abdul Karim case, is required to give aninformed consent. It is obligatory on the part of the court to satisfyitself that from the material it can reasonably be held that thewithdrawal of the prosecution would serve the public interest. Itis not within the domain of the court to weigh the material.However, it is necessary on the part of the court to see whetherthe grant of consent would thwart or stifle the course of law orcause manifest injustice. A court while giving consent under Section321 of the Code is required to exercise its judicial discretion, andjudicial discretion, as settled in law, is not to be exercised in amechanical manner. The court cannot give such consent on a ABC

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Amere asking. It is expected of the court to consider the materialon record to see that the application had been filed in good faithand it is in the interest of public interest and justice. Another aspectthe court is obliged to see is whether such withdrawal wouldadvance the cause of justice. It requires exercise of careful andconcerned discretion because certain crimes are against the StateBand the society as a collective demands justice to be done. Thatmaintains the law and order situation in the society. The PublicProsecutor cannot act like the post office on behalf of the StateGovernment. He is required to act in good faith, peruse thematerials on record and form an independent opinion that theCwithdrawal of the case would really subserve the public interestat large. An order of the Government on the Public Prosecutor inthis regard is not binding. He cannot remain oblivious to his lawfulobligations under the Code. He is required to constantly rememberhis duty to the court as well as his duty to the collective.”DFrom the aforesaid authorities, it is clear as crystal that the PublicProsecutor or an Assistant Public Prosecutor, as the case may be, hasan important role under the statutory scheme and is expected to act asan independent person. He/she has to apply his/her own mind andconsider the effect of withdrawal on the society in the event suchpermission is granted.E11. In V.L.S. Finance Limited v. S.P. Gupta and another[12], atwo-Judge Bench, after analyzing the law in detail, has ruled :- “42. We have enumerated the principles pertaining to thejurisdiction of the Court while dealing with an application preferredFunder Section 321 CrPC and also highlighted the role of the PublicProsecutor who is required to act in good faith, peruse the materialson record and form an independent opinion that the withdrawalfrom the prosecution would really subserve the public interest atlarge. The authorities referred to hereinabove clearly spell outthat the Public Prosecutor is not supposed to act as a post officeGand he is expected to remember his duty to the Court as well ashis duty to the collective.”

12. In the case at hand, as is evincible, the learned Chief JudicialMagistrate has dwelt upon the merits and expressed an opinion that the 12 (2016) 3 SCC 736H

case is not likely to end in conviction. It is clearly manifest that thePublic Prosecutor had not applied his mind but had only placed theGovernment notification on record. The High Court has unsuited thepetitioners on the ground that they are third parties who are unconnectedwith the case. They had filed revisions and the High Court has beenconferred power to entertain the revisions and rectify the errors whichare apparent or totally uncalled for. This is the power of superintendenceof the High Court. Thus viewed, the petitioners could not have beentreated as strangers, for they had brought it to the notice of the HighCourt and hence, it should have applied its mind with regard to thecorrectness of the order. It may be said with certitude that the revisionpetitions filed before the High Court were not frivolous ones. Theywere of serious nature. It is a case where the Public Prosecutor hadacted like a post office and the learned Chief Judicial Magistrate haspassed an order not within the parameters of Section 321 CrPC. Heshould have applied the real test stipulated under Section 321 CrPC andthe decisions of this Court but that has not been done.

13. We are compelled to recapitulate that there are frivolouslitigations but that does not mean that there are no innocent suffererswho eagerly wait for justice to be done. That apart, certain criminaloffences destroy the social fabric. Every citizen gets involved in a wayto respond to it; and that is why the power is conferred on the PublicProsecutor and the real duty is cast on him/her. He/she has to act withresponsibility. He/she is not to be totally guided by the instructions of theGovernment but is required to assist the Court; and the Court is dutybound to see the precedents and pass appropriate orders.

14. In the case at hand, as the aforestated exercise has not beendone, we are compelled to set aside the order passed by the High Courtand that of the learned Chief Judicial Magistrate and remit the matter tothe file of the Chief Judicial Magistrate to reconsider the application inaccordance with law and we so direct.

15. The appeal is, accordingly, allowed.

Kalpana K. Tripathy

Appeal allowed.

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