Criminal Application No.1561 of 2000

22nd August, 2005

Petitioner Counsel: Mr. R. P. JOSHI
Respondent Counsel: Mr. SUDHIR LONEY,Mr. A. C. DHARMADHIKARI,Mr. N. RODE

Cases Cited:
Abdul Karim Vs. State of Karnataka, AIR 2001 SC 116 [Para 5]
Sheo Nandan Paswan Vs. State of Bihar, AIR 1987 SC 877 [Para 5,6]

JUDGMENT

JUDGMENT :- This is an application by a Journalist under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, praying for quashing and setting aside the order passed by Judicial Magistrate First Class, Chandur Bazar in Criminal Case No.1052/1999, on 3rd April, 2000 permitting withdrawal of the prosecution and dismissing the case for want of prosecution.

2. On 5th July, 1998 Nitin Kashinath Patil, Sub-Divisional Magistrate, Achalpur, on the direction of District Magistrate, Amravati, was on his way to village Asadpur by a Government jeep in connection with the threat of one Nitnaware for self immolation. The Sub-Divisional Magistrate was accompanied by Tahsildar, Naib Tahsildar and Block Development Officer of Achalpur. Since it was a holiday, official driver of the Government jeep was on leave. Hence, the Sub Divisional Magistrate was himself driving the jeep. It seems that, the jeep met with an accident and overturned. The inmates of the jeep sustained injuries. The Sub-Divisional Magistrate immediately informed about the said accident to Police Station, Asegaon. Station Diary entry was taken in respect of the report. Spot Panchanama was also prepared. Thereafter, statements of some witnesses were recorded. Crime No.96 of 98 under Sections 279, 337 and 427 of the Indian Penal Code came to be registered against the Sub-Divisional Magistrate on 15th July, 1998 on the report of Head Constable. After investigation, charge-sheet was filed before Judicial Magistrate, First Class, Chandur Bazar on 27th October, 1999.

3. It appears that, in the meantime, some correspondence was initiated by the District Magistrate, not only with the Superintendent of Police but also with the Director General of Police and the Additional Chief Secretary (Home Department). The tenor of the communication made by the District Magistrate to the Superintendent of Police and other Authorities is that the Sub-Divisional Magistrate had been framed in false prosecution and the Superintendent of Police was undermining the authority of the District Magistrate. It seems that after hectic correspondence, the Government wrote a letter to the District Magistrate, Amravati on 25th February, 2000 asking him to move the Public Prosecutor for withdrawing from the prosecution. The District Magistrate wrote to the District Government pleader some time in March, 2000.

4. On 3rd April, 2000 the Assistant Government Pleader moved an application under Section 321 of the Code of Criminal Procedure for withdrawal of Criminal Case No.1052/2000, on the ground that the Government of Maharashtra is not desirous to proceed with crime No.96/98 under Section 279 of the Indian Penal Code and it has been resolved to withdraw the proceeding. On the same day, the Incharge Magistrate of Achalpur passed an order granting permission as prayed for by the Assistant Government Pleader. Accordingly, the case was dismissed for want of prosecution, the accused was discharged and his bail bonds were cancelled. The applicant has challenged the said order by this application.

5. Shri. R. P. Joshi, the learned counsel for applicant, vehemently urged that the correspondence made by the District Magistrate with various Authorities, clearly reveals that the District Magistrate moved the Government for withdrawing the prosecution, which was not in good faith and was not in the public interest. Shri. Joshi further submitted that the application moved by the Assistant Government Pleader would show that he did not apply his mind independently and so is the case with the order passed by learned Magistrate giving consent to withdraw from the prosecution. In this respect, Shri. R. P. Joshi relied on the observations in Abdul Karim etc. etc. Vs. State of Karnataka and others etc. etc., AIR 2001 Supreme Court 116, particularly para 18 to 21, where, after considering Sheo Nandan Paswan and others Vs. State of Bihar, AIR 1987 SC 877, certain directions have been given by the apex Court. The Court observed as under,

"It is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material, that he Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice."

Shri. Joshi, submitted that the above directions have not been followed in the present case. As such, the impugned order passed by the learned Magistrate cannot be sustained and needs to be quashed and set aside.

6. Shri. Sudhir Loney, the learned A.P.P., on the other hand, placing his reliance on the same case of Sheo Nandan Paswan Vs. State of Bihar and others, AIR 1987 SC 877, submitted that Sheonandan's case was decided by five Judge's Bench of the Supreme Court by majority. Shri. Loney placed his reliance particularly, on para No.70, 71 and 72, wherein, it is observed as under :

"The section given no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially...

the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes."

It has further been observed by the apex Court that,

"The section should not be construed to mean that the Court has to give a detailed reasoned order when it given consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the materials available, the order giving consent has necessarily to be upheld."

It further concluded that,

"All that is necessary to satisfy the section is to see that the public prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the public prosecutor is proper."

7. If we apply these principles to the facts of the present case, it would be seen that there was, no doubt, some grave misunderstanding between the District Magistrate and the Superintendent of Police, but there appears no lack of good faith so far as the Additional Government Pleader to move an application for withdrawal from the prosecution is concerned. It may further be seen that the Sub Divisional Magistrate promptly reported the matter to the Police Station concerned and did not hide the fact of accident, injuries to the inmates and damages to the Government vehicle namely jeep. What transpires between the District Magistrate and the Superintendent of Police, should not affect the decision taken by the Additional Government Pleader to withdraw from the prosecution and the order granting consent to the withdrawal by the learned Magistrate. From the facts of the case, I am fully satisfied that there was no lack of good faith on the part of Additional Government Pleader nor the public interest were at the sake in any manner in the said prosecution.

8. From the correspondence between the District Magistrate and Superintendent of Police, as stated earlier, the District Magistrate was of the view that he was empowered under the provisions of Bombay Police Act even to supervise the investigation and to give necessary directions to the police Authorities including Superintendent of Police and in that anxiety, he went on writing letters to various Authorities. In fact, it is the province of the Police Authorities to conduct investigation and either to file charge-sheet or to pray for summary, depending on the result of the investigation. No executive like District Magistrate is concerned with the investigation of a crime. It seems that the District Magistrate was affected because the investigation papers were not shown to him for perusal by the Superintendent of Police and even the charge-sheet was filed against the Sub-Divisional Magistrate who is subordinate to the District Magistrate. But all these considerations should not be weighed while deciding whether to grant or to refuse consent for withdrawal of the prosecution. In this view of the matter, it can be said that the learned Magistrate passed proper order, granting consent to withdraw from the prosecution. In the above background, inherent powers of this Court under Section 482 of the Code of Criminal Procedure are not required to be invoked. In the result, I find that there is no merit in the present application and it deserves to be dismissed. Hence, the order.

O R D E R

The Criminal Application is dismissed.

Rule is discharged.

No order as to costs.

Application dismissed.