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provisions of Section 482 Cr.P.C can be invoked in stead of filing of second revision petition, in case, there is apparent injustice. Thus, the facts of the present case do not warrant any interference under Section 482 Cr.P.C being a second revision under the garb of Section 482 Cr.P.C. If it was CRM No. M 37269 of 2010 11 permitted, then every petition facing the bar under Section 397(3) could be challenged under Section 482 Cr.P.C. Thus, the present petition is neither maintainable nor is there any merit in the same. Accordingly, the present petition is dismissed on both counts i.e. on the question of maintainability as well as on merits.

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CRMNo. M 37269 of 2010 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM No. M 37269 of 2010
Date of decision: 25.05.2011
Maghar Singh and another …….. Petitioners
Versus
State of Punjab and others …….Respondent(s)
Coram: Hon’ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. T S Sangha, Senior Advocate with
Mr. J S Lalli, Advocate
for the petitioners
-.-
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Nirmaljit Kaur, J.
This is a petition under Section 482 Cr.P.C for quashing of
order dated 11.08.2010 passed by the Additional Sessions Judge, Fast Track
Court, Mansa as well as the order dated 09.04.2009 passed by the Chief
Judicial Magistrate, Mansa arising out of the case FIR No. 124 dated
29.06.2002 under Sections 380, 381, 120-B IPC, Police Station City Mansa,
whereby, accused respondents No. 2 to 5 were discharged by allowing the
application of respondent No. 1 filed under Section 321 Cr.P.C.
CRM No. M 37269 of 2010 2
In the year 2002, a case was registered by the Police against the
accused respondents. Challan was filed and the charges were framed.
Thereafter, a Committee was constituted comprising of District Magistrate,
District Attorney and Senior Superintendent of Police to review criminal
cases pending before the Courts. The committee recommended withdrawal
of some cases including the present one. The Public Prosecutor moved an
application under Section 321 Cr.P.C for withdrawal of the case against the
accused respondents. The said application was allowed vide order dated
09.04.2009 (P4) passed by the Chief Judicial Magistrate, Mansa. Aggrieved
by the order dated 09.04.2009 of the learned Magistrate, criminal revision
was filed in the Court of Sessions at Mansa by Shri Bhajan Singh son of
Shri Baldev Singh Khiala in his capacity as Manager of the Khalsa High
School, Mansa. However, the Additional Sessions Judge (Ad hoc), Fast
Track Court, Mansa, vide order dated 11.08.2010 (P6), dismissed the
revision petition.
While challenging the aforesaid order dated 09.01.2009 (P4) of
the trial Court and order dated 11.08.2010 (P6) of the Appellate Court,
learned Senior Counsel appearing for the petitioners contended that the
Public Prosecutor has moved the application only at the behest of the
Committee. The Committee has no locus standi to order the withdrawal of
the cases and the recommendations were only on account of the political
reasons and the Public Prosecution has not applied his mind. It is further
stated that there is no public interest.
Heard.
Allegations in the FIR are that the said accused persons
CRM No. M 37269 of 2010 3
committed theft of the record of the School and the Managing Committee.
There is no dispute with the argument raised by the learned counsel for the
petitioners that it is a well settled proposition of law that the Court can
allow the withdrawal of the prosecution only if the said application is made
after independent consideration by a Public Prosecutor and in furtherance of
the public interest.
The case in hand has to be considered in the light of the above
guidelines laid down by the Apex Court in their various judgments.
Section 321 of Criminal Procedure Code, 1973 reads as under:-
321. Withdrawal from prosecution.
The Public Prosecutor or Assistant Public Prosecutor in
charge of a case may, with the consent of the Court at any
time before the judgment is pronounced, withdraw from the
prosecution of any person either generally or in respect of
any one or more of the offences for which he is tried; and
upon such withdrawal, —
(a) If it is made before a charge has been framed, the accused
shall be discharged in respect of such offence or offences;
(b) If it is made after a charge has been framed, or when
under this Code no charge is required he shall be acquitted in
respect of such offence or offences:
Provided that where such offence-
(i) Was against any law relating to a matter to which the
executive power of the Union extends, or
(ii) Was investigated by the Delhi Special Police
Establishment under the Delhi Special Police Establishment
Act, 1946 (25 of 1946), or
(iii) Involved the misappropriation or destruction of, or
damage to, any property belonging to the Central
Government, or
CRM No. M 37269 of 2010 4
(iv) Was committed by a person in the service of the Central
Government while acting or purporting to act in the
discharge of his official duty,
And the Prosecutor in charge of the case has not been
appointed by the Central Government he shall not, unless he
has been permitted by the Central Government to do so,
move the Court for its consent to withdraw from the
prosecution and the court shall, before according consent,
direct the Prosecutor to produce before it the permission
granted by the Central Government to withdraw from the
prosecution.”
In the case of Ghanshyam v. State of M.P. and others, reported
as 2006(4) RCR (Criminal) 653, Public Prosecutor made reference to the
Government Letter but independently came to the conclusion that it was in
the totality of the circumstances and in the interest of general public that he
deemed it proper and necessary that the prosecution should be withdrawn
from the Court. While upholding the withdrawal of prosecution, Hon’ble
the Supreme Court observed as under:-
“13. The discretion to withdraw from the prosecution is
that of the Public Prosecutor and none else, and so, he
cannot surrender that discretion to any one. The Public
Prosecutor may withdraw from the prosecution not merely
on the ground of paucity of evidence but on other relevant
factors as well in order to further the broad ends of justice,
public order, peace and tranquility. The High Court while
deciding the revision petition clearly observed that the
material already available on record was insufficient to
warrant conviction. The flow of facts and the possible
result thereof as noticed by the Public Prosecutor and
appreciated by the Courts below, constituted the public
CRM No. M 37269 of 2010 5
interest in the withdrawal of the said prosecution. The
High Court clearly came to the conclusion that the
application for withdrawal of the prosecution and grant of
consent were not based on extraneous considerations.”
In the case of “Vijay Kumar Baldev Mishra alias Sharma v.
State of Maharashtra reported as 2207(3) RCR (Criminal) 269, the Apex
Court relied on the judgment rendered in the case of Sheonandan Paswal
v. State of Bihar (1987)1 SCC 288, which stated that:-
“90. Section 321 CrPC is virtually a step by way of
composition of the offence by the State. The State is the
master of the litigation in criminal cases. It is useful to
remember that by the exercise of functions under Section
321, the accountability of the concerned person or persons
does not disappear. A private complaint can still be filed if a
party is aggrieved by the withdrawal of the prosecution but
running the possible risk of a suit of malicious prosecution if
the complaint is bereft of any basis.”
16. Noticing that no guidelines have been provided for in
the matter of grant or withdrawal of the consent by the
Court, the Constitution Bench referred to the ratio of its
earlier decision in State of Bihar vs. Ram Naresh Pandey
[1957 (1) SCR 279] wherein, it was held:
“His discretion in such matters has necessarily to be
exercised with reference to such material as is by then
available and it is not a prima facie judicial
determination of any specific issue. The Magistrate’s
functions in these matters are not only supplementary,
at a higher level, to those of the executive but are
intended to prevent abuse. Section 494 requiring the
consent of the court for withdrawal by the Public
Prosecutor is more in line with this scheme, than with
CRM No. M 37269 of 2010 6
the provisions of the Code relating to inquiries and
trials by court. It cannot be taken to place on the court
the responsibility for a prima facie determination of a
triable issue. For instance the discharge that results
therefrom need not always conform to the standard of
‘no prima facie case’ under Sections 209(1) and 253(1)
or of ‘groundlessness’ under Sections 209(2) and 253
(2). This is not to say that a consent is to be lightly
given on the application of the Public Prosecutor,
without a careful and proper scrutiny of the grounds
on which the application for consent is made.”
17. While refusing to grant permission, the Designated
Court, in our opinion, was not correct in expressing its
opinion in the merit of the matter and the effect of
confessions made in terms of the provisions of TADA. It
was, however, also not necessary to consider as to whether,
the action of the public prosecutor as also the State was bona
fide or not. Moreover, bona fide on the part of the public
prosecutor itself cannot automatically lead to grant of
consent. There are other circumstances also which are
required to be taken into consideration.
18. For the reasons aforementioned, the appeal is allowed.
The application filed by the State for withdrawal of the
charges under TADA against the appellant shall stand
allowed. The learned Designated Judge may now proceed
with the matter in accordance with law.”
T hus, the Apex C o urt held in no uncertain term that for the
discharge, there need not to always conform to the standard of ‘no prima
facie case’ under Sections 209(1) and 253(1) or of ‘groundlessness’ under
Sections 209(2) and 253(2).
Reference has also been made to the judgments rendered in the
CRM No. M 37269 of 2010 7
case of Sheonandan Paswal v. State of Bihar (1987)1 SCC 288 and Abdul
Karim v. State of Karnataka (supra) wherein it was consistently held that in
appeal against the consent, the Supreme Court would not assess the
evidence as to whether the case would have ended into conviction or
acquittal nor it would order re-trial.
From the above arguments and discussion, it is apparent that
there is no dispute with the proposition of law that the Public Prosecutor has
to arrive at an independent conclusion that the withdrawal from prosecution
is justified.
In the present case, there is no doubt that a Committee was
constituted consisting of District Magistrate, District Attorney and Senior
Superintendent of Police to review criminal cases pending before the Courts
and one of the cases recommended for withdrawal was the present case.
The said recommendations were forwarded by the Committed to the
Government to recommend the withdrawal of the cases in public interest.
However, the said application under Section 321 Cr.P.C was moved by the
Public Prosecutor in accordance with law. The relevant portion of said
application, besides making reference of the Review Committee and
Government, reads as under:-
“6. That there is paucity of evidence and the
case cannot be successfully tried. Two of the
accused are not named in the FIR nor any recovery
have been effected from accused Dalip Singh.
Even the provisions of Punjab Aided School
(Security of Service Act, 1969) as amended by the
Adoption of Punjab Laws Order 1970 are not
complied with.
CRM No. M 37269 of 2010 8
7. That the dispute mainly pertains to the
Management of an educational institution and the
dispute if allowed to continue would difficult,
hamper imparting of good education to the
students and they will suffer an irreparable loss
and would not be able to compete with the
growing society.
8. That I have applied my mind independently
to the file and have independently come to this
conclusion. That this is fit case to be withdrawn to
the prosecution in the public interest due to the
paucity of evidence and in order to bring peace,
tranquility and harmony between the parties and
further betterment of the institution which imparts
the education of the students.”
Thus, a reading of the application shows that the Public
Prosecution applied his mind independently before moving the Court an
application for withdrawal of the criminal proceedings, as he has
specifically stated in the application that it was in ‘public interest’ and that ‘I
have applied my mind independently’ to the facts and evidence collected on
the file and has arrived at conclusion independently. It is further stated in
the application that it is in the public interest as well as on account of lack of
evidence as also to bring about peace, tranquility and harmony between the
parties that criminal proceedings were being withdrawn
Thus, the Public Prosecutor has applied his mind to the issue
independently and has considered the evidence on the file and facts
mentioned therein. As such, the said application is in accordance with law.
While allowing the application, the Chief Judicial Magistrate, Mansa found
CRM No. M 37269 of 2010 9
that the withdrawal of the prosecution was not based upon any extraneous
consideration and that it was in the interest of justice to allow the
prosecution to withdraw the case. Therefore, the consent granted by the
Court to the Public Prosecutor to withdraw from the prosecution against the
accused was keeping in view the judgment rendered by the Apex Court in
the case of Ghanshyam (supra) as well as Rahul Agarwal v. Rakesh Jain
reported as 2005 (1) RCR (Criminal) 700, wherein, it was held that the
Court may allow the withdrawal only in following circumstances:-
1) If it would advance cause of justice and if case is
likely to end in acquittal and was causing
harassment to accused.
2) If the withdrawal of prosecution is likely to bury
the dispute and bring about harmony between the
parties.
Even otherwise, the present petition has been moved under
Section 482 Cr.P.C. Second revision petition is not maintainable. The
second revision before the High Court under the garb of invoking inherent
power under Section 482 Cr.P.C. cannot be permitted as held by the Apex
Court in the case of Dharampal v. Ramshri reported as 1993(1) RCR
(Criminal) 696 as well as in Rajan Kumar Manchanda v. state of
Karnataka reported as 1988(2) RCR (Criminal) 662. The Apex Court in
the case of Dharam Pal (supra) held as under:-
“6. There is no doubt that the learned Magistrate
had committed an error in passing the subsequent
orders of attachment when the first attachment was
never finally vacated and had revived the moment the
revision application filed against it was dismissed by
CRM No. M 37269 of 2010 10
the learned Sessions Judge. It appears that none of the
parties including the Sessions Judge realised this
error on the part of the Magistrate. The learned
Sessions Judge had also committed a patent mistake in
entertaining revision application against the fresh orders
of attachment and granting interim stays when he had
dismissed revision application against the order of
attachment earlier. Let that be as it is. The question that
falls for our consideration now is whether the High
Court could have utilised the powers under Section 482
of the Code and entertained a second revision
application at the instance of the 1st respondent.
Admittedly the 1st respondent had preferred a Criminal
Application being Cr.R. No. 180/78 to the Sessions
Court against the order passed by the Magistrate on
17th October, 1978 withdrawing the attachment.
The Sessions Judge had dismissed the said application
on 14th May, 1979. Section 397 (3) bars a second
revision application by the same party. It is now well
settled that the inherent powers under Section 482 of the
Code cannot be utilised for exercising powers which are
expressly barred by the Code. Hence the High Court
had clearly erred in entertaining the second revision at
the instance of 1st respondent. On this short ground
itself, the impugned order of the High Court can be set
aside.”
However, it is also a well settled principle of law that
provisions of Section 482 Cr.P.C can be invoked in stead of filing of second
revision petition, in case, there is apparent injustice. Thus, the facts of the
present case do not warrant any interference under Section 482 Cr.P.C
being a second revision under the garb of Section 482 Cr.P.C. If it was
CRM No. M 37269 of 2010 11
permitted, then every petition facing the bar under Section 397(3) could be
challenged under Section 482 Cr.P.C.
Thus, the present petition is neither maintainable nor is there
any merit in the same.
Accordingly, the present petition is dismissed on both counts
i.e. on the question of maintainability as well as on merits.
(Nirmaljit Kaur)
Judge
25.05.2011
mohan

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