M/S. V.L.S. FINANCE LTD. Vs. S.P. GUPTA AND ANR
Section 420 - Cheating and dishonestly inducing delivery of property
Section 120 B - Punishment of criminal conspiracy
Section 406 - Punishment for criminal breach of trust
Section 467 - Forgery of valuable security, will, etc
Section 471 - Using as genuine a forged document
Section 477 A - Falsification of accounts
Section 409 - Criminal breach of trust by public servant, or by banker, merchant or agent
Section 468 - Forgery for purpose of cheating
Section 424 - Dishonest or fraudulent removal or concealment of property
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 99 of 2016, Judgment Date: Feb 05, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 99 OF 2016
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 801 OF 2016)
(@ CRIMINAL M.P. NO. 16992 OF 2015)
M/s V.L.S. FINANCE LTD. ... Appellant(s)
Versus
S.P. GUPTA AND ANR. … Respondent(s)
With
CRIMINAL APPEAL NO.100 OF 2016
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 803 OF 2016)
(@ CRIMINAL M.P. NO. 18947 OF 2015)
CRIMINAL APPEAL NO.101 OF 2016
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 804 OF 2016)
(@ CRIMINAL M.P. NO. 19028 OF 2015)
CRIMINAL APPEAL NOS.102-104 OF 2016
(@ SPECIAL LEAVE PETITION (CRIMINAL) NOS. 805-807 OF 2016)
(@ CRIMINAL M.P. NOS. 580-582 OF 2016)
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The obtaining factual matrix encompasses a scenario which covers
quite a span of time, and the chronology of events projects horrendous
picture, as Mr. Dushyant A. Dave and Ms. Indu Malhotra, learned senior
counsel would submit with stirred vehemence and expressive concern on the
formulation that exploitation of legal system, seemingly looking innocent,
has, in fact, cultivated the path of deviation that has led to pathetic
miscarriage of justice, for there has been real abuse of the process of law
at every stage. Learned counsel for the appellants put the blame on the
respondents, as they have visited the superior courts on many an occasion
seeking intervention possibly harbouring the idea that it is a routine
exercise. In such an exploration, they have not felt any desperation
despite being unsuccessful, for the desire was not mitigation of the
grievance but consumption of time which, by itself, is beneficial because
the consequences of the litigation has been deferred. However, the last
visit to the High Court has yielded some benefit which has pained the
appellants to severely criticize the order impugned on many a ground apart
from the submission that cause of justice has been vexed, for in such a
situation besides the prosecution and the accused, there is a third party,
the victim of the crime, who eagerly waits for the progress of the case, as
mandated in law. The said stalling has impelled the informant to prefer
appeals by special leave.
3. Presently to the facts. In the present case, the facts fresco a
labyrinthine that has the potentiality to divert the mind. Hence, it is
imperative to exposit facts after due filtration. The appellant set the
criminal law in motion by filing an FIR No. 90 of 2000 at Police Station
Connaught Place which came to be registered under Sections 406, 409, 420,
424, 467, 468, 471, 477-A and 120B of the Indian Penal Code (IPC). After
the investigation by the Economic Offences Wing, Crime Branch, Delhi
Police, a charge-sheet was filed on 18.01.2003. One of the charges levelled
against the accused persons pertained to the fraudulent transactions of
certain amount of money. Learned Magistrate vide order dated 18.01.2003,
appreciating the material on record, took cognizance of the offences in
question and summoned the accused persons fixing the date of appearance on
04.09.2003. The order of issuing summons was assailed before the High Court
of Delhi in Crl.M.C. No. 911 of 2003 along with the prayer for quashment of
the FIR and an order came to be passed on 04.03.2003. As the factual score
would reveal, the matter was pending before the High Court of Delhi and it
carried on for days and, as alleged, an effort was made to derail the
proceedings by filing an application for recusal of the learned Judge who
had substantially heard the matter. The said application came to be
dismissed and the order of dismissal was called in question before this
Court in a special leave petition with no success. Thereafter, the accused
persons challenged the order of summoning before the trial court which was
not entertained as is evident from the order dated 27.04.2010. The said
order was attacked in Crl.M.C. No. 2040 of 2010 which came to be dismissed
on 04.06.2010. In the said case, the learned single Judge had taken note
of the earlier cases being Criminal M.C. Nos. 911 of 2003, 1992 of 2006,
2142 of 2007, 2229 of 2007, 1988 of 2008 and 64 of 2006 and Writ Petition
(Criminal) Nos. 498 of 2005, 208 of 2006, 1191 of 2006 and 1210 of 2006
challenging the summoning order which remained pending before the High
Court till 04.03.2010. On 04.03.2010 the High Court noted that the learned
counsel for the petitioners therein did not want the matter to be disposed
of on merits and sought liberty to raise all the points which have been
raised before this Court in the trial Court at an appropriate stage/at the
stage of hearing arguments on charge. After so noting, the High Court
observed that:-
“Taking all these facts into consideration including the factum of pendency
of the case for a period of more than five years and taking into
consideration that ultimately it is for the trial Court to decide as to
whether a charge is to be framed or not in the aforesaid case against the
petitioner and to further decide whether the case should proceed or not in
view of some of the objections raised on behalf of the petitioner about the
propriety of issuance of summoning order etc., it would be appropriate to
grant liberty to the petitioners to raise all the issues which have been
raised in this petition before this Court at the appropriate stage/stage of
framing of charge before the concerned Court.”
4. As is evident, the learned single Judge had opined that the
petitioners gave up their right to challenge the summoning order in the
said petition with liberty to raise all points and issues at any
appropriate stage/at the stage of hearing arguments on charge. When the
issue was raised before the learned Magistrate, he held that it was not
possible to accept the contention of the petitioner that appropriate stage
meant that the trial court had to re-examine the
summoning order itself. The words “at an appropriate stage” was
interpreted to mean the stage as permitted and allowed as per law and as
per the earlier decision, for it was not the intention of the Court and
that apart no liberty was given to the petitioner to challenge the
summoning order before the trial court. The learned Magistrate referred to
the decision in Adalat Prasad v. Rooplal Jindal & others[1] to arrive at
the conclusion that he does not have the authority to recall the summoning
order. The said order was assailed before the High Court and while
rejecting the plea of the learned counsel for the petitioner, the High
Court noticed that the summoning order was earlier challenged in petitions
which had remained pending from 2003/2006/2007 till 04.03.2010 and
thereafter the petitioner had abandoned the challenge. The High Court
dismissed the petition holding that it would not be proper to allow the
petitioner to raise the same questions after they had withdrawn the
petitions, which had remained pending in the High Court for 3-6 years.
5. The said order came to be assailed in Special Leave Petition
(Criminal) No. 6336 of 2010 which was dismissed.
6. It may be noted here that an application preferred under Section
173(8) of the Code of Criminal Procedure (Cr.P.C.) seeking re-investigation
of FIR No. 90 of 2000 by the accused persons met with the fate of dismissal
solely on the ground that there was ample evidence on record to bring home
the charge and the re-investigation would not subserve any purpose. The
futility of endeavour constrained the accused persons to file an
application on 24.09.2010 for stay of the proceedings arising out of FIR
No. 90 of 2000 before the Chief Metropolitan Magistrate along with other
FIRs but the effort became an exercise in futility.
7. What ensued next, as Mr. Dushyant A. Dave, learned senior counsel
would put it, has a sad and shocking projection. A committee was
constituted on 03.06.2011 which consisted of S/Shri Arvind Ray (Principal
Secretary (Home)-In Chair), S.P. Garg (Principal Secretary (Law), B.S. Joon
(Director of Prosecution), Sandeep Goel (Joint C.P. (Crime) and B.M. Jain
(Dy. Secretary (Home) Member Secretary). The Committee considered 60 cases
for withdrawal and after some discussion, sent its recommendation in each
of the case. On 11.07.2011, the Under Secretary to the Government of
India, Ministry of Home Affairs wrote to respondent No. 1 herein - S.P.
Gupta, Chairman, Sun Air Hotels Pvt. Ltd., Bangla Sahib Road, New Delhi and
informed that his request for closing the FIR Nos. 90/2000, 99/2002 and
148/2002 had been examined in detail in consultation with the Ministry of
Law & Justice and their advice for withdrawal of prosecution under Section
321 of Cr.P.C. in respect of FIR No. 90/2000, 99/2002 and 148/2002 had
already been conveyed to the Home Department, Government of NCT of Delhi
for necessary action at their end and as far as FIR No. 315/2005 was
concerned, more information was awaited from Delhi Police for taking a
decision in the matter.
8. On 13.09.2011, the said Screening Committee while dealing with the
case of the respondent in respect of first FIR being FIR No. 90 of 2000
recommended for withdrawal of the case. We think it appropriate to
reproduce the said recommendation:-
“RECOMMENDATIONS OF THE COMMITTEE
The Committee observed that the withdrawal of case Fir No. 90/2000 from
prosecution was considered by the Committee in its previous meeting held on
3.6.2011 and the matter was deferred for want of the relevant record of the
case.
However the details/records received from Police Department and Director of
Prosecution were viewed by the Committee and it was observed that Ministry
of Home Affairs has already examined the case in consultation with the
Department of Legal Affairs, Law and Justice who with the approval of
Union Home Minister, has directed the Home Department to urgently
scrutinise the above case for taking action u/s 321 Cr.P.C. for withdrawal
of Prosecution immediately.
In view of the above the Committee decided to recommend the case for
withdrawal from Prosecution.”
9. In respect of FIR No. 99 of 2002 and other cases, similar
recommendations were made for withdrawal from prosecution. The Lt. Governor
of Delhi perused the recommendations of Screening Committee for withdrawal
of cases from prosecution and ordered the following cases to be withdrawn
after following prescribed procedure:-
“1. FIR No. 46/11 Police Station – Civil Lines registered against Govt.
School Teachers Association u/s Act/Section 188 IPC.
FIR No. 148/2002 Police Station- Defence Colony registered against accused
Sh. S.P. Gupta & ors. U/s./Act/Section 384/406/409/421/422/465/ 467/468/120-
B IPC.
FIR No. 90/2000 Police Station, Connaught Place, registered against accused
Sh. S.P. Gupta & ors. U/s/Act/Section 120B/406/409/420/ 467/468/471/477-A
IPC.
FIR No. 99/2002 Police Station – Connaught Place, registered against
accused Shr. S.P. Gupta & ors. U/s/Act/Section 120-B, 406, 420, 424, 467,
468, 471/477-A IPC. Additionally, FIR No. 677/01 PS Sultanpuri u/s 332/341
IPC is also withdrawn.”
The present appeals are relatable to the last three cases in the
aforementioned list.
10. After the recommendation, the Government of National Capital
Territory of Delhi, Home Department, in exercise of power conferred under
Section 32 of the Cr.P.C. read with the Government of India, Ministry of
Home Affairs Notification No. U-11011/2/74-UTL(I) dated 20.03.1974
regarding the withdrawal of Prosecution proceedings granted approval of the
withdrawal from prosecution and directed that the Assistant Public
Prosecutor concerned may be asked to move the application in the court of
competent jurisdiction for withdrawal of the above mentioned cases
11. After the Government issued the orders, the Assistant Public
Prosecutor filed an application on 24.11.2011 under Section 321 Cr.P.C for
withdrawal of the prosecution in respect of FIR No. 90 of 2000 before the
concerned Magistrate stating, inter alia, that he had gone through the
investigation conducted and nature of allegation levelled in the charge
sheet against the accused persons and facts of the case clearly showed that
it was in fact a commercial transaction between the parties, but the same
had been culminated into criminal offences and further that even taking
into consideration the entire facts and circumstances of the case, nature
of the allegation and material available on record, there was no likelihood
of conviction, and hence, there should be withdrawal of the cases in public
interest. Similar applications were filed in respect of other cases
relating to the accused persons.
12. When the matter stood thus, Mr. B.S. Joon, Director of Prosecution,
Delhi vide letter dated 13.12.2011 wrote to the Principal Secretary (Home),
Home (Police) Department, Govt. of NCT of Delhi for withdrawal from the
prosecution in cases of FIR Nos. 90/2000, 99/2002 and 148/2002 titled as
‘State vs. S.P. Gupta and others”, Police Stations Connaught Place and
Defence Colony stating that after perusal of the charge sheets of the
aforesaid cases, it had been revealed that there was sufficient material on
record against the accused persons and there was every likelihood, that the
concerned court may not allow the application of the State moved under
Section 321 which is a pre-requisite condition for withdrawal from the
prosecution of any case, and accordingly sought instructions as to whether
the concerned APP should press the aforesaid applications or not.
13. Mr. Arvind Ray, who was a member of the Screening Committee gave a
note. The relevant part is to the following effect:-
“In the light of the facts which emerged from the through checking of the
charge sheet by the Directorate of Prosecution, GNCT of Delhi and the
department subsequently and considering the request of the Directorate of
Prosecution to issue necessary directions whether the concerned APP has the
press applications for withdrawal of the above said cases filed by him
before the Court of Sh. Sunil Chaudhary, Ld.ACMM, Tis Hazari Court, on the
next date of hearing i.e. 17.12.2011 or not. It is proposed that
recommendation of withdrawal of prosecution approved earlier in respect of
the above said cases may be placed before the competent authority i.e.
Hon’ble Lt. Governor of Delhi for appropriate orders.”
14. The Lt. Governor on 15.12.2011 on the basis of the recommendations
passed the following order:-
“I have considered the communication of Director of Prosecution dated
13.12.2011 and the note of the Principal Secretary (Home) dated 14.12.2011
and agree with the proposal that the earlier recommendation of withdrawal
of the above cases which are awaiting trial may not be pressed before the
competent court and the trial may be allowed to proceed on merits.”
15. The order of the Lt. Governor dated 15.12.2011 agreeing with the
proposal not to press the applications for withdrawal of the cases was
assailed before the learned Single Judge in Writ Petition (C) No. 3470 of
2012 and connected matters. The learned single Judge adverted to the
various aspects of the law and came to hold that there was no basis for the
petitioners to contend that the decision of the learned Assistant Public
Prosecutor to file an application under Section 321 Cr.P.C. was taken
independently by him, whereas the subsequent decision after pursuing
application under section 321 Cr.P.C. was under the dictates of the
respondent. The learned single Judge thereafter observed thus:-
“It is not disputed by the petitioners that, in the meantime, the learned
M.M. has permitted the withdrawal of the application under Section 321
Cr.P.C. vide order dated 07.01.2012. It is not disputed by the petitioners
that they opposed the withdrawal of the said applications under Section 321
Cr.P.C. and that they were heard by the learned M.M. on the said
applications. It is also not in dispute that the petitioners have already
preferred the remedy available to them in respect of the orders passed by
the learned M.M. permitting the withdrawal of the applications under
Section 321 Cr.P.C. Therefore, the petitioners have not only had the
occasion to raise all the issues raised before this Court, before the
learned M.M., but still have the right to pursue the matter further and to
raise all the issues available to them in appropriate proceedings.”
16. On the basis of the directions given by the Lt. Governor, the
Assistant Public Prosecutor filed an application for withdrawal of the
earlier application for withdrawal of the prosecution. The application for
withdrawal clearly states that after thorough examination of case file and
evidence on record, he found that there is sufficient evidence for
proceeding against the accused persons and hence, the earlier application
was to dispose of as not pressed.
17. Being of this view, the High Court declined to exercise the
discretionary jurisdiction under Article 226 of the Constitution. The
said order became the subject matter of intra-court appeals. The Division
Bench of the High Court adverting to many a facet dismissed the appeals as
not maintainable as well as barred by limitation. The legal propriety of
the order passed by the Division Bench of the High Court was called in
question before this Court in a Special Leave Petition (C) CC Nos. 7447-
7448 of 2014 which were dismissed vide order dated 09.05.2014.
18. In the meantime, the order passed on 07.01.2012 by the learned
Magistrate in various cases pertaining to the accused persons was called in
question in a number of revisions before the revisional court. The learned
special Judge, Patiala House Courts while dealing with the revision
petition, narrated the facts in entirety, noted the contentions advanced by
the learned counsel for the parties and opined that any party who has a
right to file an application/petition before a court of a Magistrate, has
an inherent right to withdraw the same and as a corollary thereof the court
of a Magistrate will have the jurisdiction to allow the application seeking
withdrawal of application for withdrawal from the prosecution. He
distinguished between the two concepts, namely, withdrawal of the order
taking congnizance and grant of permission to withdrawal an application for
withdrawal from the prosecution. Being of this view, he dismissed the
revision applications vide order dated 15.11.2014.
19. The accused respondents remaining embedded to their indefatigable
propensity preferred series of petitions before the High Court of Delhi
which on 15.05.2015 passed the following order:-
“Mr. Navin Sharma, learned Additional Public Prosecutor, accepts notice for
respondent-State and Mr. Harish Pandey, Advocate, accepts notice on behalf
of the complainant/first informant of the FIR in question.
With the consent of learned counsel for the parties, the
abovecaptioned three petitions are taken up together for final hearing
today. The hearing is concluded by both the sides.
Let both sides file short synopsis of not more than 5-7 pages with
relevant case laws, if any, within a week from today, after exchanging the
same.
Put up for orders on 29th May, 2015. In the meanwhile, let trial
court fix a date after the date fixed in these petitions.”
20. On 22.05.2015 an application was filed on behalf of the appellant to
initiate proceedings under Section 340 Cr.P.C. read with Section 195(1)
Cr.P.C. or to initiate contempt proceedings against the accused persons.
On 22.05.2015 a preliminary common written synopsis of the appellant was
filed seeking dismissal of Crl. M.C. No. 2055 of 2015. On 29.05.2015, the
High Court directed for listing the petition for clarification. As the
facts would reveal, on 15.07.2015 the High Court directed to file short
synopsis within a week. The said order was complied with.
21. In the course of hearing, it was contended by the learned counsel for
the petitioner before the High Court that there is no provision under which
an application preferred under Section 321 Cr.P.C. can be withdrawn.
Reliance was placed on Patel Narshi Thakershi & Ors. v. Pradyuman Singh Ji
Arjun Singh Ji[2], R.R. Verma & Ors. v. Union of India & Ors.[3] and
Subhash Chander v. State (Chandigarh Administration) & Ors.[4] to contend
that the power of review having not been specifically provided, the same
cannot be exercised by the Magistrate. It was also urged that when there
was no change in circumstances, the application for withdrawal from the
prosecution was misconceived and the courts below had erred in law in
permitting the withdrawal of the application without application of mind.
That apart, it was propounded that both the courts below had gravely erred
in understanding the law laid down by the Apex Court, especially,
Sheonandan Paswan v. State of Bihar & others.[5] and that the learned
Magistrate as well as the Special Court fell into error by not holding that
application for withdrawal of application preferred under Section 321
Cr.P.C. was wholly unjustified. The learned counsel for the State supported
the action taken by the Government and the order passed by the courts
below.
22. Considering the submissions raised by the learned counsel for the
parties, the learned single Judge after referring to the authorities and
the role of the Public Prosecutor under Section 321 Cr.P.C. opined thus:-
“... indisputably it is the Public Prosecutor who has to take the call and
not the Government or the Lieutenant Governor. So, dismissal of writ
petition against grant of consent by Lieutenant Governor to the withdrawal
of application under Section 321 of Cr.P.C. has been erroneously relied
upon by the courts below, particularly when right to pursue remedies before
the criminal courts was preserved while deciding the writ petition. ...”
23. Being of this view, the High Court directed as follows:-
“Consequentially, impugned orders are quashed with direction to the trial
court to decide within four weeks the second application of 16th December,
2011 (Annexure P-13) i.e. the one for withdrawal of application under
Section 321 of the Cr.P.C. in the light of the legal position as
highlighted above and after taking it into consideration, the document(s)
filed by the petitioner along with application under Section 91of Cr.P.C.”
24. After the High Court passed the order, the learned Magistrate took up
the applications seeking withdrawal of the applications preferred earlier
under Section 321 of Cr.P.C. The learned Magistrate has, by order dated
22.09.2015, declined to accept the prayer for withdrawal of the
application.
25. The appellant in these appeals had basically challenged the order
passed by the learned Single Judge by which he had set aside the order
granting withdrawal of the application under Section 321 Cr.P.C. and
directing the trial court to decide the application for withdrawal afresh
after taking into consideration the documents filed by the informant along
with the application filed under Section 91 Cr.P.C. After the remit, the
learned Magistrate has passed the order declining permission to withdraw
the application. The said order is also assailed before this Court.
26. We have heard Mr. Dushyant A. Dave, learned senior counsel and Ms.
Indu Malhotra, learned senior counsel for the appellant and Mr. Sushil
Kumar, learned senior counsel for the accused.
27. We have already narrated the chronology of events. The sequence of
events as depicted is quite disturbing. Long time has elapsed since the
day summons were issued. Despite the non-entertainment of the petitions
challenging the order issuing summons by the superior courts, the matter
remains today, where it was in 2003. In all possibility the criminal
proceedings would have continued in accordance with law after this court
had declined to interfere with the order of issuing summons, but the order
passed by the screening committee recommending for withdrawal of the
prosecution of the aforesaid cases on 13.09.2011 made the difference. The
said recommendation was approved by the Lt. Governor on 18.11.2011. On the
basis of the order passed by the Lt. Governor, the application was filed
seeking withdrawal of the cases. The Assistant Public Prosecutor filed an
application averring that the facts of the case clearly showed that it was
indicating a commercial transaction between parties but the same had
culminated into a criminal offence. It was also mentioned that it was a
case relating to civil transaction as well as breach of promises. The
Assistant Public Prosecutor was of the view that there was no likelihood of
conviction in the case and accordingly had sought withdrawal of the case in
public interest. Thereafter the controversy took the centre stage when on
13.12.2011 the Director of the Prosecution communicated to the Principal
Secretary, Home Ministry, stating that on a further perusal of the charge-
sheet in the aforesaid case it was found that there was sufficient evidence
on record to establish the charges against the accused persons and the
public prosecutor should be requested accordingly. The Lt. Governor, as
mentioned earlier, accepted the same and issued a letter.
28. The communication made by the Director of the prosecution in that
regard, came to be assailed by the son of the 1st respondent, in Writ
Petition (C) No. 3470 of 2012. The Learned Single Judge, as has been
stated earlier, dismissed the writ petition. Aggrieved by the aforesaid
letter, L.P.A. No. 548 of 2013 was preferred which was dismissed and assail
in this court did not yield any fruitful result.
29. At this juncture, we are compelled to sit in a time machine. The
application for withdrawal of the application preferred under Section 321
Cr.P.C. was taken up by the learned Magistrate who vide order on 07.01.2012
opined that nothing precluded the prosecution from filing such an
application and no right had accrued to the defence on that score, for it
was the duty of the Court to deal with such an application as per the
established parameters of law. Be it stated, the learned Magistrate
further opined that the application preferred by the accused persons under
Section 91 Cr.P.C. did not warrant any consideration and accordingly
allowed the prayer. Thereafter, the matter was adjourned to another date
for consideration of charge.
30. The aforesaid order was assailed before the learned Special Judge,
NDPS, Patiala House Courts, Delhi in a series of Criminal Revision Petition
Nos. 12 of 2013 to 16 of 2013. The revisional court by common order dated
15.11.2014 affirmed the order passed by the learned Magistrate. That led to
filing of applications under Section 482 Cr.P.C. wherein the impugned order
dated 30.7.2015 has been passed. It is apt to note here that the
revisional court has placed reliance on order dated 14.06.2012 passed by
the High Court in Writ Petition (C) No. 3470 of 2012 titled Vipul Gupta v.
State and others and connected matters. The learned Single Judge reproduced
a passage from the order passed by a co-ordinate Bench in the writ
petition, referred to certain judgments relating to the duty of the court
while dealing with an application under Section 321 Cr.P.C. and passed the
order which we have reproduced earlier.
31. It is imperative to state here that the factual narration depicts a
sorrowful and simultaneously, a puzzling one. It is not easy to spend
twelve years of time, “a yuga”, in the non-classical sense unless the
personalities engaged in spending time have contrived intelligence to
constantly play the “Snake and Ladder Game”. Such kind of litigations
clearly show that there are certain people who possess adamantine attitude
to procrastinate the proceeding in a court of law on the base that each
order is assailable and each step is challengeable before the superior
courts. It is not to be understood that a litigant is not entitled in law
to challenge the orders, but the legal process cannot be allowed to be
abused. In the case at hand the process has definitely been abused.
32. Having said so, we shall now proceed to delve into the legal aspects
from which our observations be clear as noon day. We may repeat at the
cost of repetition that we are not at all concerned with the allegations
made in the case. The said aspect has been put to rest when this court had
declined to interfere with the order of the High Court whereby the High
court had dismissed the petitions filed for quashing of the FIRs. The
issues that arise for consideration are (i) whether the Assistant Public
Prosecutor is entitled under law to file an application for withdrawal of
the application for withdrawal of the application preferred under Section
321 of the Cr.P.C. and not to press an application for withdrawal, (ii)
whether the Magistrate is disabled in law or lacks jurisdiction to allow
the prosecution from preferring the application for withdrawal, (iii)
whether the accused has any say at that stage of the proceeding and (iv)
whether in the obtaining factual matrix this Court should decline to deal
with the order passed by the learned Magistrate in exercise of jurisdiction
under Article 136 of the Constitution of India.
33. To appreciate the controversy, we may refer to Section 321 of Cr.P.C.
which reads as follows:-
“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
(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.
34. Regard being had to the language employed in Section 321 Cr.P.C., we
may refer to the Constitution Bench decision in Sheonandan Paswan v. State
of Bihar and others[6] wherein the Court referred to Section 333 of the
old Code and after taking note of the language employed under Section 321
of the present Code came to hold that Section 321 enables the Public
Prosecutor, in charge of the case to withdraw from the prosecution of any
person at any time before the judgment is pronounced, but the application
for withdrawal has to get the consent of the court and if the court gives
consent for such withdrawal the accused will be discharged if no charge has
been framed or acquitted if charge has been framed or where no such charge
is required to be framed. It clothes the Public Prosecutor to withdraw from
the prosecution of any person, accused of an offence, both when no evidence
is taken or even if entire evidence has been taken. The outer limit for the
exercise of this power is ‘at any time before the judgment is pronounced’.
It has also been observed that the judicial function implicit in the
exercise of the judicial discretion for granting the consent would normally
mean that 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. The Constitution Bench after referring to the
authorities in Bansi Lal v. Chandan Lal and others[7], Balwant Singh v.
State of Bihar[8], Subhash Chander v. State (Chandigarh Admn.)[9], Rajender
Kumar Jain v. State[10] and the principles stated in State of Bihar v. Ram
Naresh Pandey[11] came to hold thus:-
“99. All the above decisions have followed the reasoning of Ram Naresh
Pandey case (supra) and the principles settled in that decision were not
doubted.
100. It is in the light of these decisions that the case on hand has to be
considered. I find the application for withdrawal by the Public Prosecutor
has been made in good faith after careful consideration of the materials
placed before him and the order of consent given by the Magistrate was also
after due consideration of various details, as indicated above. It would be
improper for this Court, keeping in view the scheme of Section 321, to
embark upon a detailed enquiry into the facts and evidence of the case or
to direct retrial for that would be destructive of the object and intent of
the section.”
35. In this context, a reference to a three-Judge Bench decision in V.S.
Achuthanandan v. R. Balakrishna Pillai and others[12] is pertinent. In the
said case, the Court after referring to the principles stated by the
Constitution Bench in Sheonandan Paswan (supra) while upholding the view of
the learned Special Judge in rejecting the application filed by the
Assistant Public Prosecutor under Section 321 Cr.P.C. adverted to the
question as it arose therein whether it was legally permissible for the
High Court and it was justified in setting aside the order of the learned
Special Judge declining to give consent for withdrawal of prosecution of
the accused. The Court did not agree with the view of the High Court by
holding the High Court’s order did not at all deal with the only ground on
which the application was made by the Special Public Prosecutor and which
was found non-existent by the learned Special Judge in his order that was
challenged before the High Court in revision. The High Court embarked upon
a roving inquiry in an extraneous field totally ignoring the fact that if
the ground urged for withdrawal of the prosecution was
non-existent and there was prima facie material, if believed, to support
the prosecution then the motive for launching the prosecution by itself may
be of no avail. The Court also opined that the High Court missed the true
import of the scope of the matter, for it went into grounds which were not
even urged by the Special Public Prosecutor in his application made under
Section 321 Cr.P.C. or otherwise before the Special Judge. Exception was
taken to the fact that the High Court delved into administrative files of
the State which did not form part of the record of the case and accepted
anything which was suggested on behalf of the State Government overlooking
the fact that for the purpose of Section 321 Cr.P.C. it is the opinion of
the Public Prosecutor alone which is material and the ground on which he
seeks permission of the court for withdrawal of the prosecution alone has
to be examined.
36. In Rahul Agarwal v. Rakesh Jain and another[13], the Court while
dealing with the application under Section 321 Cr.P.C. referred to certain
decisions wherein the earlier decision of the Constitution Bench in
Sheonandan Paswan (supra) was appreciated, and thereafter ruled thus:-
“From these decisions as well as other decisions on the same question, the
law is very clear that the withdrawal of prosecution can be allowed only in
the interest of justice. Even if the Government directs the Public
Prosecutor to withdraw the prosecution and an application is filed to that
effect, the court must consider all relevant circumstances and find out
whether the withdrawal of prosecution would advance the cause of justice.
If the case is likely to end in an acquittal and the continuance of the
case is only causing severe harassment to the accused, the court may permit
withdrawal of the prosecution. If the withdrawal of prosecution is likely
to bury the dispute and bring about harmony between the parties and it
would be in the best interest of justice, the court may allow the
withdrawal of prosecution. The discretion under Section 321, Code of
Criminal Procedure is to be carefully exercised by the court having due
regard to all the relevant facts and shall not be exercised to stifle the
prosecution which is being done at the instance of the aggrieved parties or
the State for redressing their grievance. Every crime is an offence against
the society and if the accused committed an offence, society demands that
he should be punished. Punishing the person who perpetrated the crime is an
essential requirement for the maintenance of law and order and peace in the
society. Therefore, the withdrawal of the prosecution shall be permitted
only when valid reasons are made out for the same.”
37. In Bairam Muralidhar v. State of A.P.[14], while dealing with the
said provision it has been laid down that:-
“ … it is the obligation of the Public Prosecutor to state what material he
has considered. It has to be set out in brief. The court as has been held
in Abdul Karim case[15], is required to give an informed consent. It is
obligatory on the part of the court to satisfy itself that from the
material it can reasonably be held that the withdrawal of the prosecution
would serve the public interest. It is not within the domain of the court
to weigh the material. However, it is necessary on the part of the court to
see whether the grant of consent would thwart or stifle the course of law
or cause manifest injustice. A court while giving consent under Section 321
of the Code is required to exercise its judicial discretion, and judicial
discretion, as settled in law, is not to be exercised in a mechanical
manner. The court cannot give such consent on a mere asking. It is expected
of the court to consider the material on record to see that the application
had been filed in good faith and it is in the interest of public interest
and justice. Another aspect the court is obliged to see is whether such
withdrawal would advance the cause of justice. It requires exercise of
careful and concerned discretion because certain crimes are against the
State and the society as a collective demands justice to be done. That
maintains the law and order situation in the society. The Public Prosecutor
cannot act like the post office on behalf of the State Government. He is
required to act in good faith, peruse the materials on record and form an
independent opinion that the withdrawal of the case would really subserve
the public interest at large. An order of the Government on the Public
Prosecutor in this regard is not binding. He cannot remain oblivious to his
lawful obligations under the Code. He is required to constantly remember
his duty to the court as well as his duty to the collective.”
38. In this context, reference to a two-Judge Bench decision in
Vijaykumar Baldev Mishra alias Sharma v. State of Maharashtra[16] would be
fruitful. In the said case, the Court held that Section 321 Cr.P.C.
provides for withdrawal from prosecution at the instance of the Public
Prosecutor or Assistant Public Prosecutor. Indisputably therefore the
consent of the Court is necessary. Application of mind on the part of the
Court, therefore, is necessary in regard to the grounds for withdrawal from
the prosecution in respect of any one or more of the offences for which the
appellant is tried. The Public Prosecutor in terms of the statutory scheme
laid down under the Cr.P.C. plays an important role. He is supposed to be
an independent person. While filing such an application, the Public
Prosecutor also is required to apply his own mind and the effect thereof on
the society in the event such permission is granted.
39. We have enumerated the principles pertaining to the jurisdiction of
the Court while dealing with an application preferred under Section 321
Cr.P.C. and also highlighted the role of the Public Prosecutor who is
required to act in good faith, peruse the materials on record and form an
independent opinion that the withdrawal from the prosecution would really
subserve the public interest at large. The authorities referred to
hereinabove clearly spell out that Public Prosecutor is not supposed to act
as a post office and he is expected to remember his duty to the Court as
well as his duty to the collective.
40. In the case at hand, when the order passed by the Lt. Governor was
assailed in Writ Petition (C) No. 3470 of 2012 and connected matters, the
learned single Judge analyzing the communication and other facts referred
to all the decisions earlier taken by the Committee and its recommendations
made for withdrawal from the prosecution in the cases. Thereafter, the
learned single Judge scrutinized the minutes of the meeting and took note
of the fact that the Screening Committee on 13.09.2011 had apparently not
apply its own mind or made a thorough scrutiny of the charge-sheets filed
in the cases but heavily relied upon the examination of the cases by the
Ministry of Home Affairs, Department of Legal Affairs, Law and Justice with
the approval of the Union Home Minister. The learned single Judge further
opined that the observations of the Ministry of Home Affairs did not
demonstrate any specific consideration of the charge-sheet either by the
Department of Legal Affairs, Ministry of Law and Justice or by the Ministry
of Home Affairs. The High Court further took note of the fact that
certain exercises were undertaken by the Screening Committee held on
13.09.2011 and thereafter proceeded to state as follows:-
“24. … The screening committee is not shown to be a statutory creation. The
screening committee was formed only to aid and assist the Hon'ble Lt.
Governor. He was not bound by any recommendation of the screening
committee. Therefore, the failure to reconvene the screening committee to
reconsider the proposal mooted by Shri B.S. Joon cannot be said to be
illegal. Mr. B.S. Joon, Director of Prosecution, was also not precluded
from moving the proposal that he moved on 13.12.2011 after studying the
charge- sheets in these cases, merely because he was part of the screening
committee which had earlier recommended withdrawal from prosecution on
13.09.2011.
x x x x x
26. The contention of the petitioners that the earlier decisions to move
the applications under Section 321 Cr.P.C., in these cases, were taken
independently by the learned Public Prosecutor though on the suggestion of
the Director of Prosecution, whereas the decisions not to press the
applications for withdrawal of prosecution was imposed or thrust upon the
Additional Public Prosecutor, has no merit.
x x x x x
30. There is no basis for the petitioners to contend that the decision of
the learned APP to file an application under section 321 Cr.P.C. was taken
independently by him, whereas the subsequent decision after pursuing
application under section 321 Cr.P.C. was under the dictates of the
respondent. It could also be argued that the earlier decision to move
applications under Section 321 Cr.P.C. was a binding instruction to the
APP, whereas, the subsequent instruction given to him was to act according
to his own judgment/conscience and decide whether or not to press the
applications under section 321 Cr.P.C.”
41. Be it stated, the learned single Judge has observed that the accused
persons who were the petitioners in the Writ Petitions had already opposed
the withdrawal of the application preferred under Section 321 Cr.P.C. but
still they had a right to pursue the matter further and to raise all the
issues available to them in appropriate proceedings. On a perusal of the
aforesaid judgment, it becomes clear as crystal that the Writ Court had not
found any fault with the instructions given by the Government not to press
the application for withdrawal. The Writ Court had not opined with regard
to the role of the Public Prosecutor in not pressing the application. It
had only observed that it was not disputed that the petitioners had already
taken recourse to the remedy in respect of the order of the learned
Metropolitan Magistrate permitting the withdrawal of the application under
Section 321 Cr.P.C.
42. In the impugned order herein, the learned single Judge has observed
that no doubt the withdrawal from prosecution is an executive and non-
judicial act but there is a wide discretion with the court, which ought to
be exercised judicially on well established principles. That is to say, the
court has to be satisfied that the executive function of the Public
Prosecutor has not been improperly exercised or that it is not an attempt
to interfere with the course of justice for illegitimate purposes. It is
within these parameters, the judicial discretion is to be exercised.
Thereafter, the High Court has referred to the dictum of the three-Judge
Bench decision in Sheonandan Paswan (supra) and opined that it is the duty
of the Public Prosecutor to apply his mind as a free agent uninfluenced by
irrelevant or extraneous instructions. Understanding the said principle,
the High Court has ruled that the Public Prosecutor has shirked the bounden
responsibility by abruptly applying withdrawing the application under
Section 321 Cr.P.C. after a few days, particularly when in the application
under Section 321 Cr.P.C., Public Prosecutor had asserted in no uncertain
terms that a commercial transaction in between the parties was sought to be
given a criminal colour and there was no likelihood of conviction on the
basis of charge-sheet filed for the offence of criminal misappropriation,
etc.
43. Before we proceed to dwell upon the power of the Magistrate to grant
permission for not pressing the application, we think it necessary to delve
into legality of the direction issued by the High Court to the Magistrate
to consider the documents filed by the accused persons along with the
application preferred under Section 91 Cr.P.C. Section 91 Cr.P.C. reads as
follows:-
“Section 91. Summons to produce document or other thing.- (1) Whenever any
Court or any officer in charge of a police station considers that the
production of any document or other thing is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding under
this Code by or before such Court or officer, such Court may issue a
summons, or such officer a written order, to the person in whose possession
or power such document or thing is believed to be, requiring him to attend
and produce it, or to produce it, at the time and place stated in the
summons or order.
(2) Any person required under this section merely to produce a document or
other thing shall be deemed to have complied with the requisition if he
causes such document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of
1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or
(b) to apply to a letter, postcard, telegram or other document or any
parcel or thing in the custody of the postal or telegraph authority.”
44. The scope and ambit of the said provision was considered in State of
Orissa v. Debendra Nath Padhi[17], wherein this Court has held thus:-
“The first and foremost requirement of the section is about the document
being necessary or desirable. The necessity or desirability would have to
be seen with reference to the stage when a prayer is made for the
production. If any document is necessary or desirable for the defence of
the accused, the question of invoking Section 91 at the initial stage of
framing of a charge would not arise since defence of the accused is not
relevant at that stage. When the section refers to investigation, inquiry,
trial or other proceedings, it is to be borne in mind that under the
section a police officer may move the court for summoning and production of
a document as may be necessary at any of the stages mentioned in the
section. Insofar as the accused is concerned, his entitlement to seek order
under Section 91 would ordinarily not come till the stage of defence. When
the section talks of the document being necessary and desirable, it is
implicit that necessity and desirability is to be examined considering the
stage when such a prayer for summoning and production is made and the party
who makes it, whether police or accused. If under Section 227, what is
necessary and relevant is only the record produced in terms of Section 173
of the Code, the accused cannot at that stage invoke Section 91 to seek
production of any document to show his innocence. Under Section 91 summons
for production of document can be issued by court and under a written order
an officer in charge of a police station can also direct production
thereof. Section 91 does not confer any right on the accused to produce
document in his possession to prove his defence. Section 91 presupposes
that when the document is not produced process may be initiated to compel
production thereof.”
The aforesaid enunciation of law clearly states about the scope of
Section 91 Cr.P.C. and we are in respectful agreement with the same.
45. In the case at hand, the learned Magistrate was directed by the High
Court to consider the application filed by the Assistant Public Prosecutor
seeking withdrawal of the application earlier preferred under Section 321
Cr.P.C. In such a situation, it is difficult to appreciate how Section 91
of Cr.P.C. can be taken aid of by the accused persons. In view of the same,
we have no shadow of doubt that the High Court has fallen into error by
permitting the accused persons to file an application Section 91 Cr.P.C.
46. Having said so, we have to address whether the High Court was
justified in remitting the matter to the learned Magistrate for
reconsideration of the application seeking withdrawal of the earlier
application filed under Section 321 Cr.P.C. Needless to say, if the order
of the High Court is set aside, the consequential order by learned
Magistrate has to pave the path of extinction. The High Court on earlier
occasion while disposing of Writ Petition (C) No. 3470 of 2012 and
connected matters had clearly opined that the decision by the Lt. Governor
directing to withdraw the application was justified. The said order had
attained finality after the special leave petitions assailing the same
stood dismissed. The High Court on the earlier occasion had only observed
that the accused persons had the right to pursue the matter further and to
raise all the issues available to them in appropriate proceedings. By the
impugned order, the learned single Judge by placing reliance on certain
authorities has held that decidedly it is the Public Prosecutor who has to
take the decision and not the Government or the Lt. Governor and so that
dismissal of the writ petition against grant of consent by Lt. Governor to
the withdrawal of application under Section 321 of Cr.P.C. had been
erroneously relied upon by the courts below, particularly when right to
pursue remedies before the criminal courts was preserved while deciding the
writ petition.
47. We need not advert to the width of liberty granted to the accused
persons by the writ court. The heart of the matter is whether the approach
by the learned single Judge in passing the impugned order is legally
correct. There can be no cavil over the proposition that when an
application of withdrawal from the prosecution under Section 321 Cr.P.C. is
filed by the Public Prosecutor, he has the sole responsibility and the law
casts an obligation that he should be satisfied on the basis of materials
on record keeping in view certain legal parameters. The Public Prosecutor
having been satisfied, as the application would show, had filed the
application. The said application was not taken up for hearing. The
learned Magistrate had not passed any order granting consent for
withdrawal, as he could not have without hearing the Assistant Public
Prosecutor. At this juncture, the authority decided regard being had to the
fact situation that the Assistant Public Prosecutor should withdraw the
application and not press the same. After such a decision had been taken,
as the application would show, the Assistant Public Prosecutor has re-
appreciated the facts, applied his mind to the totality of facts and filed
the application for not pressing the application preferred earlier under
Section 321 Cr.P.C. The filing of application not to press the application
cannot be compared with any kind of review of an order passed by the court.
Question of review can arise when an order has been passed by a court.
Section 362 Cr.P.C. bars the Court from altering or reviewing when it has
signed the judgment or final order disposing of a case except to correct a
clerical or arithmetical error. The said provision cannot remotely be
attracted. The filing of the application for seeking withdrawal from
prosecution and application not to press the application earlier filed are
both within the domain of Public Prosecutor. He has to be satisfied. He
has to definitely act independently and as has been held by the
Constitution Bench in Sheonandan Paswan (supra), for he is not a post
office. In the present case, as the facts would graphically show, the
Public Prosecutor had not moved the application under Section 321 Cr.P.C.
but only filed. He could have orally prayed before the court that he did
not intend to press the application. We are inclined to think, the court
could not have compelled him to assist it for obtaining consent. The court
has a role when the Public Prosecutor moves the application seeking the
consent for withdrawing from the prosecution. At that stage, the court is
required to see whether there has been independent application of mind by
the Public Prosecutor and whether other ingredients are satisfied to grant
the consent. Prior to the application being taken up being moved by the
Public Prosecutor, the court has no role. If the Public Prosecutor intends
to withdraw or not press the application, he is entitled to do so. The
court cannot say that the Public Prosecutor has no legal authority to file
the application for not pressing the earlier application. It needs no
special emphasis to state that the accused persons cannot be allowed to
contest such an application. We fail to fathom, how the accused persons
can contest the application and also file documents and take recourse to
Section 91 Cr.P.C. The kind of liberty granted to the accused persons is
absolutely not in consonance with the Code of Criminal Procedure. If
anyone is aggrieved in such a situation, it is the victim, for the case
instituted against the accused persons on his FIR is sought to be
withdrawn. The accused persons have no role and, therefore, the High Court
could not have quashed the orders permitting the prosecution to withdraw
the application and granting such liberty to the accused persons. The
principle stating that the Public Prosecutor should apply his mind and take
an independent decision about filing an application under Section 321
Cr.P.C. cannot be faulted but stretching the said principle to say that he
is to convince the court that he has filed an application for not pressing
the earlier application would not be appropriate. We are disposed to think
so as the learned Magistrate had not dealt with the earlier application.
Therefore, the impugned order dated 30.07.2015 passed by the High Court is
set aside. As the impugned order is set aside, consequentially the order
passed by the learned Magistrate on 22.09.2015 has to pave the path of
extinction and we so direct. The learned Magistrate is directed to proceed
with the cases in accordance with law. We may hasten to add that we have
not expressed any opinion on the merits of the case. All our observations
and the findings are to be restricted for the purpose of adjudication of
the controversy raised.
48. Before parting with the case, we recapitulate what we have stated in
the beginning and also about the indefatigable spirit of the respondents.
In that context, a passage from Subrata Roy Sahara v. Union of India and
others[18], being relevant, is extracted below:-
“The Indian judicial system is grossly afflicted with frivolous litigation.
Ways and means need to be evolved to deter litigants from their compulsive
obsession towards senseless and ill-considered claims. One needs to keep in
mind that in the process of litigation, there is an innocent sufferer on
the other side of every irresponsible and senseless claim. He suffers long-
drawn anxious periods of nervousness and restlessness, whilst the
litigation is pending without any fault on his part. …”
We have quoted the aforesaid passage as we respectfully share the
said concern, and reiterate keeping in view the factual expose’ of the
instant case.
49. The appeals are allowed in above terms.
.............................J.
[Dipak Misra]
..............................J.
[N.V. Ramana]
New Delhi
February 05, 2016
-----------------------
[1] (2004) 7 SCC 338
[2] AIR 1970 SC 1273
[3] 1980 (3) SCC 402
[4] AIR 1980 SC 423
[5] AIR 1983 SC 194 : 1983 (1) SCC 438
[6] (1987) 1 SCC 288
[7] (1976) 1 SCC 421 : AIR 1976 SC 370
[8] (1977) 4 SCC 448 : (1978) 1 SCR 604
[9] (1980) 2 SCC 155 : (1980) 2 SCR 44
[10] (1980) 3 SCC 435 : AIR 1980 SC 1510
[11] 1957 Cri LJ 567 : AIR 1957 SC 389
[12] (1994) 4 SCC 299
[13] (2005) 2 SCC 377
[14] (2014) 10 SCC 380
[15] Abdul Karim v. State of Karnataka, (2000) 8 SCC 710
[16] (2007) 12 SCC 687
[17] (2005) 1 SCC 568
[18] (2014) 8 SCC 470
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