Meera Sahib Tenkasi vs The State

M. Karpagavinayagam, J.—This is an unfortunate case wherein the justice has been the causality on account of the failure of the Assistant

Public Prosecutor, Grade II, Tenkasi in discharging his onerous responsibility, by bringing all the materials before the trial court, so as to enable the

court to effectively render justice in a case.

A person who is appointed to this highly responsible post should always uphold the dignity of this high office with a full sense of responsibility

and see that the Assistant Public Prosecutor, Grade II, Tenkasi has not only given a wrong opinion to the police, but also suppressed several

material factors from the court and obtained an order permitting the withdrawal of the case, resulting in the grave injustice to the complainant.

The relevant facts are these:-

Meera Sahib, the petitioner herein is a permanent resident of Tenkasi. He is the owner of Star Lodge and the surrounding building situated at

Kannimarimman Koil Street, Koolkadai Bazaar, Tenkasi. Mohamed Ali Jinnah And Durai alias Mohideen Bawa, the respondents 2 and 3 herein

are the tenants in the building owned by the petitioner. On 19.9.1996 at about 10.00 a.m. the petitioner went to visit his building premises where

some building works are under progress. At that point of time, the respondents 2 and 3 restrained the petitioner from visiting the building by

abusing in obscene language and also threatened the petitioner that they would kill him by showing a spade handle. However, the nearby workers

came to the scene and rescued the petitioner.

Immediately, on the same day he gave a complaint to the sub-Inspector of Police, Tsnkasi Police Station against the respondents 2 and 3. There

was no action taken. Therefore, on 25.9.1996 he gave a petition to the Superintendent of Police requesting action. The same was forwarded to the

Inspector of Police, the first respondent. After enquiry, the petitioner was directed to approach the appropriate court for seeking relief. The

complaint was treated as a petition and the same was closed on 30.9.1996.

On 7.10.1996, the petitioner filed a private complaint before the learned Judicial Magistrate, Tenkasi. On the same day, the learned Judicial

Magistrate in Crl. M.P.No.7459 of 1996 forwarded the complaint to the first respondent police and directed to investigate the case u/s 156(3) Cr.

P.C. This was received by the first respondent Police on 3.12.1996. The case was registered in crime No.727 of 1996 for the offences under

Sections 341 and 506(ii) I.P.C. against the respondent conducted investigation and filed the charge sheet before the learned Judicial Magistrate,

Tenkasi on 31.1.1997 for the offences under Sections 341, 294(b) and 506(ii) I.P.C. On 12.3.1997, the learned Judicial Magistrate, Tenkasi

took the case on file in C.C.No.146 of 1997 in respect of the above offences. On the same day, non-bailable warrants were issued as against the

respondents 2 and 3.

On 31.3.1997, the respondent 2 and 3 instead of appearing before the trial court, presented a petition to the Superintendent of Police, requesting

for reinvestigation. On the same; day, Mr. S. Jangid, the then Superintendent of Police of Tirunelveli District, directed for re-investigation by

another Inspector, as he felt that earlier Inspectors, who filed the charge sheet, did a hastily investigation. In pursuance of this order, on 16.4.1997.

Mr. Chinnasamy, another Inspector of Police filed a memo before the learned Judicial Magistrate seeking permission to investigate the case u/s

173(8) Cr.P.C. stating that he would file a report before the court after the fresh investigation. Accordingly, the permission was immediately

granted on the same day by the trial court.

On 11.8.1997, after finishing re-investigation, Mr. Chinnasamy, the Inspector of Police instead of filing a final report before the Court, sent a

report to the Deputy Superintendent of police recommending for withdrawal of the prosecution. The deputy superintendent of police also accepted

the same and recommended for the withdrawal. At this stage, the opinion of the Assistant Public Prosecutor, Grade II of the said Court, Mr. T. R.

Chandrasekhar was sought, perusal of the records, he gave an opinion that it was a fit case for withdrawal.

On 25.8.1997 the report of the Inspector of police, the recommendation of the Deputy Superintendent of Police for withdrawal and the opinion of

the Assistant Public Prosecutor were placed before Mr. Karuna Sagar, another Superintendent of Police, who succeeded Mr. Jangid. Thereafter,

the successor superintendent of police sanctioned for the withdrawal and directed the Inspector of police to move the court for withdrawal through

Assistant Public Prosecutor. Accordingly, on 9.9.1997. Mr. T.R. Chandrasekar the Assistant Public Prosecutor Grade II filed a petition u/s 321 of

Cr.P.C. in C.C. No. 146 on 1997 before the learned Judicial Magistrate, Tenkasi requesting permission for withdrawal of the case in view of the

sanction accorded by the Superintendent of Police dated 25.8.1997. On the basis of this petition, the learned Judicial Magistrate, Tenkasi passed

an order u/s 321 Cr.P.C. permitting the withdrawal of the case and discharging the accused.

On coming to know of the order above referred to, the first informant/complainant after obtaining the certified copy of the impugned order has

approached this court by filing this revision seeking to set aside the said order as it is unsustainable under law.

Mr. Pungalendhi, the counsel for the petitioner, Mr. Hamed Ismail, the counsel for the respondents 2 and 3 and Mr. Gunasekaran, Government

Advocate appearing for the first respondent-police are heard.

After hearing the submissions made by the counsel for the parties and on perusal of the records, this Court felt that the impugned order

permitting withdrawal of the case would suffer from the grave illegality, as the prescribed procedures haven''t been followed by the police as well

as the Assistant Public Prosecutor concerned with reference to the various flaws found in the procedure adopted by the police in seeking

withdrawal of the case through Assistant Public Prosecutor, both the Superintendents of Police, who were present before the Court, submitted that

they had done with a good faith only as per the opinion of the Assistant Public Prosecutor, who stated in his opinion that it was a fit case for

withdrawal, and on the said opinion, the sanction was accorded for the withdrawal by the Superintendent of Police, while holding that the

impugned order permitting withdrawal and discharging the accused/respondents 2 and 3 is illegal and liable to be set aside, I shall point out of the

disturbing features in relation to the procedure adopted by the police as well as the Assistant Public Prosecutor in getting the order of withdrawal.

On 7.10.1996 the petitioner filed a private complaint against the respondents 2 and 3. In pursuance of the order by the learned Judicial

Magistrate, Tenkasi u/s 156(3) Cr.P.C, the first respondent Police registered the said complaint on 3.12.1996 in Crime No.727/96. Ultimately

after the investigation, the Inspector of Police, the first respondent filed the charge sheet on 31.1.1997. This was taken on file by the learned

Judicial Magistrate, Tenkasi in C.C.No. 146/97 for the offences under sections 341, 294(b) and 506(ii) IPC. On the same day, the warrants were

issued against the respondents 2 and 3, as they were not arrested during the course of investigation. On 31.3.1997, even when the warrants were

pending against the respondents 2 and 3, they gave a petition to the Superintendent of Police for re-investigation. On the same day, the

Superintendent of Police directed re-investigation by another Inspector. In pursuance of the said order, one Chinnasamy, the Inspector of Police

filed a Memo on 16.4.1997 before the learned Judicial Magistrate, Tenkasi, who has already taken congnizance of the case, seeking permission

for re-investigation u/s 173(8) Cr.P.C. as directed by the Superintendent of Police and stating that he world file the final report after re-

investigation before the Court.

It is to be noted in this context that this application u/s 173(8) Cr.P.C. was not moved through Assistant Public Prosecutor and there was no

other reason mentioned in the Memo for permission for re-investigation except intimating the order of the Superintendent of Police. However, this

was permitted by the learned Judicial Magistrate, Tenkasi on the same day without adducing any reason. The copy of the order which was placed

by Inspector of Police before this Court would only show ""Permitted"", Moreover, before passing an order neither the accused against whom

warrants were pending nor the complainant first informant nor the Assistant public Prosecutor was heard. However, it is specifically mentioned in

the Memo that permission was required for reinvestigation u/s 173(8), Cr.P.C. It is further stated in the said Memo by the Inspector of Police that

he would file the final report before the Court after finishing the re-investigation.

Having obtained such a permission, Mr. Chinnasamy, the Inspector of Police, instead of filing the final report on re-investigation before the

Court, sent a report to the Deputy Superintendent of Police stating that the witnesses earlier examined by the first investigating officer have given

contrary statements in the re-investigation and as such, he recommended for the withdrawal of the prosecution. The deputy Superintendent of

Police also accepted the said proposal for withdrawal by the Inspector of Police and asked for the opinion of the Assistant Public Prosecutor

Grade II of Tenkasi. The said Assistant Public Prosecutor after perusal of the entire records also endorsed the view of the Inspector of Police and

the Deputy Superintendent of Police and gave an opinion for the withdrawal. That was how the papers were placed before the Superintendent of

Police, who in turn granted sanction and directed the Inspector of Police to move the Court for withdrawal of the case through Assistant Public

Prosecutor. Thereafter, the Assistant Public Prosecutor, Grade II without mentioning all the details about the reinvestigation and other things merely

filed an application u/s 321 Cr.P.C. requesting permission for withdrawal of the case, merely on the reason that the sanction for withdrawal was

already accorded by the superintendent of Police. The learned Judicial Magistrate also did not care to look into the original records and simply

passed an order permitting the withdrawal by merely stating that already the Superintendent of Police granted sanction.

The above factors would reveal that the Inspector of Police as well as the Assistant Public prosecutor have miserably failed to discharge their

official duties in following the procedure relating to the filing of the final report u/s 173(8) Cr.P.C. before the Court after re-investigation. In

addition to that, the Assistant Public Prosecutor has also not placed the true facts before the Court, while requesting the Court for withdrawal of

the case.

As indicated earlier, in the Memorandum submitted by the Inspector of Police dated 16.4.1997 before the trial court, he requested for

permission for further investigation by stating that he would file the final report about the result of the further investigation before the court. On that

basis, permission was granted. It is not understandable as to why he has not filed such a final report before the court u/s 173(8) Cr.P.C. On the

other hand, he merely recommended for withdrawal of the case by sending the report to the Deputy Superintendent of Police stating that the

witnesses cited in the charge sheet have not supported their versions in the subsequent statements obtained in the reinvestigation. Having obtained

permission from the Court for re-investigation, he ought to have filed the final report before the Court u/s 173(8) Cr.P.C. to enable the court to

pass necessary orders, especially when the court has already taken cognizance of the offences in the said case. Failure to send such a report would

clearly reveal that the Inspector of Police somehow or the other tried to get the order of the Superintendent of Police for withdrawal, as the re-

investigation was ordered by the Superintendent of Police earlier, as he had felt that the earlier investigation was hasty and not bona fide. The act of

the Inspector of Police in not approaching the court by filing the final report but approaching the Superintendent of Police for getting sanction for

the withdrawal would only go to show that his action recommending for the withdrawal was not a bona fide one. The required procedure is, as

stated earlier, he must have filed a report before the Court through the Assistant Public Prosecutor, in order to enable the court to come to its own

conclusion on the said report.

The Deputy Superintendent of Police also, who received the report from the Inspector of Police recommended for withdrawal. Only then, they

have sought for opinion from the Assistant Public Prosecutor. The Assistant Public Prosecutor instead of advising the police to file report before

the Court, gave an opinion that it was a fit case for withdrawal, as suggested by the Inspector of Police and the Deputy Superintendent of Police.

Thereafter, the papers were placed before the Superintendent of Police for sanction for withdrawal. These things would show that all the three

functionaries namely, Inspector of Police, Deputy Superintendent of Police and Assistant Public Prosecutor in order to please the Superintendent

of Police, who ordered for re-investigation, have come to the uniform conclusion that it was a fit case for withdrawal. This procedure is quite

wrong and illegal.

The Assistant Public Prosecutor ought to have advised the police to file the final report before the court u/s 173(8) Cr.P.C. especially when the

order was passed by the Magistrate for re-investigation on 16.4.1997. The Assistant Public Prosecutor is expected to know law and is also

expected to inform the police that Section 321 Cr.P.C. would not come into play. Since the re-investigation was ordered by the court u/s 173(8)

Cr.P.C. He should have advised the police to file the report before the Court. On the other hand, the Assistant Public Prosecutor, Grade II in

obedience to the direction of the Superintendent of Police granting sanction for withdrawal filed an application u/s 321 Cr.P.C. seeking withdrawal

of the case. Furthermore, the petition u/s 321 Cr.P.C. and the impugned order passed on that would clearly show that the Assistant Public

Prosecutor did not place all the materials before the Court which passed the impugned order.

The only ground which was relied on by both the Assistant Public Prosector and the Court for the grant of permission of withdrawal is the

sanction by the Superintendent of Police. It could also be said that if all the other materials relating to the ordering for re-investigation u/s 173(8)

Cr. P.C. had been placed before the Court by the Assistant Public Prosecutor, the trial court would not have passed such an order u/s 321

Cr.P.C. However, it is the duty of the Court to have perused the entire records in order to find out whether Section 321 Cr.P.C. would be

applicable for this case and if it is applicable, whether there are proper reasons available for such a permission to be granted for withdrawal. Thus,

both the Assistant Public Prosecutor and the trial court have given up their statutory powers and abdicated their position by having obeyed the

direction of the Superintendent of Police. I would only say that this is a most unfortunate one.

This Court in V. Krishnasamy and etc. Vs. S.K. Monoharan and others, had an occasion to deal with the question as to how the Assistant

Public Prosector and the Court should exercise their discretion in invoking the said section relating to the withdrawal of the case.

Section 321 Cr.P.C. provides two fundamental requirements. One is the right of the Public Prosecutor to request for the consent of the court

for withdrawal from the prosection only on his being satisfied about the reasons for the same, independent of the instructions given by the executive

authorities. The second thing is that the Magistrate has also to consider the various circumstances, before giving such consent for withdrawal,

independent of the orders of the executive authorities and the reasons given in the application filed by the Assistant Public Prosecutor in charge of

the case. If only these two requirements as fulfilled, then the order passed by the Magistrate u/s 321 Cr.P.C. would be legal.

In the instant case, a reading of the impugned order and the Memo filed by the Assistant Public Prosecutor, Tenkasi would clearly show that

there is not only lack of application of mind on the part of both the functionaries, but also they had given up their discretionary powers by showing

the readiness to become a tool in the hands of the Superintendent of Police.

The Principles relating to withdrawal have been laid down in the following decisions also:-

1) State of Orissa Vs. Chandrika Mohapatra and Others,

Bansi Lal Vs. Chandan Lal and Others,

3) Balwant Singh and Others Vs. State of Bihar,

4 Subhash Chander Vs. State (Chandigarh Administration) and Others,

5) Sheonandan Paswan Vs. State of Bihar and Others,

6) Sheonandan Paswan Vs. State of Bihar and Others,

7) V.S. Achuthanandan Vs. R. Balakrishna Pillai and others,

8) R.M. Tewari Vs. State (NCT of Delhi) and Others,

It is also held by the Apex Court in Randhir Singh Rana Vs. The State Being the Delhi Administration, that the learned Judicial Magistrate after

taking cognizance of the offence on his own cannot order for further investigation. However, it is held in Ram Lal Narang Vs. State (Delhi

Administration), that despite a Magistrate taking cognizance of an offence upon a police report, the police has got right to further investigate u/s

173(8) Cr.P.C. but with a view to maintain independence of the magistracy and the judiciary, the police should inform the Court and seek formal

permission to make further investigation when fresh facts come to light. In other words, once cognizance has been taken, the Magistrate cannot

order for reinvestigation on his own, but the police can move the court u/s 173(8) Cr.P.C. for permission for further investigation by satisfying the.

Court that fresh facts have come to light.

In the instant case the Inspector of Police filed a memo requesting for further investigation merely on the basis of the direction of the

Superintendent of police. It has not been mentioned in the Memo that the fresh facts have come to light. In that view of the matter, even the order

of the Magistrate giving such a permission for re-investigation cannot he held to be valid in law. Even otherwise, having obtained an order from the

Court, the act of the Inspector of Police, instead of filing the final report before the Court, though such an undertaking was given in the Memo

earlier filed before the court, sending report to the Superintendent of Police recommending for withdrawal, is a most improper one. More so, the

said report was sent along with the opinion of the Assistant Public Prosecutor recommending for withdrawal.

The Assistant Public Prosecutor having perused the re-investigation report u/s 173(8) after obtaining the permission from the court, either

should have advised the police to file the report in the court or should have placed the entire materials intimating the court about the earlier order of

permitting further investigation and placing final report submitted by another Inspector to enable the Court to come to the conclusion on that. In the

instant case, as referred to earlier, the Assistant Public Prosecutor has not only given a wrong opinion for withdrawal, but also suppressed the

material facts from being placed before the court, while requesting the Court for grant of permission for withdrawal under S.321 Cr.P.C.

It shall be the duty of the Assistant Public Prosecutor to inform all the facts to the Court. It shall be the duty of the court to appraise itself of the

reasons which prompted the Assistant Public Prosecutor to withdraw the case from the prosecution. The court as well as the Assistant Public

Prosecutor have responsibility and stake in the administration of criminal justice. Both have a duty to protect the administration of criminal justice

against possible abuse or misuse by the Executive by resort to the provisions of Section 321 Cr.P.C.

The prosecutor has to be fair in the presentation of the prosecution case. He should not suppress or keep back from the court the material

which is relevant to the determination of the issue to be decided by court. He should present a complete picture and not one sided picture. He

should not be partial to the prosecution or to the accused. He has to be fair to both sides in the presentation of the case. He should not consciously

misstate the facts, nor knowingly conceal the truth.

The Public Prosecutor is, in a larger sense, an officer of the Court. He is bound to assist the courts with his fairly considered view. The Court is

entitled to have the benefit of the fair exercise of his function. A person appointed to this office must, in the interests of the public, have a high

degree of efficiency, and knowledge of the law of crimes and criminal procedure. He must have character and integrity. He should be

irreproachable and above suspicion. He must have a sense of his duty of the public and to the Court, as overriding considerations. If these

requisites are lacking, the incumbent to such an office would gravely injure the administration of criminal justice.

The above requisite qualities of the Prosecutor have been referred to in the following decisions:-

1) Prabhu Dayal Vs. State,

2) Raj Kishore Rabidas Vs. The State,

3) The State of Bihar Vs. Ram Naresh Pandey,

4) Balwant Singh and Others Vs. State of Bihar,

5) A. Mohambaram Vs. M.A. Jayavelu and Others,

6) Marrappa Gounder v. Venkatachalam 1983 L.W. Cri. 1

In the instant case, it is clear that the Court did not apply its mind while passing the order of permitting withdrawal. The assistant Public

Prosecutor, Grade II also did his part well in not allowing the court to apply its mind to the records. As a matter of fact, the Assistant Public

Prosecutor completely suppressed the material facts from being placed before the court in order to get some favourable orders from the court,

probably to please the Superintendent of Police with, unusual zeal. By this act, the Assistant Public Prosecutor, Grade II has not only renunciated

his position as a true officer of the court, but also failed in his statutory duties by giving improper advice to the police department.

Learned Government Advocate appearing for the first respondent as well as the counsel appearing for the respondents 2 and 3 would also

concede that the advice given by the learned Assistant Public Prosecutor Grade II, to the police was not a valid one and they are also not able to

support the impugned order passed by the learned Judicial. Magistrate Thenkasi in passing an order permitting the withdrawal of the case on the

basis of the petition filed by the Assistant Public Prosecutor Grade II by suppressing various material factors from the court.

In view of the fact and the legal situation, I deem it fit to set aside the impugned order passed on 24.9.187 in C.C.No.16 of 1997 on the file of

learned Judicial Magistrate, Thenkasi and to direct the trial court to take up the case and proceed on with the trial and dispose of the case by

examining all the witnesses, in accordance with law and accordingly ordered.

In view of the above order, the counsel for the respondent complainant in Crl.O.P.No.6077/98 would submit that he would withdraw the fresh

complaint filed in C.C.208/98 on the file of the Judicial Magistrate, Thenkasi against the petitioner/accused. Therefore Crl. O.P.No.607 of 1988 is

dismissed and Crl.R.C.No. 841/97 is allowed.

Before parting with this case, I shall once again point out that the conduct of the Assistant Public Prosecutor Grade II, Tenkasi in having given

wrong opinion to the police and in concealing vital factors before the Court while seeking withdrawal of the case, and the conduct of the Inspector

of Police recommending the withdrawal and sending a report to the Deputy Superintendent of Police, instead of filing a report u/s 173(8) Cr.P.C.

before the Court after having obtained permission for re-investigation earlier from the court by giving an undertaking that he would file a report, are

in my view, highly condemnable.

Learned Public Prosecutor of this court is directed to intimate the order of this court to the concerned District Collector and the Chief

Secretary, for appropriate action.