Prabhat Kr. Bhuyan vs The State of Assam and Another

Singh Neelam, J.—This criminal revision petition is so filed under Sections 397/401 read with Section 482 of the Cr.P.C. against the order dated 11-12-1991 passed by the learned Sessions Judge, Silchar in criminal revision No. 24(2)/90 by virtue of which he has reversed the order dated 19-4-1990 passed by Asstt. Sessions Judge, Silchar by which he has rejected the prayer so made by the learned P.P. for withdrawal of the sessions case No. 22(s-s)/1988. Since the learned Sessions Judge vide his order dated 11-2-1991 has set aside the order of the Assistant Sessions Judge by which permission for withdrawal of the sessions case was not accorded and since the learned Sessions Judge has held that the sessions case in question pending before the learned Asstt. Sessions Judge is treated as withdrawn, this criminal revision petition is so filed with the prayer that the impugned order so passed by the learned Sessions Judge be set aside and the order so passed by the learned Asstt. Sessions Judge not giving the permission for withdrawal in the background of the circumstances discussed by the learned Asstt. Sessions Judge be restored.

Mr. P.G. Baruha, learned counsel for the petitioner by pressing into service of the grounds so taken in this revision petition for interference of the order of the learned Sessions Judge, has submitted that at the time of filing of the petition by the learned P.P. for withdrawal of the case, the P.P. did not apply his mind, the ground for withdrawal of the case is also not mentioned therein and mechanically the said petition was so filed and thus the learned Asstt. Sessions Judge was perfectly justified not according consent for withdrawal. On basing his findings on surmises which is thus fit to be set aside, in support of his contention the learned counsel for the petitioner Mr. Baruah has referred to some reported cases which are as follows:-

Subhash Chander Vs. State (Chandigarh Administration) and Others, where it is pointed out that withdrawal u/s 321, Cr.P.C. is justified only if it is based on pertinent consideration and actual application of mind the P.P. or A.P.P. The consent of the Court u/s 321 of the Cr.P.C. is a condition for consideration which is so imposed as a check on the exercise of the P.P.''s power. In the instant case it is submitted that the learned P.P. has simply obeyed the decision of the Government without applying his mind and mechanically petition for withdrawal of the case so filed by him before the Asstt. Sessions Judge which was rightly not accepted. He has referred to another decision in the case of Munindra Chandra Karmakar v. State of Tripura (1987) 1 G LR 243 . Mr. Baruah has further pointed out that this power is to be exercised with reference to material before the court and not mechanically. In such case, the prosecution represented by the P.P. must show his application of mind giving reasons for such withdrawal in his petition so moved on behalf of the prosecution seeking the consent of the court for the withdrawal which in the instant case has not been done. The third reported case which has been cited is State of Orissa Vs. Bijoyaranjan Singh Bariha and Others, Lastly Mr. Baruah has relied upon the decision of a recent case V.S. Achuthanandan Vs. R. Balakrishna Pillai and others, By particularly referring to its paragraph 11, it is submitted that the administrative file of the State does not form part of the record of any case and any suggestion so coming from the State Government is to be looked into by the P.P. which is a material factor for his making a prayer for withdrawal of a particular case and in the instant case since there. is no application of mind so made by the P.P. rather the petition be filed mechanically, the learned Assistant Sessions Judge had rightly not given his consent for withdrawal of the case and the learned Sessions Judge as Revisional Court has erred in taking different view.

Mr. J.M. Choudhury, learned counsel for the respondent has also conceeded to this submission. By plain reading of the withdrawal petition so coming from the prosecution side it transpires that no where it has been incorporated therein that the learned P.P. has also applied his mind detailing the ground for withdrawal of the case.

Taking into consideration the facts discussed above and after hearing the learned counsel for the parties and also keeping in mind the reported cases so cited on behalf of the petitioner, I hold the view that the impugned order so passed by the learned Sessions Judge in criminal revision No. 24(2)/90 dated 11-12-1991 requires interference. The impunged order dated 11-12-1991 is thus hereby set aside and the order so. passed by the learned Asstt. Sessions Judge which is dated 18-4-1990 in sessions case No. 22(s-s-)/88 not giving his consent of withdrawal of the case is restored.

This criminal revision petition is allowed and accordingly disposed of. However before parting with the order it is observed that the P.P. in any case is at liberty as to make a prayer for withdrawal of the case seeking the consent of the court at anytime before the judgment is so pronounced strictly according to the provisions of Section 321 of the Cr.P.C.