Rajendra and Others vs State of M.P.

Hon''ble Shri Justice Sujoy Paul

This revision is directed against the order dated 27.6.2011 passed by the Special Judge, Shivpuri. By impugned order dated 27.6.2011, the Court below has rejected the application preferred u/s 321 Cr.P.C.

It was alleged against the petitioners that they committed offence under Sections 452, 427, 435 and 395 of IPC read with Section 11/13 of the Madhya Pradesh Dacoity Avam Vyapaharan Prabhavit Kshetra Adhiniyam. During pendency of the trial before the Special Judge, the application was preferred u/s 321 Cr.P.C. for withdrawal of the matter. The said application was preferred through Police Station, Shivpuri on the strength of the decision taken by the State Government. It is mentioned in the application itself that the department of Law and Legislative Affairs, Bhopal vide communication dated 14.1.2010 has decided to withdraw the matter in public interest. The said decision of the State Government was also filed along with application u/s 321 Cr.P.C.

Shri Vivek Jain, learned counsel for the petitioners drew the attention of the Court on communication dated 2.2.2010 (Annexure D) whereby the District Magistrate, Shivpuri informed the Public prosecution, Shivpuri to withdraw the matter in public interest on account of the decision taken by the State Government dated 14.1.2010. Shri Vivek Jain submits that when such an application u/s 321 Cr.P.C. was filed, the complainant Shri Ajit Jain filed his reply (Annexure B). In the reply he agreed with the stand taken by the State Government and stated that he is not interested to say anything against the petitioners. He filed affidavit in this regard before the Special Judge (Annexure C). Shri Vivek Jain submits that the learned Special Judge has committed an error in rejecting the aforesaid application for withdrawal of the matter. He submits that there was no justification in rejecting the said application when there is no likelihood of petitioners'' conviction. More so, when the complainant himself has shown his satisfaction and agreed with the stand of the State Government to withdraw the criminal case.

The learned Public Prosecutor read out certain portions of the final report.

I have heard the learned counsel for the parties and perused the record.

A perusal of the record shows that initially complainant Journalist lodged FIR but subsequently field an affidavit and in the affidavit specifically stated that the amount of Rs. 5000/-which was earlier alleged to be looted by the petitioners was found in the office. Accordingly, the police prepared a final report u/s 173 Cr.P.C. In the final report it is specifically stated by the Police administration in the first paragraph that Ajit Jain filed an affidavit and stated in his statement before the Court u/s 164 Cr.P.C. that the amount of Rs. 5000/-allegedly looted by petitioners were found in the office itself and, therefore, Section 395 of IPC is removed/deleted. However, in the same final report in the second paragraph after mentioning other sections, by way of clear interpolation, Section 395 was added. The learned P.P. is not in a position to explain as to how this interpolation was made when a specific finding was given in the first paragraph that no case is made out for invoking Section 395 of IPC.

The Court below mainly rejected the said application on two grounds:

1) The learned P.P. has mechanically filed an application for withdrawal at the instance of the State Government.

2) The prosecution cannot be permitted to be withdrawn in public interest.

The Apex Court in Rahul Agarwal Vs. Rakesh Jain and Another, held that even if Government directs the P.P. to withdraw prosecution, Court must consider all relevant circumstances and find out whether withdrawal would advance cause of justice. It is further held that although no straight jacket formula can be laid down for this purpose, in the peculiar facts and circumstances of each case, the Courts are bound to examine the genuineness of such decision and then only permit the P.P. to withdraw the case.

In the peculiar facts and circumstances of this case, the whole case of the prosecution was based on the complaint of the Journalist Shri Ajit Jain. Shri Jain in his application before the Court u/s 164 Cr.P.C. and in his affidavit clearly stated that the amount allegedly looted by the petitioners were found in his own office. He was the main witness on the strength of which the whole building of prosecution case was standing. It is not also a case involving history-sheeters or known dacoits, who have committed the offence. Apart from this, it is relevant to recollect the finding of Supreme Court in Rahul Agrawal (supra) wherein it is held that permission for withdrawal may be granted in case it is likely to end in acquittal and continuance of case is only causing severe harassment to accused. Another important consideration was to bring harmony between the parties.

In view of aforesaid legal position laid down by the Supreme Court, the trial Court was right in holding that merely because the P.P. has filed an application, the Court is under no obligation to mechanically give permission for withdrawal of the case. It is rightly stated by the Court below that the P.P. is also under a legal obligation to apply his mind and is not bound to act on the direction of the persons who may be above him on the administrative side. Thus, to this extent I uphold the finding of the Court below that mere decision of the Government to withdraw the criminal case and a consequent application by P.P would not bestow any unfettered right on the State Government to withdraw the prosecution. Even in public interest and in peculiar facts and circumstances of the case, if Court deems it proper, the Court may decline such prayer. However, in the present case, the complainant has made it clear that no dacoity of money took place. He is not at all aggrieved against the petitioners. He supported the stand of the State Government to withdraw the prosecution. In this view of the matter, there is no likelihood of petitioners conviction in the matter. The aforesaid stand may lead to restoration of harmony between the parties. The petitioners are not history sheeter dacoits and therefore, in this factual backdrop the permission should have been granted by the Court below. On the basis of aforesaid analysis, I quash and set aside the order dated 26.7.2011 to the extent indicated above whereby application u/s 321 Cr.P.C. was rejected. Consequently, the application u/s 321 Cr.P.C. is allowed. The criminal case No. 16/09 shall be treated to be withdrawn by the State Government. Consequently, petition is partly allowed to the extend indicated above.