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
,
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 relevantat 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. Inso-
far 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, whetherpolice 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.
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. Vs S.P. GUPTA AND ANR.
Dated:February 05, 2016
Citation: 2016 ALLMR(CRI)1300 SC
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. Vs S.P. GUPTA AND ANR.
Dated:February 05, 2016
Citation: 2016 ALLMR(CRI)1300 SC
2. The obtaining factual matrix encompasses a scenario
which covers quite a span of time, and the chronology ofPage 2
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,
2Page 3
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
3Page 4
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
4Page 5
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
5Page 6
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 & others1
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
1
(2004) 7 SCC 338
6Page 7
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
7Page 8
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:-
8Page 9
“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.
9Page 10
2. 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.
3. 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.
4. 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
1Page 11
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
11Page 12
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
1Page 13
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
1Page 14
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.
1Page 15
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
1Page 16
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
1Page 17
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 Ji2
, R.R. Verma & Ors. v. Union of
India & Ors.3 and Subhash Chander v. State
(Chandigarh Administration) & Ors.
4
to contend that the
2 AIR 1970 SC 1273
3
1980 (3) SCC 402
4 AIR 1980 SC 423
1Page 18
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:-
5 AIR 1983 SC 194 : 1983 (1) SCC 438
1Page 19
“... 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
1Page 20
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
2Page 21
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
2Page 22
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
2Page 23
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
2Page 24
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
2Page 25
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;
2Page 26
(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 others6
wherein the Court referred to Section 333 of the old
6
(1987) 1 SCC 288
2Page 27
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
2Page 28
the authorities in Bansi Lal v. Chandan Lal and others7
,
Balwant Singh v. State of Bihar8
, Subhash Chander v.
State (Chandigarh Admn.)9
, Rajender Kumar Jain v.
State10 and the principles stated in State of Bihar v. Ram
Naresh Pandey11 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 others12 is pertinent. In the said case, the Court after
referring to the principles stated by the Constitution Bench
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
2Page 29
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
2Page 30
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 another13
,
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
13
(2005) 2 SCC 377
3Page 31
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 case15, 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
14
(2014) 10 SCC 380
15
Abdul Karim v. State of Karnataka, (2000) 8 SCC 710
3Page 32
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 Maharashtra16 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
16 (2007) 12 SCC 687
3Page 33
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
3Page 34
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 chargesheets
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 ex-
3Page 35
ercises 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 subse-
3Page 36
quent 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 Metropoli-
3Page 37
tan 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 applica-
3Page 38
tion 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
(2005) 1 SCC 568which covers quite a span of time, and the chronology ofPage 2
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,
2Page 3
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
3Page 4
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
4Page 5
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
5Page 6
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 & others1
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
1
(2004) 7 SCC 338
6Page 7
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
7Page 8
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:-
8Page 9
“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.
9Page 10
2. 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.
3. 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.
4. 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
1Page 11
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
11Page 12
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
1Page 13
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
1Page 14
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.
1Page 15
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
1Page 16
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
1Page 17
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 Ji2
, R.R. Verma & Ors. v. Union of
India & Ors.3 and Subhash Chander v. State
(Chandigarh Administration) & Ors.
4
to contend that the
2 AIR 1970 SC 1273
3
1980 (3) SCC 402
4 AIR 1980 SC 423
1Page 18
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:-
5 AIR 1983 SC 194 : 1983 (1) SCC 438
1Page 19
“... 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
1Page 20
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
2Page 21
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
2Page 22
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
2Page 23
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
2Page 24
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
2Page 25
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;
2Page 26
(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 others6
wherein the Court referred to Section 333 of the old
6
(1987) 1 SCC 288
2Page 27
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
2Page 28
the authorities in Bansi Lal v. Chandan Lal and others7
,
Balwant Singh v. State of Bihar8
, Subhash Chander v.
State (Chandigarh Admn.)9
, Rajender Kumar Jain v.
State10 and the principles stated in State of Bihar v. Ram
Naresh Pandey11 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 others12 is pertinent. In the said case, the Court after
referring to the principles stated by the Constitution Bench
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
2Page 29
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
2Page 30
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 another13
,
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
13
(2005) 2 SCC 377
3Page 31
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 case15, 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
14
(2014) 10 SCC 380
15
Abdul Karim v. State of Karnataka, (2000) 8 SCC 710
3Page 32
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 Maharashtra16 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
16 (2007) 12 SCC 687
3Page 33
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
3Page 34
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 chargesheets
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 ex-
3Page 35
ercises 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 subse-
3Page 36
quent 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 Metropoli-
3Page 37
tan 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 applica-
3Page 38
tion 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
,
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. Inso-
far 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, whetherpolice 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 hear-
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 hear-
ing 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
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
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 di-
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 di-
rected 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 others18,
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. …”
18 (2014) 8 SCC 470
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 others18,
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. …”
18 (2014) 8 SCC 470
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
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
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