PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
CHANDRIKA MOHAPATRA & ORS.
DATE OF JUDGMENT23/08/1976
BENCH:
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 903 1977 SCR (1) 335
1976 SCC (4) 250
ACT
Code of Criminal Procedure (Act 2 of 1974), s.
494--Prosecution applying for withdrawal of
prosecution--principles to be considered by Court in grant-
ing consent.
HEADNOTE
The principles that should be kept in mind by the Court
when giving consent to the prosecution under s. 494 Cr. P.C.
1973, for withdrawing the prosecution against the accused,
are that the prosecution is not able to produce sufficient
evidence to sustain the charge, or that the prosecution does
not appear to be well rounded, or that there are other
circumstances which clearly show that the object of
administration of justice would not be advanced or furthered
by going on with the prosecution. It is not sufficient for
the prosecution merely to say that it is not expedient to
proceed with the prosecution. The ultimate guiding consid-
eration must always be the interest of administration of
justice and that is the touchstone on which the question
must be determined. No hard and fast rule can he laid down
nor can any categories of cases be defined in which consent
should be granted or refused. It must ultimately depend on
the facts and circumstances of each case in the light of
what is necessary in order to promote the ends of justice,
because, the objective of every judicial. process must be
the attainment of justice. [338 C--F]
Where, therefore, the Magistrate granted permission
for withdrawal, because the prosecution averred that the
evidence collected during investigation was not sufficient
to sustain the charge against the accused and after satisfy-
ing himself, by perusing the case diary, that the averment
of the prosecution was justified, the High Court was in
error in setting aside the order of the Magistrate. In the
instant case,. the High Court also erred in observing that
the Magistrate had not perused the case diary, and that the
Magistrate had accorded consent for withdrawal of the
prosecution by accepting the prosecution case that it was
inexpedient to proceed with the case. [338 H; 339 A]
Where, in the connected case, the Magistrate gave his
consent for withdrawal on the ground that it was adminis-
tratively considered by the State inexpedient to proceed
with the case, though it was not a valid ground, no useful
purpose would be served in compelling the prosecution to
proceed with the case, because, both cases arose out of the
same incident and the evidence in regard to both was admit-
tedly the same. [339 C D]
Where the application made by the prosecution for with-
drawal showed that the clash in which certain persons were
injured arose out of rivalry between two trade unions, but
that since the date of the incident calm and peace prevailed
in the industrial undertaking, the Trial Court would be
justified in granting consent for the withdrawal of the
prosecution and the High Court would be in error in setting
aside that order. In the present case, the State felt that
it would not be conducive to the interests of justice to
continue the prosecution, since the prosecution or convic-
tion of the accused would rouse feelings of bitterness and
antagonism and disturb the calm and peaceful atmosphere
prevailing in the undertaking. Ultimately, every offence
has a social or economic cause behind it and if the State
feels that the elimination or eradication of the social or
economic cause of the crime would be better served by not
proceeding with the prosecution. the State should be at
liberty to withdraw from the prosecution. [340 D-G]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
308310 of 1975.
(Appeals by Special Leave from the Judgments and Orders
dated 18.1.1974 and 18.2.1974 of the Orissa High Court in
Criminal Revision Nos. 708, 705 and 306/72 respectively).
336
G. Rath, Adv. General for the State of Orissa and B.
Parthasarthi, for the appellant.
Nemo for the respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.--This group of ’three Criminal Appeals by
Special Leave can be divided broadly into two categories:
one category consisting of Criminal Appeals Nos. 308 & 309
of 1975 and the other, consisting of Criminal Appeal No. 310
of 1975. We are disposing of them by a common judgment
since the question which arises for consideration in both
sets of appeals is as to what is the extent of the power of
the Court to give consent to withdrawal of prosecution and
discharge of the accused under Section 494 of the Criminal
Procedure Code.
Taking up first Criminal Appeals Nos. 308 and 309 of
1975, both these criminal appeals arise out of prosecutions
launched in respect of offences alleged to have been com-
mitted in the course of the same incident. The police filed
a case against nine respondents in Criminal Appeals No.. 308
of 1975 charging them for offences under sections 143, 341
and 138 of the Indian Penal Code and Section 7 of the
Criminal Law Amendment Act. It appears that before the
trial could proceed against the respondents, an application
was made by Court Sub-Inspector, who was in charge of the
prosecution, praying for permission for withdrawal of the
prosecution on two grounds. One ground was that it was
considered inexpedient to proceed with the case while the
other was that the evidence collected during investigation
was meagre to proceed against the respondents and that no
useful purpose would be served by proceeding with the case
against them. The learned Magistrate took the view that it
was not sufficient ground for according consent that the
prosecution considered it inexpedient to proceed further
with the case. But so far as the second ground was con-
cerned, the learned Magistrate held that it was a valid
ground and he did not rest this conclusion merely on the
averment made by the Court Sub-Inspector but he also perused
the case diary for the purpose of satisfying himself that
the evidence was not sufficient to proceed against the
respondents. The learned Magistrate felt that in this
situation it was proper to accord consent for withdrawal of
the prosecution, since compelling the State to go on with
the prosecution in these circumstances would involve unnec-
essary expenditure and waste of public time, which could
otherwise be profitably utilised for other judicial work.
The Learned Magistrate accordingly allowed the Court Sub-
Inspector to withdraw the prosecution and discharged the
respondents under. Section. 494 of the Criminal Procedure
Code.
It seems that this order of the learned Magistrate accord-
ing consent to the withdrawal came to the notice of the High
Court and prima facie taking the view that it was not a
proper order, the High Court suo moto issued notices to the
State as well as the respondents calling upon them to show
cause why this order should not be quashed and set aside.
The matter was heard by a single judge of
337
the High Court and the learned judge quashed and Set aside
the order passed by the learned Magistrate with the follow-
ing observations :--
"The Magistrate should have perused the case
diary to see if there was sufficient material for
framing of charge. But that he obviously did not
choose to do. On the petition for withdrawal that
it was inexpedient to proceed with the case he
thought it prudent to acquit the accused persons
whose prosecution would unnecessarily consume
public money and time. Obviously the learned lower
court has missed the point and has not approached
the subject as he ought to."
The State thereupon preferred the present
appeal with Special Leave obtained from this
Court.
Now the law as to when consent to withdrawal of
prosecution -should be accorded under Section 494
of the Code of Criminal Procedure is well settled
as a result of several decisions of this Court. The
first case in which this question came up for
consideration was The State of Bihar v. Ram Naresh
Pandey(1). It was pointed out by this Court in
that case that in granting consent to withdrawal
from prosecution, the Court undoubtedly exercises
judicial discretion, but it does not follow that
the discretion is to be exercised only with refer-
ence to material gathered by the judicial method.
Having said this, the Court proceeded to enunciate
the principles which should ;guide the exercise of
this discretion:
"In understanding and applying the Section,
two main features thereof have to be kept in mind.
The initiative is that of the Public Prosecutor and
what the Court has to do is only to give its con-
sent and not to determine any matter judicially."
" ...... The Judicial function, therefore,
implicit in the exercise of judicial discretion for
granting the consent should 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 Magistrate’s functions in
these matters are not only supplementary, at a
higher level, to those of the executive but are
intended to prevent abuse."
" ........ There is, however, a general
concurrence at least in the later case--that the
application for consent may legitimately be made by
the Public Prosecutor for reasons not confined to
the judicial prospects of the prosecution."
(1) [1957] S.C.R. 279.
338
This Court had again occasion to consider this
question in M.N. Sankarayarayanan Nair v.P. V.
Balakrishnan & Ors. (1) where Jaganmohan Reddy,
J. speaking on behalf of the Court, pointed out:
"Though the Section is in general terms and
does not circumscribe the powers of the Public
Prosecutor to seek permission to withdraw from the
prosecution the essential consideration which is
implicit in the grant of the power is that it
should be in the interest of administration of
justice which may be either that it will not be
able to produce sufficient evidence to sustain the
charge or that subsequent information before prose-
cuting agency would falsify the prosecution evi-
dence or any other similar circumstances which it
is difficult to predicate as they are dependent
entirely on the facts and circumstances of each
case. Nevertheless it is the duty of the Court
also to see in furtherance of justice that the
permission is not sought on grounds extraneous
to the interest of justice or that offences which
are offences against the State go unpunished
merely because the Government as a matter of gener-
al policy or expediency unconnected with its duty
to prosecute offenders under the law, directs the
public prosecutor to withdraw from the prosecution
and the Public Prosecutor merely does so at the
behest."
It will, therefore, be seen that it is not sufficient
for the Public Prosecutor merely to say that it is not
expedient to proceed with the prosecution. He has to make
out some ground which would show that the prosecution is
sought to be withdrawn because inter alia the prosecution
may not be able to produce sufficient evidence to sustain
the charge or that the prosecution does not appear to be
well rounded or that there are other circumstances which
clearly show that the object of administration of justice
would not be advanced or furthered by going on with the
prosecution. The ultimate guiding consideration must always
be the interest of administration of justice and that is the
touchstone on which the question must be determined whether
the prosecution should be allowed to be withdrawn.
Now in the present case it is clear that according to
the prosecution, the evidence collected during investigation
was not sufficient to sustain the charge against the re-
spondent and the learned Magistrate was satisfied in regard
to the truth of this averment made by the Court Sub-Inspec-
tor. It is difficult for us to understand how the High
Court could possibly observe in its order that the Magis-
trate had not perused the ease diary when in terms the
learned Magistrate has stated in his order that he had read
the ease diary and it was after reading it that be was of
the opinion that the averment of the prosecution that the
evidence was not sufficient was not ill-founded. Then again
it is difficult to comprehend how the High Court could
possibly say that the learned Magistrate accorded consent to
the withdrawal of the prosecution on the ground that it was
inexpedient to proceed with
(1)[1972] (2 ) S.C.R. 599.
339
the case, when, in so many terms, the learned Magistrate
rejected that ground and granted consent only on the second
ground based on inadequacy of evidence. There is no doubt
that the learned Magistrate was right in granting consent
and the High Count committed a manifest error m setting
aside the order of the learned Magistrate. We accordingly
allow Criminal Appeal No. 208 of 1975, set aside the order
of High Court and restore that of the learned Magistrate.
Criminal Appeal No. 309 of 1975 also arises out of the
same incident and the only difference between this Criminal
Appeal and the earlier one is that the .respondents are
different. It is no doubt true that in this case the Court
Sub-Inspector based his application for consent to the
withdrawal of the prosecution on the ground that it was
administratively considered by the State inexpedient to
proceed with the case and that, as already pointed out,
would not be a valid ground. But since both the cases arise
out of the same incident and the evidence in regard to both
is admittedly the same, we do not think that any useful
purpose would be served by compelling the prosecution
to proceed with the case against the respondents in the
present case. We accordingly allow Criminal Appeal No. 309
of 1975, set aside the order of the High Court and restore
that of the learned Magistrate.
We now turn to Criminal Appeal No. 310 of 1975. The case
out of which this appeal arises was the result of a serious
rivalry between two trade unions in an industrial undertak-
ing. It seems that the respondents who are members of one
trade union tried to break up, a procession which was
organised by the rival trade union and this led to a clash
resulting in injuries to various persons. The respondents
were charge-sheeted for various offences arising out this
incident and they were committed to the Court of sessions to
stand trial for offences under sections 147, 148, 149, 307
and 324 I.P.C. However, before the trial commenced, an
application was made by the Public Prosecutor for the
consent of the court to withdraw the prosecution against the
respondents under section 494 of the Code of Criminal Proce-
dure. There were five grounds on which the application was
based. Of them two only are important. One was that the
occurrence arose out of labour union trouble and since the
date of the occurrence, there was industrial peace and
harmony and the other was that withdrawal of the prosecu-
tion would help maintain cordiality between the rival
trade unions. The learned Sessions Judge was impressed by
these two grounds and he granted consent to the withdrawal
of the prosecution against the respondents. The reasons
which weighed with him may be stated in his own words as
follows:
"The grounds are that the incident had been
the outcome of labour trouble. which has now sub-
sided and that the Government, in order to maintain
cordial relationship between the mineowners and
good labour relationship wants to withdraw the
case. The case, as if I find, arose on account
of labour union rivalry and the occurrence
340
place to sabotage a procession led by rival trade
union. The intention being to keep labour trouble
in abeyance, I accord consent of this court for the
withdrawal" ........
The High Court in this case too acted suo moto and
issued notices. to the State and the respondents calling
upon them to show cause why the order of the learned Ses-
sions Judge should not be set aside. The case was heard by
the same learned judge who heard the earlier two criminal
appeals and the learned judge set aside the order granting
consent to the withdrawal of the prosecution and quashed the
order of acquittal passed by the learned Magistrate and
directed the sessions Judge to proceed with the trial of the
case. Hence the present appeal by the State with Special
Leave obtained from this Court.
We have already discussed the principles which should
govern cases of this kind where an application is made by
the Public Prosecutor for grant of consent to the withdrawal
of prosecution under section 494 of the Criminal Procedure
Code. We have pointed out that the paramount consideration
in all these cases must be the interest of administration
of justice. No hard and fast rule can be laid down nor can
any categories of cases be defined in which consent should
be granted or refused. It must ultimatelY depend on the
facts and circumstances of each case in the light of what is
necessary in order to promote the ends of justice, because
the objective of every judicial process must be the attain-
ment of justice. Now, in the present case, the application
made by the Public Prosecutor clearly shows that the inci-
dent had arisen out of rivalry between two trade unions and
since the date of the incident calm and peaceful atmosphere
prevailed in the industrial undertaking. In these circum-
stances, the State felt that it would not be conducive to
the interest of justice to continue the prosecution against
the respondents, since the prosecution with the possibility
of conviction of the respondents would rouse feelings of
bitterness and antagonism and disturb the calm and peaceful
atmosphere prevailing in the industrial undertaking. We
cannot forget that ultimately every offence has a social or
economic cause behind it and if the State feels that the
elimination or eradication of the social or economic cause
of the crime would be better served by not proceeding with
the prosecution, the State should clearly be at liberty to
withdraw from the prosecution. We are, therefore, of the
view that in the present case the learned’ Sessions fudge
was right in granting consent to the withdrawal of the
prosecution and the High Court was in error in setting aside
the order o[ the learned Sessions Judge.
We accordingly allow Criminal Appeal No. 310 of 1975,
set aside the order of the High Court and restore that of
the learned Sessions. Judge.
V.P.S. Appeals,
allowed.-
341