(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.

(1) The Court of a Magistrate may award such term of imprisonment in je default of payment of fine as is authorised by law: Provided that the term-

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29.

ORDER G.C. Mathur, J.

1. The 27 applicants are members of the Samyukt Socialist Party of India. In connection with the Food Agitation, they entered the court of the Additional Sub-Divisional Magistrate, Gyanpur, Varanasi, and interrupted the judicial proceedings which were going on there. The learned Magistrate, on September 25, 1964, convicted them for contempt of court and sentenced each one of them to a fine of Rs. 50 and, in default of payment of fine, to undergo simple imprisonment for 15 days. As the applicants did not deposit the fines, they were sent to jail and warrants for realisation of the fines were also issued. On October 2, 1964, the applicants were released from jail under an order passed by the State Government under Section 401 Cr. P. C. The relevant portion of this order reads:

“The Government remits under Section 401 of the Code of Criminal Procedure, 1898, unexpired period of substantive sentence of imprisonment and sentence in lieu of fine of such prisoners who were convicted in Food Agitation during August and September, 1964, and whose unexpired period pertains to substantive sentence of imprisonment and sentence in lieu of fine remains to be served for one month or less on 2nd October, 1964, and direct their release on Gandhi Jayanti on 2nd October, 1964.”

On the release of the applicants, the learned Magistrate withdrew the warrants for realisation of fines which had been issued. Subsequently, the learned Magistrate referred the matter regarding the realisation of fines to the State Government and was ultimately informed that the fines had not been remitted. He accordingly issued fresh warrants for realisation of the fines. On March 19, 1965, an application was filed by the applicants before the learned Magistrate, contending that, since the remaining sentence of imprisonment had been remitted, it meant that the sentence of fine had also been remitted by the State Government and prayed that the warrants issued for realisation of the fines be withdrawn. This application was rejected by the learned Magistrate on April 6, 1965. Against the order of the learned Magistrate, the applicants filed two revisions before the learned Sessions Judge, Gyanpur. The learned Sessions Judge was of the view that the State Government had no power under Section 401 Cr. P. C. to remit a sentence of imprisonment in default of payment of the fine. He was further of the view that, even if the applicants could be said to have served out the sentence of imprisonment in default of payment of the fine, the fine could still be realised as it had not been remitted by the Government. He accordingly dismissed the revisions. The applicants have now come up in revision to this Court.

2. The first question, which arises for consideration in this case, is whether a fine can still be recovered after the defaulter has undergone the whole of the imprisonment awarded in default of payment of the fine. The provisions, which govern imposition of the sentence of imprisonment in default of payment of the fine, are Sections 64, 68 and 69 of the Indian Penal Code. These Sections stand thus:–

“64. In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment of fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.

68. The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.

69. If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.”

There is no provision inthe Indian Penal Code like Section 68 providing that, on the undergoing of the whole period of imprisonment, the fine shall not be recoverable. The procedure for recovery of such fines is provided for in Section 386 of the Code of Criminal Procedure. Sub-section (1) of Section 386 Cr. P. C. which is relevant, provides:

“386(1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may –

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter.

Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so.”

The absence of any specific provision to the effect that the fine shall not be realisable if the whole of the period of imprisonment for default has been under-gone and the language of the proviso to Sub-section (1) of Section 386 Cr. P. C. lead to the conclusion that the undergoing of imprisonment awarded in default of payment of the fine does not operate as a discharge or satisfaction of the fine which may nevertheless be levied I in the manner prescribed by Section 386 (1) Cr. P. C. Where the offender has undergone the whole of the sentence of imprisonment in default of payment of the fine, the warrant for the levy or realisation of the fine will not be issued, unless the court considers it necessary to do so for special reasons to be record-ed in writing. In the present case, admittedly, no special reasons have been recorded by the learned Magistrate for issuing the warrant and if, in law and fact, the applicants have undergone the; whole of the period of imprisonment of 15 days imposed upon them in default of payment of the fine, the issue of the warrants would be illegal as they were issued contrary to the provisions of the proviso to Sub-section (1) of Section 386 Cr. P. C.

3. The next question, therefore, which arises for consideration, is whether the applicants have, in fact and law, undergone the period of 15 days’ imprisonment awarded to them in default of payment of the fine. Factually, they have not undergone the 15 days’ imprisonment as they were released on October 2, 1964, before completing that period. The case of the applicants is that the remaining period of their imprisonment in default of payment of the fine was remitted by the State Government under Section 401 Cr. P. C. and, therefore, they must be deemed to have undergone the entire period of imprisonment. Section 401 Cr. P. C. confers the power to suspend or remit sentences. Sub-section (1) of this section, which is relevant, reads thus:–

401 (1) When any person has been sentenced to punishment for an offence, the appropriate Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.”

It is first to be seen whether Section 401(1) Cr. P. C. empowers the State Government to remit a sentence of imprisonment awarded in default of payment of fine. In Abdul Gani v. State of Madhya Pradesh, AIR 1951 Nag 342, a Division Bench of the Nagpur High Court has observed:

“When a person undergoes imprisonment in default of payment of fine, it is obvious that that imprisonment can come to an end in one of these three ways: efflux of time, payment of fine or remission of fine. In our opinion, there is no scope under Section 401, Cr. P. C. for merely remitting a sentence in default of payment of fine. For, what that section speaks of is a remission of the punishment for an offence. Now, here, the punishment is really payment of fine and under Section 401 what the Government can do is to remit that punishment wholly or in part. In other words, what that section appears to us to empower the Government is to remit in whole or in part a substantive sentence, whether of fine or imprisonment (because that would be the punishment for the offence awarded by the Court), passed on a person but not imprisonment in default of payment of fine. Imprisonment in default of payment of fine is suffered by a person not because he committed an offence but because he has failed to pav the fine inflicted on him for the offence. There is thus, in our opinion, a distinction between the sentence of imprisonment awarded to a person for committing an offence and the sentence of imprisonment ordered to be undergone by such person in default of payment of fine.”

Learned counsel for the applicants has not contested the proposition that Section 401 provides only for the remission of sentences imposed by way of punishment for the offence for which the offender has been convicted; but he contests the view of the Nagpur High Court that a sentence of imprisonment in default of payment of fine is not punishment for the offence. According to him, such a sentence is also punishment for the offence. To test this argument, let us consider a case where an offence is. punishable with fine alone. If a person is convicted of such an offence and is sentenced to pay a fine and by the sentence it is further provided that, in default of payment of the fine, the offender shall undergo imprisonment for a specified period, can it be said that the imprisonment is punishment for the offence? Obviously not; for a punishment of imprisonment is not permissible for the offence. Then what is the nature of this sentence of imprisonment? It can only be punishment for the default in payment of the fine which is permissible under Section 64 IPC. Let us take another case where an offence is punishable with imprisonment and fine both. If, for such an offence, an offender has been sentenced to the maximum term of imprisonment and also sentenced to pay a fine and it is directed that, in default of payment of the fine, he shall undergo imprisonment for a specified period, can it be at all said that the sentence of imprisonment in default of payment of the fine is punishment for the offence? Again, the answer must be no; for, if it were to be treated as punishment for the offence, then the sentence of imprisonment would be more than the maximum permissible for the offence. We may now consider an ordinary case where an offender has been sentenced to a substantive sentence of imprisonment and a fine and, in default of payment of the fine, to undergo further imprisonment. Does the punishment for the offence consist of three items, namely, the substantive sentence of imprisonment, the fine and the imprisonment in default of payment of the fine or of only two of the items? If he undergoes the substantive sentence of imprisonment and pays the fine, he cannot be required to undergo the imprisonment imposed in default of payment of the fine.

But, if he undergoes the substantive sentence of imprisonment and, in addition, the sentence of imprisonment in default of payment of the fine, he can still be required to pay the fine. In all events, he must undergo the substantive sentence of imprisonment and pay the fine. Therefore, it appears that the punishment for the offence, for which he has been convicted, is the substantive sentence of imprisonment and the fine and the sentence of imprisonment in default of payment of fine is not punishment for the offence for which the offender has been convicted but is punishment for failure to pay the fine. Learned counsel for the applicants relied upon the words “direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term” occurring in Section 64 I. P. C. in support of his contention that the imprisonment in default of payment of the fine is also a sentence or punishment for the offence I am unable to accept this interpretation. It is to be noticed that the words are not “in lieu of payment of the fine” but are “in default of payment of the fine”. It is not that the two are alternative punishments for the offence.

The sentence of imprisonment in default of payment of the fine is not punishment for the offence for which the offender has been convicted but is punishment for his failure to pay the fine imposed upon him by way of punishment for the offence. The sentence of imprisonment in default of payment of the fine, not being punishment for the offence for which the offender is convicted, cannot be remitted by the State Government under Section 401(1) Cr. P. C. The order of the State Government under Section 401 Cr. P. C. in the pre-sent case remitting the remaining period of the sentence of imprisonment imposed upon the applicant in default of payment of the fine is beyond the powers of the State Government and is illegal and is ineffective in remitting this part of the sentence. In law, therefore, the sentence of 15 days’ imprisonment imposed upon the applicants in default of payment of the fine of Rs. 50 remains and, they having served out only a portion of that sentence, can be legally sent to jail to serve out the remaining period of imprisonment until, in the meantime, the fine is paid and the provisions of section 68 or 69 I. P. C. are attracted. The applicants cannot be said to have, either in fact or in law, undergone the whole of the term of imprisonment awarded to them in default of payment of the fine.

The proviso to Section 386(1) Cr. P. C. is not attracted to their cases and it was not necessary for the learned Magistrate, before issuing warrants for realisation of the fines, to have recorded any special reasons why he considered it necessary to issue such warrants. The applicants’ contention that the warrants were issued in violation of the provisions of the proviso to Section 386(1) Cr. P. C. has not been substantiated. The argument of learned counsel for the applicants that, since it was on account of the illegal action of the State Government in releasing them from jail prematurely before they had undergone the whole of the term of imprisonment which they were ready and willing to do, they could not be deprived of the benefit of the proviso to section 386(1) Cr. P. C. cannot be accepted. That proviso can only apply if the conditions mentioned therein are satisfied. In the view that I have taken, those conditions are not satisfied.

4. The revision application is without force and is hereby dismissed. The stay order dated October 21, 1965, is vacated.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860 ), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after

the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that-

(2) Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate may be withdrawn by the respective Magistrate by whom such powers were conferred.

CASE

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Reserved
 
Court No. - 21
 

 
Criminal Writ-Public Interest Litigation No. - 16507 of 2015
 
In Re: Withdrawal of Criminal Cases by State Government (arising out of Criminal Misc. Writ Petition No. 10816 of 2015, Ram Narayan Yadav Vs. State of U.P. & others)
 

 
Hon'ble V.K. Shukla, J.

Hon’ble Manoj Misra, J.

Hon’ble Bharat Bhushan, J.

(Per: V.K. Shukla,J.) One Ram Narayan Yadav, who was facing trial on the basis of a police report under Section 173 (2) of the Code of Criminal Procedure (in short Cr.P.C.), moved an application to the Chief Minister directly, whereupon, Sri Shambhu Nath, Special Secretary to the Chief Minister made a note directing the concerned department to take appropriate action. Thereafter, Special Secretary (Home) sent a letter to the District Magistrate requiring his opinion and the matter was examined by the Assistant Public Prosecutor, who gave an opinion stating that police after due investigation has submitted charge-sheet based on evidence; charges are serious; and there are good chances of conviction of accused, therefore, the case should not be withdrawn. This opinion of Assistant Public Prosecutor has been concurred by Senior Public Prosecutor and on the same line the Superintendent of Police as well as District Magistrate gave their opinion against withdrawal of criminal case. Thereafter, it appears, a committee consisting of Shri R.M.Srivastava, the then Principal Secretary (Home) and Shri S.K. Pandey, the then Principal Secretary Law and Legal Remembrancer, put up a note stating that chances of success in the case were doubtful, therefore, it should be withdrawn.

In Criminal Misc. Writ Petition No. 10816 of 2015 filed by Ram Narayan Yadav before this Court, the Court took serious note of the manner in which power under Section 321 Cr.P.C. was sought to be exercised. Accordingly, a detailed order was passed by the Court asking for an affidavit of the Principal Secretary, Law and Legal Remembrancer, as well as Special Secretary, Law, Government of U.P., Lucknow. It is also reflected from the record that before the Bench seized of the matter, Ram Narayan Yadav through his counsel made a request that as the Magistrate has already heard the matter and reserved the order, he may be permitted to withdraw the petition. The Division Bench seized of the matter though dismissed the petition as withdrawn by observing that it was the privilege of the petitioner to prosecute his petition or not but after noticing the fact that petitioner Ram Narayan Yadav had political access and was running an educational institution in connection with which he had been found to have indulged in offences, in which, after collecting credible evidences, charge-sheet had been submitted and trial was pending, proceeded to make the following reference:

“1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations, just, valid and judicially tenable?

2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India?

3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr.P.C. irrespective of fact that accused or anyone else has approached the government for this purpose or not? “

On the reference being made the matter has been placed before us under the orders passed by Hon’ble the Chief Justice.

Sri Imran Ullah, learned Additional Advocate General, submitted before us that as far as provision of Section 321 Cr.P.C. is concerned, same is self contained, wherein, at the end of day, it is the Court that has to take a final call. Accordingly, once the State Government has taken a resolve to withdraw the prosecution, then the said opinion of the State has to be examined by the Prosecuting Officer independently and, thereafter, the ultimate authority to decide as to whether the application, in the facts of the case, is to be allowed or not, vests in the Court and as far as the power of judicial review of this Court conferred by Article 226 of the Constitution of India is concerned, as it forms basic feature of the Constitution, the same is always there. But as full fledged mechanism is provided by Section 321 Cr.P.C., the matter should be left to be dealt with as per the procedure prescribed therein.

Sri Akhilesh Kumar Singh, learned Government Advocate, has also advanced the arguments on the same lines. Sri Vimlendu Tripathi, learned AGA, has also advanced submissions on the same lines but with an emphasis that the Constitutional Court should not in exercise of its power of judicial review proceed to interfere and circumvent the process initiated under the Code of Criminal Procedure.

Any criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and committedly, always accountable to the law-abiding citizenry for any lapse. [Pooja Pal Vs. Union of India, (2016) 3 SCC 135] Criminal Justice is dependent on the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct. Criminal justice system mandates fair and proper investigation with an avowed object to bring out all material before the Court of competent jurisdiction to enable it to find out the truth. Unsolved crimes, unsuccessful prosecution, unpunished offenders and wrongful convictions brings our criminal justice system in disrepute thereby creating an impression in the mind of common people that they can get away with any crime, which tarnishes not only the image of the investigation agency but of judicial system as well. Truth will be a causality if due to external pressure, guilty person gets away from the clutches of law.

Keeping in mind the obligation of the State Government to secure public justice, we proceed to examine the provisions of Section 321 Cr.P.C. as amended in the State of U.P. The same is extracted hereinunder:-

“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;

(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.

STATE AMENDMENT Uttar Pradesh:

In Section 321, after the words “in charge of a case may”, insert the words “on the written permission of the State Government to that effect (which shall be filed in Court).

Section 321 of Cr.P.C. 1973 deals with the power of Public Prosecutor/Assistant Public Prosecutor to withdraw case of which he is in-charge after obtaining written permission from the State Government and that permission is required to be filed in Court. The power of withdrawal can be invoked by the Public Prosecutor/Assistant Public Prosecutor, In-charge of the case when same is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The aforesaid provision relating to withdrawal has been subject matter of consideration in various judgements of Apex Court as well as of this Court.

Apex Court in the case of Sheonandan Paswan versus State of Bihar, (1983) 1 SCC 438, ruled that ultimate decision to withdraw from the prosecution should be of Public Prosecutor. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The government may make suggestion but cannot compel the Public Prosecutor. The Public Prosecutor may receive any instruction from the government but it is not necessary for him to abide by it. The Public Prosecutor has to apply his own independent mind before moving the application under Section 321 Cr.P.C. Public Prosecutor has a right to disagree with the government instruction and may refuse to move application for withdrawal of prosecution.

In State of Andhra Pradesh versus P. Anjaneyulu, (1984) 2 SCC 445, N. Natarajan versus B.K. Subba Rao, (2003) 2 SCC 76, the aforesaid proposition has been reiterated.

In State of Punjab versus Union of India, (1986) 4 SCC 335, Apex Court ruled that it is the duty of the Court, while granting permission to the Public Prosecutor to withdraw from prosecution, 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 administration of justice is the touch stone on which the question must be determined whether the prosecution should be allowed to withdraw. Not only the material or paucity of evidence but broad ends of public justice including appropriate socio economic conditions may be ground to move withdrawal application.

In Sheonandan Paswan versus State of Bihar, (1987) 1 SCC 288, Apex Court held that while considering the application moved by the Public Prosecutor, the court has to see that the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given by the court.

In Abdul Karim versus State of Karnataka, (2000) 8 SCC 710, Apex Court reiterated the principle emerging from Sheonandan Paswan (supra) and held that the Public Prosecutor may move application on the basis of the material provided by the State.

In Jasbir Singh versus Vipin Kumar Jaggi, (2001) 8 SCC 289, Apex Court held that the provision contained in Section 321 Cr.P.C. is different than the power conferred by Section 307 of the Code. Unlike grant of pardon under Section 307, withdrawal from prosecution under Section 321 is unconditional though it requires express permission of the Central Government in specified cases.

In S.K. Shukla versus State of U.P., (2006) 1 SCC 314, the Apex Court ruled that the Public Prosecutor cannot work like a post box or act on the dictates of the State Govt. He has to act objectively as he is also an officer of the court. The court has to assess freely whether a case is made out for withdrawal of prosecution or not. It is always open for the court to reject the prayer.

In Mahmadhusen Abdulrahim Kalota Shaikh, (2009) 2 SCC 1, Apex Court held that Section 321 Cr.P.C. is a codified version of judicial review. It ensures that the judiciary makes the final decision by approving or disapproving the decision of Public Prosecutor. In the matter concerning judiciary, the judiciary should have final say over the cases that has been placed before it. It goes without saying that the courts’ decision to grant consent to an application for withdrawal is a judicial function. The final decision rests with the Judge.

In Rahul Agarwal versus Rakesh Jain and another, 2005 SCC (Cri) 506, Apex Court considered when an application under Section 321 Cr.P.C. may be allowed. It was held by Apex Court that it may be permitted when valid reasons are made out for the same and it can be allowed only in the interest of justice. It shall be obligatory for the court to consider all relevant circumstances and find out whether the withdrawal of prosecution advances the cause of justice. Discretion under Section 321 should not be exercised to stifle the prosecution. Withdrawal can be permitted if the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused or to bring out harmony between the parties. In the facts of that case, their Lordships found that it was not proper for the High Court to have allowed the withdrawal application. While reiterating the settled proposition of law, Apex Court in the case of Rahul Agarwal (supra) held as under :

“10. 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 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.”

In Ghanshyam versus State of M.P and others, (2006) 3 SCC (Cri) 602, while reiterating the earlier view (supra) that the discretion to withdraw from prosecution vests in Public Prosecutor and none else, Apex Court held that the Public Prosecutor cannot surrender that discretion to any one. He may withdraw prosecution not merely on the basis of paucity of evidence but all other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility. Their Lordships of Apex Court declined to interfere with the order passed for withdrawal of case under Section 321 Cr.P.C. since the order was challenged after lapse of almost fifteen years.

The judgment noted above has been considered in extenso by a Full Bench of this Court in the case of Ms. Ranjana Agnihotri Vs. Union of India, 2013 (11) ADJ 22 (FB), wherein Full Bench has answered the issues raised in following terms;

Questions Answers

(i) Whether the State Government can issue Government Order for withdrawal of cases without there being any request by the Public Prosecutor in charge of the case?

The Government can issue an order or instruction for withdrawal from prosecution without there being request from the Public Prosecutor Incharge of the case, subject to the rider that the Public Prosecutor shall apply his/her independent mind and record satisfaction before moving an application for withdrawal from prosecution (supra).

(ii) Whether the prosecution can be withdrawn without assigning any reason as to why the prosecution was sought to be withdrawn and is therefore unconstitutional and violative of Article 14 of the Constitution of India?

The prosecution cannot be withdrawn without assigning reason, may be precisely. If an application is moved for withdrawal from prosecution in a case relating to terrorism and waging of war against the country, special and specific reason has to be assigned keeping in view the discussion, made in the body of judgment (supra).

(iii) Whether the prosecution of offence relating to Central Act be withdrawn without taking permission from the Central Government?

Prosecution under Central Acts where with regard to the offences, executive power of the Union extends, prosecution cannot be withdrawn without permission of the Central Government (supra).

For offences under Unlawful Activities (Prevention) Act, 1967, Explosive Substances Act, 1908 and Arms Act, 1959 etc and the offences falling in Chapter VI of Indian Penal Code or alike offences the executive power of the Union of India extends, hence permission from the Central Government with regard to withdrawal of prosecution under Section 321 CrPC shall be necessary.

(iv)Whether the State Government after giving sanction for prosecution, review its own order by issuing orders for withdrawal of the cases?”

State Government has got power to issue instruction or pass order even after sanction for prosecution has been given in a pending criminal case, subject to condition that the Prosecuting Officer has to take independent decision with due satisfaction in accordance with law on his own, before moving the application for withdrawal from prosecution in the trial court.

Apex Court in the case of Bairam Murlidhar Vs. State of Andhra Pradesh, (2014) 10 SCC 380, has taken a view that Public Prosecutor is duty bound to apply his mind to the material on record and form independent opinion that withdrawal would really subserve public interest at large and the order of Government in this regard is not binding upon Public Prosecutor. Public Prosecutor is obligated to disclose as to what material he has considered to come to the conclusion that withdrawal of prosecution would serve public interest. On application coming before the Court, the Court is required to see whether grant of consent would thwart or stifle the cause of law or cause manifest injustice. Judicial discretion is to be exercised carefully having regard to relevant facts, not to be exercised to stifle prosecution and not to be exercised mechanically. View to the similar effect has been expressed in the case of M/s. VLS Finance Vs. S.P. Gupta, (2016) 3 SCC 736.

From the provisions, that have been quoted above, and the view point of Apex Court and this Court expressed from time to time it is clearly reflected that under the scheme of things provided for, the Public Prosecutor/Assistant Public Prosecutor on his own can proceed to move an application for withdrawal of criminal case and for that has to take consent of the State Government. When the Public Prosecutor/Assistant Public Prosecutor, proceeds to move an application, he has to act objectively being an Officer of the Court and has to see and ensure that the move that is being mooted by him is in the interest of advancing cause of justice. The Public Prosecutor will have to rise to the occasion and will have to act independently, courageously and not simply surrender his discretion. The authority conferred on Public Prosecutor to take independent decision is not negotiable and cannot be bartered away in favour of those who may be above him on the administrative side as the Public Prosecutor is obligated to be guided by law and spiritof Code of Criminal Procedure only and ensure that his opinion is not used otherwise. A duty has also been fastened on Court to check the abuse or misuse by the executive of the provisions of Section 321 of the Criminal Procedure Code. The Court is thus obligated to record a finding that the application moved by the Public Prosecutor is in the interest of justice and there is no abuse or misuse of the authority of Public Prosecutor or the Government. When a Court proceeds to allow an application for withdrawal its order must record a finding that the application has been moved in good faith to secure the interest of justice and not for advancing/promoting personal interest. The Court should deal with the matter with free, fair and independent exercise of mind in the interest of public policy/public good.

The provisions of Section 321 Cr.P.C. exists on statute book with all checks and balances with defined role to be played by Public Prosecutor; the State and the Court. Prosecution of an alleged offender is primarily the responsibility of State which through investigating authorities file charge-sheet and initiates prosecution. The power to withdraw prosecution is, therefore, an exception to the general obligation of the State to discover, vindicate and establish truth before a Court of Law in furtherance of Criminal Justice System. Crimes being public wrong arising from breach and violation of public rights and duties, affecting the whole community, are not to be tolerated by the State. Concept of fair trial entails balancing the interest of the accused, the victim, society and the community with the help of the agencies of State. In the State of U.P., by means of State Amendment, State Government has now been conferred power to accord written permission for withdrawal of prosecution, if any. Such conferment of authority, is certainly function assumed by the State Government to assert and reiterate its sovereign authority in matters relating to State prosecution. State Government under the scheme of things exercises statutory function i.e. executive in nature.

If the nature of the order is statutory and is an executive function, can same be subjected to judicial review i.e. can such an opinion of the State Government be made amenable to writ jurisdiction under Article 226 of the Constitution of India, is the question which requires our consideration.

The content and scope of the power under Article 226 of the Constitution of India has fallen for scrutiny in the case of State of West Bengal & others Vs. Committee for Protection of Democratic Rights, (2010) 3 SCC 571, wherein Apex Court has ruled that no act of Parliament could exclude or curtail the power of Constitutional Courts. The power of judicial review is an integral part of the basic structure of Constitution. It was underlined that the same was essential to give pragmatic content to the objectives of Constitution embodied in Part III and other parts. In elaboration it was also held that Article 21 of the Constitution not only takes within its fold, the enforcement of the rights of accused but also the rights of the victim.

State and all its functionaries are duty bound to act fairly and reasonably in discharge of their official functions independently without external pressure. Powers conferred upon High Court under Article 226 are discretionary in nature which can be invoked for enforcement of any fundamental right or legal right. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion as per the Apex Court in the case of M.P. State Agro Industries Corporation Vs. Jahan Khan, (2007) 10 SCC 88, and in appropriate case, in spite of availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review in at least three contingencies namely (I) where the writ petition seeks enforcement of any of fundamental rights (II) where there is failure of natural justice and (III) where the orders or proceeding are totally without jurisdiction or the vires of the Act is challenged.

Apex Court in the case of Radhey Shyam and another Vs. Chabi Nath and others, 2015 (5) SCC 423, has taken note of the fact that language used in Article 32 and 226 of Constitution is very wide and the powers of Apex Court as well as the High Court in India extend to issuing or orders, writs or direction including writ in the nature of ‘habeas corpus, mandamus, quo warranto, prohibition and certiorari,’ as may be considered necessary, for enforcement of fundamental rights and in case of High Courts, for other purposes as well.

A Division Bench of this Court in the case of Yogesh Agrawal Vs. State of U.P. & others, 2015 (10) ADJ 472 (DB), has taken the view that if there are serious legal errors in the decision making process then such executive action can be interfered with in the exercise of jurisdiction under Article 226 of the Constitution of India. Relevant extract of the said judgment is as follows:

“Then is the question as to what is the nature of the power that is exercised by the State Government while granting permission to withdraw the prosecution. It is by now settled and has been clearly explained in the full bench decision of Ranjana Agnihotri’s case (supra) that the power of the State Government is statutory, executive and administrative in nature. The reason for this is that the adjudicatory power on such an issue under Section 321 Cr.P.C. is clearly saved for the courts and therefore the nature of the power exercised by the State Government is an administrative opinion formation function based on some policy of public justice or in public interest or under the parameters as explained above. The State Government does not have the power to ultimately decide the issue of withdrawal which according to Section 321 Cr.P.C. itself is subject to the twin conditions of the independent opinion of the Public Prosecutor and the consent of the State. Nonetheless it is a statutory power which is being exercised and therefore any executive power controlled by statute has to be reasonably exercised, and not arbitrarily, as per the mandate of Article 14 of the Constitution of India. It need not be re-emphasised that non-arbitrariness in executive functions can be tested on the anvil of Article 14 of the Constitution of India and this aspect also has been clearly indicated to be available even to the trial court in Ranjana Agnihotri’s case (supra).”

Writs as referred to in Article 226 of the Constitution of India are intended to enable the High Court to issue them in appropriate cases where the State or its official/instrumentalities act wholly without jurisdiction or in excess of it or colorably or in violation of principle of natural justice, or refuse to exercise jurisdiction conferred on them, or there is an error apparent on the face of record, and such act, omission, error or excess has resulted in manifest injustice. In such contingencies enumerated above it is within the jurisdiction/discretion of High Court to grant requisite relief under Article 226, in the facts of the case, notwithstanding the fact that there is mechanism in place to take final call in the matter as same is essentially a rule of policy, convenience and discretion and never a rule of law.

In the background of the provisions, that have been quoted above, and various judicial pronouncement, that has been noted above, the issues referred are answered by us as follows:

Issue No. I: State Government is not at all free to exercise its authority under Section 321 Cr.P.C. in whimsical or arbitrary manner or for extraneous considerations apart from just and valid reasons.

Issue No. II: The decision taken by the State Government for withdrawal of the case communicated to the Public Prosecutor, is open to judicial review under Article 226 of the Constitution of India on the same parameters as are prescribed for invoking the authority of judicial review.

Issue No. III: The State Government is free to act under the parameters provided for to make scrutiny of criminal cases pending in subordinate courts to find out as to whether they deserve withdrawal under Section 321 Cr.P.C. or not as it is in the realm of the policy decision, and call on the said score has to be taken by the State Government and same has to be based on the parameters required to be observed while moving an application for withdrawal of prosecution under Section 321 Cr.P.C.

Reference is answered, accordingly.

(Bharat Bhushan, J.)        (Manoj Misra, J.)        (V.K. Shukla, J.)
 

 
Order Date :- 20.2.2017
 
Shekhar