State of Punjab v. Lachhman etc

Present: Mr.Amandeep Singh Rai,Additional Advocate General Punjab ** Sabina, J. This petition has been filed by the State under Section 401of the Code of Criminal Procedure (`Cr.P.C.' for short) challenging order dated

30.5.2009 whereby the application moved by the prosecution under Section 321 Cr.P.C. for withdrawal from prosecution was dismissed. FIR in this case was registered under Sections 307,353,332,148,149 IPC. At the first instance, the challan was presented against the accused. Some of the accused were juvenile and proceedings Criminal Revision No. 2866 of 2009 2 against them were dropped by the trial Court and the Investigating Agency was directed to present the supplementary challan against the said accused in the competent Court. Qua the remaining accused, charge was framed under Sections 148,307,353 read with Section 149 IPC. The allegations against the accused are that they had attacked the Police officials and Revenue Officer who were present at the spot in connection with demarcation of Gurudwara Nanaksar Patti Bir Singh Bhadaur. The Police official suffered injuries and their uniforms were torned and their turbans were removed. Learned State counsel has submitted that the Home Secretary had written a letter for withdrawal from the prosecution of the case and hence, the application was liable to be allowed. Section 321 Cr.P.C reads as under:- “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- Criminal Revision No. 2866 of 2009 3 (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 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 Criminal Revision No. 2866 of 2009 4 Government to withdraw from the prosecution.” Learned Additional Sessions Judge, while dismissing the application has observed as under:- “It may be mentioned here that at the time of the disposal of the application under Section 321 Cr.P.C, the Court is not required to assess the evidence to formulate an opinion as to whether the case will ultimately end in conviction or acquittal. The Court is required to see that the application has been made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law. The Public Prosecutor is also required to apply his own mind arrive at independent conclusion.

11.In the instant case the letter dated 15.1.2009 copy whereof has been placed on record is indicative of the fact that the present application has been moved at the instance of the State and that too after submission of the supplementary challan.

12.In the case in hand there are serious allegations with regard to obstruction caused by the accused in the official duty of the police and the revenue officials. The accused had inflicted injuries on the government officials with an intention to kill Criminal Revision No. 2866 of 2009 5 them and one person was also killed in the process. The accused further ransacked and put on fire the public property. In the event, a person wants to raise any protest the same has to be peaceful and a demonstrator cannot be permitted to damage the public property and injure the officials deputed on duty or any other person. Such like activities not only tend to raise an element of insecurity amongst citizen but disrupt their ordinary life and normal activities. These offences cannot be viewed lightly and in the opinion of the court the withdrawal of prosecution would not be in public interest. Accordingly, the application is dismissed.” While deciding the application under Section 321 Cr.P.C. administration of justice and public interest are paramount consideration. It is also a well accepted principle that in considering the matter regarding consent for withdrawal from prosecution under Section 321 Cr.P.C, the ultimate guiding consideration in this matter is the interest of public justice. Public prosecutor is, thus, expected to apply his mind and consideration whether it is just and reasonable to apply for consent of the Court keeping in mind the interest of the society against which the crime is alleged to have been committed. It should not act merely as a rubber stamp for the State Criminal Revision No. 2866 of 2009 6 Government which had instructed it to withdraw . When Court is satisfied that request is unreasonable or is without application of mind by the Public Prosecutor and is at the dictate of the State Government, it can refuse to give consent. The reasons given by the learned Additional Sessions Judge while dismissing the application under Section 321Cr.P.C. are good reasons. Consequently, the impugned order does not warrant any interference by this Court. Dismissed. March 19, 2010 (Sabina) Judge