Supreme Court of India
M/S. V. L. S. FINANCE LTD.versusS. P. GUPTA AND ANR.
- Citation
- 2016 INSC 143
- Decided
- 5 February 2016
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The court held that only the Public Prosecutor can decide to withdraw or not press an application under Section 321 Cr.P.C., the court has no role until the application is moved, and the accused cannot contest such withdrawal nor invoke Section 91, leading to the setting aside of the High Court’s order.
Summary
The appellant, V.L.S. Finance Ltd., challenged a series of orders that allowed the withdrawal of prosecution under Section 321 of the Code of Criminal Procedure (Cr.P.C.) and permitted the accused to contest that withdrawal by filing applications under Section 91 Cr.P.C. The Court examined whether the Assistant Public Prosecutor could unilaterally decide not to press an application for withdrawal and whether the magistrate could entertain such a decision, holding that the court has no role until the prosecution moves the application. It further ruled that the accused have no standing to contest the withdrawal or to invoke Section 91 at that stage. The High Court’s order allowing the accused to file a Section 91 application was therefore set aside. The magistrate was directed to proceed with the trial in accordance with law, without entertaining the accused’s applications. The appeals were allowed.
Issues considered
- Whether the Assistant Public Prosecutor may file an application for withdrawal of an earlier application under Section 321 Cr.P.C. and whether the court can entertain such a filing.
- Whether a magistrate has jurisdiction to permit the prosecution to withdraw or not press an application under Section 321 Cr.P.C.
- Whether the accused can contest the withdrawal of prosecution or invoke Section 91 Cr.P.C. at that stage.
- Whether the High Court erred in allowing the accused to file a Section 91 application against the withdrawal order.
- Whether Section 362 Cr.P.C. bars review of the magistrate’s order in this context.
Legislation cited
- Code of Criminal Procedure, 1973s. 173(8), s. 195(1), s. 32, s. 321, s. 340, s. 362, s. 91
- Indian Penal Code, 1860
Subjects
withdrawal of prosecutionSection 321 Cr.P.C.public prosecutorabuse of processSection 91 Cr.P.C.criminal proceduremagistrate jurisdictionhigh court orderappeal
Judgment
[2016] I S.C.R. 623
M/S. V. L. S. FINANCE LTD. A
v.
S. P. GUPTA AND ANR.
(Criminal Appeal No. 99of2016)
FEBRUARY 05, 2016 B
[DIPAK MISRA AND N.V. RAMANA, JJ.]
Code of Criminal Procedure, 1993 - ss. 91 and 32 I -
Application uls. 321 - Withdrawal/non-pressing of - Contested by
the accused persons - Permissibility - Held: The application uls.
321 was filed and not moved before the Court - The Court has no
c
role to grant consent, unless the application is moved by the Public
Prosecutor - At this stage the Public Prosecutor is entitled to
withdraw the application uls. 321 - The accused persons cannot
be allowed to contest such application and also cannot file
documents and take recourse to s. 91. D
Administration of Justice - Abuse of process of the Court -
Held: A legal process cannot be allowed to be abused by challenging
each order in a superior court, in order to procrastinate the
proceeding in a court of law.
Allowing the appeals, the Court E
HELD: 1.1 Long time has elapsed since the day summons
were issned. Despite the non-entertainment of the petitions
challenging the order issuing summons by the superior courts,
the matter remains now, where it was in the year 2003. [Para
27) (636-G-H) F
1.2 The factual narration depicts a sorrowful and
simultaneously, a puzzling one. 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 G
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 present
case the process has definitely been abused. (Para 31) (638-D-E)
H
623
624 SUPREME COURT REPORTS [2016] I S.C.R.
A Subrata Roy Sahara v. Union of India and others (2014)
8 sec 470 - relied on.
2.1. When an application of withdrawal from the
prosecution under Section 321 Cr.P.C. is filed by the Pnblic
Prosemtor, he has the sole responsibility and the law casts an
B obligs1tion that he should be satisfied on the basis of materials
on rec:ord 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 Magistrate had not passed any
order granting consent for withdrawal, as he could not have
c without hearing the Assistant Public Prosecutor. At this juncture,
the authority decided regard bein·g had to the fact situation that
the Assistant Pnblic Prosecutor should withdraw the application
and not press the same. After snch a decision had been taken,
as the application would show, the Assistant Public Prosecutor
D has n~-appreciated the facts, applied his mind to the totality of
facts and filed the application for not pressing the application
prefc~rred earlier under Section 321 Cr.P.C. ·Thi~ filing of
application not to press the application cannot be compared with
any kind of review of an order passed by the court. Qnestion of
review can arise when an order has been passed by a conrt.
E
Section 362 Cr.P.C. bars the Conrt 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
F 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 for he is not a post
office. (Para 47] (648-F-H; 649-A-C]
2.2 In the present case, the Pnblic Prosecntor had not
G 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. 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,
H the court is required to see whether there has been independent
M/S. V. L. S. FINANCE LTD. v. S. P. GUPTA 625
application of mind by the Public Prosecutor and whether other A
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
B
authority to file the application for not pressing the earlier
application. [Para 47] [649-C-F]
2.3 The accused persons cannot contest the application
and also cannot 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
c
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 pi"Osecution to withdraw the D
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 321Cr.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 E
application would not be appropriate. The Magistrate is directed
to proceed with the cases in accordance with law. [Para 47] [649-
F-H; 650-A-B]
2.4. In the present case the Magistrate was directed by
the High Court to consider the application filed by the Assistant F
Public Prosecutor seeking withdrawal of the application earlier
preferred under Section 321 Cr.P.C. In such a situation, Section
91 of Cr.P.C. could not have been taken aid of by the accused
persons. The High Court has fallen into error by permitting
the accused persons to file an application Section 91 Cr.P.C. [Para G
45] [647-G-H]
Sheonandan Paswan vs. State of Bihar & others (1987)
1 sec 288 - followed.
Ada/at Prasad v. Roop/al Jindal & Ors. (2004) 7 SCC
338; Patel Narshi Thakershi & Ors. v. Pradyuman H
626 SUPREME COURT REPORTS (20 I 6] I S.C.R.
A Sing/:! Ji Ariun Singh Ji AIR 1970 SC 1273; R.R. Verma
& Ors. v. Union of India & Ors.1980 (3) SCR 478
:1980 (3) SCC 402; Bansi Lal vs. Chanda11 Lal a11d
Ors. (1976) l SCC 421 : AIR 1976 SC 370; Ba/want
Singh vs. State of Bihar (1977) 4 SCC 448 : (1978) l
SCR 604; Subhash Cha11der vs. State (Chandigarh
B
Admn.) (1980) 2 SCC 155 : (1980) 2 SCR 44; Rajender
Kumar Jain vs. State (1980) 3 SCC 435 : AIR 1980 SC
1510; State of Bihar vs. Ram Naresh Pandey 1957 Cri
LJ 567 : AIR 1957 SC 389; V. S. Achuthana11da11 v. R.
Balakrishna Pillai and Ors. (1994) 4 SCC 299; Rahul
c Agarwal v. Rakesh Jain and A11r. (2005) 2 SCC 377;
Bairam Muralidhar v. State of A.P. (2014) 10 SCC 380;
Vijaykumar Baldev Mishra alias Sharma v. State of
Maharashtra (2007) 12 SCC 687; State of Orissa v.
Debendra Nath Padhi (2005) l SCC 568 - referred
to.
D
Case Law Reference
(20.04) 7 sec 338 Referred to. Para4
Al.R 1970 SC 1273 Referred to. Para 21
1980 (3) SCR 478 Referred to. Para 21
E 19'83 (2) SCR 61 Referred to. Para 21
(1987) l sec 288 followed. Para34
(1976) 1 sec 421 Referred to. Para 34
(1978) 1 SCR 604 Referred to. Para 34
(1980) 2 SCR 44 Referred to. Para 34
F
(1980) 3 sec 435 Referred· to. Para 34
1957 Cri LJ 567 Refe.rred to; Para 34
-
0994) 4 sec 299 Referred to. Para 35
(2005) 2 sec 311 Referred to. Para 36
G (2014) 10 sec 380 Referred to. ·Para 37
(2007) 12 sec 687 Referred to. Para38
f2005) 1 sec 568 Referred to. Para 44
(2014) 8 sec 470 relied on. Para 48
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
H
No . 99 of20!6.
MIS. V. L. S. FINANCE LTD. v. S. P. GUPTA 627
From the Judgment and Order dated 30.07.2015 of the Single A
Judge of the High Court of Delhi at New Delhi in CRL. M.C. No. 2055
of2015.
·wITH
Crl.A.Nos.100, IOI and 102-104of2016
B
Dushyant A. Dave, Sandu Malhotra, Sukumar Patt Joshi, Abjay
Anand Jona, Ashok Kumar Sharma, Rakhi Ray, Ranjit B. Raut, Harish
Pandey, R. S. Gulia, Uday 8. Waviker, Bina Gupta for the Appellant.
Sushi I Kumar, Aditya Kumar, Harpreet Singh Rai, A. D. N. Rai,
Atul Sharma, A. Venkatesh, Gurpreet Singh,Amarjit Singh Bedi, Satish c
Kumar for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The obtaining factual matrix encompasses a scenario which
D
covers quite a span of time, and the chronology of events projects
horrendous picture, as Mr. Dushyant A. Dave and Ms. lndu 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 E
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
F
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
ofjustice has been vexed, for in such a situation besides the prosecution G
and the accused, there is a third party, the victim of the crime, 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 H
628 SUPREME COURT REPORTS (2016] I S.C.R.
A imperative to exposit facts after due filtration. The appellant set the
criminal law in motion by filing an FIR No. 90 of2000 at Police Station
Connaught Place which came to be registered under Sections 406, 409,
420, 424, 467, 468, 471, 477-A and 1208 of the Indian Penal Code (!PC).
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
B
levelled against the accused persons pertained to the fraudulent
transa,ctions of certain amount of money. Learned Magistrate vi de 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
c was a.ssailed before the High Court of Delhi in Crl.M.C. No. 911 of
2003 along with the prayer for 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
D
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
E order was attacked in Crl.M.C. No. 2040 of 20 I 0 which came to be
dismissed on 04.06.2010. In the said case, the learned single Judge had
take:n note of the earlier cases being Criminal M.C. Nos. 911 of2003,
1992 of2006, 2142 of2007, 2229 of2007, 1988 of2008 and 64 of2006
and Writ Petition (Criminal) Nos. 498 of2005,_208 of2006, 1191 of2006
and 1210 of 2006 challenging the summoning order which remained
F
pending before the High Court till 04.03.2010. On 04.03.2010 the High
Court noted that the learned counsel for the petitioners therein did not
want the matter to be disposed ofon 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
G 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
H aforesaid case against the petitioner and to further decide whether
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 629
the case should proceed or not in view of some of the objections A
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."
B
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 possible
to accept the contention of the petitioner that appropriate stage meant
c
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. D
The learned Magistrate referred to the decision in Adlllat Prasad v.
Roop/al Jindal & others' 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 Colirt noticed that the summoning
order was earlier challenged in petitions which had remained pending E
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 remained
pending in the High Court for 3-6 years. F
5. The said order came to be assailed in Special Leave Petition
(Criminal) No. 6336 of2010 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 of2000 by the accused persons met with the G
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 ofendeavour constrained the accused
persons to file an application on 24.09.20 l 0 for stay of the proceedings
1
(2004J 7 sec 338 H
630 SUPREME COURT REPORTS [2016) 1 S.C.R.
A arising out of FIR No. 90 of2000 before the Chief Metropolitan Magistrate
along with other F!Rs 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
B (Principal Secretary (Home)-ln 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 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
c 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
D Cr.P.C. in respect of FIR No. 9012000, 99/2002 and 148/2002 had already
been conveyed to the Home Department, Government ofNCT 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.
E 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
of2000 recommended for withdrawal of the case. We think it appropriate
to reproduce the said recommendation:-
"RECOMMENDATIONS OF THE COMMITTEE
F The Committee observed that the withdrawal of case Fir No. 901
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
G 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
H of Prosecution immediately.
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J .] 631
In view of the above the Committee decided to recommend the A
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 B
cases to be withdrawn after following prescribed procedure:-
"!. FIR No. 46/11 Police Station-Civil Lines registered against
Govt. School Teachers Association u/sAct/Section 188 IPC.
2. FIR No. 148/2002 Police Station- Defence Colony
registered against accused Sh. S.P. Gupta & ors. U/s./Act/ c
Section 384/406/409/421/422/465/ 467/468/120-B !PC.
3. FIR No. 90/2000 Police Station, Connaught Place, registered
against accused Sh. S.P. Gupta & ors. U/s/Act/Section
1208/406/409/420/ 467/468/471/477-A !PC.
D
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."
E
The present appeals are relatable to the last three cases in the
aforementioned list.
I 0. After the recommendation, the Government ofNational 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,
F
Ministry of Home Affairs Notification No. U-11011/2/74-UTL(l) 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 jurisdiction for withdrawal of the
above mentioned cases G
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 H
632 SUPREME COURT REPORTS (2016] 1 S.C.R.
A 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
B
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. ofNCT of Delhi
c for withdrawal from the prosecution in cases of FIR Nos. 90/2000, 991
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
D 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.
E '.3. Mr. Arvind Ray, who was a member of the Screening
Committee gave a note. The relevant part is to the following effect:-
"ln 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
F 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. Sun ii 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
G in respect of the above said cases may be placed 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:-
H
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.) 633
"I have considered the communication of Director of Prosecution A
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."
B
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 of2012 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 c
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 Judge thereafter
observed thus:- D
"lt 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 E
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 F
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 G
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.
H
634 SUPREME COURT REPORTS [2016] 1 S.C.R.
A 17. Being of this view, the High Court declined to exercise the
discretionary jurisdiction under Article 226 of the ConMitution. 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
B
in question before this Court in a Special Leave Petition (C) CC Nos.
7447-7448 of2014 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
c 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
D 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
E 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:-
F "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
G 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.
H Put up for orders on 29" May, 2015. In the meanwhile, let
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.) 635
trial court fix a date after the date fixed in these petitions." A
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 ofCrl. M.C. No. 2055 of B
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. Jn the course of hearing, it was contended by the learned c
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 Tlwkershi & Ors.
v. Pradyuman Singh Ji Arjun Singh Ji 1, R.R. Verma & Ors. v. Union
of India & Ors.·' and Sublrnsh Chander v. State (ClumdiRarh
Administration) & Ors.' to contend that the power of review having D
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 E
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." 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 F
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 ofthe Public Prosecutor under Section 321 Cr.P.C. opined G
thus:- ·
'AIR 1970SC 1273
'1980 (3) sec 402
'AIR 1980 SC 423
'AIR 1983 SC 194: 1983 (I) sec 438 H
636 SUPREME COURT REPORTS (2016] I S.C.R.
A " ... 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
B
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
c of I6 1h December, 2011 (Annexure P-13) i.e. the one for
withdrawal of application under Section 321 oftheCr.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 91 of Cr.P.C."
D 24. After the High Court passed the order, the learned Magistrate
took up the applications seeking withdrawal of the applications preferred
earli~:r 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 (lpplication.
E 25. The appellant in these appeals had basically 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
F 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. lndu Malhotra, learned senior counsel for the appellant and Mr.
Sushi! Kumar, learned senior counsel for the accused.
G
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
H criminal proceedings would have continued in accordance with law after
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 637
this court had declined to interfere with the order of issuing summons, A
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.
B
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 c
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
D
on record to establish the charges against the 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 1" respondent, in
Writ Petition (C) No. 3470 of2012. The Learned Single Judge, as has E
been stated earlier, dismissed the writ petition. Aggrieved by the aforesaid
letter, L.P.A. No. 548 of2013 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 F
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 G
opined that the application preferred by the accused persons under
Section 91 Cr.P.C. did not warrant any consideration and 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 H
638 SUPREME COURT REPORTS [2016] l S.C.R.
A Judge, NDPS, Patiala House Courts, Delhi in a series of Criminal Revision
Petition Nos. 12of2013 to 16of2013. 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
B
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
c 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 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
D 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 oflaw 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
E
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
F 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 are (i) whether the
Assistant Public Prosecutor is entitled under law to file an application
G 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
H
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 639
should decline to deal with the order passed by the learned Magistrate in A
exercise ofjurisdiction under Article 136 of the Constitution of!ndia.
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 B
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 c
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:
D
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 E
1946 ), or
(iii) involved the misappropriation or destmction 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 F
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 G
shall, before according consent, direct the Prosecutor to produce
before it the pennission 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 Sheonanilan H
640 SUPREME COURT REPORTS [2016] 1 S.C.R.
A Paswan v. State of Bilzar and others' wherein the Court referred to
Section 333 of the old 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
B
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
c 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
D
to interfere with the normal course of justice for illegitimate reasons or
purposes. The Constitution Bench after referring to the authorities in
Bansi Lal v. Clzandan Lal and ot/1ers', Ba/want Sin1:fz v. State of
Billar', Sublwsll Chander v. State (Cltandi1:arh Admn.)', Rajender
Kumar Jain v. State'° and the principles stated in State of Bilwr v.
E Ram Naresh Pandey" 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
F 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,
G 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."
' (1987) 1 sec 288 '(1980)2SCC 155:(1980)2SCR44
( 1976) I sec 421 : AIR 1976 SC 370 '" (1980) 3 sec 435: AIR 1980 SC 1510
7
H 8
( 1977) 4 sec 448 : ( 1978) I SCR 604
11
1957 Cri LJ 567:AIR1957 SC 389
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 641
35. In this context, a reference to a three-Judge Bench decision A
m V.S. Ac/1uthanandan v. R. Ba/akrislma Pillai and others" is
pertinent. In the said case, the Court after referring to the principles
stated by the Constitution Bench in Sheonandan Paswan (supra) while
upholding the view ofthe learned Special Judge in rejecting the application
filed by the Assistant Public Prosecutor under Section 321 Cr.P.C.
B
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 c
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
D
believed, to support the prosecution then the motive for launching the
prosecution by itself may be ofno 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 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 E
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
F
court for withdrawal of the prosecution alone has to be examined.
36. In Rahul Agarwal v. Rakesh Jain and another''. 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 Slieonandan Paswan (supra) was appreciated, and thereafter ruled
thus:- G
"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
12
(1994) 4 sec 299
"(2005J 2 sec 377
H
642 SUPREME COURT REPORTS (2016] I S.C.R.
A 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 ofjustice.
Jfthe case is likely to end in an acquittal and the continuance of
the case is only causing severe harassment to the accused, the
B
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 ofjustice,
the court may allow the withdrawal of prosecution. The discretion
under Section 321, Code of Criminal Procedure is to be carefully
c 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 ifthe accused committed an offence, society demands
that he should be punished. Punishing the person who perpetrated
D
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 Muralidlwr v. State ofA.P.", while dealing with
E 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 case 1', is required to give an
informed consent. It is obligatory on the part of the court to satisfy
F itself that from the material it can reasonably be held that the
withdrawal of the prosecution would serve the public interest. It
is 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
G 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
" (2014) 10 sec 380
H "Abdul Karim v. State ofKarnataka. (2000) 8 SCC 710
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 643
on record to see that the application had been filed in good faith A
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
B
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
niaterials 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 c
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 Maharashtra" D
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
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 E
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. F
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 G
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 he is expected to remember his duty to the Court
as well as his duty to the collective.
"(2007J 12 sec 687 H
644 SUPREME COURT REPORTS [2016] 1 S.C.R.
A 40. In the case at hand, when the order passed by the Lt. Governor
was assailed in Writ Petition (C) No. 34 70of2012 and connected matters,
the learned single Judge analyzing the communication and other facts
referred lo 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
B
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 charge-sheets 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.
c 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 exercises were undertaken
by the Screening Committee held on 13.09.2011 and thereafter proceeded
D
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
E 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
F 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,
G 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
H
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 645
30. There is no basis for the petitioners to contend that the decision A
of the learned APP 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. It could also be argued that the
earlier decision to move applications under Section 321 Cr.P.C.
B
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
c
already opposed the withdrawal ofthe 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 D
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 Metropolitan Magistrate permitting the
E
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 F
Prosecutor has not been improperly exercised or that it is not an attempt
to interfere with the course ofjustice 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 S/1eonandan Paswan (supra) and opined that it is tl1e duty G
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
application under Section 321 Cr.P.C., Public Prosecutor had asserted in H
646 SUPREME COURT REPORTS [2016) l S.C.R.
A no uncertain terms that a commercial transaction in between the parties
was sought to be given a criminal colour and there w0 • o likelihood of
conviction on the basis of charge-sheet filed for the otlence of criminal
misappropriation, etc.
43. Before we proceed to dwell upon the power of the Magistrate
B 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
!Vlagistrate to consider the documents filed by the accused persons along
with the application preferred under Section 9 l Cr.P.C. Section 91 Cr.P.C.
reads as follows:-
c "Section 91. Summons to produce document or other thing.-
( I) 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
D 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
E document or other thing shall be deemed to have complied with
the requisition ifhe 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,
F
1872 (I 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 cu5tody of the postal or telegraph
authority."
G
44. The scope and ambit of the said provision was considered in
State of Orissa v. Debendra Nath Padhi 17 , wherein this Court has
held thus:-
H "(2005) 1 sec 568
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 647
"The first and foremost requirement of the section is about the A
document being necessary or desirable. The nec·essity 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
B
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. Insofar as the accused is concerned, his entitlement c
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,
D
whether police or accused. !funder 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 E
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."
F
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 G
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 persuns. 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.
H
648 SUPREME COURT REPORTS (2016] J S.C.R.
A 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, ifthe 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
B
earlier occasion while disposing of Writ Petition (C) No. 3470 of2012
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
c 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
D
consent by Lt. Governor to the withdrawal of application under Section
32 I 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.
4 7. We need not advert to the width of liberty granted to the
E 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 32 I
Cr.P.C. is filed by the Public Prosecutor, he has the sole responsibility
F 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 hearing the Assistant Public
G Prosecutor. At th is 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
H filed the application for not pressing the application preferred earlier
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.] 649
under Section 321 Cr.P.C. The filing of application not to press the A
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
B
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 Slteonandan Paswan (supra), for he is not
a post office. In the present case, as the facts would graphically show, c
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
D
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 E
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 thatthe 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
F
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 G
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
H
650 SUPREME COURT REPORTS [2016) l S.C.R.
A 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
B
direct. The learned Magistrate is directed 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.
c 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 others 18, being relevant, is extracted below:-
"The Indian judicial system is grossly afflicted with frivolous
D 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
E anxious periods ofnervousness and restlessness, whilstthe litigation
is pending without any fault on his part .... "
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.
F 49. The appeals are allowed in above terms.
Kalpana K. Tripathy Appeals allowed.
'"(2014) s sec 470
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