TEKCHAND & ANR.versusTEKCHAND, SUPDT. OF POLICE & ORS.

                                TEKCHAND & ANR.
A                                           v.
                   TEKCHAND, SUPDT. OF POLICE & ORS.

                                NOVEMBER 28, 1986

B                 [RANGANATH MISRA AND G.L. OZA, JJ.]

          Withdrawal of Prosecution-Cha,1ces of conviction farfetched and
    bleak and evidence not forthcoming as per the report under section 173(8) ofthe
    Criminal Procedure Code-Whether the grant of permission for nolles
    prosequi under section 321 of the Code i• order.
c          In respect of certain incident dated 2.4.1974, the First Infonnation
    Report has been registered suo motu by tile Police after 31;\ years, on the basis
    of the report of Commission of Inquiry. The victims of the injuries were also
    accused of criminal offences said to have taken place at the same point of time
    who were produced before the Judicial Magistrate of Bhiwani on 2.4.74 and
D   were also medically examined. They did not file any private complaint, though
    released on bail. Based on the report of the Investigating Agency under section
    173(8) of the Code of Criminal Procedure Code, the Public Prosecutor filed an
    application under section 321 of the Cmle for withdrawal of the prosecution
    case which was granted by the Chief Judicial Magistrate, Bhiwani. The High
    Court also affirmed the said order. Hence the Special Leave Petitions.
E
          Dismissing the petitions, the Coor~

           HELD: In the facts and circumsta >ces of the case, it is in public interest
    that the Prosecution should not proceed with the prosecution. A report under
    section 173(8) of the Code of Criminal Procedure hy the investigating agency
F   indicated that adequate evidence has not been forthcoming to support the
    prosecution which was commenced suo motu on the basis of a report of the
    Commission of ·Inquiry on whose finding no conviction can lie. The victims           . ).
    themselves who were the accused of crindnal offences said to have taken place
    at the same point of time did not complai > before the Magistrate concerned and        ~-
    did not file private complaints. The plea that one of the accused persons was the
G   son of a political figure wielding influtmce did not deter the Magistrate in
    ordering release the victims in the earlier case. Further chances of
    conviction are too far-fetched and bl.,ak. [378E, BJ
          '
           CRIMINAL APPELLATE JURISDICTION: Special Leave Petition
    (Crl). Nos. 1682 And 3120 of. 1983.
H

                                           376
                 TEKCHAND v. TEKCHAN?, SUPDT. OF POLICE                       377

      From the Judgment and Order dated 12.4.1983 of the Punjab and                  A
 Haryana High Court in Crl. Revision No. 1427 & 1428 of 1980.

       Govind Mukhoty and Sarva Mitter for the Petitioners.

       M.C. Bhandari, Harbans Lal, Dr. Y.S. Chitale, C.V. Subba Rao, S.K.
 Bisaria, Ravindra Bana and N.S. Das Bahl for the Respondents.                       B

       The Order of the Court was delivered by

        These two special leave petitions and a writ petition were filed for a
 common purpose~the writ petition questioning the vi res of section 321 of the
 Code of Criminal Procedure of 1973 and these two special leave petitions
 questioning the correctness of the order of the (High Court by which it affirmed    C
 the order of the Chief Judici<1l Magistrate of Bhiwani, according permission
 under the same section 321 for withdtawal of a prosecution .against the
 respondents excepting the State of Haryana. We have already dismissed ihe
 writ petition and now proceed to dispose of the special leave applications. As
 lengthy arguments were advanced we propose to make a brief but speaking             D
 order.

        Having heard learned counsel for the parties we are inclined fo think that
 the order of the learned Chief Judicial Magistrate was perhaps not appropriate
 in law. The High Court did go into the question afresh in its revisional
 jurisdiction but there could also be some a.rguments possible with reference to     E
 what the High Court has said. We are, however, definitely of the view that no
 useful purpose will be served in setting aside the order of the Chief Judicial
  Magistrate as affirmed by the High Court and in directing the prosecution to
 proceed as there is, in our opinion, no chance of ultimate conviction. Allowing
 such a prosecution to proceed will only be harassment· to the parties and
 wastage of public time. Now we briefly indicate so~e features to justify this       F
 conclusion of ours.
                       1
      · The incident is dated 2.4.1974. The First Information Report has been
  registered suo motu by the police in November 1977-after a gap of more than
  3Y, years. The victims of the injuries were also accused of criminal offences said
. to have taken place at the same point of time and were produced before the G
  Judicial Magistrate of Bhiwani on 3.4.1974. The Judicial Magistrate enlarged
  them on bail and finding injuries on their persons directed them to be medically
  examined. There is no material before us to show that the victims had
  complained to the learned Judicial Magistrate that the present accused persons
  were the authors of the i".ljuries on them. We gave an opportunity to the
  petitioners to produce such material but with no result. ·For the first time,. H
    378                       SUPREME COURT :lEPORTS                [1987] I S.C.R.

A   witnesses to the occurrence were examim d towards the end of 1977 and                )(
    beginning of 1978 during investigation.

          The learned counsel drew our attention to the fact that one of the accused
    persons happens to be the son of a political figure wielding influence. We find
    that this fact did not deter the Judicial Magistrate in ordering release of the
B
    victims who had been produeed before hiI]l as accused persons. The learned
    Magistrate also made an order for their medical examinatjon and that was
    carried out. There is no justification as to wh) a private complaint was not made
    contemporaneously and the matter had to wait for 3Y, years for investigation
    on the basis of the First Information Repo1t.

c         The learned counsel also pointed out that Emergency had intervened and
    during that period a situation prevailed where the victims could not open their
    mouths. A period of more than 14 months intervened between the occurrence
    and the promulgation of emergency.

          A Commission was set up after the emergency had ended and holding a
D
    fresh elections, a different political party had come to power. Following the
    report of the Commission this prosecution hc.d been launched. The petitioners'
    learned counsel did not dispute the position that the finding of the Commission
    is not evidenced and no conviction can lie r•n the conclusion either. In these
   circumstances, chances of conviction are too far-fetched and bleak. We do not
   think it is in public interest that the prosecution should proceed. We may add
E
   that in a report under section 173(8) of the Code, the investigating agency has
   also indicated that adequate evidence has not been forthcoming to support the
   prosecution. It is thus not necessary to examille the legal aspect canvassed in the
   special leave petitions and argued .during hearing. Both the petitions are
  .dismissed.
F
    S.R.                                                         Petitions dismissed.