TaxTMI 
TaxTMI 
2016 (2) TMI 1382
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....ed 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 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 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 of justice has been vexed, for in such a situation besides the prosecution 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 ....
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....n the trial Court at an appropriate stage/at the stage of hearing arguments on charge. After 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 aforesaid case against the Petitioner and to further decide whether the case should proceed or not in view of some of the objections 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. 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 poss....
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....r 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 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 Code of Criminal Procedure in respect of FIR No. 90/2000, 99/2002 and 148/2002 had already been conveyed to the Home Department, Government of NCT 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. 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 of 2000 recommended for withdrawal of the case. We think it appropriate to reproduce the said recommendation: RECOMMENDATIONS OF THE COMMITTEE The Committee observed that the withdrawal of case Fir No. 90/200....
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....val 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. 11. After the Government issued the orders, the Assistant Public Prosecutor filed an application on 24.11.2011 Under Section 321 Code of Criminal Procedure 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 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 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, D....
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....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 Assistant Public Prosecutor to file an application Under Section 321 Code of Criminal Procedure was taken independently by him, whereas the subsequent decision after pursuing application Under Section 321 Code of Criminal Procedure was under the dictates of the Respondent. The learned single Judge thereafter observed thus: It is not disputed by the Petitioners that, in the meantime, the learned M.M. has permitted the withdrawal of the application Under Section 321 Code of Criminal Procedure 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 Code of Criminal Procedure and that they were 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 Code of Criminal Procedure. Therefore, the Petitioners have not only had the occasion....
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....ed the following order: 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 above captioned 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. Put up for orders on 29th May, 2015. In the meanwhile, let trial court fix a date after the date fixed in these petitions. 20. On 22.05.2015 an application was filed on behalf of the Appellant to initiate proceedings Under Section 340 Code of Criminal Procedure read with Section 195(1) Code of Criminal Procedure 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 of Crl. M.C. No. 2055 of 2015. On 29.05.2015, the High Court directed for listing the petition for clarification. As the fac....
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....ial court to decide within four weeks the second application of 16th December, 2011 (Annexure P-13) i.e. the one for withdrawal of application Under Section 321 of the Code of Criminal Procedure 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 Code of Criminal Procedure. 24. After the High Court passed the order, the learned Magistrate took up the applications seeking withdrawal of the applications preferred earlier Under Section 321 of Code of Criminal Procedure. The learned Magistrate has, by order dated 22.09.2015, declined to accept the prayer for withdrawal of the application. 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 Code of Criminal Procedure 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 Code of Criminal Procedure. After the remit, the lear....
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....eved by the aforesaid letter, L.P.A. No. 548 of 2013 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 321 Code of Criminal Procedure 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 opined that the application preferred by the accused persons Under Section 91 Code of Criminal Procedure 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 Judge, NDPS, Patiala House Courts, Delhi in a series of Criminal Revision Petition Nos. 12 of 2013 to 16 of 2013. The revisional court by common order dated 15.11.2014 affirmed the order passed by the l....
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.... that stage of the proceeding and (iv) whether in the obtaining factual matrix this Court should decline to deal with the order passed by the learned Magistrate in exercise of jurisdiction Under Article 136 of the Constitution of India. 33. To appreciate the controversy, we may refer to Section 321 of Code of Criminal Procedure which reads as follows: 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....
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....SC 370, Balwant Singh v. State of Bihar (1977) 4 SCC 448 : (1978) 1 SCR 604, Subhash Chander v. State (Chandigarh Admn.) (1980) 2 SCC 155 : (1980) 2 SCR 44, Rajender Kumar Jain v. State (1980) 3 SCC 435 : AIR 1980 SC 1510 and the principles stated in State of Bihar v. Ram Naresh Pandey 1957 Cri LJ 567 : AIR 1957 SC 389 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 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, 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. 35. In this context, a reference to a three-Judge Bench decision in V.S. Achut....
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....s 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 deman....
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....ench decision in Vijaykumar Baldev Mishra alias Sharma v. State of Maharashtra (2007) 12 SCC 687 would be fruitful. In the said case, the Court held that Section 321 Code of Criminal Procedure 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 which the Appellant is tried. The Public Prosecutor in terms of the statutory scheme laid down under the Code of Criminal Procedure 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. 39. We have enumerated the principles pertaining to the jurisdiction of the Court while dealing with an application preferred Under Section 321 Code of Criminal Procedure and also highlighted the role of the Public Prosecutor who is required to act in good faith, peruse t....
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....l Procedure, in these cases, 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. xxx 30. There is no basis for the Petitioners to contend that the decision of the learned APP to file an application Under Section 321 Code of Criminal Procedure was taken independently by him, whereas the subsequent decision after pursuing application Under Section 321 Code of Criminal Procedure was under the dictates of the Respondent. It could also be argued that the earlier decision to move applications Under Section 321 Code of Criminal Procedure 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 Code of Criminal Procedure. 41. Be it stated, the learned single Judge has observed that the accused persons who were the Petitioners in the Writ Petitions had already opposed the withdrawal of the application preferred....
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.... the Magistrate to consider the documents filed by the accused persons along with the application preferred Under Section 91 Code of Criminal Procedure Section 91 Code of Criminal Procedure reads as follows: Section 91. Summons to produce document or other thing.- (1) 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 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 document or other thing shall be deemed to have complied with the requisition if he 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, 187....
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....ourt to consider the application filed by the Assistant Public Prosecutor seeking withdrawal of the application earlier preferred Under Section 321 Code of Criminal Procedure. In such a situation, it is difficult to appreciate how Section 91 of Code of Criminal Procedure can be taken aid of by the accused persons. 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 Code of Criminal Procedure. 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 Code of Criminal Procedure. Needless to say, if the 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 earlier occasion while disposing of Writ Petition (C) No. 3470 of 2012 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 petiti....
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....om 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 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 Sheonandan Paswan (supra), for he is not a post office. In the present case, as the facts would graphically show, the Public Prosecutor had not moved the application Under Section 321 Code of Criminal Procedure 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 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 satisfie....