Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 99 of 2016, Judgment Date: Feb 05, 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 99 OF 2016
            (@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 801 OF 2016)
                     (@ CRIMINAL M.P. NO. 16992 OF 2015)

M/s V.L.S. FINANCE LTD.                                      ...  Appellant(s)

                                 Versus

S.P. GUPTA AND ANR.                                            … Respondent(s)

                                 With

                       CRIMINAL APPEAL NO.100 OF 2016
           (@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 803  OF 2016)
                     (@ CRIMINAL M.P. NO. 18947 OF 2015)

                       CRIMINAL APPEAL NO.101 OF 2016
           (@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 804  OF 2016)
                     (@ CRIMINAL M.P. NO. 19028 OF 2015)

                     CRIMINAL APPEAL NOS.102-104 OF 2016
         (@ SPECIAL LEAVE PETITION (CRIMINAL) NOS. 805-807  OF 2016)
                   (@ CRIMINAL M.P. NOS. 580-582 OF 2016)


                               J U D G M E N T


Dipak Misra, J.
      Leave granted.
2.    The obtaining factual  matrix  encompasses  a  scenario  which  covers
quite a span of time, and  the  chronology  of  events  projects  horrendous
picture, as Mr. Dushyant A. Dave  and  Ms.  Indu  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 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  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
imperative to exposit facts after due  filtration.  The  appellant  set  the
criminal law in motion by filing an FIR No. 90 of  2000  at  Police  Station
Connaught Place which came to be registered under Sections  406,  409,  420,
424, 467, 468, 471, 477-A and 120B of the Indian  Penal  Code  (IPC).  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  levelled
against the accused persons pertained  to  the  fraudulent  transactions  of
certain amount of money. Learned Magistrate  vide  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 was assailed 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  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
order was attacked in Crl.M.C. No. 2040 of 2010 which came to  be  dismissed
on 04.06.2010.  In the said case, the learned single Judge  had  taken  note
of the earlier cases being Criminal M.C. Nos. 911 of  2003,  1992  of  2006,
2142 of 2007, 2229 of 2007, 1988 of 2008 and 64 of 2006  and  Writ  Petition
(Criminal) Nos. 498 of 2005, 208 of 2006, 1191 of  2006  and  1210  of  2006
challenging the summoning order  which  remained  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
of on 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  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
possible to accept the contention of the petitioner that  appropriate  stage
meant  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.  The learned Magistrate referred  to
the decision in Adalat Prasad v. Rooplal Jindal &  others[1]  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
Court noticed that the summoning order was earlier challenged  in  petitions
which  had  remained  pending  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.
5.    The  said  order  came  to  be  assailed  in  Special  Leave  Petition
(Criminal) No. 6336 of 2010 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 of 2000 by the accused persons met with the 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  of  endeavour  constrained  the  accused  persons   to   file   an
application on 24.09.2010 for stay of the proceedings  arising  out  of  FIR
No. 90 of 2000 before the Chief Metropolitan  Magistrate  along  with  other
FIRs 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  (Principal
Secretary (Home)-In 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 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 Cr.P.C. 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.  90/2000  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 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
of Prosecution immediately.

In view of the above  the  Committee  decided  to  recommend  the  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 cases  to  be  withdrawn
after following prescribed procedure:-
“1.   FIR No. 46/11 Police Station – Civil Lines  registered  against  Govt.
School Teachers Association u/s Act/Section 188 IPC.

FIR No. 148/2002 Police Station- Defence Colony registered  against  accused
Sh. S.P. Gupta & ors. U/s./Act/Section 384/406/409/421/422/465/ 467/468/120-
B IPC.

FIR No. 90/2000 Police Station, Connaught Place, registered against  accused
Sh. S.P. Gupta & ors.  U/s/Act/Section  120B/406/409/420/  467/468/471/477-A
IPC.

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.”

      The present appeals are relatable to the  last  three   cases  in  the
aforementioned list.
10.    After  the  recommendation,  the  Government  of   National   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,  Ministry  of
Home  Affairs  Notification   No.   U-11011/2/74-UTL(I)   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
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  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,  Director  of  Prosecution,
Delhi vide letter dated 13.12.2011 wrote to the Principal Secretary  (Home),
Home (Police) Department, Govt. of NCT of  Delhi  for  withdrawal  from  the
prosecution in cases of FIR Nos. 90/2000, 99/2002  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 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.
13.   Mr. Arvind Ray, who was a member of the  Screening  Committee  gave  a
note.  The relevant part is to the following effect:-
“In 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 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. Sunil 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 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:-
“I have considered  the  communication  of  Director  of  Prosecution  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.”

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  of
2012 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  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:-
“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
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  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
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
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.

17.    Being  of  this  view,  the  High  Court  declined  to  exercise  the
discretionary jurisdiction under Article 226  of  the  Constitution.     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  in
question before this Court in a Special Leave Petition (C)   CC  Nos.  7447-
7448 of 2014 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  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 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 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:-
“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
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.

      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  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 of Crl. M.C. No. 2055 of 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.   In the course of hearing, it was contended by the learned 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 Thakershi & Ors. v. Pradyuman  Singh  Ji
Arjun Singh Ji[2], R.R. Verma &  Ors.  v.  Union  of  India  &  Ors.[3]  and
Subhash Chander v. State (Chandigarh Administration) &  Ors.[4]  to  contend
that the power of review having 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 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.[5]   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  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 of the Public Prosecutor under Section 321 Cr.P.C. opined thus:-
“... 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 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 of  16th  December,
2011 (Annexure P-13) i.e.  the  one  for  withdrawal  of  application  under
Section  321  of  the  Cr.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 91of Cr.P.C.”

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 Cr.P.C.  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  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
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.
Indu Malhotra, learned senior counsel  for  the  appellant  and  Mr.  Sushil
Kumar, learned senior counsel for the accused.
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  criminal
proceedings would have continued in accordance with  law  after  this  court
had declined to interfere with the order of issuing summons, 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. 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 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
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  1st  respondent,  in  Writ
Petition (C) No. 3470 of 2012.   The  Learned  Single  Judge,  as  has  been
stated earlier, dismissed the writ  petition.  Aggrieved  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
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 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  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 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  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 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
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 of law  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 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  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  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 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  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 consent  of  the  Court,
at  any  time  before  the  judgment  is  pronounced,  withdraw   from   the
prosecution of any person either generally or in respect of any one or  more
of the offences for which he is tried; and, upon such withdrawal, --

(a) if it is made before a charge has been  framed,  the  accused  shall  be
discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when  under  this  Code
no charge is required, he shall be acquitted in respect of such  offence  or
offences:

Provided that where such offence-

(i) was against any law relating to a matter to which  the  executive  power
of the Union extends, or

(ii) was investigated by the Delhi Special Police  Establishment  under  the
Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or

(iii) involved the misappropriation or destruction of,  or  damage  to,  any
property belonging to the Central Government, or

(iv) was committed by a person in the  service  of  the  Central  Government
while acting or purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case  has  not  been  appointed  by  the
Central Government, he shall not,  unless  he  has  been  permitted  by  the
Central Government to do so, move the Court  for  its  consent  to  withdraw
from the prosecution and the Court shall, before according  consent,  direct
the Prosecutor to produce before it the permission granted  by  the  Central
Government to withdraw from the prosecution.

34.   Regard being had to the language employed in Section 321  Cr.P.C.,  we
may refer to the Constitution Bench decision in Sheonandan Paswan  v.  State
of Bihar and others[6]  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 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 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 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. Chandan Lal  and  others[7],  Balwant  Singh  v.
State of Bihar[8], Subhash Chander v. State (Chandigarh Admn.)[9],  Rajender
Kumar Jain v. State[10] and the principles stated in State of Bihar  v.  Ram
Naresh Pandey[11] 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.
Achuthanandan v. R. Balakrishna Pillai and others[12] 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  of
the learned  Special  Judge  in  rejecting  the  application  filed  by  the
Assistant Public Prosecutor  under  Section  321  Cr.P.C.  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  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  believed,  to  support
the prosecution then the motive for launching the prosecution by itself  may
be of no 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 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 court for withdrawal of the  prosecution  alone  has
to be examined.
36.   In Rahul Agarwal v. Rakesh  Jain  and  another[13],  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
Sheonandan Paswan (supra) was appreciated, and thereafter ruled thus:-
“From these decisions as well as other decisions on the same  question,  the
law is very clear that the withdrawal of prosecution can be allowed only  in
the  interest  of  justice.  Even  if  the  Government  directs  the  Public
Prosecutor to withdraw the prosecution and an application is filed  to  that
effect, the court must consider all  relevant  circumstances  and  find  out
whether the withdrawal of prosecution would advance the  cause  of  justice.
If the case is likely to end in an acquittal  and  the  continuance  of  the
case is only causing severe harassment to the accused, the court may  permit
withdrawal of the prosecution. If the withdrawal of  prosecution  is  likely
to bury the dispute and bring about  harmony  between  the  parties  and  it
would be  in  the  best  interest  of  justice,  the  court  may  allow  the
withdrawal of  prosecution.  The  discretion  under  Section  321,  Code  of
Criminal Procedure is to be carefully exercised  by  the  court  having  due
regard to all the relevant facts and shall not be exercised  to  stifle  the
prosecution which is being done at the instance of the aggrieved parties  or
the State for redressing their grievance. Every crime is an offence  against
the society and if the accused committed an offence,  society  demands  that
he should be punished. Punishing the person who perpetrated the crime is  an
essential requirement for the maintenance of law and order and peace in  the
society. Therefore, the withdrawal of the  prosecution  shall  be  permitted
only when valid reasons are made out for the same.”

37.   In Bairam Muralidhar v. State of  A.P.[14],  while  dealing  with  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[15], is required to give  an  informed  consent.  It  is
obligatory on the part  of  the  court  to  satisfy  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 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 on record to see that the  application
had been filed in good faith 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
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 materials 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 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[16]  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 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.
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
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.
40.   In the case at hand, when the order passed by  the  Lt.  Governor  was
assailed in Writ Petition (C) No. 3470 of 2012 and  connected  matters,  the
learned single Judge analyzing the communication and  other  facts  referred
to 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  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.  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 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 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 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,  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


30. There is no basis for the petitioners to contend that  the  decision  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. 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  already  opposed
the withdrawal of the 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 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 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
Prosecutor has not been improperly exercised or that it is  not  an  attempt
to interfere with the course of justice 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 Sheonandan Paswan (supra) and opined that it is  the  duty
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  no  uncertain
terms that a commercial transaction in between the parties was sought to  be
given a criminal colour and there was no likelihood  of  conviction  on  the
basis of charge-sheet filed for the offence  of  criminal  misappropriation,
etc.
43.   Before we proceed to dwell upon the power of the Magistrate  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  Magistrate
to consider the documents filed  by  the  accused  persons  along  with  the
application preferred under Section 91 Cr.P.C. Section 91 Cr.P.C.  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,  1872  (1  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 custody of the postal or telegraph authority.”

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:-
“The first and foremost requirement of the section  is  about  the  document
being necessary or desirable. The necessity 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 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 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, whether police or accused.  If  under  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  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.”

      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  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 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 Cr.P.C.
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, 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  petitions  assailing  the  same
stood dismissed.  The High Court on the earlier occasion had  only  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 consent by Lt.  Governor  to
the withdrawal  of  application  under  Section  321  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.
47.   We need not advert to the width of  liberty  granted  to  the  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 321 Cr.P.C.  is
filed by the Public Prosecutor, he has the sole responsibility 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
Prosecutor. At this 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  filed
the application for not pressing the  application  preferred  earlier  under
Section 321 Cr.P.C.  The filing of application not to press the  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  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  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  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 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 that the 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 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  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 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 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.
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  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  anxious  periods  of  nervousness  and   restlessness,   whilst   the
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.
49.   The appeals are allowed in above terms.


                                             .............................J.
                                                               [Dipak Misra]


                                            ..............................J.
                                                               [N.V. Ramana]
New Delhi
February 05, 2016
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[1]     (2004) 7 SCC 338
[2]    AIR 1970 SC 1273
[3]    1980 (3) SCC 402
[4]    AIR 1980 SC 423
[5]    AIR 1983 SC 194 : 1983 (1) SCC 438
[6]    (1987) 1 SCC 288
[7]    (1976) 1 SCC 421 : AIR 1976 SC 370
[8]    (1977) 4 SCC 448 : (1978) 1 SCR 604
[9]    (1980) 2 SCC 155 : (1980) 2 SCR 44
[10]   (1980) 3 SCC 435 : AIR 1980 SC 1510
[11]   1957 Cri LJ 567 : AIR 1957 SC 389
[12]   (1994) 4 SCC 299
[13]    (2005) 2 SCC 377
[14]    (2014) 10 SCC 380
[15]    Abdul Karim v. State of Karnataka, (2000) 8 SCC 710
[16]   (2007) 12 SCC 687
[17]    (2005)  1 SCC 568
[18]   (2014) 8 SCC 470

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47