1. One M. Balakrishna Reddy who was the husband of the petitioner in Crl. RC No.630 of 1998. M. Venkata Lakshmi and M. Radhakrishna Reddy were facing prosecution in Crime No.33 of 1995 under Section 498-A and 406 of 1PC when a Government order being G.O. Rt. No.2087 was issued by the Home Department on 7th August, 1997. Acting on this order the Public Prosecutor moved an application before the trial Court for withdrawal from the prosecution and the trial Court passed an order on 19-9-1997 permitting withdrawal of prosecution. The order of trial Court has been challenged in Crl. RC No.630 of 1998. After the Government order dated 7-8-1997 had been acted upon and the trial Court had permitted withdrawal of the prosecution, the Government passed another order being G.O. Rt. No.2717 dated 21st October, 1997 withdrawing the earlier Government Order. This Government Order has been challenged in WP No.28309 of 1997 by the persons who are respondents in the revision petition.
2. Counters have been filed in both the matters and the learned Counsel for the parties were heard at length.
3. While considering the revision petition, it is necessary to make a reference to certain documents on file. The Government order dated 7-8-1997 reads as under:
'The Government after careful consideration of the proposal for withdrawal of case registered against Dr. M Venkata Lakshmi and others have decided to withdraw the case in Crime No.33 of 1995 under Section 498A, 406 of Indian Penal Code, 1860 (Central Act 15 of 1860) of CID Police Station pending trial vide CC No.126 of 1996 on the file of IInd Additional Judicial First Class Magistrate Court, Nellore (now the case is transferred to XXI Metropolitan Magistrate Court, Hyderabad in view of the orders of Honourable High Court in Transfer Criminal Misc. Petition No. 1021 of 1997 dated 8-7-1997).
2. The District Collectors) Hyderabad District/Nellore District is requested to instruct the Public Prosecutor attached to the Court concerned for filing a fresh petition under Section 321 of Criminal Procedure Code, 1978 (Central Act No.2 of 1974) for withdrawal of prosecution in the above case. A copy of the instructions so issued may be sent to Government for favour of information.'
4. There are two things clear from the Government Order. Firstly, the Government had decided to withdraw the case in Crime No.33 of 1995. Secondly, it requested the District Collector to instruct the Public Prosecutor to move an application in terms of Section 321 of Cr.PC for withdrawal from the prosecution. After the Government order was passed, the District Collector acted and the Public Prosecutor also moved an application before the trial Court. In the opening paragraph of the application the Public Prosecutor referred to the Government order dated 7-8-1997. He further went on to say that it was suggested to him by the District Collector to move the withdrawal application but he also added that he was acquainted with the facts of the case and on the opinion of the senior Public Prosecutor, Nellore and on his own opinion also he found that this was a fit case for withdrawal. While giving the reasons he stated that, chances for prosecution to succeed in the case were bleak. He also in his application stated that he did not find any reason to interfere with the findings arrived by the Government. Then, the Court passed the following order:
'Heard both sides as the Cr. No.96 of 1996 was closed as RC No.1 of 1997 as mistake of law and in view of G.O. Rt. No.2087 dated 7-8-1997. Perused contents of the petition filed by PPO. The police are permitted to withdraw the prosecution. The accused are discharged accordingly.'
5. By this order, the police were permitted to withdraw from the prosecution and the accused were discharged. In the light of the factual position, the points which falls for consideration by this Court are :
(1) Whether the decision to withdraw was taken by the Public Prosecutor or the Government, if it was taken by the Government what were the consequences, and, if it was a decision based on a suggestion of the Government taken by the Public Prosecutor what were the consequences?
(2) Whether the order of trial Court was a mechanical order and if so what were the consequences?
6. Another question which has been raised by the learned Counsel appearing for the respondents in the revision petition is that, this is a revision filed by third party and she has no locus standi to file the revision as such this revision should be dismissed on this ground alone. He has placed reliance on various judgments of various Courts. He refers to judgment of Division Bench of Rajasthan High Court in Amar Narain v. State of Rajasthan, . The Division Bench of the Court laid down;
'In criminal cases it is the State which is in control of the proceedings, particularly where the prosecution is launched at the instance of the State. In cases, therefore, in which the Public Prosecutor appears it is for him to decide whether he would continue with the prosecution or withdraw from it. If he decides to withdraw, he has the powerto apply to the Court under Section 494, Criminal PC, for giving consent to his withdrawal. This power cannot be subject to the wishes of a third person even though he might be interested directly in the case. We may in this connection, refer to two cases of the Patna High Court. In the first, 'Gopi Bari v. Emperor', AIR (7) 1920 Pat 362, a case had been prosecuted by the police under Section 143, Penal Code. At a later stage the Court Sub-Inspector incharge of the prosecution applied for withdrawing from the case under Section 494. This was objected to by the complainant, and withdrawal was thereupon refused. The accused then went up to the High Court, and it was held that where a case had been started upon a police report, and the Court Sub-Inspector wanted to withdraw from prosecution, the Court acted without jurisdiction in rejecting the prayer for withdrawal simply because the complainant wanted to proceed with the case. It was further held that in such a case the complainant had no 'locus standi' to control the proceedings.'
The Rajasthan High Court went further and agreed with the opinion of the Patna High Court in another case reported in Gulli Bhagat v. Narain Singh, AIR (11) 1924 Pat. 283. The Patna High Court held:
'Finally there is a deeper and indeed a fundamental reason for non-interference which turns upon the position of a private prosecutor in prosecutions for cognizable offences. In our opinion, the private prosecutor has no position at all in the litigation. The Crown is the prosecutor and the custodian of the public peace and if it decides to let an offender go, no other aggrieved party can be heard to object on the ground that he has not taken his full toll of private vengeance.'
7. Another judgment to which a reference is made is the judgment of CalcuttaHigh Court in Abdur Karim v. State, 1981 Crl. LJ 219. The High Court of Calcutta held:
'I am of the view that a private party has no locus standi to move against an order of acquittal passed by the learned Judge upon an application being made under Section 321 Cr.PC to him by the Public Prosecutor in a case which he was conducting. The language of Section 321 of the Code makes it quite clear that the matter is between the Public Prosecutor and the Magistrate or the Judge concerned and a private party had no right to interfere in such matters. 'Any 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.' (Section 321 Cr.PC). The Public Prosecutor being 'the custodian of public justice' he is the only person who can make an application for withdrawal and, if withdrawal is granted by the Court in the interest of administration of justice, no private party can come up against that order of withdrawal.'
8. The judgments referred to above for suggesting that third party can never invoke jurisdiction under Section 435 Cr.PC may not be accepted in view of the pronouncements of the Apex Court and in view of the fact that in the High Court always has a supervisory jurisdiction over the subordinate Courts. In this connection the judgment of Supreme Court in Thakur Ram v. State of Bihar, : 1966CriLJ700 , is relevant which lays down that:
'No doubt, the terms of Section 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that the Court jurisdiction was invokedby a private party. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. In our opinion it was injudicious for the learned Sessions Judge to order the commitment of the appellants.....'
9. So, this judgment leaves no room for a doubt that in appropriate cases even third party can invoke the jurisdiction of this Court. Even if a third party does not bring a matter to the notice of the High Court, even then, the High Court has a suo motu power to call for and examine the record of any proceedings. This power is not only available to the High Court under Section 397 Cr.PC (Section 435 in old code), but also available to the High Court in terms of Article 227 of the Constitution of India. In this connection a reference can be made to the judgment of the Supreme Court in L. Chandra Kumar v. Union of India, : [1997]228ITR725(SC) , where it was held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution which would mean that, if any injustice is brought to the notice of the High Court, the Court can exercise its jurisdiction of superintendence which includes the judicial superintendence also, as laid down in the judgment.
10. Here is a case where a lady according to her has been harassed and prima facie there was evidence that an offence had been committed in terms of Section 498-A and 406 IPC. It is true that in criminal matters State is the custodian of the rights of the people and the State alone has the right to move the appropriate Courts, but in an offence of the nature of 498-A which is committed by a husband on her wife one cannot possibly say that such wife has no right to move the Court, if an application for withdrawal by the prosecution was allowed. The Supreme Court also in the judgment of Thakur Ram v. State of Bihar, (supra), held that, barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is custodian of social interests of the community at large. I am of the view that the party suffering in an offence under Section 498-A is one of those few exceptions to which a reference has been made by the Supreme Court and 1 am of the view that, in an offence under Section 498-A if the prosecution withdraws from the prosecution the aggrieved third party should have a right to agitate the matter in appropriate Court. Even without this, this Court is not barred as is discussed herein above to entertain a revision once it comes to a conclusion that gross injustice has been done. In this case, there is an added ground for entertaining this revision and that is, even the Government is not averse for getting the order of the trial Court set aside. In other way, they are also aggrieved of the order, because the Government order which forms a basis for withdrawal from the prosecution was later revoked by the Government. That shows the intention of the Government at present. The intention of the Government at present is that the order of the discharge based on application for withdrawal should be revoked.
11. For these reasons, the objection taken by the Counsel for respondents that the revision is not maintainable, is not acceptable.
12. Now, I come to the main question as to whether the withdrawal was permissible or not. As has been stated herein above the whole process of withdrawal startedwith the order passed by the Government on 7-8-1997. there are various judgments of the Apex Court which have laid down the parameters in which a Public Prosecutor and the Government can work while deciding to withdraw from the prosecution. One of the judgments of the Supreme Court is Balwant Singh v. State of Bihar, : 1977CriLJ1935 . This is a case decided by three Judge Bench of the Supreme Court. It is an ordinary criminal case registered on the basis of a report given by the first informant. The Magistrate was trying the matter. He had framed the charges but the police on its own went in to the veracity of the prosecution story by a second investigation. The District Magistrate on the basis of a report given to him by the Superintendent of Police examined the matter and came to the conclusion that the first investigation was false and second investigation was true and therefore he directed the Public Prosecutor to withdraw the case and the Public Prosecutor obeyed and moved application for withdrawal, the Magistrate also passed a mechanical order. The Supreme Court did not interfere with the order but reasons are given so that similar errors may not be committed later. The law laid down by the Supreme Court in this judgment was :
'The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. As we have already explained, public justice may be a much wider conception than the justice in a particular case.'
On District Magistrate's order to the Public Prosecutor for withdrawal, the Supreme Court found:
'This is not proper for a District Magistrate to do. Indeed, it is not proper to have the Public Prosecutor ordered about. It is entirely within the discretion of the Public Prosecutor. It may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to him to consider whether the prosecution should be withdrawn or not. He cannot command where he can only commend.'
Commenting upon the order of the Magistrate the Supreme Court found:
'Likewise, the Court's order in this case is a puzzle to us. The order says that records have been perused by the Court; the District Magistrate has directed the Public Prosecutor; the Public Prosecutor has duly obeyed and the District Magistrate lias also mentioned that the Superintendent of Police has reported 'to him to withdraw the case.' The independent judgment brought to bear on the desirability or otherwise of according permission is nil. What is curious is that the Public Prosecutor says that the Court encores that public policy is not involved in this case for the administration of justice.'
The Supreme Court further found ;
'That must be a reason why the law must run its course. For justice ordinarily demands that every case must reach its destination, not interrupted en route. If some policy consideration bearing on the administration of justice justifies withdrawal, the Court may accord permission; not if no public policy bearing on the administration of justice is involved. We think that surrender of discretion by the Public Prosecutor and the Magistrate are unfortunate.'
13. Another reference is to the judgment of Supreme Court in Subhash Chander v. State (Chandigarh Admn.), : 1980CriLJ324 . The facts of the case were that the complainant had complained that his house has been burgled and he had lost many valuables. The property was recovered from the accused and charges were framed against him. On re-investigation the report came that it was a frame-up and therefore the Public Prosecutor on the instructions of the District Magistrate moved a petition for withdrawal which was allowed by the trial Court which was upheld by the High Court. The Supreme Court did not interfere with the order of the High Court but reiterated the law laid down in Balwant Singh v. State of Bihar, (supra). The Supreme Court went further to lay down that the Code is the master for the criminal process and no authority can coerce or order or pressurise a functionary like a Public Prosecutor to act in a particular manner. The Court held:
'12. We cannot dispose of this petition without drawing attention to the very disturbing presence of the District Magistrate in the withdrawal proceedings. The jurisprudence of genuflexion is alien to our system and the law expects every repository of power to do his duty by the Constitution and the laws, regardless of commands, directives, threats and temptations. The Code is the master for the criminal process. Any authority who coerces or orders or pressures a functionary like a Public Prosecutor, in the exclusive province of his discretionary power, violates the rule of law and any Public Prosecutor who bends before such command betrays the authority of his office. May be, Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons or public interest relevant to law and justice in their larger connotation and request the PublicProsecutor to consider whether the case or cases may not be withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsible position of Government which, in the last analysis, has to maintain public order and promote public justice. But the decision to withdraw must be his.
13. The District Magistrate who is an Executive Officer is not the Public Prosecutor and cannot dictate to him either. May be, the officer had not apprised himself of the autonomous position of the Public Prosecutor or of the impropriety of his intrusion into the Public Prosecutor's discretion by making an order of withdrawal. Similar mistakes are becoming commoner at various levels and that is why we have had to make the position of law perfectly clear. We emphasise that the rule of law warns off the executive authorities from the justicing process in the matter of withdrawal of cases. Since we are satisfied that Public Prosecutor did not yield to the directive of the District Magistrate but made an independent study of informing himself of the materials placed before the Court and then sought permission to withdraw from the prosecution, we decline to reverse the order passed by the Courts below.
14. Another relevant judgment is reported in Rajender Kumar v. State, : 1980CriLJ1084 . All the judgments to which reference has been made lay down almost the same principles of law governing the subject. In Rajinder Kumar's case the duties of Public Prosecutor and also the duties of the Magistrate were also discussed. In Rajinder Kumar's case some well known politicians were involved. Following was the language of the application which was made before the Court for withdrawal:
'It is submitted on behalf of the State as under:
1. That on 24-9-1976 the Special Police Establishment after necessary investigation had filed a charge-sheet in this Hon'ble Court against Shri George Mathew Fernandes and 24 others for offences under Sections 121A IPC, 120B IPC read with Sections 4, 5 and 6 of the Explosives Substances Act, 1908 and Sections 5(3)(b) and 12 of the Indian Explosives Act, 1884 as well as the substantive offences.
2. That besides the accused who were sent up for trial two accused namely Shri Bharat C. Patel and Rewati Kant Sinha were granted pardon by the Hon'ble Court and were examined as approver under Section 306(4) Cr.PC.
3. That out of 25 accused sent up for trial cited in the charge-sheet, 2 accused namely Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by the Hon'ble Court.
4. That in public interest and changed circumstances, the Central Government has desired to withdraw from the prosecutions of all the accused.
5. It is therefore prayed that this Hon'ble Court may accord consent to withdraw from 26th March, 1977.
Sd/- (N.S. Mathur)
Special Public Prosecutor for the State, New Delhi.'
On this application, the learned Chief Metropolitan Magistrate, recorded:
'It was expedient to accord consent to withdraw from the prosecution' and then he granted his consent for withdrawal. The ground given in the application was that, in public interest and changed circumstances, the Central Government has desired to withdraw from the prosecution of the accused. The SupremeCourt while referring to the earlier decisions stated that, from the precedents of this Court following principles have been laid down;
'Thus, from the precedents of this Court, we gather
1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5. The Public Prosecutor may withdraw . from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammany Hall enterprises.
6. The Public Prosecutor is an officer of the Court and responsible to the Court.
7. The Court performs a supervisory function in granting its consent to the withdrawal.
8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mindas a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.'
While parting with the case the Supreme Court also noted;'25. Before bidding farewell to these cases it may be appropriate for us to say that criminal justice is not a plaything and a Criminal Court is not a play ground for politicking. Political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the process of the Court very soon the credibility of the rule of law will be lost. So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the Government and thereafter apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should he allow himself to become any one's stooge.'
15. Now, coming to the facts of the present case in the light laid down by the Supreme Court and crystallising it in the judgment of Rajender Kumar's case (supra) to which a reference has been made hereinabove, certain things become clear. That, the Public Prosecutor basically acted on the instructions of the Government and the learned trial Magistrate did not apply his mind before granting permission for withdrawal, that is disclosed from the impugned order itself. He refers to the Government Order dated 7-8-1997 by whichthe Public Prosecutor has been ordered to withdraw and he refers to some other petition which was pending between the parties which had been closed. He did not peruse even the record of the case. It was not stated in the application of the Public Prosecutor that it was in the public interest to withdraw from the prosecution. Only the Public Prosecutor has stated that there were bleak chances for the prosecution to succeed and he added that he did not find any reason to interfere with the findings arrived by the Government. This itself shows that the Public Prosecutor was guided by the order of the Government of Andhra Pradesh and he had not considered the mailer independently. He had considered the matter in the light of the order of the Government of A.P. Even the Government of A.P. later withdrew its order. The Magistrate and the Public Prosecutor have acted not in conformity with the law laid down by the Supreme Court and there is nothing on record to show that the Public Prosecutor acted independently. Therefore, 1 am of the view that the Magistrate should have not allowed the withdrawal of the prosecution.
16. Therefore, for the reasons given, the revision is allowed and the order of the Magistrate is quashed. The Magistrate is directed to proceed against the accused in accordance with law.