Judgment:
Santosh Duggal, J.
(1) The petitioner who is an employee of the Delhi Transport Corporation (for short 'DTC') has moved this Court under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus directing the respondent to withdraw the criminal case, being case No: Rc 24/81 then pending in the court of Shri K..C. Lohia, Metropolitan Magistrate, Patiala House, New Delhi or any other appropriate writ, order or direction.
(2) At the time of hearing of the case today Mr. J.P. Gupta appearing for the petitioner briefly narrated the facts to the effect that the petitioner was accused of having tiled false claim on account of Leave Travel Concession (for short 'LTC') during the year 1980 and a complaint was lodged with the Central Bureau of Investigation whereupon the case, as described in the caption, was initiated and the petitioner stands charged for the offences under Sections 120-B read with Sec. 420/511; 467 and 471 of the Indian Penal Code.
(3) There is another co-accused who has not come up before this Court.
(4) The basic plea of the petitioner in this writ petition is that while the cases of some employees, including the petitioner, were pending, the Dtc as an employer issued a circular dated 24th February, 1984 (Annexure-A-1),.to the writ petition, holding out an assurance to the concerned employees that in case they refund the amount of the Ltc claim, falsely taken or retained by them, then the cases, if any contemplated or initiated against such an employee and which were pending as on 31st January, 1984, shall be closed. It is pleaded that pursuant to this circular the petitioner, on 29th February, 1984, deposited a sum of Rs. 1628.00 which was the amount shown due against him on account of Lic claim, by making reference to the aforesaid circular issued under the signatures of the Chairman/Managing Director of the Dfc and prayed for closure of the case against him pending in the court of Shri K.C. Lohia, Metropolitan Magistrate, New Delhi. A photostat copy of the deposit receipt of Rs. 1628.00 is also enclosed. By letter dated 30th June, 1984, the Chief Vigilance Officer of the Dtc informed the petitioner that in .view of the deposit made by him and in view of the circular earlier issued, the Chairman has acceded to bids request and the case stands closed.
(5) However, subsequently vide letter dated 19th February , 1985 the Deputy vigilance Officer of the Dtc informed the petitioner that since the case is pending in the court of law, Cbi who filed challan on behalf of the Dtc, had raised objection that the Dtc was not competent to close the case, once it is pending in the court of law and that in view of this position conveyed by the Cbi, the prosecutor in the case, the acceptance of the deposit conveyed to the petitioner vide letter dated 30th June. 1984 was revoked, and consequently the letter was treated as withdrawn. The petitioner has come with the present writ petition, on receipt of this communication after making representations to the Dtc but having failed. 273
(6) Mr. Gupta, during the hearing, in reply to the court query conceded that the offences for which the petitioner was charged are not all compoundable, but submitted that most of them are so compoundable with permission of the court, as per provisions of Section 320 of the Code of Criminal Procedure, and that the stand conveyed by the Dtc is only to the effect that they are not able to take any action because of the objection by the Cbi inasmuch as on their complaint the case in the court is prosecuted by the CBI. Shri S. Lal appearing for the Cbi, on the other hand, pointed out that as per the provisions of Section 321 of the Code of Criminal Procedure even the Cbi was not empowered to take any action in the absence of directions from the Central Government. The learned counsel however, did not have any comments to make when asked as to the powers of the court of the Magistrate, in view of the provisions of Section 320 of the Code Criminal Procedure, which stand on a different footings than that of withdrawal of cases, as envisaged by Section 321. He further reiterated that all the offences are not compoundable. Both the counsel for. the respondents i.e. learned counsel for the Dtc as well as learned counsel for Cbi, however, could not indicate any provision or authority that the courts may not be entitled to consider an application for compounding those offences which are compoundable, with permission of the govt. on an application being made, and further that even if all the offences are not compoundable that the application cannot be made in respect of those which are so compoundable. Shri J.P. Gupta submitted that as his prayer is for grant of any relief that the court, may deem fit; an appropriate direction may be given for moving an application under Section 320 of the Code of Criminal Procedure, and he is agreeable to this position that this will be subject to the orders of the concerned Magistrate and in respect of those offences only which are compoundable under the provisions of Section 320 of the Code of Criminal Procedure, with the permission of the court, and that he understands the position that even if a permission is granted, the trial in respect of those offences, which are not compoundable, may continue.
(7) In view of the position that emerges, I think it a fit case, in view of the assurance held out vide letter dated 24th February, 1984, the action taken by the petitioner thereupon by making deposit as conveyed vide letter dated 29th February, 1984, and the acceptance thereof by the Dtc vide letter dated 30th June, 1984; where a direction ought to be given to the Dtc, the authority allegedly cheated in the case, to move the necessary application for permission of the court, for composition of such of the offences, as are compoundable, as per provisions of Section 320 of the Code of Criminal Procedure, and in case the procedure of the court requires that application is to be moved by the prosecutor, then the Cbi would sign and present such as application to the concerned court, and this course of action can be adopted by the parties as per procedure of the court, or laid-down by provisions of law. It is, however, made clear that any application so moved shall be subject to the orders of the concerned Magistrate, as he may deem fit in the facts and circumstances of the case, to pass.
(8) The writ petition is accordingly disposed of, with the directions in the nature of mandamus to the parties i.e. Dtc as well as Cbi to move the necessary application in accordance with the provisions of Section 320 of the Code of Criminal Procedure, for composition of such offences in the case as are so compoundable, before the concerned court, within one months, which shall be disposed of by the concerned court keeping in view the facts and circumstances of the case and provisions of law. There will be no order as to costs.