J.K. Mehra, J.
(1) This Revision petition is filed against the order dated 14th January, 1997 passed by Metropolitan Magistrate, Delhi declining the permission to the Public Prosecutor to withdraw from the prosecution against respondent No. 1 on the ground of non-application of mind by the Public Prosecutor while filing the application under Section 321 Criminal Procedure Code .
(2) The facts giving rise to the present petition in brief are that a report under Section 193 Criminal Procedure Code . was filed against accused Syed Ahmed Bhukhari the Naib Imam of Jama Masjid of Delhi by the prosecution on the allegations that on 22.1.1993 from Jama Masjid accused brought haltered and disaffection towards the Government established by law. It was further alleged that in a statement he attacked the constitutionally established Government, some political parties and some religious community. As per the allegations of the prosecution an offence under Section 124A Indian Penal Code of sedition was committed. As the accused was kept in Column No.2 in the challan, he was not arrested on the ground that it would create law and order problem as the accused is a leader of the community professing a particular religion. The Court took cognizance of the offence and the accused was summoned. The summons issued could not be served resulting in the Court issuing warrants of arrest, which also remained unexecuted for the fear of law and order situation arising. In the meantime after summoning when the warrants were issued against the respondent the respondent challenged in this Court the said Fir by way of Crl. writ petition No. 138/96 seeking inter-alia for quashing the Fir registered against him. During the pendency of the proceedings in the said writ petition, the petitioner/State took a decision to withdraw the prosecution against the respondent for which the petitioner filed an application u/s 321 Criminal Procedure Code . before the learned Metropolitan Magistrate for withdrawing the prosecution. The Metropolitan Magistrate vide his order dated 14.1.97 dismissed the said application on the ground that the public prosecutor has not applied his mind in making the application and the allegations against the accused being grave, the withdrawal of the case at the stage was not likely to advance the interest of justice and he has further failed to share any objective description of facts with the Court.
(3) The State has approached this Court against the order of the learned Magistrate feeling aggrieved by his declining to grant the application of the State to withdraw the prosecution. The reasons for challenging the Magistrate's order, inter alia, are that the State is the master of litigation in criminal cases. Reliance has been placed by the counsel on the majority view in the case of Sheonandan Paswan Vs . State of Bihar : 1987CriLJ793 . It appears that the impugned judgment has also placed reliance on this judgment but on the minority view because the reasons adopted by the learned Magistrate appear to be those given by Hon'ble the Chief Justice, Mr. P.N. Bhagwati (as he then was). That view was contrary to the majority view which is to be found in para 90 of that very judgment and reads as under :
'SECTION 321 Criminal Procedure Code . is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis.'
(4) The learned Magistrate, according to Mr. Anand, failed to appreciate that by allowing the application a very important public purpose was being served and that the Magistrate should have appreciated that the withdrawal of prosecution was mainly an executive function in nature and the discretion is that of the Public Prosecutor. The public prosecutor in reaching such conclusion has to bear in mind various considerations including the interest of public order, peace in the society and public justice. Since, the prosecution appears to have emanated from certain allegedly inflammatory statements attributed to the accused, I considered it appropriate to call the respondent-accused and ascertain from him his stand in the presence of his counsel as well as State counsel. The said respondent-accused stated before this Court that he accepted the validity of the Constitution of India and the Rule of Law established in this country and categorically stated that he did not challenge the Constitution or the Rule of Law established in this country and that he is governed by the same. He accepted that India is his country and he is one of the citizens of India. He stated that he had intended to only criticise certain policies being pursued by the then Government of India. In the light of this discussion and further that subsequent to the alleged incident there have been no complaints against the behavior of the accused, the trial Court should have exercised its discretion in favor of allowing the application. I find that in the impugned judgment the learned Magistrate has also not found any lack of bonafides in the application or any ulterior motive. If such motive is absent and the application is made bonafide, when the matter is being considered under Section 321 Criminal Procedure Code . it should not be forgotten that acquittal or discharge orders under Section 321 Criminal Procedure Code . are not the same as the normal final orders in criminal cases. It would not be necessary for the Court to assess the evidence to discover whether the case would end in acquittal or conviction since under this Section the Court is not performing adjudicatory functions but its role is supervisory. All that the Court is to see is whether the application is made in good faith, in the interest of public policy, public order and justice and is not made with any ulterior motive to stifle the process of law. The Court should satisfy itself that if the consent is given it would not cast manifest injustice or illegality.
(5) I had, in the case of Pucl, Delhi Vs . Cbi : 66(1997)DLT748 also noticed a reference to certain American Commentaries where, inter alia, at page 928 of the American Criminal Procedure Cases Comments and Questions, Fifth Edition by Yale Kamissar Wayner and Jerold H. Isreal, American Case Book Series it was noticed :
'THESE difficult questions engender serious doubts as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a Court's decision to compel prosecution for the U.S. Attorney's decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, would be unwise.'
(6) From the various rulings including Thakur Ram & Ors. Vs . State of Bihar : 1966CriLJ700 ; Simranjit Singh Mann Vs . Union of India & Ors. : 1993CriLJ37 ; Janta Dal & Ors. Vs . H.S. Chowdhary and Ors. : 1991CriLJ838 ; Sheonandan Paswan v. State of Bihar & Ors. 1987 (1) Scc, 286; Ram Lal v. Delhi Administration & Ors. 1980 Cr.L.J. 82; Indu Bala Ajesh Kumar v. State 1990 Raj.L.R.131; Praveen Malhotra v. State (1990) Crl. L.J. 2184; All India Institute of Medical Sciences Employees Union (Regd.) through Its President Vs . Union of India & Ors. : (1996)11SCC582 ; Kahul v. Emperor 1934 Cal. L.J. 320, the irresistible conclusion is that the State is the master of litigation in criminal cases.
(7) In the case of Om Prakash and 3 others v. State (Delhi) reported as 1985 (2) Crimes, 366 the Hon'ble Judge of this Court had after referring to the judgment of Hon'ble Supreme Court in the State of Bihar Vs . Ram Naresh Pandey and another : 1957CriLJ567 and also the cases of M.N. Kumaravanan Mair Vs . P.V. Balakrishnan and Others : 1972CriLJ301 ; Bansi Lal Vs . Chandan Lal and another : 1976CriLJ328 ; State of Orissa Vs . Chandrika Mahapatra and others etc. : 1977CriLJ773 ; Balwant Singh Vs . State of Bihar : 1977CriLJ1935 ; Subhash Chander Vs . The State (Chandigarh) and others : 1980CriLJ324 and Rajinder Kumar Jain Vs . State : 1980CriLJ1084 had enunciated the eight propositions. Out of these, the said Single Judge had considered it appropriate to rely on the four, which are as under :
1. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
2. 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.
3. 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.
4. 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 mind as 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.'
(8) In this connection, a reference be also made to the case of Tejinder Singh Vs . Bhani Chand Jindal & Ors. : 20(1981)DLT78 .
(9) Keeping the aforesaid principles in view and keeping the fact that the present application of the State was filed without any malafides and with the bonafide intention of securing peace, harmony and public order in the Society, I consider that the Trial Court had erred in declining the application for withdrawal of prosecution. The impugned order is set aside, the application of the State for dropping the prosecution is allowed and the respondent-accused is discharged.