ORDER
Kamlesh Sharma, J.
1. These ten criminal revision petitions (Cr. Revisions No. 60 of 1999 and 68 to 76 of 1999) are being disposed of by a common judgment as these arise out of an identical order dated 6-4-1999, though passed separately in all these criminal cases by the Additional Chief Judicial Magistrate Hamirpur, whereby the application under Section 321, Cr.P.C. of Assistant Public Prosecutor was allowed and consent of the Court was granted to withdraw from the prosecution of respondents 2 to 4 as a consequence whereof respondents 2 to 4 were discharged in those criminal cases. The petitioner is aggrieved by the impugned order dated 6-4-1999 as it was on his complaint that FIR No. 137 of 1996 was registered in Police Station, Hamirpur out of which the said criminal cases had arisen. The petitioner is also a former Vice President of Gasota Agricultural Cooperative Society Gasota. Tehsil and District Hamirpur (hereinafter referred to as 'the Society').
2. The brief facts of the case are that on 4-6-1996 the petitioner filed complaint to the Assistant Registrar, Co-operative Societies, Hamirpur alleging some irregularities in the accounts of the Society and misappropriation of its funds to the extent of Rs. 295/- by respondent Pirthi Singh, former Secretary of the Society. The Assistant Registrar, Corporative Societies forwarded the complaint to the Superintendent of Police, Hamirpur vide his letter dated 5-6-1996 who endorsed it to Station House Officer, Police Station, Hamirpur on 6-6-1996 for legal action and report. in pursuance of the complaint of the petitioner the Inspector Cooperative Societies, Hamirpur conducted special audit of the Society for the period 1-7-1973 to 31-3-1995 and sent his report to the Superintendent of Police, Hamirpur on 1-7-1996 alleging that an amount of Rs. 37,348/- was misused and misappropriated by respondent Pirthi Singh and others. This report was made basis for registering FIR No. 137 of 1996 under Sections 408, 420 and 468 read with Section 34, IPC in Police Station, Hamirpur. After the investigation, Ten challans were put up against respondents 2 and 3 for the incident of misappropriation alleged to have been committed during ten financial years in the Court of the Additional Chief Judicial Magistrate, Hamirpur, who issued summons to the respondents vide his order dated 19-9-1998.
3. Before the respondent could be served the Assistant Public Prosecutor conducting the criminal cases on behalf of the State of Himachal Pradesh filed separate but identical applications under Section 321, Cr. P.C. in all the Ten criminal cases. The application were contested by the petitioner complainant by filing the objections to which reply(s) was also filed by respondents 2 to 4. After hearing the Assistant Public Prosecutor, respondents 2 to 4 and the petitioner complainant, the Additional Chief Judicial Magistrate allowed the application and granted the consent of the Court to withdraw from the prosecution of respondents 2 to 4 in all Ten criminal cases by the impugned order. The reasons for withdrawing from prosecution as given in the application were as under:--
1. That in this case the Government has accorded sanction for the withdrawal of the said case from the prosecution of the accused as the case is of improper maintenance of accounts by the accused persons.
2. That I have applied my mind fully to the facts of the case and I am of the view that there was no mens rea on the part of the accused to misappropriate the funds, therefore, case deserves withdrawal from the prosecution of the accused.
4. In his objections the petitioner-complainant inter alia had alleged that in view of the report of K.D. Bhardwaj, Inspector, Cooperative Societies of District Hamirpur that the funds of the Society were misappropriated and embazzled by respondents 2 to 4 there was no justification for the Assistant Public Prosecutor to move applications under Section 321, Cr.P.C. to seek consent of the Court to withdraw from the prosecution of respondents 2 to 4.
5. In their reply to the objections respondents 2 to 4 have pointed out that they had acted bona fide in discharge of their duties and if some irregularities were com--mitted in maintaining the accounts of the Society they are not liable for misappropriation or ambezzlement in the absence of mens rea on their part. As per the respondents, they were falsely implicated in these criminal cases by the then Government because of political reasons as one of them, namely, respondent Pirthi Singh is a political activist and he had contested the election on the ticket of B.J.P. in Bamson Constituency in the year 1985 and lost the election with a very small margin. It was also stated in the reply that in order to malign the reputation of respondent Pirthi Singh and his family members, the petitioner complainant and his protectors hatched a conspiracy to falsely involve him in these criminal cases. It was also pointed out that the special audit report has been set aside by the Assistant Registrar, Cooperative Societies, Hamirpur vide his order dated 22-12-1998 after holding enquiry under Section 69(2) of the H.P. Cooperative Societies Act, 1968 (hereinafter called the Act'). in this order as Assistant Registrar Cooperative Societies has given clean chit to the respondents. During the course of arguments it is pointed out that revision petition under Section 94 of the Act field by the petitioner complainant against order dated 22-12-1998 has also been dismissed by the Additional Secretary (COOP) to the Government of Himachal Pradesh vide his order dated 2-9-2000, which has not been assailed by the petitioner-complainant.
6. In rejoinder to the reply, the petitioner-complaint has further stated that the Assistant Public Prosecutor had not applied his mind before moving the application and had filed the same under political pressure. in fact, as pointed out in the special audit report, respondents 2 and 4 misappropriated an amount of Rs. 37,348/-, out of which Rs. 10,000/- belong to the Government, with criminal intention of wrongful gain to themselves and wrongful loss to the Society and its share holders.
7. While allowing the application the Additional Chief Judicial Magistrate has relied upon the order dated 22-12-1998 of Assistant Registrar, Cooperative Societies whereby the special audit report of K.D. Bhardwaj, Inspector, Cooperative Societies was set aside which was the basis of registering the FIR. The manner in which the special audit report was obtained after filing the complaint and the police machinery geared up to register the FIR against respondents 2 to 4 also weight with the Additional Chief Judicial Magistrate in accepting the application and granting the consent to withdraw from the prosecution of respondents 2 to 4.
8. The Court has heard learned Counsel for the petitioner learned Additional Advocate General for respondent No. 1 and learned Counsel for respondents 2 to 4 and gone through the record.
9. Learned counsel for the petitioner-complainant has reiterated the objections which were raised before the Additional Chief Judicial Magistrate. It is vehemently argued by the learned Counsel that in view of that report of K.D. Bhardwaj, Inspector, Cooperative Societies and the material placed on record by the prosecution the case of misappropration and embezzlement of the amount of Rs. 37,348/- belonging to the share holders of the Society is prima facie made out against respondents 2 to 4 for which they are required to be tried and cannot be discharged as a consequence of acceptance of the application under Section 321, Cr.P.C. It is also argued that there was no material before the Additional Chief Judicial Magistrate justifying the grant of consent of the Court to withdraw prosecution of respondents 2 to 4. Even the application under Section 321, Cr.P.C. did not contain legal valid reasons for withdrawing from the prosecution against respondents 2 to 4.
10. On the other hand, learned Additional Advocate General for respondent No. 1 and learned Counsel for respondents 2 to 4 have fully supported the impugned order.
11. In order to appreciate the respective contentions of learned Counsel for the parties, this Court would examine the case law wherein Section 321, Cr. P.C. has been interpreted in its various judgments by the Apex Court.
12. The land mark judgment interpreting Section 494 the predecessor of Section 321 was given in the case of The State of Bihar v. Ram Naresh Pandey AIR 1957 SC 389 : (1957 Cri LJ 567). It is held in this judgment that this Section is enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person and the consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the consideration on which the Court is to grant consent. in para 3 of the judgment it is observed at page 571:--.In understanding and applying the section two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially....
And further. His discretion in such matter has necessarily to be exercised with reference to such material as is by then available and is not a prima facie judicial determination of any specific issue. The Magistrate functions in these matters are not only supplementary, at a higher level to those of the executive but are intended to prevent abuse. Section 494, Criminal P.C. requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme, then with provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of 'no prima facie case' under Sections 209(1) and 253(1), Criminal P.C., or of 'groundless ness' under Sections 209(2) and 253(2), Criminal P.C. This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made.
(Emphasis supplied)
13. The decision of Ram Naresh Pandey's case was approved by the Supreme Court in M.N. Sankaranarayanan Nair v. P.V. Balakrlshnan AIR 1972 SC 496 : (1972 Cri LJ 301) and Rajender Kumar Jain v. State through Spl. Police Establishment AIR 1980 SC 1510 : (1980 Cri LJ 1084). in this Judgment, the learned Judges summarised eight propositions of law on the basis of their earlier judgments in para 13. These are at page 1090-1091 of Cri LJ:--
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, enonomic 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 supersvisory function in granting its consent to the withdrawal.
8. The Courts 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 confindence in granting or withholding its consent to withdrawal from the prosecution.
14. in Subhas Chander v. The State (Chandigarh Admn.) AIR 1980 SC 423 : (1980 Cri LJ 324) the learned Judges of the Supreme Court have further held in para 5 at page 326, of Cri LJ:--.The consent of the Court under Section 321 as a conditipn for withdrawal is imposed as a check on the exercise of that power. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. That is the essence of the nolle prosequi jurisdiction.
And in para 6:--.The fact that broader considerations of public peace, larger consideration of public justice and even deeper consideration of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a faction milueu or halting a false and vexatious prosecution in a Court, persuades the Executive, pro bono publico sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister. The concurrence of the Court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal. For the Court should not be misused to continue a case conclusive proved to be a counterfeit. This statement of the law is not exhaustive but is enough for the present purpose and indeed, is well grounded on precedents.
15. In Sheonandan Paswan v. State of Bihar AIR 1983 SC 194 : (1983 Cri LJ 348), the learned Judges after considering their earlier judgments including in the case of Ram Naresh Pandey and R.K. Jain (supra) have held that the only guiding factor which should weigh with the Public Prosecutor, while moving for withdrawal and the Court which accords its permission for withdrawal is to see whether the interest of public justice is advanced and the application for withdrawal is not moved with oblique motive unconnected with the vindication of public justice.
16. In another judgment of Supreme Court in Sheonandan Paswan v. State of Bihar AIR 1987 SC 877 : (1987 Cri LJ 793) the learned Judges have again reiterated the law laid down in their earlier judgments and have further held in para 76 at page 836; of Cri LJ:--. When the Magistrate states in his order that he has considered the materials, it is not proper for this Court not to accept that statement. The proper thing to do is to hold that the Magistrate gave consent on objective consideration of the relevant aspects of the case. It would be acting against the mandate of Section 321 to find fault with the Magistrate in such cases, unless the order discloses that the Magistrate has failed to consider whether the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law....
17. Applying the principles of law laid down in the above referred judgments to the facts of the present case, this Court does not find any infirmity in the impugned order. From the material on record this Court is satisfied that the Additional Chief Judicial Magistrate has given consent after satisfying himself that the application was bona fide and filed by the Assistant Public Prosecutor after satisfying himself that the case pertained to irregularities in maintaining the accounts of the Society and there is no mens rea on the part of respondents 2 to 4 to misappropriate or embezzle the funds of the Society. The special audit report of the Inspector, Cooperative Societies, which was the basis of FIR was set aside by the Assisant Registrar, Cooperative Societies vide his order dated 22-12-1998. This Court is not required to find fault with the impugned order of Additional Chief Judicial Magistrate on the ground as urged by the learned Counsel for the petitioner complainant that in view of serious allegations of misappropriation and embezzlement the trial was required to be held by refusing the consent to withdraw from the prosecution. The complaint of the petitioner complainant was in respect of misappropriation of Rs. 295/- which was forwarded to the Superintendent of Police, Hamirpur with a copy to Inspector, Cooperative Societies, Hamirpur who of his won conducted the special audit w.e.f. 1-7-1973 to 31-3-1995 and sent it directly to the Superintendent of Police without giving an opportunity to the Society or respondents 2 to 4 explain and without waiting for the enquiry and is decision by the competent authority under Section 69 of the Act. From these facts on record the allegations of respondent Prithi Singh that he was falsely implicated in criminal cases for extraneous reasons cannot be ignored.
18. The result of above discussion is that there is no merit in these criminal revisions and these are dismissed. A copy of the judgment be placed on the file of each of the criminal revision petitions.