D.P. Mehta, Managing Director, Mangalore Chemicals and Fertilizers Limited and anr. Vs. State of Karnataka, Through Senior Inspector of Factories - Court Judgment

Excerpt:
(a) criminal procedure code, 1973 (central act no. 2 of 1974) - sections 321, 482 -- application filed under section 321 rejected -- once again fresh application filed by sr.a.p.p. with cogent and convincing reasons after satisfying about the pros and cons of withdrawal -- same rejected -- that order called in question. held -- the second application filed by the sr.a.p.p. under section 321 of cr.p.c. by the trial court without applying the judicious mind is an abuse of process of law. the reasons assigned by the sr.a.p.p. in seeking permission to withdraw the prosecution case filed against the petitioners is well founded and in the interest of public and it may not cause any injustice either to the employee or to the general public if permission is granted. the application filed by the.....orderramanna, j. 1. this criminal petition is filed under section 482 cr.p.c. against the order dated 21.8.2002 passed by the j.m.f.c. (ii court) mangalore in c.c.no. 6849/2000, whereby the application filed by senior public prosecutor under section 321 of cr.p.c. came to be rejected. so feeling aggrieved by the said order, the petitioners herein have come up with this petition under section 482 cr.p.c.2. the prosecution case, in short, is that on 9.2.2000 an unfortunate accident occurred in the factory premises of m/s. mangalore chemicals and fertilizers ltd., panambur, mangalore, on account of the leaking of the ammonia gas, resulting in the death of 4 persons. on the basis of the information received, an enquiry was conducted by the complainant and issued show cause notice and after.....

Judgment:
ORDER

Ramanna, J.

1. This Criminal Petition is filed under Section 482 Cr.P.C. against the order dated 21.8.2002 passed by the J.M.F.C. (II Court) Mangalore in C.C.No. 6849/2000, whereby the application filed by Senior Public Prosecutor under Section 321 of Cr.P.C. came to be rejected. So feeling aggrieved by the said order, the petitioners herein have come up with this petition under Section 482 Cr.P.C.

2. The prosecution case, in short, is that on 9.2.2000 an unfortunate accident occurred in the factory premises of M/s. Mangalore Chemicals and Fertilizers Ltd., Panambur, Mangalore, on account of the leaking of the Ammonia Gas, resulting in the death of 4 persons. On the basis of the information received, an enquiry was conducted by the complainant and issued show cause notice and after receipt of reply from the Senior Inspector of Factories, Mangalore, filed a complaint against the revision petitioners for an offence punishable under Section 92 of Factories Act and accordingly, case came to be registered. In C.C.No. 6849/ 2000 on the file of JMFC (II Court) Mangalore. Thereafter, summons was issued to the petitioners for violation of provisions of the Factories Act and Rules. So after appearance, the petitioners herein filed an application under Section 321 of Cr.P.C. with a request to permit the State to withdraw the complaint. That application came to be rejected by an order dated 3.6.2002 passed by the J.M.F.C. II Court, Mangalore, on the ground that the Senior Assistant Public Prosecutor has not applied his mind in seeking withdrawal of the case. Subsequently, Senior Assistant Public Prosecutor filed a detailed application on the basis of the Government notification dated 18.6.2002. After hearing both sides, the Trial Court has dismissed the application on the ground that the petitioner herein have not challenged the order dated 3.6.2002. As against this, the revision petitioners have come up with this petition under Section 482 Cr.P.C.

3. In that behalf, learned Senior Counsel Sri Chidambaram, vehemently argued that there is no bar to file a second application seeking withdrawal of the case by the Senior Assistant Public Prosecutor and the second application can be filed before the pronouncement of the judgment. Further, he has mentioned that the earlier application filed by the Senior Assistant Public Prosecutor without applying his mind and he has simply filed a memo by enclosing a Government Notification, which is at Annexure'J'. In support of his contentions Sri Chidambaram, Senior Advocate has relied on the following decision namely R.M. TEWARI v. STATE (NCT OF DELHI) AND ORS. 1996 SC(Cri) 361, wherein it has been observed by the Lordship of the Apex Court that:

'The Public Prosecutor may apply for withdrawal from prosecution under Section 321 in accordance with law on any ground available according to settled principles, and on such an application being made, the Designated Court would decide the same in accordance with law.'

The application made under Section 321 Cr.P.C. not having been decided on the basis indicated above, fresh applications made in all such cases pursuant to the recommendations of the Review Committee or the revised opinion of the Government have to be considered and decided by the Designated Courts. Therefore, the second application filed by the Senior Assistant Public Prosecutor before the Trial Court is maintainable. So considering the ratio laid down by the Apex, Court in the aforesaid decision, the Trial Court is wrong in holding that the second application is not maintainable, as the Senior Assistant Public Prosecutor has not challenged the earlier order dated 3.6.2002.

4. Further, the learned Counsel for the petitioners has also relied upon another decision reported in MOHD. HUSAIN v. STATE OF RAJASTHAN (2001) 3 Crimes 120(SC), wherein it has been held as under:

' We deem it necessary in the interest of justice that the fresh application filed before the Court should be disposed of by the Designated Judge afresh untrammeled by any observations made by him in the impugned order.'

In the aforesaid case, it is also held by the Hon'ble Supreme Court in an application for withdrawal of TADA cases by the prosecution, revised opinion of the Government formed on the basis of recommendation of High Power Committee should not be lightly disregarded by Court except for weighty reasons such as mala fide manifest arbitrariness.

5. In case of ABDUL KARIM ETC. v. STATE OF KARNATAKA AND ORS. ETC. 2001 Cr.L.J. 148 wherein the Apex Court has held as under:-

'The law is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. It must therefore follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the Court, with its permission, in a sealed envelope. The Court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the Court to weigh the material. The Court also be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The Court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the Court accords consent, it must make such order on the application as will indicate to a higher Court that it has done all that the law requires it to do before granting consent'.

6 . He relied on another case AWYUB v. STATE OF UTTARA PRADESH - 2002 SCC(Cri) 673, wherein it has been held that:

'The order passed by the Designated Judge was only interim in nature against that order, an appeal could have been filed.'

Since these petitioners have not challenged that order, it does not mean that the petitioners are not entitled to file a fresh application with cogent and convincing reasons.

7. On the other hand, the learned State Public Prosecutor has drawn my attention to Section 321 Cr.P.C. which clearly states that the State can withdraw the Criminal prosecution filed against any person at any stage of the case. The Hon'ble Apex Court has laid down law on this point as under:-

'There is no bar as such to file a second application seeking permission to withdraw the criminal case pending in the criminal Court.'

But, the prosecuting agency has to satisfy itself about the ground on which the State wanted to withdraw the criminal case pending against the accused persons. Of course, in the earlier application filed by the Sr.A.P.P. he was unable to give convincing and cogent reasons for seeking permission to withdraw the criminal case filed against them. In the subsequent application filed by the Sr.A.P.P. with cogent and convincing reasons, the Trial Court without considering the grounds urged in the subsequent application filed under Section 321 Cr.P.C. has not properly appreciated but dismissed the said application only on the ground that the Court has already dismissed the earlier application filed by the State through the Sr.A.P.P. In the instant case, the application filed by the Sr.A.P.P. discloses that he has independently examined the pros and cons of the criminal proceedings pending before the Court. He verified all the records and documents submitted by both Mangalore Chemicals and Fertilizer Ltd., and the Inspector of Factories and the report of assessment of situation prior and subsequent to the date of chemical accident on 9.2.2000. That apart, the Sr.A.P.P. who is said to have been personally visited the MCF factory and the spot of chemical accident has stated that the legal heirs of the victims of the disaster have been paid sufficient compensation and that the company has assured them appointment if they are qualified and eligible for being appointed in the MCF Factory. Moreover, the Sr.A.P.P. has elaborately assigned reasons that accident if any took place on account of weld let failure that occurred because of internal corrosion caused by a marginal deficiency in the original weld let material supplied at the project stage 37 years ago and that accident if any, was on account of involving leak of ammonia condensate on account of operation of the plant of MCF for the last 23 years. Of course, it is only a manufacturing plant in Karnataka and 70% of its products are being used by the farmers of Karnataka. The case was not withdrawn from the prosecution but the management made to stand for a trial, it is likely to have an adverse impact on the investors of the company, on the morale of the management and its employees and would indirectly affect the production, ultimately causing hardship to the larger sections of the farmers of Karnataka and the agricultural growth of the state of Karnataka. Immediately after this accident, exgratia payments were made to Ranganna, Basappa, and Sashidhar at Rs. 3 lakhs, Rs. 3 lakhs and Rs. 1,50,000/- respectively.

8. Since the Sr.A.P.R has elaborately assigned the reasons for seeking permission to withdraw the prosecution case filed against the revision petitioner is convincing, the Trial Court has utterly failed to look into about the details of the reasons assigned by the Sr.A.P.R in seeking permission to withdraw the prosecution case filed against the petitioners. But, in the instant case, the learned Magistrate instead of allowing the application has rejected on the ground that the earlier order dated 3.6.2002 has not been challenged, it cannot be accepted. The finding recorded by the Trial Court in rejecting the application appears to be perverse and incorrect.

9. I have carefully gone through the order under challenge passed by the Trial Court on the fresh application filed by the Senior Assistant Public Prosecutor. The learned Senior Assistant Public Prosecutor has applied his mind to the facts of the case independently and analyzed the pros and cons of the proceedings after perusing all the records of the case. In the instant case, the learned Magistrate without applying his judicious mind and without considering the grounds on which the Sr.A.P.R filed an application under Section 321 Cr.RC. seeking permission to withdraw the prosecution case. It is clear from the records that the fresh application filed by the Sr.A.P.R on the basis of the Government Order to withdraw the prosecution case launched against the petitioner which is utmost interest of the general public as well as the agriculturists of Karnataka who are the back bones of the society. But, in case of ABDUL KARIM v. STATE OF KARNATAKA, the Apex Court has also cautioned before according permission to the Sr.A.PP. to withdraw the prosecution case filed against any accused persons, the Court should not weigh the material but, the Court must be satisfied that the Sr.A.PP. has considered the material and in good faith reached the conclusion that his withdrawal from the prosecution will serve the public interest. But, instead of going through the fresh grounds made out by the Sr.A.P.P. seeking permission to withdraw the case, the Trial Court passed a cryptic order by holding that the Court has already rejected an earlier application filed under Section 321 Cr.P.C. seeking permission without proper reasons. So, the present application tiled by the Sr.A.P.P. in order to maintain a good relationship between the manufacturers of the fertilizer namely, the petitioners and its employees and also to provide and supply the fertilizer to the farmers of Karnataka and other States. If the permission sought lor by the Sr.A.P.P. is not granted, ultimately the entire employees of the said factory and also the farmers of Karnataka at large will be put to great hardship and inconvenience. But. this fact has been lost sight of by the Trial Court and the application was rejected. The second application filed by the Sr.A.P.P. with cogent and convincing reasons after satisfying about the pros and cons of withdrawal and keeping in mind the interest of employee of the said factory and the farmers. Therefore, the second application filed by the Sr.A.P.P, under Section 321 of Cr.P.C. by the Trial Court without applying the judicious mind is an abuse of process of law. Therefore, viewed from any angle, I am satisfied that the reasons assigned by the Sr.A.P.P. in seeking permission to withdraw the prosecution case filed against the petitioners is well founded and in the interest of public and it may not cause any injustice either to the employee or to the general public if permission is granted. Therefore, the order under revision passed by the Trial Court is liable to be dismissed.

10. Accordingly, the petition is allowed. The order passed by the Trial Court on 21.8.2002 is set aside by allowing the application and the prosecution is permitted to withdraw the case. The petitioners, who are the accused before the Trial Court are entitled for discharge and accordingly they are discharged.