Moulana Basha Vs. State Rep. by the Inspector of Police - Court Judgment

Excerpt:
criminal - validity - tamil nadu prohibition act and tamil nadu city police act - criminal proceedings and disciplinary proceedings were initiated separately - lower court permitted to withdraw criminal proceedings on ground that disciplinary proceedings were pending - decision of lower court challenged - permission to withdraw criminal proceedings cannot be given merely because disciplinary proceedings were pending - lower court did not apply its mind - decision of lower court not justified. - - equally, the court had failed to exercise judicial discretion, while granting consent for withdrawal. 7. the narration of facts earlier made, clearly indicates, that the assistant public prosecutor had mechanically acted on the directions of the superintendent of police and therefore was pleading for withdrawal of the prosecution. (5) the public prosecutor may withdraw from his 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 the public justice, public order and peace. state of bihar 1977crilj1935 emphasised, that the sole consideration for the public prosecutor when he decided to withdraw from a prosecution, was the larger factor administration of justice -not political favours nor party pressures nor like concerns. 13. i am satisfied that neither the assistant public prosecutor, nor the court applied their minds, regarding circumstances justifying withdrawal of this prosecution.order1. petitioner maulana basha was the sole accused in c.c. no. 430 of 1987 of the file of the then judicial second class magistrate, poonamallee. the charge against him was under s. 4(i)(j) of the tamil nadu prohibition act read with s. 75 of the tamil nadu city police act. during the pendency of the prosecution, the petitioner was called upon to face a departmental enquiry in p.r. no. 55 of 1987. the trial magistrate had framed charges against the petitioner and the matter was constantly being adjourned for the production of prosecution witnesses. on 4th may, 1988, the inspector of police, poonamallee who had filed the final report against the petitioner, forwarded a copy of the case diary to the trial magistrate, along with a copy of the proceedings of the superintendent of police, chengalpatta east district in r.c. no. c1/15138/88, dated 16-2-1988. the superintendent of police, chengalpatta east had ordered as follows : 'after careful perusal of the c.d. files of the cases shown in the annexure, it is hereby ordered to withdraw once case as noted therein as it is considered that there is no need to proceed further in this case.' the cases referred to is h1, poonamallee p.s. crime no. 90/87, registered under s. 4(i)(j) of the tamil nadu prohibition act read with s. 75 of the tamil nadu city police act, pending on the file of judicial second class magistrate, poonamallee, in c.c. no. 430 of 1987 (instant prosecution). the case diary forwarded by the respondent reads as follows : 'i submit in the above case, pc 1135 moulana basha (petitioner) formerly at poonamallee, now at tank factory p.s. is involved. further, the departmental enquiry is pending against him before deputy superintendent police, avadi. hence, as per the proceedings of the superintendent of police, chenglaput east district in c. no. c1/15138/88, dated 16-2-1988 the case is being withdrawn, and hence, the case has been withdrawn from the file of the honourable court, vide c.c. no. 430/87. further c.d. closed.' 2. while the case diary extract received by the trial magistrate on 4th may, 1988 was available in the case file, on 13-6-1988 the assistant public prosecutor moved an application under s. 321, cr.p.c. the contents of the application read as follows : 'it is respectfully submitted that the superintendent of police, chingleput east in his order dated 16-2-1988 had withdrawn the above case in c.c. no. c1/15138/88. it is therefore prayed that this hon'ble court may be pleased to withdraw the above case against the accused being a constable and a departmental enquiry had been initiated and pending against the accused.' on the same day, the petitioner filed a memo of objection, opposing the withdrawal of the prosecution. the learned magistrate passed two independent orders, one on the petition filed by the assistant public prosecutor and another on the opposition application preferred by the petitioner herein. the order passed on the application of the assistant public prosecutor under s. 321, cr.p.c. is rather cryptic. when translated in english, it reads as hereunder; 'accused present. the assistant public prosecutor has filed an application for withdrawal of this prosecution. accepted, i acquit the accused under s. 321, cr.p.c. on the petition of the accused (petitioner herein) the learned magistrate, after hearing both counsel, dismissed the prayer. the sum and substance of the order is that the assistant public prosecutor has filed an application under s. 321, cr.p.c. for withdrawal of this prosecution. the superintendent of police had ordered withdrawal. on that basis, the matter was discussed with '(vernacular matter omitted)' (government). on behalf of the accused, a petition has been filed opposing withdrawal. the contents of the petition have been then extracted. thereafter, the magistrate has observed that the withdrawal of the prosecution was beneficial to the accused. the plea of the accused that the departmental enquiry may probably go against him was premature and cannot be accepted. further, the application filed by the accused did not fall within the four 'norms' contemplated under s. 321, cr.p.c. 3. the petitioner has chosen to challenge in this revision, the legality of the order of the trial magistrate, permitting withdrawal of the prosecution, under s. 321, cr.p.c. 4. mr. a. shivkumar, learned counsel appearing on behalf of the petitioner contended that the assistant public prosecutor had neither applied his mind to the need for withdrawal from the prosecution or furnished any reasons, which prompted him to plead for withdrawal. it was apparent, according to the learned counsel, that the order of the executive had been obeyed by the assistant public prosecutor without any independent application of mind. equally, the court had failed to exercise judicial discretion, while granting consent for withdrawal. the approach made by the court below was mechanical and nowhere application of mind of the magistrate, to the question of withdrawal was necessary in the interest of administration of justice was evident from the order. 5. on these contentions i have heard mr. v. parthiban, learned counsel appearing on behalf on the public prosecutor. he fairly stated, that neither the petition for withdrawal presented by the assistant public prosecutor, nor the order passed by the learned magistrate, could be supported on any legal ground. 6. the whole process of withdrawal of this prosecution does not appear to have been intended for promotion of cause of justice. it is not known why a copy of the case diary, with the order of the superintendent of police, withdrawing this prosecution was forwarded to the magistrate to the received on the 4th may, 1988, five weeks ahead of the petition preferred by the assistant public prosecutor on 13-6-1988, seeking withdrawal of the very prosecution. the case diary forwarded to the magistrate, the contents of which have been extracted earlier, leave an impression that the case had already been withdrawn from the file of the magistrate, on the orders of the superintendent of police and therefore the proceedings in court have in effect been terminated. it appears odd that the learned magistrate, on the endorsement made by his office on the copy of the case diary on 14-6-1988, which reads as follows : 'withdrawal report filed by inspector of police, poonamallee. may be permitted.' has ordered, 'permitted'. this order apparently has been signed by the magistrate on the same day on which he had allowed the petition under s. 321, cr.p.c., preferred by the assistant public prosecutor. 7. the narration of facts earlier made, clearly indicates, that the assistant public prosecutor had mechanically acted on the directions of the superintendent of police and therefore was pleading for withdrawal of the prosecution. independent application of mind by the assistant public prosecutor is nowhere evident. one line in the withdrawal petition reads as hereunder; '........ pleaded to withdraw the above case against the accused being a constable and departmental enquiry had been initiated and pending against the accused.' i will consider a little later, if on the ground of pendency of departmental enquiry, the prosecution in court, could be abruptly aborted, on executive direction, without allowing it to reach its logical end. equally, the magistrate, as though it was his duty to allow the petition filed by the assistant public prosecutor, has passed a cryptic order as stated earlier, accepting the plea for withdrawal. exercise of judicial discretion, does not appear evident. in rajender kumar jain v. state, 1980 lw 34 : 1980 cri lj 1984 the apex court, after referring to the dicta laid down by it earlier, stated as follows :- '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 his 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 the public justice, public order and peace. the broad ends of public justice will certainly include appropriate social, economic, and, we add, political purposes sans tammary hall enterprises. (6) the public prosecutor is an officer of the court and responsible to the court. (7) the court performs a supervisory function ingranting its consent to the withdrawal. (8) the courts' duty is not to re-appreciate the ground 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 considerations. 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. it is apparent from the pronunciation of law by the supreme court, that the discretion to withdraw from the prosecution is that of the public prosecutor and noneelse and so he cannot surrender that discretion to someone else. of course, the government may suggest to the public prosecutor, that he may withdraw from the prosecution, but none can compel him to do so. the relevant grounds for withdrawal will include 'to further the broad ends of public justice, public order and peace.' the public prosecuting is an officer of court and therefore responsible to it. it shall be the duty of the court to apprise itself of the reasons which prompted the public prosecution to withdraw from the prosecution. the court has a responsibility and a stake in the administration of criminal justice and so as the public prosecutor, its minister of justice. both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to the provisions of s. 321, cr.p.c. the independence of the judiciary requires that once the case has travelled to the court, the court and its officers alone must have control over the case and decide what is to be done in each case. 9. in state of bihar v. ram naresh : 1957crilj567 the supreme court had the following observations to make (at page 571 of cri lj) : 'the judicial functions, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that the court has to satisfy itself that the executive function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.' the apex court also stated in the same case, that, the public prosecutor though an executive officer is, in a larger sense, also an officer of the court and that he is bound to assist the court, with his fairly considered view and the court is entitled to have the benefit of the fair exercise of his function. 10. v. r. krishna iyer, j. speaking for the bench in balwant singh v. state of bihar : 1977crilj1935 emphasised, that the sole consideration for the public prosecutor when he decided to withdraw from a prosecution, was the larger factor administration of justice - not political favours nor party pressures nor like concerns. of course, the interests of public justice being the paramount consideration, they may transcend and overflow the legal justice of the particular litigation. the criminal procedure code was the only master of the public prosecutor and he has to guide himself with reference to that code alone. so guided, the consideration which must weight with him was, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. the learned judge went on to add, that where in an ordinary criminal case, the public prosecutor is ordered by the district magistrate to move for withdrawal and the public prosecutor obeys and not acts and no public policy bearing on the administration of justice is involved, the court will refuse to accord permission. 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 could be withdrawn or not. he cannot command where he can only commend. the court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal. 11. ratnavel pandian, j., as he then was, in ramaswamy naidu v. shankarlal sharma, 1977 lw cri 15 : (1977 cri lj 131) held that when the prosecution filed an application for withdrawal of a case under s. 494 of the old cr.p.c. corresponding to s. 321 of the new code, the consent was not lightly to be given on the application of the public prosecutor without a careful and proper scrutiny of the grounds on which the application for sanction was made. in other words, the court has to apply its mind to the grounds on which the application was made and exercise its judicial discretion as to whether it could grant permission or not. on the facts before him, the learned judge arrived at the conclusion that the memorandum filed by the special public prosecutor did not show that he had considered the matter independently and decided to withdraw from the prosecution with the permission of the court, and that he had merely referred to the order of the government and sought for permission of the court, which permission was granted by the court, without applying its mind. 12. the facts in the instant revision are almost similar to the facts noticed by ratnavel pandian, j., as he then was, with an addition in this case that the assistant public prosecutor has averred, that departmental enquiry had been initiated and pending against the accused. the question that has to be decided now is whether pendency of the departmental proceeding will be sufficient cause for withdrawal of the prosecution. to decide this issue, the observations of the apex court, in subash chander v. state (chandigarh admn.) : 1980crilj324 , will be aptly significant. they read as hereunder (at page 325 of cri lj) : 'when a crime is committed in this country, the assessment of guilty and the award of punishment or, alternatively the discharge or acquittal of the accused are part of the criminal justice process administered by the courts of the land. it is not the function of the executive to administer criminal justice and in our system, judges, are not fungible, as justice doughlas in chander v. judicial council of the tenth circutt of the u.s., (1970) 398 us 74, asserted.' where a prosecution before a criminal court and a departmental proceeding can separately exist, to my mind, the consent to withdraw from the prosecution cannot be granted merely on that score. the pendency of a departmental enquiry will not be a sufficient ground for consenting to withdraw the pending prosecution. i gain support for my view, from p. n. bashki, j. of the allahabad high court, in state v. m. butt . the learned judge observed as follows (at page 885 (of cri lj)) :- 'in my opinion the more holding of an administrative enquiry by the chief secretary of the u.p. government is not a sufficient ground to subvert the normal course of justice. departmental action in the case of an officer of government is something within its exclusive jurisdiction. courts of law are not concerned with the departmental or administrative enquiries and the result of such enquiries. i, therefore, do not consider this a sufficient ground for according my sanction to the withdrawal application.' the opinion of p. n. baskhi, j. and my own view fit in as necessary corollaries, to the observations of the supreme court in subash chander's case : 1980crilj324 extracted earlier. the legal position is certain, that though the reasons for withdrawal could be many, it should be clear that the withdrawal was ultimately to promote the ends of justice. since consent for withdrawal can follow, only after the court satisfies itself, that the withdrawal was in the interest of justice apparently the order passed by the court should be a speaking order, so that the court of revision would be in a position to find out whether permission under s. 321, cr.p.c. had been properly given. 13. i am satisfied that neither the assistant public prosecutor, nor the court applied their minds, regarding circumstances justifying withdrawal of this prosecution. the impugned order of the magistrate consenting for withdrawal of prosecution, on facts, cannot be upheld. this revision is allowed and the order passed by the then judicial second class magistrate, poonamallee, shall stand set aside. c.c. no. 430 of 1987 is restored to the file of the judicial magistrate, poonnamallee for disposal inaccordance with law, expeditiously. 14. revision allowed.

Judgment:
ORDER

1. Petitioner Maulana Basha was the sole accused in C.C. No. 430 of 1987 of the file of the then Judicial Second Class Magistrate, Poonamallee. The charge against him was under S. 4(i)(j) of the Tamil Nadu Prohibition Act read with S. 75 of the Tamil Nadu City Police Act. During the pendency of the prosecution, the petitioner was called upon to face a departmental enquiry in P.R. No. 55 of 1987. The trial Magistrate had framed charges against the petitioner and the matter was constantly being adjourned for the production of prosecution witnesses. On 4th May, 1988, the Inspector of Police, Poonamallee who had filed the final report against the petitioner, forwarded a copy of the case diary to the trial Magistrate, along with a copy of the proceedings of the Superintendent of Police, Chengalpatta East District in R.C. No. C1/15138/88, dated 16-2-1988. The Superintendent of Police, Chengalpatta East had ordered as follows :

'After careful perusal of the C.D. files of the cases shown in the annexure, it is hereby ordered to withdraw once case as noted therein as it is considered that there is no need to proceed further in this case.'

The cases referred to is H1, Poonamallee P.S. Crime No. 90/87, registered under S. 4(i)(j) of the Tamil Nadu Prohibition Act read with S. 75 of the Tamil Nadu City Police Act, pending on the file of Judicial Second Class Magistrate, Poonamallee, in C.C. No. 430 of 1987 (instant prosecution). The case diary forwarded by the respondent reads as follows :

'I submit in the above case, PC 1135 Moulana Basha (petitioner) formerly at Poonamallee, now at Tank Factory P.S. is involved. Further, the departmental enquiry is pending against him before Deputy Superintendent Police, Avadi.

Hence, as per the proceedings of the Superintendent of Police, Chenglaput East District in C. No. C1/15138/88, dated 16-2-1988 the case is being withdrawn, and hence, the case has been withdrawn from the file of the Honourable Court, vide C.C. No. 430/87. Further C.D. closed.'

2. While the case diary extract received by the trial Magistrate on 4th May, 1988 was available in the case file, on 13-6-1988 the Assistant Public Prosecutor moved an application under S. 321, Cr.P.C. The contents of the application read as follows :

'It is respectfully submitted that the Superintendent of Police, Chingleput East in his order dated 16-2-1988 had withdrawn the above case in C.C. No. C1/15138/88.

It is therefore prayed that this Hon'ble Court may be pleased to withdraw the above case against the accused being a constable and a departmental enquiry had been initiated and pending against the accused.'

On the same day, the petitioner filed a memo of objection, opposing the withdrawal of the prosecution. The learned Magistrate passed two independent orders, one on the petition filed by the Assistant Public Prosecutor and another on the opposition application preferred by the petitioner herein. The order passed on the application of the Assistant Public Prosecutor under S. 321, Cr.P.C. is rather cryptic. When translated in English, it reads as hereunder;

'Accused present. The Assistant Public Prosecutor has filed an application for withdrawal of this prosecution. Accepted, I acquit the accused under S. 321, Cr.P.C.

On the petition of the accused (petitioner herein) the learned Magistrate, after hearing both counsel, dismissed the prayer. The sum and substance of the order is that the Assistant Public Prosecutor has filed an application under S. 321, Cr.P.C. for withdrawal of this prosecution. The Superintendent of Police had ordered withdrawal. On that basis, the matter was discussed with '(vernacular matter omitted)' (Government). On behalf of the accused, a petition has been filed opposing withdrawal. The contents of the petition have been then extracted. Thereafter, the Magistrate has observed that the withdrawal of the prosecution was beneficial to the accused. The plea of the accused that the departmental enquiry may probably go against him was premature and cannot be accepted. Further, the application filed by the accused did not fall within the four 'norms' contemplated under S. 321, Cr.P.C.

3. The petitioner has chosen to challenge in this revision, the legality of the order of the trial Magistrate, permitting withdrawal of the prosecution, under S. 321, Cr.P.C.

4. Mr. A. Shivkumar, learned counsel appearing on behalf of the petitioner contended that the Assistant Public Prosecutor had neither applied his mind to the need for withdrawal from the prosecution or furnished any reasons, which prompted him to plead for withdrawal. It was apparent, according to the learned counsel, that the order of the executive had been obeyed by the Assistant Public Prosecutor without any independent application of mind. Equally, the Court had failed to exercise judicial discretion, while granting consent for withdrawal. The approach made by the Court below was mechanical and nowhere application of mind of the Magistrate, to the question of withdrawal was necessary in the interest of administration of justice was evident from the order.

5. On these contentions I have heard Mr. V. Parthiban, learned counsel appearing on behalf on the Public Prosecutor. He fairly stated, that neither the petition for withdrawal presented by the Assistant Public Prosecutor, nor the order passed by the learned Magistrate, could be supported on any legal ground.

6. The whole process of withdrawal of this prosecution does not appear to have been intended for promotion of cause of justice. It is not known why a copy of the case diary, with the order of the Superintendent of Police, withdrawing this prosecution was forwarded to the Magistrate to the received on the 4th May, 1988, five weeks ahead of the petition preferred by the Assistant Public Prosecutor on 13-6-1988, seeking withdrawal of the very prosecution. The case diary forwarded to the Magistrate, the contents of which have been extracted earlier, leave an impression that the case had already been withdrawn from the file of the Magistrate, on the orders of the Superintendent of Police and therefore the proceedings in Court have in effect been terminated. It appears odd that the learned Magistrate, on the endorsement made by his office on the copy of the case diary on 14-6-1988, which reads as follows :

'Withdrawal report filed by Inspector of Police, Poonamallee. May be Permitted.' has ordered, 'Permitted'. This order apparently has been signed by the Magistrate on the same day on which he had allowed the petition under S. 321, Cr.P.C., preferred by the Assistant Public Prosecutor.

7. The narration of facts earlier made, clearly indicates, that the Assistant Public Prosecutor had mechanically acted on the directions of the Superintendent of Police and therefore was pleading for withdrawal of the prosecution. Independent application of mind by the Assistant Public Prosecutor is nowhere evident. One line in the withdrawal petition reads as hereunder;

'........ Pleaded to withdraw the above case against the accused being a constable and departmental enquiry had been initiated and pending against the accused.'

I will consider a little later, if on the ground of pendency of departmental enquiry, the prosecution in Court, could be abruptly aborted, on executive direction, without allowing it to reach its logical end. Equally, the Magistrate, as though it was his duty to allow the petition filed by the Assistant Public Prosecutor, has passed a cryptic order as stated earlier, accepting the plea for withdrawal. Exercise of judicial discretion, does not appear evident. In Rajender Kumar Jain v. State, 1980 LW 34 : 1980 Cri LJ 1984 the Apex Court, after referring to the dicta laid down by it earlier, stated as follows :-

'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 his 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 the public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic, and, we add, political purposes sans Tammary Hall enterprises.

(6) The Public Prosecutor is an officer of the Court and responsible to the Court.

(7) The Court performs a supervisory function ingranting its consent to the withdrawal.

(8) The Courts' duty is not to re-appreciate the ground 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 considerations. 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. It is apparent from the pronunciation of law by the Supreme Court, that the discretion to withdraw from the prosecution is that of the Public Prosecutor and noneelse and so he cannot surrender that discretion to someone else. Of course, the Government may suggest to the Public Prosecutor, that he may withdraw from the prosecution, but none can compel him to do so. The relevant grounds for withdrawal will include 'to further the broad ends of public justice, public order and peace.' The Public Prosecuting is an Officer of Court and therefore responsible to it. It shall be the duty of the Court to apprise itself of the reasons which prompted the Public Prosecution to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so as the Public Prosecutor, its Minister of Justice. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S. 321, Cr.P.C. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.

9. In State of Bihar v. Ram Naresh : 1957CriLJ567 the Supreme Court had the following observations to make (at page 571 of Cri LJ) :

'The judicial functions, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.'

The Apex Court also stated in the same case, that, the Public Prosecutor though an executive officer is, in a larger sense, also an officer of the Court and that he is bound to assist the Court, with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function.

10. V. R. Krishna Iyer, J. speaking for the Bench in Balwant Singh v. State of Bihar : 1977CriLJ1935 emphasised, that the sole consideration for the Public Prosecutor when he decided to withdraw from a prosecution, was the larger factor administration of justice - not political favours nor party pressures nor like concerns. Of course, the interests of public justice being the paramount consideration, they may transcend and overflow the legal justice of the particular litigation. The Criminal Procedure Code was the only Master of the Public Prosecutor and he has to guide himself with reference to that Code alone. So guided, the consideration which must weight with him was, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. The learned Judge went on to add, that where in an ordinary criminal case, the public prosecutor is ordered by the District Magistrate to move for withdrawal and the public prosecutor obeys and not acts and no public policy bearing on the administration of justice is involved, the Court will refuse to accord permission. 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 could be withdrawn or not. He cannot command where he can only commend. The Court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal.

11. Ratnavel Pandian, J., as he then was, in Ramaswamy Naidu v. Shankarlal Sharma, 1977 LW Cri 15 : (1977 Cri LJ 131) held that when the prosecution filed an application for withdrawal of a case under S. 494 of the old Cr.P.C. corresponding to S. 321 of the new Code, the consent was not lightly to be given on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application for sanction was made. In other words, the Court has to apply its mind to the grounds on which the application was made and exercise its judicial discretion as to whether it could grant permission or not. On the facts before him, the learned Judge arrived at the conclusion that the memorandum filed by the Special Public Prosecutor did not show that he had considered the matter independently and decided to withdraw from the prosecution with the permission of the Court, and that he had merely referred to the order of the Government and sought for permission of the Court, which permission was granted by the Court, without applying its mind.

12. The facts in the instant revision are almost similar to the facts noticed by Ratnavel Pandian, J., as he then was, with an addition in this case that the Assistant Public Prosecutor has averred, that departmental enquiry had been initiated and pending against the accused. The question that has to be decided now is whether pendency of the departmental proceeding will be sufficient cause for withdrawal of the prosecution. To decide this issue, the observations of the Apex Court, in Subash Chander v. State (Chandigarh Admn.) : 1980CriLJ324 , will be aptly significant. They read as hereunder (at page 325 of Cri LJ) :

'When a crime is committed in this country, the assessment of guilty and the award of punishment or, alternatively the discharge or acquittal of the accused are part of the criminal justice process administered by the Courts of the land. It is not the function of the executive to administer criminal justice and in our system, judges, are not fungible, as Justice Doughlas in Chander v. Judicial Council of the Tenth Circutt of the U.S., (1970) 398 US 74, asserted.'

Where a prosecution before a Criminal Court and a departmental proceeding can separately exist, to my mind, the consent to withdraw from the prosecution cannot be granted merely on that score. The pendency of a departmental enquiry will not be a sufficient ground for consenting to withdraw the pending prosecution. I gain support for my view, from P. N. Bashki, J. of the Allahabad High Court, in State v. M. Butt . The learned Judge observed as follows (at page 885 (of Cri LJ)) :-

'In my opinion the more holding of an administrative enquiry by the Chief Secretary of the U.P. Government is not a sufficient ground to subvert the normal course of justice. Departmental action in the case of an officer of Government is something within its exclusive jurisdiction. Courts of law are not concerned with the departmental or administrative enquiries and the result of such enquiries. I, therefore, do not consider this a sufficient ground for according my sanction to the withdrawal application.'

The opinion of P. N. Baskhi, J. and my own view fit in as necessary corollaries, to the observations of the Supreme Court in Subash Chander's case : 1980CriLJ324 extracted earlier. The legal position is certain, that though the reasons for withdrawal could be many, it should be clear that the withdrawal was ultimately to promote the ends of justice. Since consent for withdrawal can follow, only after the Court satisfies itself, that the withdrawal was in the interest of justice apparently the order passed by the Court should be a speaking order, so that the Court of revision would be in a position to find out whether permission under S. 321, Cr.P.C. had been properly given.

13. I am satisfied that neither the Assistant Public Prosecutor, nor the Court applied their minds, regarding circumstances justifying withdrawal of this prosecution. The impugned order of the Magistrate consenting for withdrawal of prosecution, on facts, cannot be upheld. This revision is allowed and the order passed by the then Judicial Second Class Magistrate, Poonamallee, shall stand set aside. C.C. No. 430 of 1987 is restored to the file of the Judicial Magistrate, Poonnamallee for disposal inaccordance with law, expeditiously.

14. Revision allowed.