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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 99 OF 2016 (@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 801 OF 2016)

(@ CRIMINAL M.P. NO. 16992 OF 2015)

M/s V.L.S. FINANCE LTD. ...  Appellant(s)

                               Versus

S.P. GUPTA AND ANR. … Respondent(s)

                                With  

CRIMINAL APPEAL NO.100 OF 2016 (@   SPECIAL LEAVE PETITION (CRIMINAL) NO. 803  OF 2016)   

(@ CRIMINAL M.P. NO. 18947 OF 2015)

CRIMINAL APPEAL NO.101 OF 2016 (@   SPECIAL LEAVE PETITION (CRIMINAL) NO. 804  OF 2016)   

(@ CRIMINAL M.P. NO. 19028 OF 2015)

CRIMINAL APPEAL NOS.102-104 OF 2016 (@   SPECIAL LEAVE PETITION (CRIMINAL) NOS. 805-807  OF 2016)   

(@ CRIMINAL M.P. NOS. 580-582 OF 2016)

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The obtaining factual matrix encompasses a scenario  

which covers quite a span of time, and the chronology of

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events  projects  horrendous  picture,  as  Mr.  Dushyant  A.  

Dave  and Ms. Indu Malhotra, learned senior counsel would  

submit with stirred vehemence and expressive concern on  

the formulation that exploitation of legal system, seemingly  

looking  innocent,  has,  in  fact,  cultivated  the  path  of  

deviation that has led to pathetic miscarriage of justice, for  

there has been real  abuse of  the process of  law at  every  

stage.  Learned counsel for the appellants put the blame on  

the respondents, as they have visited the superior courts on  

many an occasion seeking intervention possibly harbouring  

the  idea  that  it  is  a  routine  exercise.   In  such  an  

exploration, they have not felt any desperation despite being  

unsuccessful,  for  the  desire  was  not  mitigation  of  the  

grievance  but  consumption  of  time  which,  by  itself,  is  

beneficial  because  the  consequences  of  the  litigation  has  

been deferred.  However, the last visit to the High Court has  

yielded  some  benefit  which  has  pained  the  appellants  to  

severely  criticize  the  order  impugned  on  many  a  ground  

apart from the submission that cause of justice has been  

vexed, for in such a situation besides the prosecution and  

the accused, there is a third party, the victim of the crime,  

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who eagerly waits for the progress of the case, as mandated  

in  law.   The  said  stalling  has  impelled  the  informant  to  

prefer appeals by special leave.   

3. Presently to the facts.  In the present case, the facts  

fresco a labyrinthine that has the potentiality to divert the  

mind.   Hence,  it  is  imperative  to  exposit  facts  after  due  

filtration. The appellant set the criminal law in motion by  

filing an FIR No. 90 of 2000 at Police Station Connaught  

Place which came to be registered under Sections 406, 409,  

420,  424,  467,  468,  471,  477-A and 120B of  the  Indian  

Penal Code (IPC).  After the investigation by the Economic  

Offences Wing, Crime Branch, Delhi Police, a charge-sheet  

was filed on 18.01.2003. One of the charges levelled against  

the  accused  persons  pertained  to  the  fraudulent  

transactions  of  certain  amount  of  money.  Learned  

Magistrate  vide  order  dated  18.01.2003,  appreciating  the  

material  on  record,  took  cognizance  of  the  offences  in  

question  and  summoned  the  accused  persons  fixing  the  

date  of  appearance  on  04.09.2003.  The  order  of  issuing  

summons was assailed before the High Court of  Delhi  in  

Crl.M.C.  No.  911  of  2003  along  with  the  prayer  for  

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quashment of the FIR and an order came to be passed on  

04.03.2003.  As the factual score would reveal, the matter  

was pending before the High Court of Delhi and it carried on  

for days and, as alleged, an effort was made to derail the  

proceedings  by  filing  an  application  for  recusal  of  the  

learned Judge who had substantially heard the matter. The  

said  application  came  to  be  dismissed  and  the  order  of  

dismissal  was  called  in  question  before  this  Court  in  a  

special  leave  petition  with  no  success.   Thereafter,  the  

accused persons challenged the order of summoning before  

the trial court which was not entertained as is evident from  

the order dated 27.04.2010.   The said order was attacked  

in Crl.M.C. No. 2040 of 2010 which came to be dismissed  

on 04.06.2010.  In the said case, the learned single Judge  

had taken note of the earlier cases being Criminal M.C. Nos.  

911 of 2003, 1992 of 2006, 2142 of 2007, 2229 of 2007,  

1988 of 2008 and 64 of 2006 and Writ Petition (Criminal)  

Nos. 498 of 2005, 208 of 2006, 1191 of 2006 and 1210 of  

2006  challenging  the  summoning  order  which  remained  

pending  before  the  High  Court  till  04.03.2010.  On  

04.03.2010 the High Court noted that the learned counsel  

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for  the  petitioners therein did not  want  the  matter  to be  

disposed of  on merits  and sought  liberty  to  raise  all  the  

points which have been raised before this Court in the trial  

Court  at  an  appropriate  stage/at  the  stage  of  hearing  

arguments  on  charge.   After  so  noting,  the  High  Court  

observed that:-  

“Taking  all  these  facts  into  consideration  including the factum of pendency of the case for  a period of more than five years and taking into  consideration  that  ultimately  it  is  for  the  trial  Court to decide as to whether a charge is to be  framed or not in the aforesaid case against the  petitioner and to further decide whether the case  should  proceed  or  not  in  view  of  some  of  the  objections raised on behalf of the petitioner about  the  propriety  of  issuance  of  summoning  order  etc.,  it  would be appropriate to grant liberty to  the petitioners to raise all the issues which have  been raised in this petition before this Court at  the appropriate stage/stage of framing of charge  before the concerned Court.”

4. As is evident, the learned single Judge had opined that  

the  petitioners  gave  up  their  right  to  challenge  the  

summoning order in the said petition with liberty to raise all  

points and issues at any appropriate stage/at the stage of  

hearing arguments on charge.   When the issue was raised  

before  the  learned  Magistrate,  he  held  that  it  was  not  

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possible  to  accept  the  contention  of  the  petitioner  that  

appropriate  stage  meant  that  the  trial  court  had  to  

re-examine the summoning order itself.  The words “at an  

appropriate stage”  was interpreted to mean the stage as  

permitted  and allowed as  per  law and as  per  the  earlier  

decision, for it was not the intention of the Court and that  

apart no liberty was given to the petitioner to challenge the  

summoning  order  before  the  trial  court.   The  learned  

Magistrate  referred  to  the  decision  in  Adalat  Prasad v.  

Rooplal Jindal & others1 to arrive at the conclusion that  

he  does  not  have  the  authority  to  recall  the  summoning  

order.  The said order was assailed before the High Court  

and while rejecting the plea of the learned counsel for the  

petitioner,  the  High  Court  noticed  that  the  summoning  

order  was  earlier  challenged  in  petitions  which  had  

remained  pending  from  2003/2006/2007  till  04.03.2010  

and thereafter the petitioner had abandoned the challenge.  

The High Court dismissed the petition holding that it would  

not  be  proper  to  allow  the  petitioner  to  raise  the  same  

questions after they had withdrawn the petitions, which had  

1  (2004) 7 SCC 338

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remained pending in the High Court for 3-6 years.   

5. The said order came to be assailed in Special  Leave  

Petition (Criminal) No. 6336 of 2010 which was dismissed.

6. It  may  be  noted  here  that  an  application  preferred  

under  Section  173(8)  of  the  Code  of  Criminal  Procedure  

(Cr.P.C.) seeking re-investigation of FIR No. 90 of 2000 by  

the accused persons met with the fate of dismissal solely on  

the ground that there was ample evidence on record to bring  

home  the  charge  and  the  re-investigation  would  not  

subserve any purpose. The futility of endeavour constrained  

the accused persons to file an application on 24.09.2010 for  

stay of the proceedings arising out of FIR No. 90 of 2000  

before the Chief  Metropolitan Magistrate along with other  

FIRs but the effort became an exercise in futility.

7. What ensued next, as Mr. Dushyant A. Dave, learned  

senior  counsel  would  put  it,  has  a  sad  and  shocking  

projection.  A  committee  was  constituted  on  03.06.2011  

which consisted of S/Shri Arvind Ray (Principal Secretary  

(Home)-In Chair), S.P. Garg (Principal Secretary (Law), B.S.  

Joon  (Director  of  Prosecution),  Sandeep  Goel  (Joint  C.P.  

(Crime)  and  B.M.  Jain  (Dy.  Secretary  (Home)  Member  

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Secretary).  The  Committee  considered  60  cases  for  

withdrawal  and  after  some  discussion,  sent  its  

recommendation in each of the case.  On 11.07.2011, the  

Under  Secretary  to  the  Government  of  India,  Ministry  of  

Home Affairs wrote to respondent No. 1 herein - S.P. Gupta,  

Chairman,  Sun  Air  Hotels  Pvt.  Ltd.,  Bangla  Sahib  Road,  

New Delhi and informed that his request for closing the FIR  

Nos. 90/2000, 99/2002 and 148/2002 had been examined  

in detail in consultation with the Ministry of Law & Justice  

and  their  advice  for  withdrawal  of  prosecution  under  

Section  321  of  Cr.P.C.  in  respect  of  FIR  No.  90/2000,  

99/2002 and 148/2002 had already been conveyed to the  

Home  Department,  Government  of  NCT  of  Delhi  for  

necessary  action  at  their  end  and  as  far  as  FIR  No.  

315/2005  was  concerned,  more  information  was  awaited  

from Delhi Police for taking a decision in the matter.

8. On 13.09.2011,  the  said  Screening  Committee  while  

dealing with the case of the respondent in respect of first  

FIR being FIR No. 90 of 2000 recommended for withdrawal  

of the case. We think it appropriate to reproduce the said  

recommendation:-

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“RECOMMENDATIONS OF THE COMMITTEE

The Committee observed that the withdrawal of  case  Fir  No.  90/2000  from  prosecution  was  considered  by  the  Committee  in  its  previous  meeting  held  on  3.6.2011  and  the  matter  was  deferred  for  want  of  the  relevant  record  of  the  case.

However the details/records received from Police  Department  and  Director  of  Prosecution  were  viewed  by  the  Committee  and  it  was  observed  that  Ministry  of  Home  Affairs  has  already  examined  the  case  in  consultation  with  the  Department  of  Legal  Affairs,   Law  and  Justice  who with the approval of Union Home Minister,  has  directed the  Home Department  to  urgently  scrutinise  the above case for  taking action u/s  321  Cr.P.C.  for  withdrawal  of  Prosecution  immediately.  

In  view of  the above the  Committee decided to  recommend  the  case  for  withdrawal  from  Prosecution.”

9. In  respect  of  FIR  No.  99  of  2002  and  other  cases,  

similar  recommendations  were  made  for  withdrawal  from  

prosecution.  The  Lt.  Governor  of  Delhi  perused  the  

recommendations of Screening Committee for withdrawal of  

cases from prosecution and ordered the following cases to  

be withdrawn after following prescribed procedure:-

“1. FIR  No.  46/11  Police  Station  –  Civil  Lines  registered  against  Govt.  School  Teachers  Association u/s Act/Section 188 IPC.

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2. FIR  No.  148/2002  Police  Station-  Defence  Colony  registered  against  accused  Sh.  S.P.  Gupta  &  ors.  U/s./Act/Section  384/406/409/421/422/465/ 467/468/120- B IPC.

3. FIR No.  90/2000 Police Station,  Connaught  Place,  registered  against  accused  Sh.  S.P.  Gupta  &  ors.  U/s/Act/Section  120B/406/409/420/  467/468/471/477-A  IPC.

4. FIR No. 99/2002 Police Station – Connaught  Place,  registered  against  accused  Shr.  S.P.  Gupta  &  ors.  U/s/Act/Section  120-B,  406,  420,  424,  467,  468,  471/477-A  IPC.  Additionally,  FIR No.  677/01 PS Sultanpuri  u/s 332/341 IPC is also withdrawn.”  

The  present  appeals  are  relatable  to  the  last  three  

cases in the aforementioned list.  

10. After the recommendation, the Government of National  

Capital Territory of Delhi, Home Department, in exercise of  

power conferred under Section 32 of the Cr.P.C. read with  

the  Government  of  India,  Ministry  of  Home  Affairs  

Notification  No.  U-11011/2/74-UTL(I)  dated  20.03.1974  

regarding  the  withdrawal  of  Prosecution  proceedings  

granted approval  of  the withdrawal  from prosecution and  

directed that the Assistant Public Prosecutor concerned may  

be asked to move the application in the court of competent  

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jurisdiction for withdrawal of the above mentioned cases

11. After the Government issued the orders, the Assistant  

Public Prosecutor filed an application on 24.11.2011 under  

Section  321  Cr.P.C  for  withdrawal  of  the  prosecution  in  

respect  of  FIR  No.  90  of  2000  before  the  concerned  

Magistrate stating, inter alia, that he had gone through the  

investigation conducted and nature of allegation levelled in  

the charge sheet against the accused persons and facts of  

the case clearly  showed that  it  was in fact a commercial  

transaction  between  the  parties,  but  the  same  had  been  

culminated  into  criminal  offences  and  further  that  even  

taking into consideration the entire facts and circumstances  

of the case, nature of the allegation and material available  

on record, there was no likelihood of conviction, and hence,  

there should be withdrawal of the cases in public interest.  

Similar  applications  were  filed  in  respect  of  other  cases  

relating to the accused persons.

12. When the matter stood thus, Mr. B.S. Joon, Director of  

Prosecution, Delhi vide letter dated 13.12.2011 wrote to the  

Principal Secretary (Home), Home (Police) Department, Govt.  

of NCT of Delhi for withdrawal from the prosecution in cases  

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of  FIR  Nos.  90/2000,  99/2002  and  148/2002  titled  as  

‘State vs. S.P. Gupta and others”, Police Stations Connaught  

Place and Defence Colony stating that after perusal of the  

charge sheets of the aforesaid cases, it had been revealed  

that  there  was  sufficient  material  on  record  against  the  

accused persons and there was every likelihood,  that  the  

concerned court may not allow the application of the  State  

moved under Section 321 which is a pre-requisite condition  

for  withdrawal  from  the  prosecution  of  any  case,  and  

accordingly sought instructions as to whether the concerned  

APP should press the aforesaid applications or not.

13. Mr. Arvind Ray, who was a member of the Screening  

Committee gave a note.  The relevant part is to the following  

effect:-

“In the light of the facts which emerged from the  through  checking  of  the  charge  sheet  by  the  Directorate of Prosecution, GNCT of Delhi and the  department  subsequently  and  considering  the  request of the Directorate of Prosecution to issue  necessary directions whether the concerned APP  has the press applications for withdrawal of the  above said cases filed by him before the Court of  Sh.  Sunil  Chaudhary,  Ld.ACMM,  Tis  Hazari  Court, on the next date of hearing i.e. 17.12.2011  or not.   It  is  proposed that  recommendation of  withdrawal  of  prosecution  approved  earlier  in  respect  of  the  above  said  cases  may be  placed  

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before  the  competent  authority  i.e.  Hon’ble  Lt.  Governor of Delhi for appropriate orders.”

14. The Lt.  Governor on 15.12.2011 on the basis of  the  

recommendations passed the following order:-

“I have considered the communication of Director  of Prosecution dated 13.12.2011 and the note of  the Principal Secretary (Home) dated 14.12.2011  and  agree  with  the  proposal  that  the  earlier  recommendation of withdrawal of the above cases  which are awaiting trial may not be pressed before  the competent court and the trial may be allowed  to proceed on merits.”

15. The  order  of  the  Lt.  Governor  dated  15.12.2011  

agreeing with the proposal not to press the applications for  

withdrawal  of  the  cases  was  assailed  before  the  learned  

Single  Judge  in  Writ  Petition  (C)  No.  3470  of  2012  and  

connected matters.   The learned single Judge adverted to  

the various aspects of the law and came to hold that there  

was no basis for the petitioners to contend that the decision  

of  the  learned  Assistant  Public  Prosecutor  to  file  an  

application  under  Section  321  Cr.P.C.  was  taken  

independently  by  him,  whereas  the  subsequent  decision  

after  pursuing application under  section 321 Cr.P.C.  was  

under  the  dictates  of  the  respondent.  The  learned  single  

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Judge thereafter observed thus:-

“It is not disputed by the petitioners that, in the  meantime,  the  learned  M.M.  has  permitted  the  withdrawal of the application under Section 321  Cr.P.C.  vide order  dated 07.01.2012.   It  is  not  disputed by the petitioners that they opposed the  withdrawal of the said applications under Section  321  Cr.P.C.  and  that  they  were  heard  by  the  learned M.M. on the said applications.  It is also  not in dispute that the petitioners have already  preferred the remedy available to them in respect  of  the  orders  passed  by  the  learned  M.M.  permitting  the  withdrawal  of  the  applications  under  Section  321  Cr.P.C.  Therefore,  the  petitioners  have  not  only  had  the  occasion  to  raise  all  the  issues  raised  before  this  Court,  before the learned M.M., but still have the right  to pursue the matter further and to raise all the  issues  available  to  them  in  appropriate  proceedings.”

16. On  the  basis  of  the  directions  given  by  the  Lt.  

Governor,  the  Assistant  Public  Prosecutor  filed  an  

application  for  withdrawal  of  the  earlier  application  for  

withdrawal  of  the  prosecution.  The  application  for  

withdrawal clearly states that after thorough examination of  

case  file  and  evidence  on  record,  he  found that  there  is  

sufficient  evidence  for  proceeding  against  the  accused  

persons and hence, the earlier application was to dispose of  

as not pressed.

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17. Being of this view, the High Court declined to exercise  

the  discretionary  jurisdiction  under  Article  226  of  the  

Constitution.  The said order became the subject matter of  

intra-court appeals.  The Division Bench of the High Court  

adverting  to  many  a  facet  dismissed  the  appeals  as  not  

maintainable  as  well  as  barred  by  limitation.   The  legal  

propriety of the order passed by the Division Bench of the  

High Court was called in question before this  Court  in a  

Special  Leave  Petition  (C)   CC  Nos.  7447-7448  of  2014  

which were dismissed vide order dated 09.05.2014.

18. In the meantime, the order passed on 07.01.2012 by  

the  learned Magistrate  in  various cases pertaining to  the  

accused  persons  was  called  in  question  in  a  number  of  

revisions  before  the  revisional  court.  The  learned  special  

Judge, Patiala House Courts while dealing with the revision  

petition,  narrated  the  facts  in  entirety,  noted  the  

contentions advanced by the learned counsel for the parties  

and  opined  that  any  party  who  has  a  right  to  file  an  

application/petition before a court of a Magistrate, has an  

inherent  right  to  withdraw  the  same  and  as  a  corollary  

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thereof the court of a Magistrate will have the jurisdiction to  

allow the application seeking withdrawal of application for  

withdrawal from the prosecution.  He distinguished between  

the two concepts,  namely,  withdrawal  of  the order taking  

congnizance  and  grant  of  permission  to  withdrawal  an  

application for  withdrawal  from the  prosecution.  Being of  

this view, he dismissed the revision applications vide order  

dated 15.11.2014.   

19. The accused respondents remaining embedded to their  

indefatigable propensity preferred series of petitions before  

the High Court of  Delhi which on 15.05.2015 passed the  

following order:-

“Mr.  Navin  Sharma,  learned  Additional  Public  Prosecutor,  accepts  notice  for  respondent-State  and Mr. Harish Pandey, Advocate, accepts notice  on behalf  of  the complainant/first  informant  of  the FIR in question.

With the consent of learned counsel for the  parties,  the abovecaptioned three petitions  are  taken up  together for  final  hearing today.  The  hearing is concluded by both the sides.

Let  both  sides  file  short  synopsis  of  not  more than 5-7 pages with relevant case laws, if  any, within a week from today, after exchanging  the same.

Put up for orders on 29th May, 2015. In the  

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meanwhile, let trial court fix a date after the date  fixed in these petitions.”

20. On 22.05.2015 an application was filed on behalf  of  

the  appellant  to  initiate  proceedings  under  Section  340  

Cr.P.C.  read  with  Section  195(1)  Cr.P.C.  or  to  initiate  

contempt  proceedings   against  the  accused persons.   On  

22.05.2015 a preliminary common written synopsis of the  

appellant was filed seeking dismissal of Crl. M.C. No. 2055  

of 2015. On 29.05.2015, the High Court directed for listing  

the petition for clarification.  As the facts would reveal, on  

15.07.2015 the High Court directed to file short synopsis  

within a week.  The said order was complied with.  

21. In  the  course  of  hearing,  it  was  contended  by  the  

learned counsel for the petitioner before the High Court that  

there is no provision under which an application preferred  

under Section 321 Cr.P.C. can be withdrawn.  Reliance was  

placed on Patel Narshi Thakershi & Ors. v. Pradyuman  

Singh Ji Arjun Singh Ji2, R.R. Verma & Ors. v. Union of   

India  &  Ors.3 and  Subhash  Chander  v.  State  

(Chandigarh Administration) & Ors.4 to contend that the  2 AIR 1970 SC 1273 3 1980 (3) SCC 402 4 AIR 1980 SC 423

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power of review having not been specifically provided, the  

same cannot be exercised by the Magistrate.   It was also  

urged that when there was no change in circumstances, the  

application  for  withdrawal  from  the  prosecution  was  

misconceived  and  the  courts  below  had  erred  in  law  in  

permitting  the  withdrawal  of  the  application  without  

application of mind.  That apart,  it  was propounded that  

both the courts below had gravely erred in understanding  

the  law  laid  down  by  the  Apex  Court,  especially,  

Sheonandan Paswan v. State of Bihar & others.5  and  

that the learned Magistrate as well as the Special Court fell  

into error by not holding that application for withdrawal of  

application preferred under Section 321 Cr.P.C. was wholly  

unjustified. The learned counsel for the State supported the  

action taken by the Government and the order passed by  

the courts below.    

22. Considering  the  submissions  raised  by  the  learned  

counsel  for  the  parties,  the  learned  single  Judge  after  

referring  to  the  authorities  and  the  role  of  the  Public  

Prosecutor under Section 321 Cr.P.C. opined thus:-  

5 AIR 1983 SC 194 : 1983 (1) SCC 438

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“... indisputably it is the Public Prosecutor who  has to take the call and not the Government or  the  Lieutenant  Governor.  So,  dismissal  of  writ  petition against  grant of  consent  by Lieutenant  Governor to the withdrawal of application under  Section  321  of  Cr.P.C.  has  been  erroneously  relied  upon  by  the  courts  below,  particularly  when  right  to  pursue  remedies  before  the  criminal courts was preserved while deciding the  writ petition. ...”

23. Being of this view, the High Court directed as follows:-

“Consequentially,  impugned  orders  are  quashed  with direction to the trial court to decide within  four  weeks  the  second  application  of  16th  December, 2011 (Annexure P-13) i.e. the one for  withdrawal  of  application  under  Section  321  of  the  Cr.P.C.  in  the  light  of  the  legal  position  as  highlighted  above  and  after  taking  it  into  consideration,  the  document(s)  filed  by  the  petitioner  along  with  application  under  Section  91of Cr.P.C.”

24. After  the  High  Court  passed  the  order,  the  learned  

Magistrate took up the applications seeking withdrawal of  

the  applications  preferred  earlier  under  Section  321  of  

Cr.P.C.   The  learned  Magistrate  has,  by  order  dated  

22.09.2015, declined to accept the prayer for withdrawal of  

the application.  

25. The  appellant  in  these  appeals  had  basically  

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challenged the order passed by the learned Single Judge by  

which he had set aside the order granting withdrawal of the  

application under Section 321 Cr.P.C. and directing the trial  

court to decide the application for withdrawal afresh after  

taking  into  consideration  the  documents  filed  by  the  

informant along with the application filed under Section 91  

Cr.P.C.  After the remit, the learned Magistrate has passed  

the order declining permission to withdraw the application.  

The said order is also assailed before this Court.  

26. We have heard Mr. Dushyant A. Dave, learned senior  

counsel and Ms. Indu Malhotra, learned senior counsel for  

the appellant and Mr. Sushil Kumar, learned senior counsel  

for the accused.

27. We  have  already  narrated  the  chronology  of  events.  

The  sequence  of  events  as  depicted  is  quite  disturbing.  

Long time has elapsed since the day summons were issued.  

Despite the non-entertainment of the petitions challenging  

the  order  issuing  summons  by  the  superior  courts,  the  

matter  remains  today,  where  it  was  in  2003.  In  all  

possibility the criminal proceedings would have continued  

in  accordance  with  law  after  this  court  had  declined  to  

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interfere with the order of issuing summons, but the order  

passed  by  the  screening  committee  recommending  for  

withdrawal  of  the  prosecution  of  the  aforesaid  cases  on  

13.09.2011 made the difference.  The said recommendation  

was approved by the Lt. Governor on 18.11.2011.  On the  

basis  of  the  order  passed  by  the  Lt.  Governor,  the  

application was filed seeking withdrawal of the cases. The  

Assistant  Public  Prosecutor  filed  an  application  averring  

that  the  facts  of  the  case  clearly  showed  that  it  was  

indicating a commercial transaction between parties but the  

same had culminated into a criminal offence.  It was also  

mentioned that it was a case relating to civil transaction as  

well as breach of promises. The Assistant Public Prosecutor  

was of the view that there was no likelihood of conviction in  

the case and accordingly had sought withdrawal of the case  

in public interest. Thereafter the controversy took the centre  

stage when on 13.12.2011 the Director of the Prosecution  

communicated to  the  Principal  Secretary,  Home Ministry,  

stating that on a further perusal of the charge-sheet in the  

aforesaid  case  it  was  found  that  there  was  sufficient  

evidence  on  record  to  establish  the  charges  against  the  

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accused  persons  and  the  public  prosecutor  should  be  

requested  accordingly.  The  Lt.  Governor,  as  mentioned  

earlier, accepted the same and issued a letter.

28. The  communication  made  by  the  Director  of  the  

prosecution in that regard, came to be assailed by the son of  

the 1st respondent, in Writ Petition (C) No. 3470 of 2012.  

The  Learned  Single  Judge,  as  has  been  stated  earlier,  

dismissed the writ petition. Aggrieved by the aforesaid letter,  

L.P.A. No. 548 of 2013 was preferred which was dismissed  

and assail in this court did not yield any fruitful result.   

29. At  this  juncture,  we  are  compelled  to  sit  in  a  time  

machine.  The application for withdrawal of the application  

preferred under Section 321 Cr.P.C. was taken up by the  

learned  Magistrate  who  vide  order  on  07.01.2012 opined  

that nothing precluded the prosecution from filing such an  

application and no right had accrued to the defence on that  

score, for it was the duty of the Court to deal with such an  

application as per the established parameters of law.  Be it  

stated,  the  learned  Magistrate  further  opined  that  the  

application preferred by the accused persons under Section  

91  Cr.P.C.  did  not  warrant  any  consideration  and  

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accordingly allowed the prayer.  Thereafter,  the matter was  

adjourned to another date for consideration of charge.  

30. The  aforesaid  order  was  assailed  before  the  learned  

Special  Judge,  NDPS,  Patiala  House  Courts,  Delhi  in  a  

series of Criminal Revision Petition Nos. 12 of 2013 to 16 of  

2013.  The  revisional  court  by  common  order  dated  

15.11.2014  affirmed  the  order  passed  by  the  learned  

Magistrate. That led to filing of applications under Section  

482 Cr.P.C. wherein the impugned order dated 30.7.2015  

has been passed.  It is apt to note here that the revisional  

court has placed reliance on order dated 14.06.2012 passed  

by the High Court  in  Writ  Petition (C)  No.  3470 of  2012  

titled  Vipul  Gupta  v.  State  and  others and  connected  

matters.  The  learned  Single  Judge  reproduced  a  passage  

from the order passed by a co-ordinate Bench in the writ  

petition, referred to certain judgments relating to the duty of  

the court while dealing with an application under Section  

321 Cr.P.C. and passed the order which we have reproduced  

earlier.  

31. It is imperative to state here that the factual narration  

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depicts a sorrowful and simultaneously, a puzzling one.  It  

is not easy to spend twelve years of time, “a yuga”, in the  

non-classical  sense  unless  the  personalities  engaged  in  

spending time have contrived intelligence to constantly play  

the  “Snake  and  Ladder  Game”.  Such  kind  of  litigations  

clearly  show  that  there  are  certain  people  who  possess  

adamantine  attitude  to  procrastinate  the  proceeding  in  a  

court of law on the base that each order is assailable and  

each step is challengeable before the superior courts.  It is  

not to be understood that a litigant is not entitled in law to  

challenge  the  orders,  but  the  legal  process  cannot  be  

allowed to be abused.   In the case at hand the process has  

definitely been abused.

32. Having said so, we shall now proceed to delve into the  

legal aspects from which our observations be clear as noon  

day.  We may repeat at the cost of repetition that we are not  

at all concerned with the allegations made in the case.  The  

said  aspect  has  been  put  to  rest  when  this  court  had  

declined  to  interfere  with  the  order  of  the  High  Court  

whereby the High court had dismissed the petitions filed for  

quashing of the FIRs. The issues that arise for consideration  

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are (i)  whether the Assistant Public Prosecutor is entitled  

under  law  to  file  an  application  for  withdrawal  of  the  

application for withdrawal of the application preferred under  

Section 321 of the Cr.P.C. and not to press an application  

for withdrawal, (ii) whether the Magistrate is disabled in law  

or lacks jurisdiction to allow the prosecution from preferring  

the application for withdrawal, (iii) whether the accused has  

any say at that stage of the proceeding and (iv) whether in  

the  obtaining  factual  matrix  this  Court  should decline  to  

deal  with  the  order  passed  by  the  learned  Magistrate  in  

exercise of jurisdiction under Article 136 of the Constitution  

of India.  

33. To appreciate the controversy, we may refer to Section  

321 of Cr.P.C. which reads as follows:-

“321.  Withdrawal  from  prosecution.  –  The  Public Prosecutor or Assistant Public Prosecutor  in charge of a case may, with the consent of the  Court,  at  any time before the judgment is  pro- nounced, withdraw from the prosecution of any  person either generally or in respect of any one or  more of the offences for which he is tried; and,  upon such withdrawal, --    

(a) if it is made before a charge has been framed,  the  accused  shall  be  discharged  in  respect  of  such offence or offences;

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Code and after taking note of the language employed under  

Section 321 of the present Code came to hold that Section  

321 enables the Public Prosecutor, in charge of the case to  

withdraw from the prosecution of any person at any time  

before the judgment is pronounced, but the application for  

withdrawal has to get the consent of the court and if the  

court gives consent for such withdrawal the accused will be  

discharged  if  no  charge  has  been  framed  or  acquitted  if  

charge has been framed or where no such charge is required  

to be framed. It clothes the Public Prosecutor to withdraw  

from the prosecution of any person, accused of an offence,  

both when no evidence is taken or even if entire evidence  

has  been  taken.  The  outer  limit  for  the  exercise  of  this  

power is ‘at any time before the judgment is pronounced’.  It  

has also been observed that the judicial function implicit in  

the exercise of the judicial discretion for granting the con-

sent 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 in-

terfere with the normal course of justice for illegitimate rea-

sons or purposes. The Constitution Bench after referring to  

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the authorities in Bansi Lal v. Chandan Lal and others7,  

Balwant Singh v. State of Bihar8,  Subhash Chander v.  

State  (Chandigarh  Admn.)9,  Rajender  Kumar  Jain  v.  

State10 and the principles stated in State of Bihar v. Ram  

Naresh Pandey11 came to hold thus:-  

“99. All the above decisions have followed the rea- soning of  Ram Naresh Pandey case (supra) and  the  principles  settled  in  that  decision were  not  doubted.

100. It is in the light of these decisions that the  case on hand has to be considered. I find the ap- plication for withdrawal by the Public Prosecutor  has been made in good faith after careful consid- eration of  the  materials  placed before  him and  the order of consent given by the Magistrate was  also after due consideration of various details, as  indicated  above.  It  would  be  improper  for  this  Court,  keeping  in  view  the  scheme  of  Section  321, to embark upon a detailed enquiry into the  facts and evidence of the case or to direct retrial  for that would be destructive of the object and in- tent of the section.”

35. In this context, a reference to a three-Judge Bench de-

cision in  V.S. Achuthanandan v. R. Balakrishna Pillai  

and others12 is pertinent.  In the said case, the Court after  

referring to the principles stated by the Constitution Bench  

7 (1976) 1 SCC 421 : AIR 1976 SC 370 8 (1977) 4 SCC 448 : (1978) 1 SCR 604 9 (1980) 2 SCC 155 : (1980) 2 SCR 44 10 (1980) 3 SCC 435 : AIR 1980 SC 1510 11 1957 Cri LJ 567 : AIR 1957 SC 389 12 (1994) 4 SCC 299

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in  Sheonandan Paswan  (supra) while upholding the view  

of the learned Special Judge in rejecting the application filed  

by  the  Assistant  Public  Prosecutor  under  Section  321  

Cr.P.C. adverted to the question as it arose therein whether  

it was legally permissible for the High Court and it was jus-

tified in setting aside the order of the learned Special Judge  

declining to give consent for withdrawal of  prosecution of  

the accused. The Court did not agree with the view of the  

High Court by holding the High Court’s order did not at all  

deal  with  the  only  ground on  which  the  application  was  

made by the Special Public Prosecutor and which was found  

non-existent by the learned Special Judge in his order that  

was challenged before the High Court in revision. The High  

Court  embarked  upon a  roving  inquiry  in  an  extraneous  

field totally  ignoring the fact that if  the ground urged for  

withdrawal of the prosecution was                      non-exis-

tent and there was prima facie material, if believed, to sup-

port the prosecution then the motive for launching the pros-

ecution by itself may be of no avail.  The Court also opined  

that the High Court missed the true import of the scope of  

the matter, for it  went into grounds which were not even  

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urged by the  Special  Public  Prosecutor  in  his  application  

made  under  Section  321  Cr.P.C.  or  otherwise  before  the  

Special  Judge.   Exception was taken to the fact that the  

High  Court  delved  into  administrative  files  of  the  State  

which did not form part of the record of the case and ac-

cepted anything which was suggested on behalf of the State  

Government overlooking the fact that for the purpose of Sec-

tion 321 Cr.P.C. it is the opinion of the Public Prosecutor  

alone which is material and the ground on which he seeks  

permission of the court for withdrawal of  the prosecution  

alone has to be examined.  

36. In  Rahul Agarwal v.  Rakesh Jain and another13,  

the Court while dealing with the application under Section  

321 Cr.P.C. referred to certain decisions wherein the earlier  

decision  of  the  Constitution  Bench  in  Sheonandan  

Paswan  (supra)  was  appreciated,  and  thereafter  ruled  

thus:-

“From these decisions as well as other decisions  on the same question, the law is very clear that  the  withdrawal  of  prosecution  can  be  allowed  only in the interest of justice. Even if the Govern- ment directs the Public Prosecutor to withdraw  the prosecution and an application is filed to that  

13  (2005) 2 SCC 377

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effect,  the court  must consider  all  relevant cir- cumstances and find out whether the withdrawal  of  prosecution would advance the cause of  jus- tice. If the case is likely to end in an acquittal and  the continuance of the case is only causing se- vere harassment to the accused, the court may  permit withdrawal of the prosecution. If the with- drawal of prosecution is likely to bury the dispute  and  bring  about  harmony  between  the  parties  and it would be in the best interest of justice, the  court  may allow the withdrawal of  prosecution.  The discretion under Section 321, Code of Crimi- nal Procedure is to be carefully exercised by the  court having due regard to all the relevant facts  and shall not be exercised to stifle the prosecu- tion which is being done at the instance of the  aggrieved parties or the State for redressing their  grievance. Every crime is an offence against the  society and if the accused committed an offence,  society  demands  that  he  should  be  punished.  Punishing the person who perpetrated the crime  is an essential requirement for the maintenance  of law and order and peace in the society. There- fore, the withdrawal of the prosecution shall be  permitted only when valid reasons are made out  for the same.”

37. In  Bairam  Muralidhar  v.  State  of  A.P.14,  while  

dealing with the said provision it has been laid down that:-

“ … it is the obligation of the Public Prosecutor to  state what material he has considered. It has to  be set out in brief. The court as has been held in  Abdul  Karim  case15,  is  required  to  give  an  in- formed consent. It is obligatory on the part of the  court to satisfy itself that from the material it can  reasonably  be  held  that  the  withdrawal  of  the  prosecution would serve the public interest. It is  

14  (2014) 10 SCC 380 15  Abdul Karim v. State of Karnataka, (2000) 8 SCC 710

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not within the domain of the court to weigh the  material. However, it is necessary on the part of  the  court  to  see  whether  the  grant  of  consent  would thwart or stifle the course of law or cause  manifest injustice.  A court while giving consent  under Section 321 of the Code is required to ex- ercise its judicial discretion, and judicial discre- tion, as settled in law, is not to be exercised in a  mechanical manner. The court cannot give such  consent on a mere asking. It is expected of the  court to consider the material  on record to see  that the application had been filed in good faith  and it is in the interest of public interest and jus- tice. Another aspect the court is obliged to see is  whether  such  withdrawal  would  advance  the  cause  of  justice.  It  requires  exercise  of  careful  and concerned discretion because certain crimes  are against the State and the society as a collec- tive demands justice to be done. That maintains  the law and order situation in the society.  The  Public Prosecutor cannot act like the post office  on behalf of the State Government. He is required  to  act  in  good  faith,  peruse  the  materials  on  record and form an independent opinion that the  withdrawal of the case would really subserve the  public interest at large. An order of the Govern- ment on the Public Prosecutor in this regard is  not  binding.  He cannot remain oblivious to his  lawful obligations under the Code. He is required  to constantly remember his duty to the court as  well as his duty to the collective.”

38. In this context, reference to a two-Judge Bench deci-

sion  in  Vijaykumar  Baldev  Mishra  alias  Sharma  v.   

State  of  Maharashtra16  would  be  fruitful.  In  the  said  

case, the Court held that Section 321 Cr.P.C. provides for  

withdrawal from prosecution at the instance of the Public  

16 (2007) 12 SCC 687

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Prosecutor  or  Assistant  Public  Prosecutor.  Indisputably  

therefore the consent of the Court is necessary. Application  

of mind on the part of the Court, therefore, is necessary in  

regard to the grounds for withdrawal from the prosecution  

in respect of any one or more of the offences for which the  

appellant  is  tried.  The  Public  Prosecutor  in  terms of  the  

statutory scheme laid down under the Cr.P.C. plays an im-

portant role. He is supposed to be an independent person.  

While filing such an application, the Public Prosecutor also  

is required to apply his own mind and the effect thereof on  

the society in the event such permission is granted.

39. We have enumerated the principles pertaining to the  

jurisdiction of the Court while dealing with an application  

preferred under  Section 321 Cr.P.C.  and also  highlighted  

the role of the Public Prosecutor who is required to act in  

good faith, peruse the materials on record and form an in-

dependent opinion that the withdrawal from the prosecu-

tion would really subserve the public interest at large. The  

authorities  referred  to  hereinabove  clearly  spell  out  that  

Public Prosecutor is not supposed to act as a post office and  

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he is expected to remember his duty to the Court as well as  

his duty to the collective.   

40. In the case at hand, when the order passed by the Lt.  

Governor was assailed in Writ Petition (C) No. 3470 of 2012  

and connected matters, the learned single Judge analyzing  

the communication and other facts referred to all the deci-

sions earlier taken by the Committee and its recommenda-

tions  made  for  withdrawal  from  the  prosecution  in  the  

cases.  Thereafter, the learned single Judge scrutinized the  

minutes of the meeting  and took note of the fact that the  

Screening Committee on 13.09.2011 had apparently not ap-

ply its own mind or made a thorough scrutiny of the charge-

sheets filed in the cases but heavily relied upon the exami-

nation of the cases by the Ministry of Home Affairs, Depart-

ment of Legal Affairs, Law and Justice with the approval of  

the Union Home Minister.  The learned single Judge further  

opined that the observations of the Ministry of Home Affairs  

did  not  demonstrate  any  specific  consideration  of  the  

charge-sheet either by the Department of Legal Affairs, Min-

istry of Law and Justice or by the Ministry of Home Affairs.  

The High Court further took note of the fact that certain ex-

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ercises were undertaken by the Screening Committee held  

on 13.09.2011 and thereafter proceeded to state as follows:-

“24. … The screening committee is not shown to  be a statutory creation. The screening committee  was formed only to aid and assist the Hon'ble Lt.  Governor. He was not bound by any recommen- dation of the screening committee. Therefore, the  failure to reconvene the screening committee to  reconsider the proposal mooted by Shri B.S. Joon  cannot be said to be illegal. Mr. B.S. Joon, Direc- tor of Prosecution, was also not precluded from  moving  the  proposal  that  he  moved  on  13.12.2011 after studying the charge- sheets in  these cases, merely because he was part of the  screening  committee  which  had  earlier  recom- mended  withdrawal  from  prosecution  on  13.09.2011.  

    x x x x x

26. The contention of the petitioners that the ear- lier decisions to move the applications under Sec- tion 321  Cr.P.C., in these cases, were taken in- dependently  by  the  learned  Public  Prosecutor  though on the suggestion of the Director of Prose- cution, whereas the decisions not to press the ap- plications for withdrawal of prosecution was im- posed or thrust upon the Additional Public Prose- cutor, has no merit.  

    x x x x x

30. There is no basis for the petitioners to con- tend that the decision of the learned APP to file  an  application  under section  321  Cr.P.C.  was  taken independently by him, whereas the subse-

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quent decision after pursuing application under  section 321 Cr.P.C. was under the dictates of the  respondent. It could also be argued that the ear- lier decision to move applications under Section  321   Cr.P.C.  was  a  binding  instruction  to  the  APP, whereas, the subsequent instruction given  to  him  was  to  act  according  to  his  own  judgment/conscience and decide whether or not  to  press  the  applications  under  section  321  Cr.P.C.”

41. Be it  stated,  the  learned single  Judge has observed  

that the accused persons who were the petitioners in the  

Writ  Petitions had already opposed the withdrawal of  the  

application  preferred  under  Section  321  Cr.P.C.  but  still  

they had a right to pursue the matter further and to raise  

all the issues available to them in appropriate proceedings.  

On a perusal of the aforesaid judgment, it becomes clear as  

crystal that the Writ Court had not found any fault with the  

instructions given by the Government not to press the ap-

plication for withdrawal.  The Writ  Court had not opined  

with regard to the role of the Public Prosecutor in not press-

ing the application.  It had only observed that it was not  

disputed that the petitioners had already taken recourse to  

the remedy in respect of the order of the learned Metropoli-

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tan Magistrate permitting the withdrawal of the application  

under Section 321 Cr.P.C.    

42. In  the  impugned  order  herein,  the  learned  single  

Judge  has  observed  that  no  doubt  the  withdrawal  from  

prosecution is an executive and non-judicial act but there is  

a  wide  discretion  with  the  court,  which  ought  to  be  

exercised judicially on well established principles. That is to  

say, the court has to be satisfied that the executive function  

of the Public Prosecutor has not been improperly exercised  

or that it is not an attempt to interfere with the course of  

justice  for  illegitimate  purposes.  It  is  within  these  

parameters, the judicial discretion is to be exercised. There-

after,  the  High  Court  has  referred  to  the  dictum  of  the  

three-Judge  Bench  decision  in  Sheonandan  Paswan  

(supra) and opined that it is the duty of the Public Prosecu-

tor to apply his mind as a free agent uninfluenced by irrele-

vant or extraneous instructions.    Understanding the said  

principle, the High Court has ruled that the Public Prosecu-

tor has shirked the bounden responsibility by abruptly ap-

plying  withdrawing  the  application  under  Section  321  

Cr.P.C. after a few days, particularly when in the applica-

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tion under Section 321 Cr.P.C., Public Prosecutor had as-

serted in no uncertain terms that a commercial transaction  

in between the parties was sought to be given a criminal  

colour and there was no likelihood of conviction on the ba-

sis of charge-sheet filed for the offence of criminal misap-

propriation, etc.  

43. Before  we  proceed  to  dwell  upon  the  power  of  the  

Magistrate  to  grant  permission  for  not  pressing  the  

application, we think it necessary to delve into legality of the  

direction  issued  by  the  High  Court  to  the  Magistrate  to  

consider the documents filed by the accused persons along  

with  the  application  preferred  under  Section  91  Cr.P.C.  

Section 91 Cr.P.C. reads as follows:-

“Section 91. Summons to produce document  or other thing.- (1) Whenever any Court or any  officer in charge of a police station considers that  the production of any document or other thing is  necessary or desirable for the purposes of any in- vestigation, inquiry, trial or other proceeding un- der this Code by or before such Court or officer,  such Court may issue a summons, or such officer  a written order, to the person in whose posses- sion or power such document or thing is believed  to be, requiring him to attend and produce it, or  to produce it, at the time and place stated in the  summons or order.

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(2) Any person required under this section merely  to produce a document or  other  thing shall  be  deemed to have complied with the requisition if  he  causes  such  document  or  thing  to  be  pro- duced instead of attending personally to produce  the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian  Evidence Act, 1872 (1 of 1872 ), or the Bankers'  Books Evidence Act, 1891 (13 of 1891 ) or

(b) to apply to a letter, postcard, telegram or other  document or any parcel or thing in the custody of  the postal or telegraph authority.”

44. The  scope  and  ambit  of  the  said  provision  was  

considered in State of Orissa v. Debendra Nath Padhi17,  

wherein this Court has held thus:-

“The first and foremost requirement of the section  is about the document being necessary or desir- able. The necessity or desirability would have to  be seen with reference to the stage when a prayer  is made for the production. If  any document is  necessary or desirable for the defence of the ac- cused, the question of invoking Section 91 at the  initial  stage  of  framing  of  a  charge  would  not  arise since defence of the accused is not relevant  at that stage. When the section refers to investi- gation, inquiry, trial or other proceedings, it is to  be borne in mind that under the section a police  officer may move the court for summoning and  production of a document as may be necessary at  any of the stages mentioned in the section. Inso-

17  (2005)  1 SCC 568

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far as the accused is concerned, his entitlement  to seek order under Section 91 would ordinarily  not come till the stage of defence. When the sec- tion talks of the document being necessary and  desirable, it is implicit that necessity and desir- ability  is  to  be  examined considering  the  stage  when such a prayer for summoning and produc- tion is made and the party who makes it, whether  police or accused. If under Section 227, what is  necessary  and  relevant  is  only  the  record  pro- duced in terms of Section 173 of the Code, the  accused cannot at that stage invoke Section 91 to  seek production of any document to show his in- nocence. Under Section 91 summons for produc- tion of document can be issued by court and un- der a written order an officer in charge of a police  station can also direct  production thereof.  Sec- tion 91 does not confer any right on the accused  to produce document in his possession to prove  his  defence.  Section 91 presupposes that  when  the  document  is  not  produced  process  may  be  initiated to compel production thereof.”

The aforesaid enunciation of law clearly states about  

the  scope of  Section 91 Cr.P.C.  and we are in respectful  

agreement with the same.

45. In the case at  hand,  the learned Magistrate was di-

rected by the High Court to consider the application filed by  

the Assistant Public Prosecutor seeking withdrawal of  the  

application earlier preferred under Section 321 Cr.P.C.  In  

such a situation, it is difficult to appreciate how Section 91  

of Cr.P.C. can be taken aid of by the accused persons. In  

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view of the same, we have no shadow of doubt that the High  

Court has fallen into error by permitting the accused per-

sons to file an application Section 91 Cr.P.C.  

46. Having said so, we have to address whether the High  

Court was justified in remitting the matter to the learned  

Magistrate  for  reconsideration  of  the  application  seeking  

withdrawal of the earlier application filed under Section 321  

Cr.P.C.   Needless to say, if the order of the High Court is  

set aside, the consequential order by learned Magistrate has  

to pave the path of extinction.   The High Court on earlier  

occasion while  disposing  of  Writ  Petition  (C)  No.  3470 of  

2012 and connected matters had clearly opined that the de-

cision by the Lt. Governor directing to withdraw the applica-

tion was justified. The said order had attained finality after  

the  special  leave  petitions  assailing  the  same  stood  dis-

missed.  The High Court on the earlier occasion had only  

observed that the accused persons had the right to pursue  

the matter further and to raise all  the issues available to  

them in appropriate proceedings. By the impugned order,  

the learned single Judge by placing reliance on certain au-

thorities has held that decidedly it is the Public Prosecutor  

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who has to take the decision and not the Government or the  

Lt.  Governor  and  so  that  dismissal  of  the  writ  petition  

against grant of consent by Lt. Governor to the withdrawal  

of application under Section 321 of Cr.P.C. had been erro-

neously relied upon by the courts below, particularly when  

right to pursue remedies before the criminal courts was pre-

served while deciding the writ petition.

47. We need not advert to the width of liberty granted to  

the accused persons by the writ court. The heart of the mat-

ter is whether the approach by the learned single Judge in  

passing the impugned order is legally correct.  There can be  

no cavil  over the proposition that  when an application of  

withdrawal from the prosecution under Section 321 Cr.P.C.  

is filed by the Public Prosecutor, he has the sole responsibil-

ity and the law casts an obligation that he should be satis-

fied on the basis of materials on record keeping in view cer-

tain legal  parameters.  The Public  Prosecutor  having been  

satisfied, as the application would show, had filed the appli-

cation.  The said application was not taken up for hearing.  

The learned Magistrate had not passed any order granting  

consent for withdrawal, as he could not have without hear-

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ing the Assistant  Public Prosecutor.  At  this  juncture,  the  

authority decided regard being had to the fact situation that  

the Assistant Public Prosecutor should withdraw the appli-

cation and not press the same. After such a decision had  

been taken, as the application would show, the Assistant  

Public Prosecutor has re-appreciated the facts, applied his  

mind to the totality of facts and filed the application for not  

pressing the application preferred earlier under Section 321  

Cr.P.C.  The filing of application not to press the application  

cannot be compared with any kind of  review of  an order  

passed by the court.  Question of review can arise when an  

order has been passed by a court. Section 362 Cr.P.C. bars  

the Court from altering or reviewing when it has signed the  

judgment or final order disposing of a case except to correct  

a clerical or arithmetical  error.  The said provision cannot  

remotely  be  attracted.   The  filing  of  the  application  for  

seeking withdrawal from prosecution and application not to  

press  the  application  earlier  filed  are  both  within  the  

domain of Public Prosecutor. He has to be satisfied.  He has  

to definitely act independently and as has been held by the  

Constitution Bench in Sheonandan Paswan (supra), for he  

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is not a post office. In the present case, as the facts would  

graphically show, the Public Prosecutor had not moved the  

application  under  Section  321  Cr.P.C.  but  only  filed.  He  

could have orally prayed before the court that he did not in-

tend to press the application. We are inclined to think, the  

court could not have compelled him to assist it for obtaining  

consent.  The court has a role when the Public Prosecutor  

moves the application seeking the consent for withdrawing  

from the prosecution.  At that stage, the court is required to  

see whether there has been independent application of mind  

by the Public Prosecutor  and whether other ingredients are  

satisfied to grant the consent. Prior to the application being  

taken up being moved by the Public Prosecutor, the court  

has no role.  If the Public Prosecutor intends to withdraw or  

not press the application, he is entitled to do so.   The court  

cannot say that the Public Prosecutor has no legal authority  

to file the application for not pressing the earlier applica-

tion. It needs no special emphasis to state that the accused  

persons cannot be allowed to contest such an application.  

We fail to fathom, how the accused persons can contest the  

application and also file  documents and take recourse to  

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Section 91 Cr.P.C.  The kind of  liberty granted to the ac-

cused  persons  is  absolutely  not  in  consonance  with  the  

Code of Criminal Procedure.  If anyone is aggrieved in such  

a situation, it is the victim, for the case instituted against  

the accused persons on his FIR is sought to be withdrawn.  

The accused persons have no role and, therefore, the High  

Court  could  not  have  quashed  the  orders  permitting  the  

prosecution to withdraw the application and granting such  

liberty to the accused persons.  The principle stating that  

the Public Prosecutor should apply his mind and take an in-

dependent decision about filing an application under Sec-

tion 321 Cr.P.C. cannot be faulted but stretching the said  

principle to say that he is to convince the court that he has  

filed an application for not pressing the earlier application  

would not be appropriate. We are disposed to think so as  

the learned Magistrate had not dealt with the earlier appli-

cation.  Therefore,  the  impugned  order  dated  30.07.2015  

passed by the High Court is set aside. As the impugned or-

der  is  set  aside,  consequentially  the order  passed by the  

learned Magistrate on 22.09.2015 has to pave the path of  

extinction and we so direct. The learned Magistrate is di-

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rected to proceed with the cases in accordance with law.  We  

may hasten to add that we have not expressed any opinion  

on the merits of the case.  All our observations and the find-

ings are to be restricted for the purpose of adjudication of  

the controversy raised.  

48. Before parting with the case, we recapitulate what we  

have stated in the beginning and also about the indefatiga-

ble spirit  of  the respondents.   In that context,  a passage  

from  Subrata Roy Sahara v.  Union of  India and oth-

ers18,  being relevant, is extracted below:-

“The  Indian  judicial  system  is  grossly  afflicted  with frivolous litigation. Ways and means need to  be evolved to deter litigants from their compulsive  obsession  towards  senseless  and  ill-considered  claims. One needs to keep in mind that in the  process of litigation, there is an innocent sufferer  on  the  other  side  of  every  irresponsible  and  senseless claim.  He suffers  long-drawn anxious  periods of  nervousness and restlessness,  whilst  the litigation is pending without any fault on his  part. …”

18 (2014) 8 SCC 470

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We have quoted the aforesaid passage as we respect-

fully share the said concern, and reiterate keeping in view  

the factual expose’ of the instant case.

49. The appeals are allowed in above terms.

.............................J. [Dipak Misra]

..............................J.      [N.V. Ramana] New Delhi February 05, 2016  

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