Criminal Misc. Application No. 899 of 2016. Case: Bhupender Singh Vs State of Uttarakhand. Uttarakhand High Court
| Case Number | Criminal Misc. Application No. 899 of 2016 |
| Counsel | For Appellant: S.P.S. Panwar, Senior Advocate assisted by Sachin Panwar, Advocate and For Respondents: P.S. Saun, Dy. Advocate General |
| Judges | Rajiv Sharma, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 155(2), 164, 167, 202, 209(1), 209(2), 253(1), 253(2), 321, 333, 4(b), 417, 435, 436, 439, 61, 7, 94; Indian Penal Code 1860, (IPC) - Sections 302, 420, 467, 468, 471 |
| Judgement Date | January 11, 2017 |
| Court | Uttarakhand High Court |
Judgment:
Rajiv Sharma, J.
1. This application, under Section 482 Cr.P.C., is instituted against the judgment and order dated 02.07.2016, rendered by learned 3rd Additional Sessions Judge, Haridwar in Criminal Revision No. 224 of 2016.
2. Key facts necessary for adjudication of this petition are that applicant had applied for the post of constable in Uttarakhand Police on 31.08.2001. He submitted an application in prescribed proforma to the Senior Superintendent of Police, Haridwar. He participated in the selection process and undergone the physical test. The written test was also conducted by the department. The applicant was also directed to report in the office of Senior Superintendent of Police, Haridwar on 10.10.2001. One Sri Sitaram S/o. Sri Nathuram, resident of Village Simli Mal Godam Road, Laksar, Police Station Laksar filed a complaint against the applicant. The gist of the complaint was that a case was pending against the applicant before the court of learned Ist Additional Sessions Judge, Haridwar under Sections 147, 148, 452 & 304 of IPC. Thus, the applicant has sworn a false affidavit at the time of his recruitment to the post of Constable. Consequently, the first information report was registered against the applicant under Sections 420, 468 & 471 of IPC, at Police Station Ranipur, District Haridwar. The matter was investigated and the challan was put up against the applicant.
3. The applicant had also approached this Court seeking quashing of summoning order dated 10.06.2002 passed by Chief Judicial Magistrate, Haridwar in Criminal Case No. 1919 of 2002 by way of filing Misc. application No. 561 of 2005 under Section 482 Cr.P.C., which was rejected by this Court vide order dated 23.09.2011.
4. Thereafter, an application was filed before learned Chief Judicial Magistrate, Haridwar under Section 321 Cr.P.C. by Public Prosecutor seeking permission to withdraw the prosecution against the applicant on the basis of letter/Government order dated 03.07.2015. The application was rejected by learned Chief Judicial Magistrate, Haridwar vide order dated 19.03.2016. Against the said order, a Criminal Revision was preferred by the applicant before 3rd Additional Sessions Judge, Haridwar bearing No. 224 of 2016. Learned 3rd Additional Sessions Judge, Haridwar also dismissed the same on 02.07.2016. Hence, the present petition.
5. The Court has gone through both the orders dated 19.03.2016 & 02.07.2016 and material brought on record carefully.
6. It has come on record that when applicant has sought recruitment in Uttarakhand Police to the post of Constable, he has sworn an affidavit that no criminal case was pending against him. However, the fact of the matter is that the case was pending against him under Sections 420, 467, 468 and 471 of IPC. It also appears that he was also charged under Section 302 IPC as per record.
7. The case of the applicant in a nutshell is that he was made to sign on the blank proforma. The fact of the matter is that proforma was attested by the notary public. The applicant has signed the same. He made a specific declaration that he was not involved in any criminal case, though he was facing the trial.
8. Applicant has sought recruitment in a disciplined force. He should have disclosed about the pendency of criminal case against him. He was required to supply the correct information at the time of making declaration. His subsequent acquittal is of no consequence.
9. This Court is also required to see, how the permission has been accorded to withdraw the prosecution against the applicant, against whom FIR was registered under Sections 420, 468 and 471 of IPC. The withdrawal of the case against the applicant/accused would be against the public interest. Public Prosecutor should apply his independent mind before submission of the application under Section 321 Cr.P.C. He cannot be dictated by orders of the State Government to withdraw the case without any justification. Public Prosecutor discharges statutory duties and his role is to maintain rule of Law. Learned Public Prosecutor should have realized that applicant has sought employment that too in disciplined force by concealing the material facts at the time of his recruitment by swearing a false affidavit.
10. No reasons have been spelt out why the case was recommended to be withdrawn against the accused.
11. The Court has also summoned the record of trial court. The proforma is on record, though a photocopy. It was notarized by notary public and signed by the applicant. What would be the effect of this document would be seen during the course of trial.
12. Their Lordships of Hon'ble Supreme Court in AIR 1957 SC 389 while interpreting Section 494 Cr.P.C. (old) have held that the section gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution subject to the consent of the Court, which may be determined on may possible grounds. 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. Their Lordships have held as under:-
"3. Section 494 of the Code of Criminal Procedure runs as follows:
"Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, 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;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences."
The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. There can be no doubt, however, that the resultant order, on the granting of the consent, being an order of "discharge" or "acquittal" would attract the applicability of correction by the High Court under Sections 435, 436 and 439 or 417 of the Code of Criminal Procedure. The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of Section 494 of the Code of Criminal Procedure would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. As the Privy Council has pointed out in Faqir Singh v. Emperor "It (Section 494 of the Code of Criminal Procedure) gives a general executive discretion (to the Public Prosecutor) to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds". The judicial function, 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. In this context it is right to remember that the Public Prosecutor (though an executive officer as stated by the Privy Council in Faqir Singh v. Emperor) 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. It has also to be appreciated that in this country the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the executive authorities. Once information of the commission of any such offence reaches the constituted authorities, the investigation, including collection of the requisite evidence, and the prosecution for the offence with reference to such evidence, are the functions of the executive. But the Magistrate also has his allotted functions in the course of these stages. For instance, in the course of investigation, a person arrested must be brought before him within 24 hours (Section 61 of the Code of Criminal Procedure). Continuance of the arrested person in detention for purposes of investigation from time to time has to be authorised by him (Section 167 of the Code of Criminal Procedure). A search can be conducted on the issue of warrant by him (Section 94 of the Code of Criminal Procedure). Statements of witnesses and confessions may be recorded by him (Section 164 of the Code of Criminal Procedure). In an appropriate case he can order investigation or further investigation [Sections 155(2) and 202 of the Code of Criminal Procedure]. In all these matters he exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is his. His discretion in such matters has necessarily to be exercised with reference...
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