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G.SRINIVASAN versus THE STATE REPRESENTED BY

High Court of Madras

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G.Srinivasan v. The State represented by - Crl.R.C.(MD).No.305 of 2007 [2007] RD-TN 1987 (19 June 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 19/06/2007

CORAM

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Crl.R.C.(MD).No.305 of 2007

G.Srinivasan ... Petitioner Vs

1.The State represented by

The Inspector of Police,

City General Crime Branch,

Tirunelveli City.

2.Lakshmanaperumal

3.Sukumar

4.P.Y.Selvaraj

5.V.R.Elango

6.Appavu

7.Arumugam

8.Maniappan

9.Mani

10.Kannan

11.Murugesan

12.John Kennaedi

13.Selvakumar

14.Jayapaul @ Thangaraj

15.Shakespeare ... Respondents Prayer

Petition filed under Sections 397, 401 and 482 of the Code of Criminal Procedure, to set aside the order dated 16.04.2007 in C.C.No.78 of 2006 on the file of the learned Judicial Magistrate No.I, Tirunelveli, whereby the learned Judicial Magistrate passed the order giving consent to the Assistant Public Prosecutor to withdraw the case as against the respondents 2 to 14 and to get a direction for proceeding with the case in C.C.No.78 of 2006 as per law by the learned Judicial Magistrate No.I, Tirunelveli.

For Petitioners ... Dr.P.H.Pandian,

Senior Counsel for

Mr.Anand Abdul.

For Respondent ... Mr.P.Rajendran

Govt. Advocate (Crl.Side) for R.1

:ORDER



This Criminal Revision Case is focussed to get set aside the order dated 16.04.2007 in C.C.No.78 of 2006 on the file of the learned Judicial Magistrate No.I, Tirunelveli, whereby the learned Judicial Magistrate passed an order giving consent to the Assistant Public Prosecutor to withdraw the case as against the respondents 2 to 14 and to get consequently a direction to the learned Judicial Magistrate No.I, Tirunelveli, to proceed with the trial.

2. Heard both sides.

3. The learned Counsel for the petitioner would submit that even though he cited R.2 to R.15 who are the accused in C.C.No.78 of 2006, as formal parties in this revision, yet they are not necessary parties and as such, he prays for dispensing with them as parties in this case and accordingly, the same is permitted as this matter happens to be only a revision case as against the order passed by the learned Magistrate before whom the accused have not even entered appearance as revealed by the docket endorsements of the Magistrate Court from 16.03.2006 to 16.04.2007. Even though the learned Magistrate ordered issue of summons as early as on 16.03.2006, the accused could not be secured till 16.04.2006, the date of permitting the prosecution to withdraw the case. As such, the accused did not enter appearance at all.

4. The gist and kernel, the warp and woof, the nitty-gritty of the case of the petitioner/de facto complainant could be portrayed and parodied thus: The de facto complainant lodged a complaint with the police, whereupon the police registered the case in Cr.No.23 of 2004 for the offences punishable under Sections 384, 385, 506 read with Section 120(b) I.P.C. The police investigated into the matter and ultimately laid the police report before the learned Judicial Magistrate No.I, Tirunelveli, who took it on file on 24.11.2005 in C.C.No.78 of 2006 for the offences punishable under Sections 384, 385, 506(ii) read with Section 120(b) I.P.C. The Magistrate also ordered issue of summons to the accused. The Magistrate on 16.04.2007 based on the petition filed by the learned Assistant Public Prosecutor, permitted him to withdraw the case and accordingly, discharged the accused. The learned Assistant Public Prosecutor acted in pursuance of the G.O.(D)No.165, dated 06.02.2007, which instructed the Prosecutor to withdraw the criminal case as against Thiru.M.Appavu, MLA.,(R6/A6) and others in that case based on the report submitted by the District Collector, Tirunelveli.

5. It is the case of the de facto complainant that he was holding shares in Transworld Garget India Private Limited and that while he was in detention in some other false case foisted as against him, he was coerced and extorted and thereby he was taken out of the jail on bail at the instance of the accused herein and compelled to execute some registered deeds before the Sub Registrar. According to the de facto complainant, the police officials were hand in glove with the accused and accordingly, got such documents executed.

6. At this juncture, it is just and necessary to narrate broadly, but precisely, as to what happened ever since the time of the registration of the F.I.R and before the time of filing of the police report under Section 173 Cr.P.C. The typed set of papers filed along with the petition would demonstrate that on earlier occasions, some of the accused persons approached this Court under Section 482 Cr.P.C for getting the F.I.R and connected proceedings quashed relating to this matter.

7. This Court on 03.05.2005 in Crl.O.P.No.5789 of 2004 and on 16.11.2005 in Crl.O.P.No.5816 of 2005, considered the matter and rejected the plea of quashing the F.I.R and the connected proceedings.

8. On 16.04.2007, in Crl.O.P.No.3297 of 2007, I also gave direction to the learned Magistrate to the effect that the case should be disposed of within a period of two months and report compliance. It is the grievance of the petitioner that even while the said order of this Court dated 16.04.2007, is very much in operation, the learned Magistrate on the very same day, i.e, on 16.04.2007, simply accepted the petition of the learned Assistant Public Prosecutor and without application of mind, permitted him to withdraw the petition and closed the matter.

9. The learned Counsel for the petitioner also would cite the following decisions of the Honourable Apex Court in Abdul Karim etc., v. Stae of Karnataka and others reported in 2000 (7) Supreme 436.

10. The point for consideration is as to whether the learned Magistrate properly exercised the power conferred under Section 321 Cr.P.C in permitting the Prosecutor to withdraw the criminal case and close the matter by discharging the accused?

The Point:

11. Trite, the proposition of law is that the learned Assistant Public Prosecutor in charge of the case has the power as well as the right to withdraw the criminal case if for good reasons to be stated by him and the Court concerned has also got the independent power to see whether the case is being withdrawn for good reasons and that too to further the cause of justice.

12. An excerpt from the dictum of the Honourable Apex Court in Abdul Karim etc., v. State of Karnataka and others reported in 2000 (7) Supreme 436, would run thus:

"17. The law as it stands today in relation to applications under Section 321 is laid down by the majority judgment delivered by Khalid,J in the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar and others (1987[1]SCC 288). It is held therein that when an application under Section 321 is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. What the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline consent. The Section should not be construed to mean that the Court has to give a detailed reasoned of the order giving consent, a higher court is satisfied that such consent was given on an over all consideration of the material available, the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the Court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherence of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent from the Court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper.

18. The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice.

19. It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the Court, with its permission, in a sealed envelope. The Court has to give an informed consent. It must be satisfied that this material can reasonably lead to be conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to weigh the material. The Court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The Court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent."

13. It is therefore just and necessary to scrutinise and analyse whether the petition filed by the learned Assistant Public Prosecutor is in accordance with law.

14. The learned Counsel for the petitioner would correctly and appositely highlight that in the petition filed by the Assistant Public Prosecutor, he has not even mentioned the relevant penal sections with which the accused were proceeded against in C.C.No.78 of 2006 and that itself would show the non- application of mind on the part of the learned Assistant Public Prosecutor.

15. The learned Counsel for the petitioner would highlight that one Ranjith Singh was the Assistant Public Prosecutor who filed such petition; and that one Vairavan Pillai was the regular Assistant Public Prosecutor for C.C.B Cases while the charge sheet was filed. In my opinion, at the time of filing the withdrawal petition under Section 321 Cr.P.C., the Assistant Public Prosecutor in charge of the case only, has to apply his mind irrespective of the fact as to who has been actually the Assistant Public Prosecutor at the time of filing of the police report.

16. Be that as it may, coming to brass tacks, it has to be seen whether the very petition filed by the Assistant Public Prosecutor contains any details or at least some bare reasons for withdrawal from prosecution. Paragraph Nos.2,3,4,5 and 6 of such petition of the Assistant Public Prosecutor, are extracted hereunder for ready reference:

"2. As per the Merits of the case, this is not a fit case to be proceeded with in the interest of Justice and Public interest.

3. This is a case arisen out of business rivalry and there is no legal or moral entity to proceed with the case further.

4.The Government of Tamil Nadu by virtue of G.O.(D)No.165, dated 06.02.2007, recommended for withdrawal of the said case.

5. This is a case which is fit to be withdrawn in par with the authority of Apex Court in S.A.Kareem Vs. Union of India, 2001 SCC (Crl.) Page 69 on Application of any kind independently.

6. The facts and circumstances of this case will fall under all corners of ratio laid down in the above authority and the withdrawal is for public interest and good and it is not detrimental to public interest or administration of justice."

17. The petition is vague as vagueness could be. It contains general statements like, 'not a fit case to proceed against', 'no legal or moral entity to proceed with the case' and even the decision cited by the learned Assistant Public Prosecutor was not correct and the actual precedent is the one cited by the learned Counsel for the petitioner herein.

18. The core question arises as to whether such sort of terminologies used, would be sufficient to attract Section 321 Cr.P.C.

19. No doubt, he referred to the Government Order also. The said G.O is reproduced hereunder for ready reference:

"GOVERNMENT OF TAMIL NADU

ABSTRACT

Cases - Criminal Tirunelveli District - Tirunelveli City Police Station Cr.No.23/2004 - Pending against accused Thiru.M.Appavu, M.L.A., and others before the Judicial Magistrate No.I, Tirunelveli - withdrawal of cases - Ordered.

Home(Cts.IV)DEPARTMENT

G.O.(D).NO.165 DT. 06.02.2007 READ:

1.From the Collector of Tirunelveli District Ir.No.C3/48314/2006 dt. 4.9.2006 and 6.11.2006.

2.From the Asst.Public Prosecutor, Grade-II, Judicial Magistrate No.I, Tirunelveli, opinion dated.25.10.2006.

3.Deputy Director of Prosecution, Tirunelveli, opinion dated.10.07.2006.

ORDER:



The Government accept the recommendation of the Collector of Tirunelveli District and the opinion of the Assistant Public Prosecutor, Grade-II, Judicial Magistrate No.I, Tirunelveli and direct that the case in Cr.No.23/2004, Tirunelveli City, Police Station Crime No.23/2004 pending against accused Thiru.M.Appavu, MLA., and others before the Judicial Magistrate No.I, Tirunelveli in C.C.No.78/2006 be withdrawn.

2. The Collector of Tirunelveli District is requested to take action accordingly.

3.The C.D file received in this regard is returned herewith. Its receipt may be acknowledged.,"

20. In the G.O also, there are no reasons found set out on what basis, this case is ordered to be withdrawn. De hors that, the learned Assistant Public Prosecutor is expected as per law to apply his mind and come to the conclusion. Per se and prima facie, the petition does not disclose on what grounds, the case would end in acquittal, if the case is processed further as per law.

21. These are matters which necessarily the learned Magistrate should have considered. Without application of mind of these aspects, the learned Magistrate acted. What actually I could see in this case is that the Government passed the G.O, and the learned Assistant Public Prosecutor adopted it and in turn, the learned Magistrate also adopted the same view and permitted withdrawal of the prosecution.

22. The learned Counsel for the petitioner would submit that by developing his arguments by placing reliance on the copy of the extract of the docket entry made by the learned Judicial Magistrate on 16.04.2007 to the effect that this case was not even heard in the open Court by the Magistrate and without even hearing the learned Assistant Public Prosecutor, the learned Magistrate passed such an order. The docket entry made by the learned Magistrate on 16.04.2007 is extracted hereunder as it is the part and parcel of the typed set. "16.04.07:- Permission granted to withdrawal from the Prosecution of A1 to A14 in Cr.No.23/04 in C.C.No.78/06 and ordered to be discharged u/s.321 Cr.P.C (Detail order. Copies attached herewith.)"

23. Of course, this is also one aspect of the matter, even though that is not the decisive factor.

24. The learned Assistant Public Prosecutor would rely on the same decision of the Honourable Apex Court cited above. If the Prosecutor's application is viewed, it is clear that it is niggard and bereft of relevant facts and the learned Magistrate order also contains only the narration of prosecution case, the averments in the petition, the averments in the G.O., and ultimately, the Magistrate's acceptance. The last paragraph of the learned Magistrate's order is reproduced hereunder for ready reference: "In the result, this petition is allowed and thereby permission is granted to withdraw from the Prosecution and all the accused 1 to 14 are hereby ordered to be discharged under Section 321 of Criminal Procedure Code."

25. The pertinent question arises as to whether the Honourable Apex Court's decisions relating to withdrawal of cases were adhered to by the Assistant Public Prosecutor and the lower Court. The answer, should be an emphatic 'No', for the reason that the learned Magistrate has not set out any reason as to how the case if processed further would end in acquittal only and whether the learned Assistant Public Prosecutor was justified in arriving at such a conclusion and that too in the wake of the previous orders passed by this Court, vide order dated 03.05.2005 in Crl.O.P.No.5789 of 2004 and dated 16.11.2005 in Crl.O.P.No.5816 of 2005.

26. The learned Magistrate so far this case is concerned, should have been all the more carefully in dealing with the matter, because the F.I.R as well as the charge sheet would reveal that this is a case emerged out of problem between two private parties and even then, the Government had chosen to intervene and order for withdrawal without citing any perceivable or analysable objective reason. The learned Assistant Public Prosecutor and the lower Court should have adverted to the previous orders of this Court also.

27. It is all the more important on the part of the learned Magistrate to scrutinise and analyse in the wake of the previous order of this Court, but she had not done so.

28. The perusal of the order dated 03.05.2005 passed in Crl.O.P.No.5789 of 2004 by this Court would demonstrate that it was a detailed order touching upon various factual aspects involved in the matter and the High Court also opined in paragraph Nos.19, 20 and 21, as under:

"19. ... Suffice it to point out that the materials collected prima facie, indicate the proceeding of the investigation in its correct direction. When the investigation is proceeding in its correct direction, it would be improper for the Court to interfere with the area of investigation which is exclusively within the domain of the Investigating Agency.

20. It has been brought to the notice of the Court that the case in Cr.No.25/04 registered against R.Srinivasan has been referred as "Mistake of fact". In the Refer Charge Sheet filed in the typed set of papers, it is stated that the case in Cr.No.25/04 has been lodged at the instigation of Sukumar, owner of Beach Sand Minerals Company and after investigation, the Investigating Officer - DCB, Tirunelveli has arrived at the conclusion that the same was referred as "Mistake of fact".

21. On behalf of the Petitioner, main contention is urged that there is inordinate unexplained delay in lodging the complaint. The complainant R.Srinivasan was released on interim bail on 20.08.2004; regular bail was granted on 25.08.2004; complaint was lodged in Cr.No.23/04 only on 9.9.2004. Hence, it is contended that there is an unexplained delay of nearly fifteen days and that the complainant was gaining time for deliberation and to make a false complaint against the petitioner/A-1 and other Accused. At this stage, the merits of this contention can not be gone into. It is not for the Court to appreciate the correctness or otherwise of the allegations levelled in the complaint on account of delay. Suffice it to point out that the delay in lodging the complaint cannot be the ground for quashing the First Information Report."

29. In fact, in Crl.O.P.No.5816 of 2005 before this Court, Mani, one of the accused filed application for quashing the criminal proceedings and in that case, the accused ultimately sought permission to air his grievance by filing the application for discharge before the trial Court.

30. This Court in the order dated 03.05.2005, at paragraph No. 13, narrated in brief, the case of the de facto complainant and it is extracted hereunder for ready reference:

"13. In the complaint, the complainant R.Srinivasan - Chairman cum Managing Director, TGI, has alleged that due to business rivalry, a false case has been registered against him in Cr.No.25/04 DCB. It is further alleged that putting him in a constant fear and coercion, he was compelled to instruct his General Manager Mr.Suriyanarayanan to convey 34.87 acres - Madavankurichi village, which was forcibly conveyed to A-2 Sukumar. It is his further case that on 19.08.2004, he was shifted to Medical College Hospital, Tirunelveli, where the individuals connected with BMC continued to coerce him and due to coercion and threat, TGI was forced to surrender 26 of shares to A-3 - Selvaraj on 20.08.2004, by G.Srinivasan, Joint Managing Director."

31. The learned Magistrate also in her order dated 16.04.2007, at paragraph No.2, stated thus:

"On perusal of records it appears that a complaint was given by one Mr.R.Srinivasan, the Chairman and Managing Director of M/s.Transworld Garget India Private Limited, alelging that one Mr.Laxman Perumal claiming to be secretary of Indian Industrial Mineral Producers Welfare Association, had lodged a false complaint before the District Crime Branch, Tirunelveli against him and that it was registered as crime No.25 of 2004 under Section 124(A), 506(ii) of I.P.C, and he was arrested at Chennai and brought to Tirunelveli and while he was in Police custody, the accused Jayapaul was said to have met him and victim was made to talk with accused No.2 Sugumar and threatened him to transfer his company share and lands to the nominee of accused No.2 and while his Company's Manager Surya Narayanan was brought to Judicial Magistrate Court No.1, for remand, he was taken to a witness Christoper's house and he was threatened to transfer the share of the company and on 18.02.2004 while victim Srinivasan was in Judicial Custody in Palayamcottai Central Prison, an accused John Kennedy met him in the prison and threatened him and because of harassment he had instructed his company Joint Managing Director to hand over the shares and only thereafter accused No.2 arranged accused No.8 and and 11 to release him on interim bail to which accused No.6 and 7 stood as surety and later this crime No.25 of 2004 was referred as Mistake of fact. In the said circumstances, the Victim R.Srinivasan submitted the present complaint to the Commissioner of Police, Tirunelveli who had forwarded the same to the Deputy Commissioner of Police, Tirunelveli who had directed to the Inspector of Police, Crime Branch, to register and so the case was registered as Cr.No.23 of 2004 under Section 384, 385, 506, 120(B) I.P.C and after investigation final report was filed on 24.011.2005 and it was taken on file as a calendar case by this Court as C.C.No.78 of 2006 under Section 384, 385, 506(ii) R/w 120(B) I.P.C and summons was ordered to be issued to all accused 1 to 14 and the case is in the stage of service of summons to all the accused."

32. Perused the entire records including the G.O, the averments in the petition filed by the learned Assistant Public Prosecutor. The robust common sense would warrant anyone to raise a question as to why the police and the Collector, should approach the Government for obtaining the G.O and why the learned Public Prosecutor who filed the petition for withdrawal, should come forward with a diametrically opposite view from the one taken all along before the High Court in various proceedings as well as while investigating into the matter. It has become all the more important to consider in this case that the Government as well as the Prosecution including the police, takes a specific stand as though the entire investigation conducted was fraught with falsity and the charge sheet filed was the outcome of mere political vendetta. Many other questions are bristling up as to what was the conduct of the Prosecution before the High Court earlier and if that would tantamount to perjury, etc.

33. Absolutely, there is no iota or shred of reasons to show on what aspects the detailed investigation conducted earlier is turned out to be a false one, that it would necessarily lead to acquittal only and that the entire further proceedings would be a futile exercise. Mere terminologies used would not be sufficient, but it should be buttressed and supported by at least some reference to the nature of the so called weak, meek, bleak evidence gathered and put in the form of charge sheet / police report, but all those facts are totally missing and the learned Magistrate miserably failed to concentrate on these missing factors. As such, the order of the learned Magistrate fails to satisfy the standard laid down by the Honourable Apex Court in considering the application for withdrawal of prosecution.

34. Hence, in these circumstances, the order of the learned Magistrate is set aside and the matter is remitted back to the learned Magistrate to scrutinise and deal with it afresh by applying her mind and arrive at a conclusion in accordance with the verdicts of the Honourable Apex Court and this Court.

To

1.The Inspector of Police,

City General Crime Branch,

Tirunelveli City.

2.The Judicial Magistrate No.I,

Tirunelveli.

3.The Chief Judicial Magistrate,

Tirunelveli.

4.The Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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