Holding

The discretion to withdraw prosecution under Section 321 CrPC rests exclusively with the Public Prosecutor, and when exercised after proper judicial scrutiny, it cannot be set aside; the High Court's order was proper and the appeal is dismissed.

Summary

Ghanshyam, a tenant, alleged that his landlord Surya Prasad (respondent No.3) illegally evicted him with armed men on 8 November 1986, causing serious injuries. An FIR under Sections 147 and 307 IPC was lodged and a charge‑sheet filed, but the Public Prosecutor later moved an application under Section 321 of the Criminal Procedure Code (CrPC) to withdraw the prosecution. The Sessions Judge allowed the withdrawal, and the High Court dismissed Ghanshyam’s revision petition in 1991. After a fifteen‑year gap, Ghanshyam challenged both the withdrawal order and a later High Court direction (issued in 2004) that ordered police to register a fresh case against him, arguing the writ petition was filed with undue delay. The Supreme Court held that the discretion to withdraw prosecution under Section 321 lies solely with the Public Prosecutor, that the High Court had properly scrutinised the application and found no extraneous consideration, and that Ghanshyam could not revive a grievance after such a long lapse. Consequently, the appeal was dismissed.

Issues considered

The scope of the Public Prosecutor's discretion under Section 321 CrPC to withdraw prosecution and whether it can be challenged on grounds of political influence.
Whether the High Court's direction to register a case based on a writ petition filed after a long delay is valid.
Whether a party can contest a withdrawal order after a lapse of fifteen years.
Whether extraneous considerations were involved in the withdrawal of prosecution.

Legislation cited

Code of Criminal Procedure, 1973s. 107, s. 321
Indian Penal Code, 1860s. 147, s. 307

Subjects

withdrawal of prosecutionSection 321 CrPCpublic prosecutor discretionwrit petitionpolice inactiondelaycriminal revisionextraneous considerationcriminal procedure

Judgment

GHANSHYAM A
v.
STATE OF M.P. AND ORS.

SEPTEMBER 29. 2006

[S.B. SINHA AND DAL VEER BHANDARI, JJ.] B

Code of Criminal Procedure, 1973--s.32 I-Charge sheet filed ulss. I 471
307 /PC-Trial commenced-Application for withdrawal of prosecution filed
by Public Prosecutor-Allowed by Sessions Judge-Upheld by High Court- C
Correctness of-Held: Correct as High Court had carefully scrutinized and
ensured that no extraneous consideration prevailed in moving such
application-Public Prosecutor can at any stage, before the judgment move
application for withdrawal of prosecution.

Appeal-Plea-Belated plea-Application for withdrawal of D
prosecution allowed by Sessions Judge and upheld by High Court in 1991--
Not challenged in last 15 years-Appellant challenging the withdrawal now
in another case-Held: Appellant not justified in making such grievance.

Writ petition-Challenging inaction of police authorities in registering
complaint-High Court directed Superintendent of Police to register their E
case-Grievance of opposite party that writ petition was filed after undue
delay-Held: Not entertainable as order of High Court was based on report
of DIG who had conducted enquiry at the instance of Court.

According to appellant, on 8.11.1986, respondent no. 3-landlord entered
his rented house along with anti-social elements to illegally evict him and F
dismantle the house. When he tried to obstruct them, he got seriously injured.
Appellant lodged FIR u/ss. 147/307 IPC against respondent no. 3 and his men.
Charge-sheet was filed against respondent no. 3 and trial commenced. After
sometime, the Public Prosecutor moved an application u/s. 321 Cr.P.C. for
withdrawal of the prosecution. The Sessions Judge allowed the same. Appellant G
preferred Revision against this, which was also dismissed. Thereafter,
appellant did not challenge it.

In 2004, Respondent no.3 filed a Writ Petition in the High Court
complaining about the inaction on the part of police authorities in not
I H
2 SUPREME COURT REPORTS 12006] SUPP. 7 S.C.R.

A registering his complaint and in not taking action against persons who had
caused injuries to him and his sons on 8.11.1986. High Court on the basis of
report of Deputy Director General directed the Superintendent of Police to
register their case. Appellant filed application for recalling of this order, which
was dismissed.
B In these appeals, the appellant is aggrieved by (a) the order of withdrawal
of the prosecution against respondent no.3 on the ground that respondent no.3
being a former Member of Parliament managed to get an order from the
Government directing the Public Prosecutor to withdraw the criminal
prosecution and (b) the direction passed by High Court in the writ petition as
C it was filed after undue delay.

Dismissing the appeal, the Court

HELD: l. According to the scheme of s. 321 Cr.P.C., the Public
Prosecutor at any stage, before the judgment, can move the Court for
D withdrawal of prosecution. The High Court was not oblivious ofth'e fact that
an application under s. 321 Cr.P.C. had to be carefully scrutinized and ensured
that no extraneous consideration had prevailed in moving such an application.
The discretion to withdraw from the prosecution is that of the Public
Prosecutor and none else, and so, he cannot surrender that discretion to any
one. The Public Prosecutor may withdraw from the prosecution not merely
E on the ground of paucity of evidence but on other relevant factors as well, in
order to further the broad ends of justice, public order, peace and tranquillity.
The High Court while deciding the revision petition clearly observed that the
material already available on record was insufficient to warrant conviction.
The flow of facts and the possible result thereof as noticed by the Public
F Prosecutor and appreciated by the Courts below, constituted the public interest
in the withdrawal of the said prosecution. The High Court clearly came to the
conclusion that the application for withdrawal of the prosecution and grant of
consent were not based on extraneous considerations. 16-E-F, 7-H, 8-A-q

2. The Additional Sessions Judge permitted withdrawal of the
G prosecution on an application moved by the Public Prosecutor under s. 321
Cr.P.C. The appellant had moved a criminal revision petitiGn before the High
Court. The order of the High Court was passed in the year 1991 and the
appellant never challenged that order in the last 15 years before this Court.
Therefore, the appellant is wholly unjustified in making any grievance in
H respect of the prosecution which had already been withdrawn against
GllANSHYAM v STATEOFM.P. IDALVEER BHANDARl..l.I 3

respondent no.3 a long time ago and the said order was affirmed by the High A
Court and no proceedings were taken against the said judgment of the High
Court. 19-B-DI

3. The order of the High Court was primarily based on the report of the
DIG, CID, Gwalior who had conducted the inquiry at the instance of the Court
and submitted the report. On the basis of the inquiry report, the High Court B
directed the Superintendent of Police, Gwalior to take action for registration
of the case and conduct the investigation and inquiry in accordance with law.
•· In the backdrop of the peculiar facts and circumstances of the case, no
interference is called for. 19-E, G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 017 of
c
2006.

From the Judgment and Order dated 8.8.2005 and 23.9.2005 of the High
Court of Madhya Pradesh Jabalpur Bench at Gwalior in W.P. No. 1356/2004
and M.C.C. No. 473 of2005 respectively. D
Jai Prakash Pandey for the Appellant.

Vibha Datta Makhija for the Respondents Surya Prasad-Respondent No.
3 in-person.
E
The Judgment of the Court was delivered by

DALVEER BHANDARI, J. Leave granted.

This appeal is directed again~t the judgment d41ted 08.8.2005 passed in
Writ Petition No.1356 of2004 by the M.P. High Court of Judicature at Jabalpur, F
Bench at Gwalior, M.P.

Brief facts which are necessary to dispose of the appeal are recapitulated
as under:

A writ petition was filed by respondent no.3 Surya Prasad son of G
Hariram, aged about 82 years, in which he had complained about the inaction
on the part of the police authorities of the police station, Morar in not
registering his complaint and taking action against the persons who had
caused injuries to him and his sons. It was stated in the writ petition that on
8.11.1986, respondent no.3 and his sons were attacked. They sustained injuries
' J
and thereafter respondent no.3 was medically examined. In spite of filing the H
4 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A complaint, the police authorities of the Morar police station neither registered
any case nor took any action against the accused but in fact the police people
protected the accused persons. In the writ petition, he had prayed that justice
be done to him and the accused be punished.

Learned Single Judge of the High Court after considering the facts and
B circumstances of the case, issued notice in the writ petition and directed the
Director General of Police, Madhya Pradesh, Bhopal to appoint a senior officer
from the Police Headquarter to conduct an enquiry into the matter. Accordingly,
the Deputy Inspector General of the Central Intelligence Department, Gwalior
(for short "DIG, CID") conducted an enquiry and submitted a report.
C Respondent no.3 herein (petitioner in the writ petition) submitted an objection
indicating that instead of getting the matter inquired from the Police
Headquarter, the respondents improperly had got the investigation carried out
from the local police officer. The learned Single Judge held that once it was
established that respondent no.3 had sustained injuries in the incident and
injuries on his person were confirmed on the medical examination, the police
D authorities of the Morar police station ought to have registered a case and
taken appropriate steps in accordance with law. On the basis of the final report
of the inquiry, the learned Single Judge directed the Superintendent of Police,
Gwalior to register a case in the Police Station of competent jurisdiction and
take action in accordance with law.

E The appellant had filed an application bearing M.C.C. No.473 of2005 for
recalling of an order dated 08.8.2005 passed by the learned Single Judge in
the writ petition no.1356 of2004 whereby respondent no.2, the Superintendent
of Police, Gwalior, M.P. was directed to register a case and conduct investigation.
After hearing the appellant, the learned Single Judge arrived at definite finding
F that there was no ground to recall the order and dismissed the petition.

Being aggrieved by the order dated 08.8.2005 passed in the Writ Petition
No.1356 of2004 and the order dated 23.9.2005 passed in M.C.C. No.473 of
2005, the appellant has preferred this appeal.

G According to the appellant, he was residing in the house situated at
Company Bagh Road, Morar, Gwalior, as a tenant since the time of the
grandfather of respondent no.3. Now, the landlord of the house is respondent
no.3. According to the appellant, respondent no.3 attempted to illegally evict
the appellant from his rented house with the help of anti-social elements who
came to his house armed with weapons on 8.11.1986. Respondent No. 3 along L.
H with his men started dismantling the house of the appellant without prior
GHANSHY AM v. STATE OF M.P. [DAL VEER BHANDARI, J.] 5

permission and/or notice to him. The appellant was seriously injured when he A
tried to obstruct them from dismantling the house. The appellant lodged an
FIR No.654/86 under Section 147/307 IPC against respondent no.3 and his
men. A charge-sheet was filed against respondent no.3 and his men under
Section 147/307 IPC and then the trial commenced.

It may be pertinent to mention that after some time the Public Prosecutor B
filed an application under Section 321 of the Code of Criminal Procedure for
the withdrawal of the prosecution. The learned Additional Sessions Judge
•. granted permission to withdraw the prosecution on the application filed by
the Public Prosecutor. It was urged by the appellant that respondent no. 3,
being a former Member of Parliament, managed to get an order from the C
government directing the Public Prosecutor to withdraw the criminal
prosecution.

The appellant is aggrieved by the order of withdrawal of the prosecution
against respondent no. 3. The appellant's main grievance is that respondent
no. 3, after a lapse of number of years, had filed a writ petition before the High D
Court and obtained an order by which the Court directed the Superintendent
of Police, Gwalior to take action for registering the case and conduct an
enquiry/investigation in accordance with law.

It may be pertinent to mention that the appellant had preferred a criminal
revision petition before the High Court against the order passed by the E
learned Additional Sessions Judge, Gwalior granting consent for withdrawal
of the prosecution on the application of the Public Prosecutor under section
321 of the Code of Criminal Procedure. Section 321 of the Code of Criminal
Procedure reads as under:

"321. Withdrawal from prosecution. The Public Prosecutor or Assistant F
Public Prosecutor in charge of a case may, with the consent of the
Court at any time 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, - G
(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 H
6 SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A respect of such offence or offences:

Provided that where such offence-

(i) was against any law relating to a matter to which the
executive power of the Union extends. or

B (ii) was investigated by the Delhi Special Police Establishment
under the Delhi Special Police Establishment Act, 1946 (25 of
1946), or

(iii) involved in the misappropriation of destruction ot~ or damage
to, any property belonging to the Central Government, or
c
(iv) was committed by a person in the service of the Central
Government while acting or purporting to act in the discharge
of his official duty,

and the prosecutor in charge of the c~se has not been appointed by
D the Central Government he shall not, unless he has been permitted by
the Central Government to do so, move the Court for its consent to
withdraw from the prosecution and the Court shall, before according
consent, direct the Prosecutor to produce before it the permission
granted by the Central Government to withdraw from the prosecution."

E According to the scheme of section 321 Cr.P.C., the Public Prosecutor
at any stage before the judgment can move the Court for withdrawal of
prosecution. The High Court was not oblivious of the fact that an application
under Section 321 Cr.P.C. had to be carefully scrutinized and ensured that no
extraneous consideration had prevailed in moving such an application. The
F High Court also took note of the fact that the proceedings under section I 07
Cr.P.C. were initiated between the parties. In the criminal revision petition,
relevant observations of the High Court are reproduced as under:-

"Now coming back to the given case, the complainant and the accused
party both were also proceeded against by the State as the preventive
action was taken under Section 107 Cr.P.C., therein, the petitioners
G
statement on oath was recorded as quoted above which does not
attribute the act of causing of injuries to accused non-petitioners and
further shows that injuries were received accidentally and in his version,
there is also no explanation of the injuries, received in the same
incident by the accused party, and in such circumstances if the
H Prosecution was sought to be withdrawn, it cannot be said that any
~ GHANSI IV AM 1·. ST /I. TE OF M.P. [DAL VEER BHANDARI. J.) 7
favour was shown to any accused, or that such proposal came because A
the non-petitioner has been a Congress (I) Member of Parliament. If
the non-petitioner has been a Member of Parliament, a people's
representative, that should not put him to disadvantageous position.
If on merits, the case deserved withdrawal, it could not be continued
merely because amongst the accused one has been a Member of
Parliament and that such withdrawal may be meant or taken as a
B
favour to accused."

In the revision petition, the High Court observed as under:

"In the instant case the prosecutor himself has made reference to the
Government letter, the copy of which has been filed on record and c
having perused it, I am satisfied that letter is only advisory in character
and there is nothing to show that the Pub Iic Prosecutor was directed
by the Government to move for withdrawal. A fair reading of the
application for withdrawal shows that the Prosecutor applied his mind
before moving the Court for withdrawal as he has so stated in the D
application, that :- 'In the totality of the circumstances and in the
interest of general public, I deem it proper and necessary that the
prosecution be withdrawn from the Court'. Therefore, he made the
prayer for the Court's consent. From the above it is clear that the
Prosecutor applied his mind to the issue, considered all the
circumstances ,and came to the conclusion that prosecution be sought E
to be withdrawn, notwithstanding, that an accused has been a Member
of Parliament, i.e., a people's representative."

On careful scrutiny of the impugned judgment of the High Court l'assed
in the criminal revision petition No. 84 of 1989, it is abundantly clear that the
court was not oblivious of its supervisory duty while adjudicating the F
application under section 321 Cr.P.C. filed by the Public Prosecutor. The
relevant observations of the court are as under:

"There are social and economic reasons behind every crime. However,
if the Public Prosecutor feels that withdrawal of prosecution fulfills
the social purpose completely, then)t will be proper to accept the
G
application for withdrawal of proseqution. It is also to be seen that
Public Prosecutor is not misusing his\wisdom while withdrawing the
case for prosecution."

The discretion to withdraw from the prosecution is that of the Public
) H
SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

--
8
A Prosecutor and none else, and so, he cannot surrender that discretion to any
one. The Public Prosecutor may withdraw from the prosecution not merely on
the ground of paucity of evidence but on other relevant factors as well in
order to fu11her the broad ends of justice, public order, peace and tranquility.
The High Cou11 while deciding the revision petition clearly observed that the
material already available on record was insufficient to warrant conviction.
B The flow of facts and the possible result thereof as noticed by the Public
Prosecutor and appreciated by the Courts below, constituted the public interest
in the withdrawal of the said prosecution. The High Court cle<1rly came to the
conclusion that the application for withdrawal of the prosecution and grant
of consent were not based on extraneous considerations.
c The appellant aggrieved by the order by which the court's approval was
granted for withdrawal of the prosecution, preferred a criminal revision petition
in the High Court. The High Court by a detailed and comprehensive judgment
on 28.9.1991 dismissed the revision petition. The said judgment of the High
Court became final and binding on the parties because the appellant had
D never challenged that judgment. In other words, the appellant had no further
surviving grievance against respondent no.3.

It is relevant to mention that only when respondent no.3, Surya Prasad
filed a writ petition in the High Court in the year 2004 in which he had
complained of inaction on the part of the police authorities in not registering
E a case against the accused who had caused serious injuries to him and his
sons, the High Court on the basis of the report of the Deputy Director
General, Intelligence of the Central Intelligence Department, Gwalior, M.P. and
averments incorporated in the writ petition, directed the Superintendent of
Police, Gwalior to take action for registration of the case and conduct the
F investigation and inquiry in accordance with law.
The appellant obviously was aggrieved by the said order of the High
Court because he feared that now a case would be instituted against him,
therefore, he had moved the High Court for recalling of the order dated
8.8.2005 passed in Writ Petition No. 1356 of 2004. The said application for
G recalling the order was dismissed by the High Court. The appellant is now
seriously aggrieved by the judgment and order passed in the writ petition and
thereafter in the application for recall respectively, has preferred these appeals
before this Court.

According to the appellant, the High Court ought not to have passed
H .any direction in the writ petition filed by respondent no. 3 because it was filed
GllANSI IY AM r. ST ATE OF M.P. [DAL VEER l3HANUARL J.J 9

after undue delay. A

The appellant urged that the High Court did not consider the incident
which had taken place in the year 1986 in the proper perspective. He also
contended that respondent no.3 himself was involved in a case emanating
from the FIR No. 654 of 1986 under Section 307 l.P.C. registered against the B
respondent. In the backdrop of the case, according to the appellant. the
impugned order of the High Court is unsustainable.

It would be appropriate to mention at this juncture that the Additional
Sessions Judge permitted withdrawal of the prosecution on an application
moved by the Public Prosecutor under section 321 Cr.P.C. The appellant had C
moved a criminal revision petition before the High Court. The order of the
High Court was passed in the year 1991 and the appellant never challenged
that order in the last 15 years before this Court. Therefore, the appellant is
wholly unjustified in making any grievance in respect of the prosecution
which had already been withdrawn against the respondent no.3 a long time
ago and the said order was affirmed by the High Cou1t and no proceedings D
, were taken against the said judgment of the High Court.

It may be pertinent to mention that the order of the High Court was
primarily based on the report of the DIG, CID, Gwalior who had conducted
the inquiry at the instance of the Court and submitted the report. On the basis
of the inquiry report, the High Court directed the Superintendent of Police, E
Gwalior to take action for registration of the case and conduct the investigation
and inquiry in accordance with law.

We have carefully examined the impugned judgment of the High Court
and heard the learned counsel for the parties at length. We do not find any F
infirmity in the order dated 8.8.2005 passed in Writ Petition No. 1356 of2004
and the order dated 23.9.2005 in MCC No. 473 of2005 passed by the Madhya
Pradesh High Court of Judicature at Jabalpur, Bench of Gwalior.

In the backdrop of the peculiar facts and circumstances of the case, no
interference is called for. These criminal appeals is accordingly dismissed G
being devoid of any merit.

D.G. Appeal dismissed.

)