Mere application of mind by P.P is not enough to invoke section 321 of Cr.P.C : Sikkim High Court

The essential requirements that need to be fulfilled in order for a public prosecutor to obtain consent from the court to withdraw a petition in light of no case being made out under section 321 of the Cr.P.C were illustrated by the High Court of Sikkim at Gangtok. The single bench consisting of Justice Bhaskar Raj Pradhan pronounced this judgement in the matter of State of Sikkim v Asal Kumar Thapa & Ors., [Crl. Rev. P. No. 3 of 2020].

It was alleged that the respondents have indulged in corrupt practices and cause wrongful, pecuniary loss of Rs.8,48,675/- to the Government of Sikkim. A petition has been filed by the Public Prosecutor (hereinafter, P.P) under Section 321 Cr.P.C. before the learned Special Judge, P.C. Act, 1988 at Gangtok, seeking consent from the Hon’ble court for the withdrawal of the case from prosecution. The P.P alleged that withdrawing this case would save the precious time of the court could also be considered public policy or public interest since no case has been made out against the accused after thorough investigation. The P. P relied upon the judgment of Sheonandan Paswan vs. State of Bihar & Ors., [(1987) 1 SCC 288] passed by the Supreme court wherein it was held, “in which it was held that when an application under section 321 Cr.P.C. is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal”.

The court opined that even though the quality of evidence might be poor, the records would, at least at this stage, indicate otherwise. Further, it relied on the judgment of the Supreme Court in Bairam Muralalidhar vs. State of Andhra Pradesh, [2014) 10 SCC 380] and Niranjan Hemchandra Sashittal & Anr. vs. State of Maharashtra, [(2013) 4 SCC 642] while declining consent to withdraw the particular petition.

The bench relied on the case of Sheonandan Paswan vs. State of Bihar & Ors., [(1987) 1 SCC 288], referred by the P.P as well to state that, “section 321 Cr.P.C. The majority dismissed the appeal preferred by Sheonandan Paswan. It was held that section 321 Cr.P.C. needs three requisites to make an order under it valid: (1) the application should be filed by a public prosecutor or assistant public prosecutor who is competent to make an application for withdrawal, (2) he must be in charge of the case and (3) the application should get the consent of the court before which the case is pending. A perusal of the impugned order leads one to conclude that it was only the third requisite, i.e., the consent of the court before which the case was pending, which was not fulfilled”.

While dismissing the requests of the P.P, the court held, “If the learned Special Public Prosecutor was of the opinion that there was certain evidence lacking, section 173(8) Cr.P.C. would have come to the rescue of the investigating agency. This ground again fall short of the requirement mandated by section 321 Cr.P.C. The petition filed by the learned Special Public Prosecutor records only his opinion that because of certain lacunae, the prosecution would be rendered futile. The materials placed do not even remotely indicate to this Court that the petition under section 321 Cr.P.C. was made in good faith or in the interest of public policy and justice.

The facts reveal that after an elaborate investigation, charge- sheet had been filed against the public servants for criminal misconduct and other offences. The purpose for the enactment of the PC Act, 1988 is to eradicate corruption and provide deterrent punishment when criminal culpability is proven. That is the paramount public interest in corruption cases.

The impugned order passed by the learned Special Judge refusing to grant consent is correct, legal and proper. None of the grounds enumerated in the petition individually or collectively permits this court to express an opinion that the withdrawal was sought for in public interest and it was not to stifle or thwart the process of law or cause manifest injustice”.

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