# I S.C.R. 623 M/S. V. L. S. FINANCE LTD v. S. P. GUPTA AND ANR

- **Citation:** [2016] 1 S.C.R. 623
- **Court:** Supreme Court of India
- **Decided:** 2016-02-05
- **Case number:** Criminal Appeal No. 99of2016
- **Bench:** Dipak Misra, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-s-c-r-623-m-s-v-l-s-finance-ltd-v-s-p-gupta-and-anr-31050
- **Pages:** 28

## Headnote

Code of Criminal Procedure, 1993 - ss. 91 and 32 I -
Application uls. 321 - Withdrawal/non-pressing of - Contested by
the accused persons - Permissibility - Held: The application uls.
321 was filed and not moved before the Court - The Court has no
role to grant consent, unless the application is moved by the Public
Prosecutor - At this stage the Public Prosecutor is entitled to
withdraw the application uls. 321 - The accused persons cannot
be allowed to contest such application and also cannot file
documents and take recourse to s. 91.
Administration of Justice - Abuse of process of the Court -
Held: A legal process cannot be allowed to be abused by challenging
each order in a superior court, in order to procrastinate the
proceeding in a court of law.
Allowing the appeals, the Court
HELD: 1.1 Long time has elapsed since the day summons
were issned. Despite the non-entertainment of the petitions
challenging the order issuing summons by the superior courts,
the matter remains now, where it was in the year 2003. [Para
27) (636-G-H)
1.2 The factual narration depicts a sorrowful and
simultaneously, a puzzling one. 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 present
case the process has definitely been abused. (Para 31) (638-D-E)
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SUPREME COURT REPORTS
[2016] I S.C.R.
Subrata Roy Sahara v. Union of India and others (2014)
8 sec 470 - relied on.
2.1. When an application of withdrawal from the
prosecution under Section 321 Cr.P.C. is filed by the Pnblic
Prosemtor, he has the sole responsibility and the law casts an
obligs1tion that he should be satisfied on the basis of materials
on rec:ord keeping in view certain legal parameters. The Public
Prosecutor having been satisfied, as the application would
show, had filed the application. The said application was not
taken up for hearing.
The Magistrate had not passed any
order granting consent for withdrawal, as he could not have
without hearing the Assistant Public Prosecutor. At this juncture,
the authority decided regard bein·g had to the fact situation that
the Assistant Pnblic Prosecutor should withdraw the application
and not press the same. After snch a decision had been taken,
as the application would show, the Assistant Public Prosecutor
has n~-appreciated the facts, applied his mind to the totality of
facts and filed the application for not pressing the application
prefc~rred earlier under Section 321 Cr.P.C. ·Thi~ filing of
application not to press the application cannot be compared with
any kind of review of an order passed by the court. Qnestion of
review can arise when an order has been passed by a conrt.
Section 362 Cr.P.C. bars the Conrt 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 for he is not a post
office. (Para 47] (648-F-H; 649-A-C]
2.2 In the present case, the Pnblic Prosecntor 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
intend to press the application. 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 t

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[2016] I S.C.R. 623
M/S. V. L. S. FINANCE LTD.
v.
S. P. GUPTA AND ANR.
(Criminal Appeal No. 99of2016)
FEBRUARY 05, 2016
[DIPAK MISRA AND N.V. RAMANA, JJ.]
Code of Criminal Procedure, 1993 - ss. 91 and 32 I -
Application uls. 321 - Withdrawal/non-pressing of - Contested by
the accused persons - Permissibility - Held: The application uls.
321 was filed and not moved before the Court - The Court has no
role to grant consent, unless the application is moved by the Public
Prosecutor - At this stage the Public Prosecutor is entitled to
withdraw the application uls. 321 - The accused persons cannot
be allowed to contest such application and also cannot file
documents and take recourse to s. 91.
Administration of Justice - Abuse of process of the Court -
Held: A legal process cannot be allowed to be abused by challenging
each order in a superior court, in order to procrastinate the
proceeding in a court of law.
Allowing the appeals, the Court
HELD: 1.1 Long time has elapsed since the day summons
were issned. Despite the non-entertainment of the petitions
challenging the order issuing summons by the superior courts,
the matter remains now, where it was in the year 2003. [Para
27) (636-G-H)
1.2 The factual narration depicts a sorrowful and
simultaneously, a puzzling one. 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 present
case the process has definitely been abused. (Para 31) (638-D-E)
623
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SUPREME COURT REPORTS
[2016] I S.C.R.
Subrata Roy Sahara v. Union of India and others (2014)
8 sec 470 - relied on.
2.1. When an application of withdrawal from the
prosecution under Section 321 Cr.P.C. is filed by the Pnblic
Prosemtor, he has the sole responsibility and the law casts an
obligs1tion that he should be satisfied on the basis of materials
on rec:ord keeping in view certain legal parameters. The Public
Prosecutor having been satisfied, as the application would
show, had filed the application. The said application was not
taken up for hearing.
The Magistrate had not passed any
order granting consent for withdrawal, as he could not have
without hearing the Assistant Public Prosecutor. At this juncture,
the authority decided regard bein·g had to the fact situation that
the Assistant Pnblic Prosecutor should withdraw the application
and not press the same. After snch a decision had been taken,
as the application would show, the Assistant Public Prosecutor
has n~-appreciated the facts, applied his mind to the totality of
facts and filed the application for not pressing the application
prefc~rred earlier under Section 321 Cr.P.C. ·Thi~ filing of
application not to press the application cannot be compared with
any kind of review of an order passed by the court. Qnestion of
review can arise when an order has been passed by a conrt.
Section 362 Cr.P.C. bars the Conrt 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 for he is not a post
office. (Para 47] (648-F-H; 649-A-C]
2.2 In the present case, the Pnblic Prosecntor 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
intend to press the application. 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
M/S. V. L. S. FINANCE LTD. v. S. P. GUPTA
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
application. [Para 47] [649-C-F]
2.3 The accused persons cannot contest the application
and also cannot file documents and take recourse to Section 91
Cr.P.C. The kind of liberty granted to the accused 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 pi"Osecution 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 independent decision about filing an
application under Section 321Cr.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. The Magistrate is directed
to proceed with the cases in accordance with law. [Para 47] [649F-H; 650-A-B]
2.4. In the present case the Magistrate was directed 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, Section
91 of Cr.P.C. could not have been taken aid of by the accused
persons. The High Court has fallen into error by permitting
the accused persons to file an application Section 91 Cr.P.C. [Para
45] [647-G-H]
Sheonandan Paswan vs. State of Bihar & others (1987)
1 sec 288 - followed.
Ada/at Prasad v. Roop/al Jindal & Ors. (2004) 7 SCC
625
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338; Patel Narshi Thakershi & Ors. v. Pradyuman
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626
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(20 I 6] I S.C.R.
Sing/:! Ji Ariun Singh Ji AIR 1970 SC 1273; R.R. Verma
& Ors. v. Union of India & Ors.1980 (3) SCR 478
:1980 (3) SCC 402; Bansi Lal vs. Chanda11 Lal a11d
Ors. (1976) l SCC 421 : AIR 1976 SC 370; Ba/want
Singh vs. State of Bihar (1977) 4 SCC 448 : (1978) l
SCR 604; Subhash Cha11der vs. State (Chandigarh
Admn.) (1980) 2 SCC 155 : (1980) 2 SCR 44; Rajender
Kumar Jain vs. State (1980) 3 SCC 435 : AIR 1980 SC
1510; State of Bihar vs. Ram Naresh Pandey 1957 Cri
LJ 567 : AIR 1957 SC 389; V. S. Achuthana11da11 v. R.
Balakrishna Pillai and Ors. (1994) 4 SCC 299; Rahul
Agarwal v. Rakesh Jain and A11r. (2005) 2 SCC 377;
Bairam Muralidhar v. State of A.P. (2014) 10 SCC 380;
Vijaykumar Baldev Mishra alias Sharma v. State of
Maharashtra (2007) 12 SCC 687; State of Orissa v.
Debendra Nath Padhi (2005) l SCC 568 - referred
to.
Case Law Reference
(20.04) 7 sec 338
Referred to.
Para4
Al.R 1970 SC 1273
Referred to.
Para 21
1980 (3) SCR 478
Referred to.
Para 21
19'83 (2) SCR 61
Referred to.
Para 21
(1987) l sec 288
followed.
Para34
(1976) 1 sec 421
Referred to.
Para 34
(1978) 1 SCR 604
Referred to.
Para 34
(1980) 2 SCR 44
Referred to.
Para 34
(1980) 3 sec 435
Referred· to.
Para 34
1957 Cri LJ 567
Refe.rred to;
Para 34
-0994) 4 sec 299
Referred to.
Para 35
(2005) 2 sec 311
Referred to.
Para 36
(2014) 10 sec 380
Referred to.
·Para 37
(2007) 12 sec 687
Referred to.
Para38
f2005) 1 sec 568
Referred to.
Para 44
(2014) 8 sec 470
relied on.
Para 48
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No .. 99 of20!6.
MIS. V. L. S. FINANCE LTD. v. S. P. GUPTA
627
From the Judgment and Order dated 30.07.2015 of the Single
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Judge of the High Court of Delhi at New Delhi in CRL. M.C. No. 2055
of2015.
·wITH
Crl.A.Nos.100, IOI and 102-104of2016
Dushyant A. Dave, Sandu Malhotra, Sukumar Patt Joshi, Abjay
Anand Jona, Ashok Kumar Sharma, Rakhi Ray, Ranjit B. Raut, Harish
Pandey, R. S. Gulia, Uday 8. Waviker, Bina Gupta for the Appellant.
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Sushi I Kumar, Aditya Kumar, Harpreet Singh Rai, A. D. N. Rai,
Atul Sharma, A. Venkatesh, Gurpreet Singh,Amarjit Singh Bedi, Satish c
Kumar for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
2. The obtaining factual matrix encompasses a scenario which
covers quite a span of time, and the chronology of events projects
horrendous picture, as Mr. Dushyant A. Dave and Ms. lndu 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, 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
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imperative to exposit facts after due filtration. The appellant set the
criminal law in motion by filing an FIR No. 90 of2000 at Police Station
Connaught Place which came to be registered under Sections 406, 409,
420, 424, 467, 468, 471, 477-A and 1208 of the Indian Penal Code (!PC).
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
transa,ctions of certain amount of money. Learned Magistrate vi de 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 a.ssailed before the High Court of Delhi in Crl.M.C. No. 911 of
2003 along with the prayer for 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 20 I 0 which came to be
dismissed on 04.06.2010. In the said case, the learned single Judge had
take:n note of the earlier cases being Criminal M.C. Nos. 911 of2003,
1992 of2006, 2142 of2007, 2229 of2007, 1988 of2008 and 64 of2006
and Writ Petition (Criminal) Nos. 498 of2005,_208 of2006, 1191 of2006
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 for the petitioners therein did not
want the matter to be disposed ofon 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
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.]
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 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 Adlllat Prasad v.
Roop/al Jindal & others' 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 Colirt 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 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 of2010 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 reinvestigation of FIR No. 90 of2000 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 ofendeavour constrained the accused
persons to file an application on 24.09.20 l 0 for stay of the proceedings
1 (2004J 7 sec 338
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arising out of FIR No. 90 of2000 before the Chief Metropolitan Magistrate
along with other F!Rs 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)-ln 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 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. 9012000, 99/2002 and 148/2002 had already
been conveyed to the Home Department, Government ofNCT 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
of2000 recommended for withdrawal of the case. We think it appropriate
to reproduce the said recommendation:-
"RECOMMENDATIONS OF THE COMMITTEE
The Committee observed that the withdrawal of case Fir No. 901
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
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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
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of Prosecution immediately.
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J .]
631
In view of the above the Committee decided to recommend the
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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
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cases to be withdrawn after following prescribed procedure:-
"!.
FIR No. 46/11 Police Station-Civil Lines registered against
Govt. School Teachers Association u/sAct/Section 188 IPC.
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 !PC.
3.
FIR No. 90/2000 Police Station, Connaught Place, registered
against accused Sh. S.P. Gupta & ors. U/s/ Act/Section
1208/406/409/420/ 467/468/471/477-A !PC.
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.
I 0. After the recommendation, the Government ofNational 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(l) 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 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
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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. ofNCT of Delhi
for withdrawal from the prosecution in cases of FIR Nos. 90/2000, 991
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.
'.3. Mr. Arvind Ray, who was a member of the Screening
Committee gave a note. The relevant part is to the following effect:-
"ln 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. Sun ii 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 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:-
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.)
"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 of2012 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 Judge thereafter
observed thus:-
"lt 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 ConMitution. 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 of2014 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
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 29" May, 2015. In the meanwhile, let
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.)
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 ofCrl. 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. Jn 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 Tlwkershi & Ors.
v. Pradyuman Singh Ji Arjun Singh Ji 1, R.R. Verma & Ors. v. Union
of India & Ors.·' and Sublrnsh Chander v. State (ClumdiRarh
Administration) & Ors.' to contend that the 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." 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 ofthe Public Prosecutor under Section 321 Cr.P.C. opined
thus:-
·
'AIR 1970SC 1273
'1980 (3) sec 402
'AIR 1980 SC 423
'AIR 1983 SC 194: 1983 (I) sec 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
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of I61h December, 2011 (Annexure P-13) i.e. the one for
withdrawal of application under Section 321 oftheCr.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 91 of Cr.P.C."
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24. After the High Court passed the order, the learned Magistrate
took up the applications seeking withdrawal of the applications preferred
earli~:r 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 (lpplication.
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25. The appellant in these appeals had basically 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
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learned Magistrate has passed the order declining permission to withdraw
the application. The said order is also assailed before this Court.
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26. We have heard Mr. Dushyant A. Dave, learned senior counsel
and Ms. lndu Malhotra, learned senior counsel for the appellant and Mr.
Sushi! 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
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.]
this court had declined to 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 chargesheet in the aforesaid case it was found that there was sufficient evidence
on record to establish the charges against the 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 1" respondent, in
Writ Petition (C) No. 3470 of2012. The Learned Single Judge, as has
been stated earlier, dismissed the writ petition. Aggrieved by the aforesaid
letter, L.P.A. No. 548 of2013 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 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
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Judge, NDPS, Patiala House Courts, Delhi in a series of Criminal Revision
Petition Nos. 12of2013 to 16of2013. 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 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 oflaw 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 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
V. L. S. FINANCE LTD. v. S. P. GUPTA [DIPAK MISRA, J.]
639
should decline to deal with the order passed by the learned Magistrate in
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exercise of jurisdiction under Article 136 of the Constitution of!ndia.
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 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:
Provided that where such offence-
(i) was against any law relating to a matter to which the executive
power of the Union extends, or
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(ii) was investigated by the Delhi Special Police Establishment
under the Delhi Special Police Establishment Act, 1946 (25 of
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1946 ), or
(iii) involved the misappropriation or destmction of, or damage to,
any property belonging to the Central Government, or
(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 case has not been appointed
by 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 pennission granted by the Central Government to
withdraw from the prosecution.
34. Regard being had to the language employed in Section 321
Cr.P.C., we may refer to the Constitution Bench decision .in Sheonanilan
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Paswan v.