# STATE OF ORISSA v. CHANDRIKA MOHAPATRA & ORS

- **Citation:** [1977] 1 S.C.R. 335
- **Court:** Supreme Court of India
- **Decided:** 1976-08-23
- **Case number:** Criminal Appeal Nos. 308310 of 1975
- **Bench:** P. N. Bhagwati, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-v-chandrika-mohapatra-ors-6927
- **Pages:** 6

## Headnote

Code of Crlininal Procedure (Act 2 of 1974), s. 494-Prosecution
applyins; for withdrawal of prosecution-Principles to be considered by Court in
granting CQnsent.
The principles that should be kept in mind by the Court wh~n giving consent
to the prosecution under s. 494 Cr. P.C. 1973, for withdrawing the prosecution
against the accused, are that the prosecution is not able to produce sufficient
evidence to sustain the charge, or that the prosecution does not appear to be
well founded, or that there are other circumstances which clearly $how that the
object of administration of justice would not be advanced or furthered by going
on with the prosecution. It is not sufficient for the prosecution merely to say
that it is not expedient to proceed with the prosecution. The ultimate guiding
consideration must always be the interest of administration of justice and that is
the touchstone on which the question must be determined.
No hard and fost
rule can be laid down nor can any categories of cases be defined in which con·
sent should be granted or refused. It must ultimately depend on the facts and
circumstances of each case in the light of what is necessary in order to promote
the ends of justice, because, the objective of every judicial_ process must be the
attainment of justice. (338 C-F]
Where, therefore, the Magistrate
granted permission for withdrawal, because the prosecution -averred that the evidence collected during investigation was
not sufficient to sustain the charge against the accused and after satisfying himself, by perusing the case diary, that the averment of the prosecution was justified, the High Court was in error in setting aside the order of the Magistrate. In
the instant case, the High Court also erred in observing that the Magistrate had
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not perused the case diary, and that the Magistrate had accorded consent for
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withdrawal of the -prosecution by accepting the prosecution case that it was inexpedient to proceed with the case. (338 H; 339 A]
Where, in the connected case, the Magistrate gave his
consent for withdrawal on the ground that it was administratively considered by the State inexpedient to proceed with the case, though it w~s not a valid ground, no useful
purpose would be served in compelling the prosecution to proceed with the case,
because, both cases arose out of the same incident and the evidence in regard
to both was admittedly the same. [339 C-D]
Where the application made by the prosecution for withdrawal showed that
the clash in which certain persons were injured arose out of rivalry between two
trade unions. but that since the date of the incident calm and peace prevailed in
the industrial undertaking, the Trial Court would be justified in granting consent
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for the withdrawal of the prosecution and the High Court would be in error in
setting aside that order.
In the pr.esent case, the State felt that it would not be
conducive to the interests of justice to continue the prosecution, since the prose·
cution or conviction of the accused would rouse feelings of bitterness and antaG
gonism and disturb the calm and peaceful atmosphere prevailing in the undertaking.
Ultimately, every offence has a social or economic cause behmd it and
if the State feels that the elimination or eradication of the social or economic
cause of the crime would be better served by not proceeding with the prosecution, the State should be at liberty to withdraw from the prosecution. [340 D-G]

## Text

335
STATE OF ORISSA
v.
CHANDRIKA MOHAPATRA & ORS.
August 23, 1976.
[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]
Code of Crlininal Procedure (Act 2 of 1974), s. 494-Prosecution
applyins; for withdrawal of prosecution-Principles to be considered by Court in
granting CQnsent.
The principles that should be kept in mind by the Court wh~n giving consent
to the prosecution under s. 494 Cr. P.C. 1973, for withdrawing the prosecution
against the accused, are that the prosecution is not able to produce sufficient
evidence to sustain the charge, or that the prosecution does not appear to be
well founded, or that there are other circumstances which clearly $how that the
object of administration of justice would not be advanced or furthered by going
on with the prosecution. It is not sufficient for the prosecution merely to say
that it is not expedient to proceed with the prosecution. The ultimate guiding
consideration must always be the interest of administration of justice and that is
the touchstone on which the question must be determined.
No hard and fost
rule can be laid down nor can any categories of cases be defined in which con·
sent should be granted or refused. It must ultimately depend on the facts and
circumstances of each case in the light of what is necessary in order to promote
the ends of justice, because, the objective of every judicial_ process must be the
attainment of justice. (338 C-F]
Where, therefore, the Magistrate
granted permission for withdrawal, because the prosecution -averred that the evidence collected during investigation was
not sufficient to sustain the charge against the accused and after satisfying himself, by perusing the case diary, that the averment of the prosecution was justified, the High Court was in error in setting aside the order of the Magistrate. In
the instant case, the High Court also erred in observing that the Magistrate had
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not perused the case diary, and that the Magistrate had accorded consent for
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withdrawal of the -prosecution by accepting the prosecution case that it was inexpedient to proceed with the case. (338 H; 339 A]
Where, in the connected case, the Magistrate gave his
consent for withdrawal on the ground that it was administratively considered by the State inexpedient to proceed with the case, though it w~s not a valid ground, no useful
purpose would be served in compelling the prosecution to proceed with the case,
because, both cases arose out of the same incident and the evidence in regard
to both was admittedly the same. [339 C-D]
Where the application made by the prosecution for withdrawal showed that
the clash in which certain persons were injured arose out of rivalry between two
trade unions. but that since the date of the incident calm and peace prevailed in
the industrial undertaking, the Trial Court would be justified in granting consent
F
for the withdrawal of the prosecution and the High Court would be in error in
setting aside that order.
In the pr.esent case, the State felt that it would not be
conducive to the interests of justice to continue the prosecution, since the prose·
cution or conviction of the accused would rouse feelings of bitterness and antaG
gonism and disturb the calm and peaceful atmosphere prevailing in the undertaking.
Ultimately, every offence has a social or economic cause behmd it and
if the State feels that the elimination or eradication of the social or economic
cause of the crime would be better served by not proceeding with the prosecution, the State should be at liberty to withdraw from the prosecution. [340 D-G]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 308310 of 1975.
(Appeals by Special Leave from the Judgments and Orders dated
18.1.1974 and 18.2.1974 of the Orissa High Court in Criminal Revision Nos. 708, 705 and 306/72 respectively).
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336
SUPREME COURT REPORTS
[1977] 1 S.C.R.
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G. Rath, Adv. General for the State of Orissa and B. Parthasarthi,
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for the appellant.
Nemo for the respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.-This group of three Criminal Appeals by Special
Leave can be divided broadly into two categories : one category
consisting of Criminal Appeals Nos. 308 & 309 of 1975 alild the other,
consisting of Criminal Appeal No. 310 of 1975. We are disposing
of them by a common judgment since the question which arises for
consideration in both sets of appeals is as to what is the extent of the
power of the Court to give consent to withdrawal of prosecution and
discharge of the accused under Section 494 of the Criminal Procedure
Code.
Taking up first Criminal Appeals Nos. 308 and 309 of 1975,
both these criminal appeals arise out of prosecutions launched
in
respect of offences alleged to have been committed in the c0urse of
the same incident.
The police filed a case against nine respondents
in Cril'!linru Appeals No. 308 of 1975 charging them for
ofiences
under sections 143, 341 and 138 of the Indian Penal Code
and
Section 7 of the Criminal Law Amendment Act. It appears that
before the trial could proceed against the respondents, an application
was made by Court Sub-Inspector, who was in charge of the prosecution, praying for permission for withdrawal of the prosecutioa on two
grounds.
One ground was that it was considered inexpedient
to
proceed with the case while the other was that the evidence collected
during investigation was meagre to proceed against the respondents
and that 11.0 useful purpose would be served by proceeding with the
case against them..
The learned Magistrate took the view that it
was not sufficient ground for according consent that the prosecution
considered it inexpedient to proceed further with the case. But so
far as the second ground was concerned, the learned Magistrate held
that it was a valid ground and he did not rest this conclusion merely
on the averment made by the Court Sub-Inspector but he also perused
the case diary for the purpose of satisfying himself that the evidence
was not sufficient to proceed against the respondents.
The learned
Magistrate felt that in this situation it was proper to accord consent
for withdrawal of the prosecution, since compelling the Stata to go on
with the prosecution in these circumstances would involve annecessary expenditure and waste of public time, which could otherwise be
profitably utilised for other judicial work. The learned Magistrate
accordingly allowed the Court Sub-Inspector to withdraw the prosecution and discharged the respondents under Section 494 of
the
Criminal Procedure Code.
.
...
It seems that this order of the learned Magistrate according consent to the withdrawal came to the notice of the High Court and
prima facie taking the view that it was not a proper order, the High
Court suo moto issued notices to the State as well as the respondents
calling upon them to show cause why this order should not
be
quashed and set aside.
The matter was heard by a single judge of
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STATE OF ORISSA v. c. MOHAPATRA (Bhagwati, I.)
337
the High Court and the learned judge quashed and set aside the order
passed by the learned Magistrate with the following observations :-
"The Magistrate should have perused the case diary to
see if there was sufficient material for framing of charge.
But that he obviously did not choose to do.
On the petition
for withdrawal that it was inexpedient to proceed with the
case he thought it prudent to acquit the accused persons
whose prosecution would
unnecessarily
consume
public
money and time.
Obviously the learned lower court has
missed the point and has not approached the subject as he
ought to."
The State thereupon preferred the present appeal with Special
Leave obtained from this Court.
Now the law as to when consent to withdrawal of prosocution
should be accorded under Section 494 of the Code of Criminal Procedure is well settled as a result of several decisions of this Court. The
first cmse in which this question came up for consideration was The
State of Bihar v. Ram Naresh Pandey('). It was pointed out by
this Court in that case that in granting consent to withdrawal from
prosecution, the Court undoubtedly exercises judicial discretion, but
it does not follow that the discretion is to be exercised only with
reference to material gathered by the judicial method.
Having said
this, the Court proceeded to enunciate the principles which sho-ald
guide the exercise of this discretion :
"In understanding and applying the Section, two
main
features thoceof have to be kept in mind.
The initiative is
that of the Public Prosecutor and what the Court has to do is
only to give its consent and not to determine any matte!"
judicially."
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". . . . . . The Judicial function,
therefore,
implicit in
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the exercise of judicial discretion for granting the consent
should normally mean that the Court has to satisfy itself
that the executive function of the Public Prosecutor has not
!teen improperly exercised, or that it is not an attempt to
interfere with the normal course of justice for
illegitimate
reasons or purposes."
" . . . . . . The Magistrate's functions in these matters are
not only supplementary, at a higher level, to those of the
executive but are intended to prevent abt1se."
" ........ There is, however, a general concurrence at
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least in the later case-that the application for consent may
legitimately be made by the Public Prosecutor for reasons ·
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not confined to the judicial prospects of the prosecution."
(I) [l957J S.C.R. 279.
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338
SUPREME COURT REPORTS
(1977) 1 S.C.R.
This Court had again occasion to consider this question in M. N.
Sankarayarayanan Nair v. P.
V.
Balakrishnan
<S u•s. ( ) where
Jaganmohan Reddy, J. speaking on behalf of the Court, pointed out ::
"Though the Section is in general terms and does not
circumscribe the powers of thr: Public Prosecutor to seek
permission to withdraw from the prosecution the essential
consideration which is implicit in the grant of the power is
that it should be in the interest of administration of justice
which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prose~ution evidence or any other similar circumstances which
it is difficult to predicate as they are dependent entirely on
the facts and circumstances of each case.
Nevertheless it is
the duty of the Court also to see in furtherance of justice;
that the permission is not sought on
grounds extraneous
to the interest of justice or that offences which are oifonces
against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the
law, directs the public prosecutor to withdraw from
the
prosecution and the Public Prosecutor merely does so at the
behest."
It will, therefore, be seen that it jg not sufficient for the Public
Prosecutor merely to say that it is not expedient to proceed with the·
prosecution.
He has to 'make out some ground which would show
that the prosecution is sought to be withdrawn because inter alia the
prosecution may not be able to produce sufficient evidence to sustain
the charge or that the prosecution does not appear to be well founded·
or that there are other circumstances which clearly show· that
the
object of administration of justice would not be advanced or furthered
by going on with the prosecution.
The ultimate guiding consideration
must always be the interest of administration of justice and that is
the touchstone on which the question must be determined whether
the prosecution should be allowed to be withdrawn.
Now in the present case it is clear that according to the prosecution, the evidence collected during investigation was not sufficient
to sustain the charge against the respondent and the learned Magistrate was satisfied in regard to the truth of this avennent made by
the Court Sub-Inspector.
It is difficult for us to understand how the
High Court could possibly observe in its order that the Magistrate had
not pernsed the case diary when in terms the learned Magistrate has
stated in his order that he had read the case diary and it was after
rearling it that he was of the oo'n;on that the averment of the prosecution that the evidence was not l"llfficient was not ill-rfounrled. Then
again it i~ c1ifFicult to comorehrnrl 1'0w tlic Hi~h Court coulrl nossiblv
say that the learned Magistrate accorded consent to the withdrawal of
the prosec11tion on th~ ground that it was inexpedient to proceed with
(I) [1972]
(2) S.C.R. 599.
'
....
-~
STATE OF ORISSA v. c. MOHAPATRA (Blwgwati, J.)
339
1he case, when, in so many terms, the learned Magistrate rejected
that ground and granted consent only on the second ground based
Dn inadequacy ot evidence.
There is no doubt that the learned
Magistrate was right in granting consent and the High Court commtlled a malllfest error m selling as1ltc the order 01
die
learned
Magistrate.
We accordingly allow Criminal Appeal No. 208 of 1975,
set aside the order of High Court and restore that of the Jearned
Magistrate.
Criminal Appeal No. 309 of 1975 also arises out of the same
incident and the only difference between thls Criminal Appeal and
the earlier one is that the respondents are different. It is no doubt
true that in this case the Court Sub-Jnspector based his applicati@n for
<:onsent to the withdrawal of the prosecution on the ground that it
was administratively considered by the State inexpedient to proceed
with the case and that, as already pointed out, would not be a valid
ground.
But since both the cases arise out of the same incident and
tbc evidence in regard to both is admittedly the same, ;ve do
not
think that any useful purpose would be served by compelling the
prosecution to proceed with the case against the respondents in the
present case.
We accordingly allow Criminal Appeal No.
309
oc
1975, set aside the order of the High Court and restore that of the
learned Magistrate.
We now turn to Criminal Appeal No. 310 of 1975.
The case
out of which this app:::al arises was the romlt of a serjous rivalry
between two trade unions in an industrial undertaking.
It seems
that the respondents who are members of one trade union tried
to
break up, a procession which was organised by the rival trade union
and this led to a clash resulting in injuries to various persons. Tae
respondenis were charge-sheeted for various. offences arising out
of
this incident and they were committed to the Court of sessions to
stand trial for offences under sections 147, 148, 149, 307 and 324
I.P.C. However, before the trial commenced,
an application was
made by the Public Prosecutor for tl1e consent of the
c~iurt to withdraw the prosecution against the respomdents under seetion 494 of the
Code of Criminal Procedure. There were five grounds on which the
application was based.
Of them two only are important. One
was
that the occurrence arose out of labour union trouble and since the date
of the occurrence, there was industrial peace and harmony and the
other w~.s that withdrawal of the pr0sccution
would
hl'lo maintain
cordiality between the rival trade unions. The learned Sessions Judge
was impressed by these two grounds and he granted consent to the
withdrawal of the prosecution against the respondents.
The reasons
which weighed with him may be stated in his own words as follows
"The grounds are that the incident had
been th-c outcome of labour trouble, which has now sub>ide{~ and that
the Government, in order t(\. maintain cordial reldtionship
between the mineowners and good labour relationship wants
to withdraw the case. The case, as if I find,
arose on
account of labour unio:11 rivalry and the occurrence toek
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340
SUPREME COURT REPORTS
[1977] 1 S.C.R.
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place to sabotage a procession led by rival trade union.
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The intention being to keep labour trouble in abeyance, I
accord consent of this court for the withdrawal. ....... "
The High Court in this case too acted suo moto and issued notices
to the State and the respondents calling upon them to show cause why
the order of the learned Sessions Judge should not be set aside.
The
case was heard by the same learned judge who heard the earlier two
criminal appeals and the learned judge set aside the order granting
consent to the withdrawal of the prosecution and quashed the order
ol acquittal passed by the learned Magistrate and directed the sessions
Judge to preceed with the trial of the case. Hence the present appeal
by the State with Special Leave obtained from this Court.
We have already discussed the principles which should govern
cases of this kind where an application is made by the Public Prosecutor for grant of consent to the withdrawal of prosecution under section
494 of the Criminal Procedure Code.
We have pointed out that the
paramount consideration in all these cases must be the interest
of
administrafton of justice. No hard and fast rule can be laid do}Vn nor
can any categories of cases be defined in which consent slmuld be
granted or refused. It must ultimately depend on the facts and circumGtances of each case in the light of what is necessary in order to promote
the ends of justice, because the objective of every judicial process must
be the attainment of justice. Now, in the present case, the appilication
made by the Public Prosecutor clearly shows that the incident had
arisen out of rivalry between two trade unions and since the date of
the incident calm and peaceful atmosphere prevailed in the industrial
undertaking. In these circumstances, the State felt that it wo1ild not be
conducive to the interest of justice to continue the prosecution against
the r~pondents, since the prosecution with. the possibility of conviction
of the respongents would rouse feelings of bitterness and antagonism
and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking.
We cannot forget that ultimately every offence has
a social or economic cause behind it and if the State feels that the
elimination or eradication of the social or economic cause of
the
crime would be better served by not proceeding with the prosecution,
the State should clearly be at liberty to withdraw from the prosecution.
We are, therefo.re, of the view that in the present ca~e the learned
Sessions Judge was right in granting consent to the withdrawal of the
prOGecution and the High Court was in error in setting aside the order
of the learned Sessions Judge.
We accordingly allow Criminal Appeal No. 310 of 1975, set aside
the order of the High Court and restore that of tha learned Sessions
Judge.
·
H
V. P. S.
Appeals, allowed.
\