ORDER
P.N.S. Chouhan, J.
1. This order will also dispose of M.Cr.C. Nos. 1533/92 and 3048/92. The petitioner one of 22 accused in a murder case committed on 10-11-1989 with sharp edged weapons is a practising Advocate and a district level office bearer of Bhartiya Janata Party. He has not been arrested so far. His petition for anticipatory bail under Section 438 of the Code of Criminal Procedure is M.Cr.C. No. 1533/1992 and similar petition by 7 other co-accused is M.C.C. No. 3048/ 1992. As per the prosecution, the accused persons armed with deadly weapons fatally assaulted Sahabsingh on 10-11-1989 due to previous enmity. The assailants have been named in the F.I.R. lodged by Smt. Tarabai, widow of Sahabsingh. The petitioner’s case is that he was unable to walk on the date of alleged offence due to surgical operation of a boil between his legs. He has been falsely implicated due to political rivalry. The matter was re-enquired by a D. I. G. of Police who on examining Dr. R. K. Singhai and Dr. Pro-mod Kumar Nema of Primary Health Centre, Rehli whose statements are Annexures II & III respectively and who had treated the petitioner, concluded that the petitioner was not in a position to walk on the date of alleged incident. The public prosecutor on the basis of report of D.I.G. of Police applied to the trial Court of 4th Addl. Sessions Judge, Sagar for permission to withdraw from applicant’s prosecution under Section 321 of the Code. The Court declined to accord consent vide impugned order, dated 2-4-1992, which is under challenged in this revision.
2. The impugned order was also challenged by the State in Criminal Revision No. 583/92. Normally both these revisions should have been linked to be disposed of simutaneously but as no one drew the attention of the Courts to this aspect of the matter the revision filed by the State was listed for admission before another bench which summarily dismissed the same on 31 -3-1993 and the said order has become final. In view of this no elaborate order is called for to dispose of the present petition which must be dismissed on the short ground that two contradictory orders on the same matter cannot be passed by this Court. However, since the matter was debated in great length it is desirable that the salient aspects of the argument are discussed, more so because the other revision has been dismissed summarily.
3. Shri S. C. Datt, Senior Counsel, for the petitioner contended that in view of the observation of Supreme Court in Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877 : 1987 Cri LJ 793, the public prosecutor was justified in seeking to withdraw from the prosecution of the petitioner on the basis of the conclusions arrived at in the second enquiry conducted by the D.I.G. of Police. Since that enquiry established that the petitioner was physically incapacitated from walking on the date of the incident his active participation in the alleged crime was an impossibility and the falsity of his implication in the murder case was obvious. As such, the permission for withdrawal from prosecution should not have been withheld. The argument proceeds that as held by the Supreme Court in the aforesaid case of Sheo Nandan Paswan in Para-74 the State in seeking permission to withdraw from prosecution in a way compounds the offence which does not obliterate the crime and leaves the aggrieved party free to file a private complaint against the accused persons. In this view of the matter, Court’s refusal to grant permission to withdraw from prosecution of the petitioner cannot be viewed to be in the interest of administration of justice. The law on this point has been enunciated by the Supreme Court in the above case of Paswan (supra) thus:
44. I respectfully agree with the legal position flowing from Section 321 of the Code of Criminal Procedure as explained by Krishna Iyer and Chinnappa Reddy, JJ. in respect of cases relating to Bansi Lal and Fernandes in R. K. Jain v. State through Special Police Establishment (1980) 3 SCR 982: AIR 1980 SC 1510:1980 Cri LJ 1084. In that case Chinnappa Reddy, J. has summarised the true legal position thus:
1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.
2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.
3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.
4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and political purposes sans Tammany Hall enterprise.
6. The Public Prosecutor is an officer of the Court and responsible to the Court.
7. The Court performs a supervisory function in granting its consent to the withdrawal.
8. The Court’s duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.
We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.
The observations heavily relied on by Shri Datt in the aforesaid judgment are quoted below:
45. xxx The judgment of a Public Prosecutor under Section 321 of the Criminal P.C., 1973 cannot be lightly interfered with unless the Court comes to the conclusion that he has not applied his mind or that his decision is not bona fide.
74. Section 321, Cr.P.C. is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis.
75. Since Section 321 does not give any guidline regarding the grounds on which a withdrawal application can be made, such guidelines have to be ascertained with reference to decided cases under this section as well as its predecessor Section 494. 1 do not propose to consider all the authorities cited before me for the reasons that this Court had occasion to consider the question in all the aspects in some of it decisions. Suffice it to say that in the judgments rendered by various High Courts, public policy, interests of the administration, inexpediency to proceed with the prosecution for reasons of State and paucity of evidence were considered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other cases depending upon the peculiar facts and circumstances of the cases in those deisions Giribala Dasi v. Mader Gazi, 1933 (34) Cri LJ 433 : AIR 1932 Cal 699; Emperor v. Milan Mal Hardaimal, AIR 1943 Sind 161; Harihar Sinha v. Emperor, AIR 1936 Cal 356 (FB); The King v. Moule Bux, 1949 Cri LJ 488 : AIR !949 Patna 2.33 (FB); Amar Narain v. State of Rajasthan, 1952 Cri LJ 375 : AIR 1952 Raj 42 and Faqir Singh v. Emperor, AIR 1938 PC 266, are some of the cases which were brought to our notice.
Ram Naresh Pandey’s case reported, 1957 SCR 279 : AIR 1957 SC 389, is a landmark case which has laid down the law on the point with precision and certainty. In this decision the functions of the Court and the Public Prosecutor have been correctly outlined. While discussing the role of the Court, this Court observed:
His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. 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 abuse. Section 494 requiring the consent of the Court for withdrawal by the public prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of the triable issue. For instance the discharge that results therefrom need not always conform to the standard of “no prima facie case” under Sections 209(1) and 253(1) or of ‘groundlessness’ under Sections 209(2) and 235(2). This is not to say that a consent is to be lightly given on the application of the public prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made.
This decision was approved by this Court in M. N. Sankaranarayanan Nair V. P. v. Balakrishnan, (1972) 2 SCR 599 : (AIR 1972 SC 496: 1972 Cri LJ 301 as is seen at p. 606 of SCR: (at p. 501 of AIR):
…In the State of Bihar v. Ram Naresh Pandey (supra), it was pointed out by this Court that though the Section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes….
In reply it was submitted that in the above case of Paswan permission was sought to withdraw from the prosecution of the Executive Head, i.e., the Chief Minister of Bihar and, therefore, the peculiar facts of that case virtually left no choice but to allow the prayer as refusal would have resulted in a piquent situation of the Executive Head of the Govt. being prosecuted by an agency of the same Govt. under his administrative control on a criminal charge. The facts of the present case are entirely different. The petitioner is not holding any high office as that of the Chief Minister and, therefore, the choice before the learned Magistrate while exercising his judicial discretion under Section 32 of the Code was comparatively wider. In view of the fact that the petitioner an Advocate supposed to be acquainted with law and its dynamos and with full awareness of his name being arrayed as one of the accused in this heinous offence of murder instead of facing the investigation to put forth his version kept himself out of the reach of law and managed to influence the government which happened to be of the same political party to which he himself belongs to an extent that the second enquiry was ordered to be made for him in which he was (sic) exculpate on the basis of evidence based on hospital record which is not available, it must follow that considering the incriminating evidence against him in the pending challan documents, the learned Magistrate was justified in refusing permission to withdraw from his prosecution. On facts accepting the above submission in reply, it is held that the learned Magistrate did not commit any error of law in refusing to accord permission from withdrawal of prosecution of the petitioner.
4. The next question is whether the petitioner deserves to be released on anticipatory bail merely because 34 years have been elapsed after the commission of the offence ? It was a brutal murder where the murderers chopped off the limbs of the victim and there is direct evidence to the effect that it was the petitioner who chopped off the leg of the deceased. Therefore, in the considered opinion of this Court to order release of petitioner Hariram Singh Thakur on anticipatory bail will amount to abuse of the process of Section 438 of the Code. Similarly, applicants 1,2,5 & 6 M.Cr.C. No. 3048/92 namely, Paramlal Singh, Feran Singh, Raja and Chhatar Singh respectively who were allegedly armed with sharp edged weapons do not deserve to be released on anticipatory bail. Rest of them, i.e., applicants Nos. 3, 4 & 7 who were armed with lathis are entitled to be so released as no lathi injuries have been found on the body of the deceased by the autopsy surgeon.
5. In result, this petition and M.Cr.C. No 1533/92 fail and are hereby dismissed. Petitioner Hariram Singh Thakur is directed to surrender forthwith before the Investigating Officer. In M.Cr.C. No. 3048/92 prayer of applicants 1, 2, 5 and 6 for release under Section 438 Cr.P.C. is rejected and they are directed to surrender forthwith before the Investigating Officer who may after further investigation, if necessary, put up a supplementary charge-sheet against Hariram Singh Thakur and these accused persons within one , month from the date of their arrest. Application of applicants 3, 4 & 7 in M.Cr.C. No. 3048/92 is allowed. It is hereby ordered that they should appear before the Investigating Officer without delay who on their furnishing personal bond in the sum of Rs. 10,000/- (Rs. Ten thousand only) with one surety each in the like amount to the satisfaction of I. O. may be released on condition that they should make themselves available for purposes of investigation, if any.