- (1.) HEARD. For the reasons stated in the application, I am satisfied that good and sufficient reasons exist to condone the delay. Hence delay is condoned. Not on board. Taken up for final hearing with the consent of learned counsel for the parties. Rule. Heard finally by consent of learned counsel for rival parties.
(2.) BEING aggrieved by the order dated 3.12.2008 below Ex.53 in S.T. No. 95 of 1999, by which the Ad hoc Additional Sessions Judge, Pusad, allowed the application filed by the prosecution under Section 321 of Code of Criminal Procedure for withdrawal of the prosecution for the offence punishable under Sections 306 and 330 read with Section 34 of Indian Penal Code, the present application has been filed by the applicant. In support of the application, Mr.Mardikar learned counsel for the applicant, argued that the applicant had investigated Crime No. 68 of 1998 registered for the offences punishable under Section 306 and 330 read with Section 34 of Indian Penal Code and as a result of the investigation made by him the present non-applicant no.2 and one police constable Abdul Rab were charge-sheeted in respect of the incident dated 24.5.1998 when one Uttam Moneshwar had died in the police custody. The counsel then argued that the father of deceased Uttam Moneshwar filed writ petition in this Court and this Court acting on the said writ petition directed the Central Bureau of Investigation (C.B.I.) to make investigation into the said offence. The C.B.I. as a result of the said investigation submitted its report under Section 173 of Code of Criminal Procedure alleging that the cause of death of Uttam Moneshwar was not one of suicide but police custody, i.e. murder in police custody, for which the applicant was arrayed as an accused along with 16 others. Learned counsel then submitted that in respect of the said incident two charge-sheets thus came to be filed and they were consolidated for hearing. It is in this factual background, the learned counsel submits that the application for withdrawal of prosecution under Section 321 of Code of Criminal Procedure against respondent no.2 could not have been allowed without hearing the present applicant who was charge-sheeted for serious offence of murder in respect of the said incident investigated by C.B.I. and particularly when there was consolidation of the trial. Per contra, Mr.Kasat appearing on behalf of contesting respondent no.2, vehemently opposed the application and argued that the applicant has no locus standi to file this application because he cannot file such application without concurrence or consent of the State Government since the applicant was acting as Investigating Officer on behalf of the State. He argued that power under Section 321 of Code of Criminal Procedure, as held by Supreme Court in the case of Rahul Agrawal v. Rakesh Jain - AIR 2005 SC 910, is required to be exercised by the Court in public interest. In the instant case, that having been found the application came to be allowed with which discretion this Court is not entitled to interfere. He then argued that there is no necessity to hear the applicant, as contended by the learned counsel for the applicant, as he is not concerned with the said crime and charge-sheet and he has nothing to do with the same.
(3.) I have heard learned counsel for rival parties. I have gone through the impugned order. In my opinion, since the applicant is being prosecuted for the offence of murder at the instance of C.B.I., the right of the applicant as an independent citizen cannot be mixed up with his role as an investigator in the crime in respect of which crime was registered and charge-sheet was filed. The submission that the application could not have been filed without concurrence or consent of the State Government will have to be rejected. Secondly, it is seen that both the charge-sheets are required to be heard upon consolidation since the incident in both the cases is of the same date and time and not hearing both the chargesheets together is bound to cause prejudice to one and all. The learned counsel for the applicant has reported that there is already order of consolidation. In this peculiar situation, at least the applicant who has been charge-sheeted for serious offence of murder in respect of the said incident, will have to be heard before such a request for withdrawal of prosecution under Section 321 of Code of Criminal Procedure is considered. There has to be compliance of principles of natural justice for those who are likely to be affected even remotely. Since the applicant has made a grievance that since he was never heard by the trial Court before the application was decided, in my opinion, the following order would sub-serve the ends of justice. Criminal Revision is partly allowed. Impugned order dated 3.12.2008 below Ex.53 in S.T. No.95 of 1999 passed by Ad hoc Additional Sessions Judge, Pusad, is quashed and set aside. The proceedings of this application are remitted to Ad hoc Additional Sessions Judge, Pusad, for fresh hearing and disposal. Parties to this application shall appear before the trial Court on 15.3.2010. The trial Court shall give opportunity to the concerned parties to file their respective pleadings and then the application shall be decided after hearing of the concerned parties including the applicant within two months from the date of receipt of Writ of this Court.;