SHRIMAL, J. - (1.) HEARD learned Public Prosecutor on behalf of the State.
(2.) IN Sessions Case No. 10 of 1977, 16 persons are facing trial in the Court of Additional Sessions Judge, No. 1, Alwar under section 302/149, 323, 323,149 1 P. C. 14 witnesses have already been examined in the case, out of which at least two of them are eye witnesses of the occurrence. Learned Public Pro-secutor appearing in that Court submitted an application before learned Addi-tional Sessions Judge, for withdrawal of the case under section 321, Cr. P. C. Learned Additional Sessions Judge placing reliance on M. N. Sankara-naravanan Nair vs. P. B. Balkrishanan (1) refused to grant permission to the Public Prosecutor to withdraw the case. Being aggrieved with that order the State Government has come tip in revision. Learned Public Prosecutor appearing on behalf of the State placing reliance on State of Public vs. Chandrika Mohapatra (2) has urged that in the greater interest of the public and public policy, learned Additional Sessions Judge ought to have allowed the Public Prosecutor to withdraw the case In the case relied upon by learned Public Prosecutor their Lordships of the Supreme Court have observed as under: - "it will therefore, be seen that it is not sufficient for the Public Prose-cutor 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 He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be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and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn. " There is nothing to hold at this stage nor it has been submitted at the Bar by learned Public Prosecutor that the evidence collected during investigation and examined in the Court is not sufficient to sustain the charge against the accused. If learned Additional Sessions Judge was not satisfied regarding the reasons for withdrawal of the case it is very difficult for this Court to say in exercise of its revisional jurisdiction, which is to be excercised in exeptional cases, that there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there is a flagrant miscarriage of justice. Reference may be made to Amar Chand Agarwala vs. Shanti Bose (3) In Bansi Lal vs. Chandan Lal (4) their Lordships of the Superme Court while setting aside the order of the Additional sessions Judge permitting the withdrawal of that case placing reliance and following the ratio decidendi of M N. Sankaranarayanan Nair vs. P. V. Balakrishanan (supra) have observed as under: - "--------the request to grant permission under Section 494 (equivalent to section 321 of 1973 Code) should not be accepted 'as a necessary formality' 'for the mere asking', but the court must be satisfied 'on the materials placed before it' that the grant of permission would serve the administration of justice and that 'permission was not being sought covertly with the vindication of the law which the executive organs are in duty bound to further and maintain. " In the same case it has been observed as under: "---------when the Additional Sessions Judge made the impugned order, there was no material before him to warrant the conclusion that sufficient evidence would not be forthcoming to sustain the charges or that there was any reliable subsequent information falsifying the prosecution case or any other circumstances justifying withdrawal of the case against the respondents. "
(3.) LEARNED Public Prosecutor is not in a position to say whether a prima facie case is made out against the accused or not. He is also not in a position to say that the two eye witnesses examined in the case have failed to make out a case. He further failed to state at Bar that the evidence likely to be examined in the case is not likely to sustain the conviction of the accused. I have considered the arguments advanced by learned Public Prosecutor on behalf of the State and the ratio decidendi of the case State of Orissa vs. Chandrika Mohapatra (Supra ). The sole consideration which must have weighted with the Public Prosecutor for Withdrawing a case is the administration of justice. It is entirely within the discretion of the Public Prosecutor. Neither the Government), nor the District Magistrate can command him. They can only commend. In the present case it clearly appears that the Public Prosecutor while moving the application has obeyed and not acted in his own discretion and thus the statutory responsibility vested in him was not properly exercised. Accused charged of brutal and unprovoked assault involving grave injuries by lathal weapons to Government servants on duty or the armed robbery of the Bank or grave extensive loss to Public Property or economic offences such as adulteration of medicine, smuggling of gold, should be taken lightly and the public interest lies in bringing home guilt to the accused instead of withdrawing the case against them. I am satisfied that the impugned order passed by learned Additional Sessions Judge cannot be said to be an illegal order. I find no glaring defect in the procedure or a manifest error leading to the flagrant miscarriage of justice. Rather I am of the view that unarmed employee exercising their public duty in consequence to the order passed by their superior officers, if attacked, should be given protection and the accused of those cases who are involved in brutal and unprovoked assualt involving grave injustice to Government servants, on duty should not be allowed to go soot-free simply because the Public Prosecutor has been ordered to withdraw the prosecution. ;