LexM/S. V. L. S. FINANCE LTD. versus S. P. GUPTA AND ANR.
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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 A B c D E F G H 624 A B c D E F G H 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 Pros
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