(Through Video Conference)
05.03.2021
Item no. 9 & 10
Dd/aloke WPA(P) 68 of 2021
Nilanjan Adhikary
Vs.
The State of West Bengal & Ors.
with
WPA(P) 67 of 2021
Dipak Mishra
Vs.
The State of West Bengal & Others
Mr. Mukul Rohatgi, ld. sr. adv.
Mr. Rajdeep Majumder, adv.
Mr. Billwadal Bhattacharya, adv.
Mr. Ankur Chawla, adv.
Mr. Jayant Mohan, adv.
Mr. Moyukh Mukherjee, adv.
Mr. Sarthak Mandal
… For the Petitioners
Mr. Kishore Dutta, AG
Mr. Amitesh Banerjee, sr. standing counsel
Mr. Jaydeep Banerjee, adv.
Mr. S. Adak, adv.
…For the State
These two writ petitions are filed as public
interest litigations challenging ten orders which are
shown to have been passed by the jurisdictional
Magistrate granting consent for withdrawal of
prosecution in terms of Section 321 of the Code of
Criminal Procedure in different criminal cases.
The substance of the grievance in these writ
petitions is that there is a mala fide and colourable
exercise of power in making the executive decision to
permit withdrawal and the withdrawal reports were
made by the prosecutors as a matter of formality and
the jurisdictional Magistrates have not discharged their

statutory functions in terms of Section 321 Cr. P.C. in
issuing the impugned orders.
Learned senior counsel appearing for the
petitioners in these two matters argued, among other
things, the nature of the impugned orders tends to
disclose an alarming state of affairs in issuing
wholesome and wholesale withdrawal of prosecution in
criminal cases in which people stand charge-sheeted
or accused of offences including heinous offences. He
would beseech us to require the State to place on
record the statistics of similar withdrawal orders.
Per contra, learned Advocate General at the first
instance criticized and questioned the sustainability of
these matters as public interest litigation. He pointed
out that judicial orders cannot be subjected to writ
jurisdiction except to a very minor extent which may
be permissible in exceptionally exceptional situations.
He said that at any rate recourse to writ jurisdiction
cannot be made in such matters by way of public
interest litigation. He also, in response to the call for
statistics, submitted that the petitioners would stand
well-advised to make a survey of such withdrawal
applications and withdrawal orders in different
jurisdictions throughout India, and the same will
reflect facts and figures which will bring the cat out of
the bag. Learned Advocate General also pointed out
that the impugned orders were passed sometime in
June, 2020 and February, 2020 and at this distant
point of time entertaining the writ petitions, itself, will
be counter-productive to the course of justice as the
petitioners have instituted these writ petitions with
oblique motives.
We have given our anxious consideration to the
substance of these writ petitions. We are of the view
that if the de facto complainant essentially turns
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hostile to the prosecution case and eases the way for
the accused persons to guide themselves into the
chain of availability of a procedure under Section 321
Cr. P.C.; may be, we may consider that to be visited
in exercise of authority under Articles 226 or 227 of
the Constitution of India. The question whether the
public interest litigation is to be entertained is a mixed
question of facts and law regarding maintainability
that will stand open for consideration at further
hearings.
We are not inclined to direct the Government as
of now to place any statistics since that would amount
to embarking on a roving inquiry. The petitioners
having instituted this public interest litigation, they
would be entitled to make their own research as
rightly pointed out by learned Advocate General, and
find out facts and figures which may be relevant for
adjudication.
Be that as it may, having considered the
stereotype orders which are impugned in these writ
petitions and looking into the contents of those orders,
we are, prima facie, satisfied that exercise of judicial
power in terms of Section 321 Cr. P.C. to grant
consent to a prosecutor to withdraw has, prima facie,
not been appropriately exercised. We make this
cautious observation because the formation of opinion
of a prosecutor to withdraw a particular case from
prosecution is, itself, an activity which is regulated by
the statute and the judicial precedents governing the
field. Only when the judicial authority is satisfied that
the public prosecutor has acted in terms of the sound
and well-settled principles touching the withdrawal of
prosecution, would the judicial authority consider
whether consent ought to be granted to enable such
withdrawal. We, therefore, are of the view that the
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impugned orders deserve to have a deeper look at our
hands and we are satisfied that the consequence of
the orders impugned in these writ petitions should
stand stayed until a final decision is taken in these
writ petitions.
Taking into consideration the nature of the
orders and the fact that the petitioners were not
parties to the criminal court proceedings and were not
de facto complainants, the delay pointed out by the
learned Advocate General, in our view, prima facie, is
not one that would dissuade us from entertaining this
matter and passing an interlocutory order setting at
naught the effect of the orders impugned herein.
Resultantly, the orders impugned in these two
writ petitions stand stayed and the concerned criminal
courts which have issued those orders will take note of
these orders and deal with the criminal cases
accordingly.
Learned advocate General is justified in pointing
out that the so-called beneficiaries, who may be the
accused persons, of the impugned orders issued under
Section 321 Cr. P.C. may be considered as necessary
parties to these writ petitions, since they are entitled
to enjoy the benefit of the impugned orders. We direct
the petitioners to implead such persons as
respondents in the writ petitons.
[Thottathil B. Radhakrishnan, C.J]
[Arijit Banerjee, J.]
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