Vipul Gupta v. State and Ors

ORDER

14.06.2012 For detailedorder,see orderpassedin W.P.(C.)No.3470/2012. VIPIN SANGHI,J JUNE 14, 2012 n Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. % + O O + THE HIGH COURT OF DELHI' AT NEW DELHI Judgment reserved oo: 30 "05.2012 Judgrment delivered on; //| =06=2012 VM.PAC] 3470/2012 and Nos= 7318-19/2012 VIPUL GUPTA Through: - ' Petitioner Mr. Arvind K. Nigam Senior Advocate, with Mr. Vijay Aggarwal, Mr. Gurpreet Singh & Mr. Rayjith Mark, Advocates. versus STATE AND ORS Through: ... Respondents Mr. Najnni Waziri, Standing Counsel, along with Ms. Neha Kapoor, Advocate for the respondents No. 1, 3, 4 & 6. Mr. Ruchir Mishra & Mr. Mukesh Kumar Tiwari, Advocates for the respondent No. 2/UOI. 3471/2012 and C,M, Mos. 7320-21/2012 VIPUL GUPTA Petitioner Through: Mr. Sudhir Nandrajog, Senior Advocate, with Mr. Vijay Aggarwal, Mr. Gurpreet Singh & Mr. Karan Heera, Advocates. versus STATE AND ORS W.P.(C) 3470/2012 Respondents Through: Mr. Najnni Waziri, Standing Counsel along . with Ms. Neha Kapoor, Advocate for the respondents No. 1, 3, 4&6. Mr. Ruchir Mishra & Mr. Mukesh Kumar Tiwari, Advocates for the respondent No. 2/UOI. Page Xoj 20 + W.P.(C) 3472/2012 and C.M. Mos. 7322-23/2012 PRADEEP DHINGRA Petitioner Tlirougl^: l^r. Ral<esh Tiku, Senior Advocate, with Mr. Vijay Aggarwal, Mr.Gurpreet Singh & ivir. Rayjith Marl<, Advocates. versus STATE AND ORS • Respondents Through: Mr. Najnni Waziri, Standing Counsel ^ along with Ms. Neha Kapopr, Ly Advocate for the respondents No. 1, 3, 4 & 5. Mr. Ruchir Mishra & Mr. Mukesh Kumar Tiwari, Advocates for the respondent No, 2/UOI. CORAMs HON'BLE MR. JUSTICE VBPIN SANGHi 1 y D G M E N T ViPIN SANGHi, II. - •

¶1The aforesaid writ petitions have been preferred by the petitioners,assailingthe communicationdated 13.12.2011 issued by the Director of Prosecution, Delhi, to the Principal Secretary

(Home) bearing No. 4383/DOP/2011Dated 13.12.2011, whereby the Directorof Prosecution sought instructions whether the concerned APP has to press the application filed before the court of the Learned ACMM, Tis Hazari Courts, Delhi Under Section 321 Cr.P.C. for withdrawal from prosecution in case FIR Nos. 90/2000, 99/2002 and 148/2002 registered, at P.S. Connaught Place and Defence Colony. The petitioners also assail the order passed by the Hon'ble Lieutenant W.P.(C} 3470/2012 ' Page2 of20 Governor on 15.12.2011agreeing with the proposal not to press the applicationsfor withdrawalof the aforesaidcases under Section 321 Cr.P.C. beforethe competentcourt, so thatthe trial may be allowedto proceedon merits. The petitionersalso seek ordersdeclaringthatthe revocation of the previous decision to withdraw prosecution in the • aforesaidcases registeredagainstthepetitionersis unconstitutionalon o _ the groundthatsanctionhas not been takenfrom all the departments. 1" ^ '

¶2As per the case of the prosecution,the petitioners,who are statedto be the Directorsof IM/s SunairHotelsLimited,approachedIV|/s VLS FinanceLimitedaround December.1994with a proposalto finance a hotel projectlikelyto be set up in Gol MarketArea, ConnaughtPlace, New Delhi. The petitionersrepresentedthat they would invest Rs.21 crores towards equity shares capital in the company, namely. M/s Sunair Hotels Limited, in case VLS Finance Ltd invests Rs.7 crores o towards 25% equity share capital in IM/s SunairHotels Ltd. It appears that VLS Finance Ltd investedthe said amount o'f Rs.7 crores. VLS Finance Ltd. made complaints alleging the commission of offences undervarioussectionsof the IPC by the petitioners-,on the groundthat the petitionershad not made their contributionof Rs.21 crores In the equity share capital of M/s Sunair Hotels Pvt. Ltd., and had manipulatedtheir accountsto show the making of such share capital investment.On the basis of the complaintsmade by the complainant M/s VLS Finance Ltd, the aforesaid FIRs came to be registered and investigated.The detailsof the FIRS are as follows: f.P.(C) 3470/2012 o o SI. No. FIR No/Date Police Station Accused Persons-Sent for Trial (as per charge-sheet) Under Sections (as per charge-sheet) jt 1^ ^ t A r\

¶190/2000

14.02.2000 Connaught Place

¶1Satya Pal Gupta

¶2Kaveen Gupta

¶3Vipul Gupta

¶4M/s. Sunair Hotels Ltd. through its director Satya Pal Gupta 420/406/ 409/468/471 477-A/120-B IPC

¶299/2^

19.02.2002 Connaught Place

¶1S.P. Gupta

¶2Kaveen Gupta

¶3Vipul Gupta

¶4V.K. Bindal

¶5Sanjiv Kr Bindal

¶6Pradeep Kr Dhingra

¶7Birender Kumar

¶8Asha Ram Kakar 120B/406/40 9/420/424/4 67/468/471/ 477A IPC n t n t A r\ Ol

¶3148/2002

28.02.2002 Defence Colony

¶1S.P. Gupta

¶2S.FI. Siddiqui

¶3Giriraj Singh

¶4Pradeep Kumar Dhinara 384/406/409 7417/422/46 5/468/471/5 00/120-B IPC '3. The charge-sheetsalso stand filed in these cases against the accused persons (petitioners herein) in the concerned court of the Learned Metropolitan Magistrate.

¶4It appearsthatthe petitionersassailedthe aforesaidFIRs before this Court by filing Criminal M.C. Nos. 2142/2007 and 911/2003 (in respectof FIR No. 99/2002 and FIR No. 90/2000 respectively,wherein Sh. Vipul Gupta, the petitionerin W.P.(C) No.3470/2012and W.P. (C ) No. 3471/2012is named as the accused),and W.P. (Crl.) No. 498/2005 (in respect of FIR No. 148/2002 wherein Sh. Pradep Dhingra, the petitionerin W.P; (C ) No. 3472/2012 is named as the accused).The aforesaidpetitionswere disposedof by similarorders by this court on 4''^ March, 2010. The petitioners withdrew the said petitions with W.P.(C) 3470/2012 libertyto raise all the issues before the Trial Court at the appropriate stage i.e. at the stage of hearing of argumentson charge. That stage has not yet arrived.

¶5It appears that the petitioners l<ept representing to the respondentsfor withdrawal of prosecution against them on various grounds. The petitionershave narrated in their petition the various O internal departmentalcorrespondenceswhich took place on the said f-- . - . , pleamade by them. The petitionersstatethataScreeningCornmittee was constituted to consider their cases, along with other cases, comprisingof; i) SH. Arvind Ray, PrincipalSecretary(Home), ii) Sh. S,P. Garg, PrincipalSecretary,iii) Sh. B.S. Joon, Directorof Prosecution,iv) Sh. SandeepGoal,Joint C.P. (Crime) and v) Sh. B.ivi.Jain, Dy. Secretary

(Home). The petitioners state that on 03.06.2011 the Screening Committee considered the cases against the petitioners in the o aforesaidFlRs. The Minutes of the Meeting of 3'"'' June, 2011 placed on record show that the observations of the Ministry of Home Affairs placed beforethe ScreeningCommittee,interalia, read as follows:- "It was decidedin HMA to consulttine Deptt. Of Legal Affairs, Ministry of Law &Justice, who after carefully examining various issues involved in these cases, opinedthat as the Courtsare generallynot interfering during the course of investigation,it would not .be appropriate to take steps Under Sections 173(8) Cr. P.C. as requested by Sh. S.P. Gupta in his representations. Moreover, from the status report submittedby the Delhi Police It is observed that the charge sheets/supplementarycharge sheets have alrpadybeen filed by the DelhiPolice in the Courtsand the three cases are at various stages. The Deptt Of Leaal Affairs, Ministry of Law &Justice has, however, opined that the power UNDER.SECTION 321 Cr.P.C. W.P.(C)3470/2012 PageSof20 vested in Governmentcan be exercised in such C'ases in the interest of proper administrationofJustice and the paramount consideration in such cases is the administration ofJustice. ^ ^ The matter has been considered m detail carefuifym MHA. As per the advice tendered by the Department of LegalAffairs, Ministry of Law & Justice keeping In view the facts of these cases, the Home Department of Government of • MCT of Delhi sho^Bd urgently scrutinize the above cited case FIR No. 90/2000, FIR No. . ' 99/2002, FIR No. 148/2002 registered by the ^ Delhi Police for taking action UNDER SECTION '321 of Cr.P.C. for withdrawal of prosecution Immediately, This has the approval of Union Home Minister/'{emphasis supplied)

¶6Tiie recommendationsmade by the Screening Committeewere to the effectthat the relevantrecord of the cases not being available, it was prematureto decide the issue of withdrawal of prosecutionin the absence of the full facts of the case. Consequently,its decision was deferred by the said Committee. ' Q

¶7The petitioners further state that another meeting of the Screening Committee was held on 13.09.2011. In this meeting the Committee recommended that action be taken under Section 321 Cr.P.C. for withdrawalof prosecutionin respect of the aforesaidthree FIRS immediately.The petitionershave placed on record the copy of the minutes of the said meeting of the ScreeningCommitteeheld on

13.09.2011. The recommendationmade in respect of each of the aforesaidFlRs is identical,with the minor change of the number of the FIR. In respectof FIR No.90/2000,the same reads as follows:- "The Committee observed that the withdrawal of case FIR No. .'90/2000 from prosecution was considered by the W.P.(C)3470/2012 Page6of20 Q Committeein its previousmeeting held on 3.6.2011 and, the matter was deferred for wantof the relevant record of the case. However the details/records received from Police Department and Director of Prosecution were viewed by the Committee and it was observed that MinistryofHomeAffairshas alreadyexaminedthe case in consultation with the Department of Legal Affairs, Law and Justice who with the approval of Union Home Minister, has directed the Home Department to urgently scrutinyscrutinizethe above case for taking action under Section 321 Cr.P.C. for withdrawal of Prosecution ^ immediately. , . , , , Ly ip view of the above the Committee decidedto fQCommendthe case for withdrawal from Prosecution.

¶8The petitioners further.state that on 18.11.2011 the Hon ble LieutenantGovernorgranted his approval to the reconnmendationsof the ScreeningConnmitteefor withdrawalfrom prosecutionin respectof the aforesaidFlRs. Accordingly,on 23.11.2011the Governmentof NCT of Delhi Home (General) Department Issued a communicationto the Directorof Prosecution,Govt. of NCT of Delhi communicatingthe said Q decision, in this communication,the Governmentof NCT of Delhi, inter alia, stated as follows:- "In' view of the above, I am directed to say that in exercise of powers conferred under section 321 of the Code of CriminalProcedure, 1973 (Act No.2 of 1974) read with the Government of India, Ministry of Home Affairs Notification No. U-11011/2/74-UTL(l) dated| 20.3.1974 regardingthe withdrawalofprosecutionproceedings,the Lt. Governor of Delhi, being satisfied that it is in public interest to do so, has decided, after keeping the provisionscontainedin provisoto Section321 ofthe Code of Criminal Procedure, 1973 in view, that the Public Prosecutor in the above case may be permitted to move the appropriatecourtsoflaw for grantingtheir consent to the. withdrawal of the prosecution in above case. nils, therefore, requested that the APP concerned may please be asked to move the applscBtsonIn the court of competent Jurisdiction for withdrawal of W.p.(C)3470/2012 Page?of20 th@ above mentioned case asid Intimate the positionto this Govemmesit."(Emphasissupplied)

¶9. Based on the aforesaid,the Directorof Prosecution,Govt. of NCT of Delhi moved applicationsin each of the three cases before the Learned Metropolitan Magistrate under Section 321 Cr.P.C. to seek withdrawalfrom prosecution. Noticewas issuedorltheseapplications. O

¶10The grievanceof the petitionersIs that on 13.12.2011Sh. B.S. Joon, Director of Prosecution,who was one of the members of the ScreeningCommittee,sentaletterto the PrincipalSecretary(Home), inter alia, stating that : • "After perusal of the charge sheets of the aforesaid caSs' it has beeh revealed that there ,s sufficient , evidenceon recordagainstthe accusedpersons. Keeping in view the evidence on record, there is every likelihood, that the concerned applicationof the State moved u/s 321 Cr.P C. which is a pre-requisite condition,for withdrawal from prosecutionof any case."

¶11He also requestedthat necessaryInstructionsmay be issued i.e. whether the concerned APP has to press the aforesaid applications under Section 321 Cr.P.C., or not. The petitionerssubmitthat on the basis of the said letter dated 13.12.2011,a noting dated 14.12.2011 was made by the S.S. (Home) Sh. Arvind Ray, to the effect that the presentare fit cases for revol<ing the recommendationof withdrawal from prosecution. Sh. Arvind Ray further sought the orders of the Hon'bleLt. Governoron the said proposal.The petitionersstatethaton

15.12.2011the Hon'ble Lt. Governornotedthat he has consideredthe communicationof the Directorof Prosecutiond^ted 13.12.2011,and W.P.(C) 3470/2012 o the note of the PrincipalSecretary(Home) dated 14.12.2011,and that he agrees with the proposal that the earlier recommendation of withdrawal from prosecution of the cases in question may not be pressed before the competentcourt, and the trial may be allowed to proceed on merits.

¶12The petitionerssubmitthat on the basis of the aforesaidnotation O and approval,the Joint Secretary(Home), Govt. of NCT of Delhi, Home (General)Department,shot out a communicationdated 15.12.2011to the Director of Prosecutioninforming him of the latest decision and stating that the applicationsfor withdrawal from prosecution in the three cases be not pressed before the competentcourt, so that the trial of the said cases are allowedto proceedon merit. The submissionof learnedSeniorCounsel Mr. Arvind Nigam, who appearsfor the petitionerin W.P.(C) No.3470/2012,(which covers the O submissions made in all the three cases), is that the subsequent decisiontaken by the respondentson the basis of the communication dated 13.12.2011 issued by Sh. B.S. Joon, Director of Prosecution, Delhi, is illegal and incompetent. He submits that the earlier recommendationmade by the Screening Committee in its meeting held on 13.12.2011, was made after due consideration of all the relevant materials and aspects by the committee of five senior and responsible officers. Sh. B.S. Joon, Director of Prosecution was a memberof the said Committee. Sh. B.S. Joon did not voice his dissent when the earlier recommendation was made. The unanimous •.p. (C) 3470/2012 Page9of20 recommendationof the Screening Committee was also approved by the Hon'ble L.G on 17.11.2011. On that basis applicationswere also moved in the concerned court under Section 321 Cr.P.C.

¶14It is submittedthat the subsequentdecisiontaken by the L.G. is based on the communication dated 13.12.2011 of Sh. B.S. Joon, Directorof Prosecution,and it is not explainedas to what were the new O facts or circumstances,which came to the notice of Sh. B.S. Joon, to initiatethe process of reconsiderationof the earlier recommendation. We submits that the Screening Committee did not even meet before recommendingreconsiderationof the earlierrecommendationmade in the Screening Committee meeting on

13.09.2011. The said communicationwas sent only to the Principal Secretary(Home) who, without recording any reasons, agreed with the recommendationto revoke the earlier recommendationdated 13.09.2011. According to O the petitioners, the Screening Committee should' have been reconvenedbefore recommendingto the Hon'ble Lt. Governorthat the earlier recommendationsbe reviewed. Consequehtly,the remaining members of the ScreeningCommitteewere not taken into confidence, and their views were not taken on the issue whether the earlier recommendation of 13.09.2011 should be reconsidered for any reason.

¶15Mr. Nigam submits that the procedure adopted by the respondents for reviewing the earlier recommendation of the Screening-Committee, and the earlier decision of the Hon'ble Lt. Governor, is arbitrary and illegal. W.p.(C)3470/2012 PagelOoflC

¶16Mr. Nigam submitsthatthe learnedAdditionalPublic Prosecutor, while discharginghis functions under Section 321 of the Cr.P.C. acts independently,and not on the instructionsof this State/Directorof Prosecution.It was for the Additional.Public Prosecutorto assess the; meritof the case and to decidewhether,or not, to proceedto move an applicationfor withdrawalfrom prosecutionin agiven case. According O ^ to Mr. Nigam, the Additional Public ProsecutorIn the present cases made a consciousdecision to move for withdrawalfrom prosecution: However, the subsequentInstructionissued to the Additional Public ' Prosecutor,not to press the applicationfor withdrawalwas illegal, as the Public.Prosecutor,on this occasion,did not act Independentlybut on the dictatesof the Directorof Prosecution. In this regard he places reliance on the decision of the Supreme Court in Sheonandan Paswan ¥. State of Bihar and Others, AIR 1983 SC 194. This O decision.In turn, referredto the SupremeCourtJudgmentin Rajender Kumar Jain v. State,. AIR 1980 SC 1510, wherein the following observations were made:- "Thus from the precedentsofthis Court; we gather,

(1)Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibilityof the Executive.

(2)The withdrawal from the prosecistmn is .an executive function of the PublicProsecutor.' ^

(3)The discretion to withdraw from the prosecution Is that of the Public Prosecution and none else, and so, he cannot^surrender that discretion to someone else. :

(4)The Government may suggest to the Prosecutor' that he may withdraw from the prosecutionbut none can compelhim to do so. W.P.(C} 3470/2012

(5)The Public Prosecutor may withdraw from the prosecutionnot merely on the ground ofpaucity of evidence but on other relevant grounds as well m 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, we add, political purposes sans Tammany Hall enterprise.

(6)The Public Prosecutoris an officerof the Court and responsible to the Court.

(7)The Court performs a supervisory function in ^ granting its consentto the withdrawal. ^

(8)The Courfs duty Is not to reapprecsate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public P^rosecutor 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/' .{emphasis supplied) O

¶17Mr. Nigam submits that this court, while exercising writ jurisdiction,is not concernedwith the decision on merits, but with'the decision making process which has been adopted to arrive at a particulardecision. It is submittedthat in this case the said process is fundamentally flawed, as explained hereinabove.

¶18Having heard learned Senior Counsels for the petitioners and perusedthe records of the cases, Iam not inclinedto entertainthese writ petitions,or to grant any reliefto the petitionersin the exerciseof the discretionaryjurisdiction of this court under Article 226 of the Constitution of India.

¶19At the outset, I may observe that this Court while exercising jurisdictionunder Articles 226 and 227 of the Constitutionof India is mLP.(C}3470/2012 . ''O3el2of20 not Obliged, in every case involving irregularity or illegality of irregularityor illegality has not resulted in failure of justice, and ,t appearsto the Court that the petitionerhas not sufferedsubstant.al injusticedue to the complainedirregularityor illegality. The Supreme ' court in O. «. BanerjiV. P.M. Mukherjeeand OttersAIR 1953 SC O 58 observed that unless there was grave miscarriageof justice or flagrantviolationof law callingfor intervention,it Is not for the High court under Article 226 and 227 of the Constitution of Ind.a to interfere. The Supreme Court in San.ra. Bec«on ICota. a.- Anomerm 1955 SC 425, while dealing With the scope,ofjurisdictionunderArticle226 of the Constitutionof india, observed as follows:- "That, howeverIs '^sn'^error'oflaw^^^^ exercised whenever Courts of appeal ^ 'rrA%cre\26\trr'Pe%%puX^^^^ " Z'ZforT'iSZII^P'''-' iy «• arbitrarily, and one oi u, exercise courts on themse/ves is ^hat they substantial jurisdiction in this c/as ensue They will not . policy Stas ^ZTyVe'7l^eTfore.Vrltpetitionsshouldnotbe lightly entertained in this class ofcase. ^ W.P.(C) 3470/2012 / This is tine settled position of law, and tiiere is no need to .uiHptyeariierprecedents, in the presentcases,the petitionershad . first approachedthis courtby fiiing petitionsunderSections482 Cr.P.C and Articie226 of the Constitutionof India to seekthe quashingof the FIRS registered against them. However, they gave up the said Challenge at the time•of hearing, and withdrew that petitions on O 432010 while reservingtheir rightto raise all the issuesat the time " of hearingof the argumentson charge.. Pertinently,the chargesheets stand field by the police before the Learned M.M. dealing with the cases, but the hearingon chargeis yet to take place. The petitioners are free to raise aii their submissions,at the stage of hearing on charge.

¶21Aperusal of the impugned communicationdated 13.12.2011 showsthat, apparently,the chargesheetwas not expresslyconsidered O by the members of the screeningcommittee when they decided to n,ake their recommendationfor withdrawal from prosecution under section 321 Cr PC. The Director of Prosecution In his said communication dated 13.08.2011 states that after perusal of the Charge sheets in these cases ..as .ee. t.att.ere ."s sufficientevMence on record-gainst tHe accuse, persons" .emphasissupplied,. Therefore,it appearsthe revelationthatthere is ' sufficientevidenceon record againstthe accused persons came only on a perusal of the charge sheets. When, this communicationwas issuedto the PrincipalSecretary(Home),he did not join issueswith^e W.P.(C) 3470/2012

0.ecto.Of P^osection. He not state t.att.e c.a.,es.eets ,n ,,esecaseshad beenconsidered,o.tnatthereHad been app"cat,on ..dto the Chargesheetswhenthe eadlerrecommendationwas nnade ,,e screening committee on X3.09.20X1. On the contrary, the principaiSecretary(Home) agreedwith the said proposalmade hy e Director of Prosecution in the impugned con,municat,on O

13.12.2011. ^ The aforesaid position with regard to non considerat.cn Charge sheets hy the screening committeeon the eariier occas.on, ",enthe recommendationfor withdrawaifrom prosecutionwas ma e , ,He meeting heid on 13.09.2011,gains supportfrom the fact tha committeeapparentlyproceededon the basisthatthe M,n,stryo Home .ffairshad a,ready examinedthe case in cons.tationw,t Departmentof Uega,.Affairs, Law and Justicewith the approva of O union Home Minister. Conseguently, the committee ma e recommendationfor withdrawalfrom prosecutionin thesecases. committeedated13.09.2011showsthatthe committeeapparentlyd, notapplyits own mind, orta.eupathoroughscrutinyof, intera"a, . examination of these cases by the Ministry of Home Affa,rs an Departmentof Legai Affairs,Law and Justicewith the approval fth union Home Minister.Pertinentiy,the observationsof the Min.try of Home Affairs (reproducedin para 5above) do not demonstrateany W ,p.(C) 3470/2012 specificconsiderationof the charge-sheetby eitherthe Departmentof Legal Affairs, Ministry of Law and Justice or by the Ministry of Home Affairs, in fact, the MHA requiredthe Home Departmentof the GNCTD to scrutinizethe cases for withdrawalfrom prosecutionunder Section 321 Cr.P.C. This exercise was not undertaicen by the Screening committeein its meeting heid on 13.09.2011. There is not awhisper O in the minutes of the meeting of the Screening Committee of

13.09.2011to say thatthey have examinedthe charge-sheetsin these cases and, on a perusal of the same, the Committeeis of the opinion thattheseare fit casesfor withdrawalfrom prosecution.,

¶24Thoughthere may be some irregularityin the procedureadopted for reconsiderationof the earlier recommendatioiiof the screening committee made on 13.09.2011, followed by the decision of the Hon-ble Lt. Governordated 17.11.2011,the same has no significance, inter alia, for the reasonthatthe ultimateauthorityto take adecision on the issue whether, or not, the state should move the proposalfor !. • withdrawalfrom prosecutionvested in the Hon'ble Lt. Governor, and he has reviewed his decision on 15.12.2011 based on the communication dated 13.12.2011 and the note of the Principal Secretary(Home) dated 14.12.2011. The screeningcommitteeis not shownto be astatutorycreation.The screeningcommitteewas formed only to aid and assistthe Hon'ble Lt. Governor.He was not bound by any recommendation of the screening committee. Therefore, the; failure to reconvene the screening committee to reconsider the W.P.(C) 3470/2012 o o proposalmooted by Shri B.S. Joon cannotbe said to be illegal.Mr. B.S. Joon, Directorof Prosecution,was also not precludedfrom moving the proposal that he moved on 13.12.2011 after studying the charge-sheets in these cases, merely because he was part of the screening committee which had earlier recommended withdrawal from prosecutionon 13.09.2011.

¶25The aforesaidirregularityof procedurein any event has caused no prejudiceto the,petitioners.Independentof the aforesaidremedies available to the petitioners,their right to be heard at the time of framing of the charge and to raise challengeto an order on charge, as permittedby law, is also preserved. 1am, therefore,of the view that ^ the so-called irregularity or illegality, in any event, has not led to failure of justice. It cannot be said that substantialinjusticehas been caused to the petitioners on account of the review of the earlier decision taken by the Hon'ble Lt. Governor.

¶26The contention of the petitionersthat the earlier decisions to move the applicationsunder Section321 Cr. P.C., in these cases, were taken independentlyby the learned Public Prosecutorthough on the suggestionof the Directorof Prosecution,whereasthe decisionsnot to press the applicationsfor withdrawal of prosecutionwas imposed or thrustupon the AdditionalPublicProsecutor,has no merit. W^P.(C) 3470/2012 O'

¶21! have already narrated hereinabove, the comnnunication issued on 23.1.2011 by the Government of NCT of Delhi Home (General), Department of the Govt. of NCT to the Director of Prosecution, which clearly shows that the Govt. of NCT of Delhi did not seek the approval of the Learned P.P. or his view on the proposal whether, or not, to move an application for withdrawal from prosecution under Section, 321 Cr.P.C. It was a very clear, categorical and emphatic instruction issued to the APR concerned to move applications in the court for withdrawal of the cases aforesaid, and to intimate the position to the Government.

¶28Reliance placed on the decision in Sheooandan Paswao (Supra) does not advance the petitioners' case. In this case the Supreme Court observed: "Section 321 of the Code enables the Public Prosecutor or Assistant Public Prosecutor in charge of a case to withdraw from the prosecution with the consent of the court. The appellant submits, in our opinion correctly, that before an application is made under Section 321 of the Code, the Public Prosecutor has to apply his .mind to the facts of the case independently without being subject to any outside influence; and secondly, that the court before which the case is pending cannot give its consent to withdraw without itself applying its mind to the facts of the case. But it cannot be said that a Public Prosecutors action will be illegal if he receives any communication or instruction from the Government:.. He is an appointee of the Government, Central or State (see Sections 24 and 25, Cr.P.C.), appointed for conducting in court any prosecution or other proceedings on behalf of the Government concerned. So-there is the relationship of counsel and client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without instructions of the Government; a Public Prosecutor .P.(C) 3470/2012 . Page18 of20 o iisspisi^ withoutinstructionfrom the Governn^ent. Eitherthe instructiongivento the iearnedAPP on both occasions would have to be treated as mere proposals, or on both occasions would have to be treated as definiteInstructionsfrom aclientto the counsel. The Supreme Court ih Sheooa.da.iP^swan (Supra) has stated the legal positionwith regard to the scope of responsibilityof the public prosecutor under Section'321Cr.P.C.: The facts of the presentcase, however,show that definiteinstructionswere issued,to the APP for withdrawalfrom prosecution,and it was not left by the respondentsto the Learned APP to decide whether,or not, he should withdrawfrom prosecution.

¶30There is no basis for the petitionersto contendthatthe decision of the learnedAPP to file an applicationunder section 321 Cr.P.C was taKen independentlyby him, whereas the subsequentdecision after pursuingapplicationundersection321 Cr PC was underthe dictatesof the respondent.It could also be argued that the earlier decision to move applicationsunder Section321 Cr.P.C was abinding instruction to the APP, whereas,the subsequentinstructiongiven to him was to act accordingto his own judgment/conscienceand decide whetheror notto pressthe applicationsundersection321 Cr.P.C. W.P.(C) 3470/2012 \ o

¶31It is not disputed by the petitioners that, in the meantime, the learned M.M. has permitted the withdrawal of the application under Section 321 Cr.P.C. vide order dated 07.01.2012. It is not disputed by the petitioners that they opposed the withdrawal of the said applications under Section 321 Cr. P.C. and that they were heard by the Leaned M.M. on the said applications. It is also not in dispute that the petitioners haye already preferred the remedy available to them in respect of the orders passed by the Ld. M.M., permitting the withdrawal of the applications under Section 321 Cr.P.C. Therefore, the petitioners have not only had the occasion to raise all the issues raised before this court, before the Ld. M.M., but still have the right to pursue the matter further and to raise all the issues available to them in appropriate proceedings.

¶32For all the aforesaid reasons, I find no merit in these petitions and 1am not inclined to exercise the discretionary jurisdiction vested in this Court under Article 226 of the Constitution of India in the facts and -s I circumstances of these cases. The petitions are, accordingly, dismissed. pkv W.P. (C) 3470/2012

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C)3471/2012 and C.M. Nos. 7320-21/2012 VIPUL GUPTA . -p. . . Petitioner Through: Mr. Sudhir Nandrajog, Senior Advocate, with Mr. Vijay AggarwaJ l^r. Gurpreet Singh & Mr. Karan Heera, Advocates. versus STATE AND ORS _ ^ Respondents Through: Mr. Najmi Waziri, StandingCounsel along with Ms. Neha Kapoor, Advocate for the respondents No' 1, 3, 4& 6. i^r. Ruchir Mishra & Mr. Mul<esh Kumar Tiwari, Advocates for the respondent No. 2/UOI. CORAM: HON'BLE MR. JUSTICEVIPIN SANGHI %