Petitioner Is 'Dominus Litus' But Right To Withdraw A Case Comes With Certain Restrictions: J&K High Court

In allowing a submission to withdraw a case Justice Sanjay Dhar observed,

“.. it would not be open to this Court to deny permission to the petitioners to withdraw the petition, particularly when the petitioners are not seeking liberty to file any fresh proceedings for the same cause, unless there are special circumstances for this Court to deny such permission”

These observations arose in the context of a petition involving the recovery of a minor child.

The controversy began when the petitioner, an Advocate by vocation, challenged an order issued by the Judicial Magistrate 1st Class (District Mobile Magistrate), Sopore. The said order was passed on an application under Section 97 of the Criminal Procedure Code filed by the respondent, his wife concerning her minor child. The order directed the Senior Superintendent of Police (SSP), Srinagar, to execute a search warrant for locating the child, who was allegedly taken from the custody of the Respondent.

Following a petition by the aggrieved parties, the High Court intervened, staying the operation of the Magistrate's order. During the pendency of the case, the Court issued several directives to expedite the recovery of the child. However, the petitioners, midway through the proceedings, sought permission to withdraw their case, sparking vehement opposition from Respondent No. 1's counsel, who feared that such withdrawal might derail efforts to recover the child.

Adjudicating the matter Justice Dhar emphasized that a petitioner in litigation, as dominus litus, is vested with the control of their case and is generally free to withdraw it. However, this autonomy is not absolute and can be restricted in circumstances where public interest or the interests of justice demand otherwise. The Court noted,

“A petitioner in a litigation is dominus litus, meaning thereby he is master of the case. He is the person who has carriage and control of the case. A petitioner is free to abandon or withdraw his case but the same is subject to certain restrictions”

In addressing the arguments raised, the Court observed that withdrawing the petition would result in the lapse of the interim stay granted on March 31, 2023. This would, in turn, allow the trial Magistrate to proceed with the case unhindered, ensuring that the search for the minor child could continue in accordance with law, he added.

Justice Dhar also took note of the orders passed during the pendency of the petition, including the Court's direction to constitute a Special Investigation Team (SIT) to trace the child. Despite these efforts, the court found the whereabouts of the child had remained untraced thus leading the respondent to apprehend that the withdrawal of the petition might weaken the police agency's resolve to continue the search.

Addressing these concerns the Court observed,

“By dismissal of this petition, the proceedings initiated by respondent No.1 before the learned trial Magistrate would not come to an end. In fact, by withdrawal of the petition, the stay put on the said proceedings by this Court would come to an end and the learned Magistrate would be free to proceed in the matter in accordance with law”

In view of these considerations the court allowed the petitioners to withdraw their case and directed the trial Magistrate to proceed expeditiously in recovering the minor child.

“The SIT stands already constituted in terms of directions of the Magistrate passed on 23.01.2023. The only thing to be done is monitoring of the progress of the steps that are being taken by the SIT. The same can very well be done by the learned trial Magistrate. This would take care of apprehension of respondent No.1”, the court concluded.

Case Title: Advocate Jahangir Hassan Bhat Vs Mehmooda Begum & Ors.

Citation: 2024 LiveLaw (JKL) 358

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