HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 23 Case :- U/S 482/378/407 No. - 3849 of 2008 Petitioner :- Dev Sharan Yadav Respondent :- State Of U.P. Petitioner Counsel :- Balram Yadav Respondent Counsel :- Govt.Advocate Hon'ble Shri Kant Tripathi,J.
Heard learned counsel applicant and learned AGA for the respondents and perused the record.
Counter and rejoinder affidavits have been exchanged.
With the consent of the learned counsel for the parties, this application is being disposed of finally.
It appears that the applicant is an accused in the case crime no. 197 of 1982, under section 409 I.P.C., Police Station-Inayatnagar, District-Faizabad, pending in the court of First Judicial Magistrate, Faizabad. The Assistant Prosecuting Officer in-charge of the case moved an application under section 321 of the Code of Criminal Procedure for withdrawal from the prosecution of the applicant under the instruction dated 21.02.2007 given by the State Government. Learned Magistrate considered the application and arrived at the conclusion that the charge against the applicant was of serious in nature, therefore, it was not proper in public interest to permit withdrawal from prosecution. Accordingly, the learned Magistrate rejected the application vide his order dated 14.12.2007.
The learned counsel for the applicant submitted that the applicant is an old person aged about 63 years who has deposited the entire amount involved in the present case in the Government treasury. More so he has no criminal antecedent, therefore, no useful purpose would be served to try the applicant, therefore, it was desirable on the part of the learned Magistrate to allow the application for withdrawal from the prosecution. It was next submitted that the application for withdrawal from the prosecution could be moved on the instruction of the State Government because the Uttar Pradesh Act No. 18 of 1991 has amended section 321 of the Code of Criminal Procedure with effect from 16.02.1991 which provides that the application for withdrawal from the prosecution can be moved by the Public Prosecutor or the Assistant Public Prosecutor in-charge of the case on the written permission of the State Government which shall be filed in the court.
Learned counsel for the applicant further submitted that in view of the Apex Court verdict in the case of Rajender Kumar Jain Vs. State (1980) 3 SCC 435, the ultimate discretion to withdraw from prosecution was of the Assistant Prosecuting Officer in-charge of the case and the court's jurisdiction was merely supervisory in nature, therefore, what was open to the court was to see whether the Public Prosecutor acted with independent mind in the broader interest of public justice, therefore, according to that verdict the court is required to see the broader interest of public justice, public order and peace while considering an application under section 321 of the Code of Criminal Procedure. It was further held in that case that the court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor 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. In the case of State of Orissa Vs. Chandrika Mohapatra and others (1976) 4 SCC 250 , the Apex Court propounded the principles that the ultimate guiding consideration must always be the interest of administration of justice and that is touch stone on which the question must be determined. However, the Apex Court further opined that no hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice.
In the case of Rahul Agarwal Vs. Rakesh Jain and another, 2005 (51) ACC 724 (SC) the Apex Court reiterated the aforesaid principles and held:
"From these decisions, as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the Court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the Court may permit withdrawal of the prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the Court may allow the withdrawal of prosecution. The discretion under section 321, Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance".
The learned Magistrate seems to have passed the impugned order in a slipshod manner without considering the relevant facts of the case and guided himself on the basis of gravity of the crime and held that it was not in public interest to allow the prayer for withdrawal from prosecution. The gravity of the crime cannot be said to be the sole guiding factor for deciding the petition under section 321 of the Code of Criminal Procedure. The learned Magistrate should have taken into account other relevant factors such as the old age of the applicant, his criminal history, if any, as well as the fact that he had deposited the entire amount involved the present case. It was also a relevant factor that the F.I.R. is of the year 1982 and since then more than 28 years have elapsed but the trial is still pending with no logical progress. Was it in public interest to keep the trial pending after about 28 years specially in a case where embezzled amount had been deposited and the Public Prosecutor wanted withdrawal from the prosecution. All these facts need to be given due consideration by the learned Magistrate while considering the application filed under section 321 of the Code of Criminal Procedure. In view of the fact that the learned Magistrate has not considered all the relevant aspects of the matter and passed the impugned order in a summary manner, it would be just and expedient to direct the learned Magistrate to reconsider the matter.
Therefore, the application is allowed and the impugned order dated 14.12.2007 (Annexure No. 1) is quashed. The learned Magistrate is directed to reconsider the matter in the light of the observations made hereinbefore and pass appropriate order afresh in accordance with law.
Order Date :- 22.4.2011 Sharad