HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 53 Case :- CRIMINAL REVISION No. - 2890 of 2014 Revisionist :- State Of U.P. Opposite Party :- Naseem Ahmad And Another Counsel for Revisionist :- Govt.Advocate Hon'ble Ramesh Sinha,J.
1. Heard Sri Akhilesh Singh, learned Government Advocate assisted by Sri N.K.S.Yadav, learned AGA and Sri Mewa Lal Shukla, learned counsel appearing on behalf of O.P.No.1, the informant.
2. This revision has been filed for setting aside the order dated 27.6.2014 passed by Addl. Sessions Judge, Court No.2, Bijnor in Application No.57 Kha and staying the proceedings of S.T.No.1263 of 2008, State Vs. Owais @ Kallan.
3. The brief facts of the case are that an FIR was lodged by O.P.No.1, Naseem Ahmad (hereinafter referred as 'informant') against three accused persons at 3.30 p.m. on 20.9.2007 namely Musarraf Husain, Muzaffar Husain and Mujahir Husain, who are said to have made indiscriminate firing and shot dead the deceased Chhidda Husain at 3.00 p.m. on 20.9.2007, who was traveling in Innova car alongwith the informant. The said incident was also witnessed by Mohd. Yamin, Wajid Husain and Chandrasen and other villagers. While escaping from the place of incident the assailants also snatched the licensee revolver of the informant for which a case was registered by the informant,as case crime no. 426 of 2007 under sections 302, 394, 120-B & 411 IPC on the same day.
4. After investigation police submitted charge sheet against three accused persons on 10.7.2007 and further submitted supplementary charge sheet against the accused/Opposite Party No.2-Owais @ Kallan on 4.11.2007 on the basis of the confessional statements of co-accused Musarraf Husain and Muzaffar Husain, who have stated that the looted revolver was handed over by them to the accused/Opposite Party No.2 On 10.7.2008 the police arrested the applicant and recovered the looted revolver of informant and registered a case under section 25 Arms Act on 11.7.2008 as case crime no.377 of 2008, P.S. Pakwada,District Moradabad.
5. The accused/Opposite Party No.2 has been granted bail by this Court on 12.1.2009 in the present case who is facing present trial under sections 302, 394, 120-B, 411 IPC, P.S. Mainathar, District Moradabad.
6. On 7.2.2014 the State Government passed an order for withdrawing the prosecution of the revisionist in case crime No.426 of 2007, under sections 302, 394, 120-B, 4111 IPC, P.S. Mainathar, District Moradabad relating to the accused/Opposite Party No.2. In pursuance of the order of State Government passed on 7.2.2014 the A.D.G.C.(Criminal) filed an application under section 321 Cr.P.C. before the learned Addl. Sessions Judge, Court No.2, Bijnor requesting to permit to withdraw the said Criminal Case against the revisionist in public interest. On 27.6.2015 the trial court rejected the said application of the State against which the present revision has been preferred by the State.
7. As per the office report dated 16.9.2015 notice issued to Opposite Party Nos. 1 & 2 has been received back after service personally. The opposite party no.2 Owais @ Kallan so Haji Rizwan has not appeared in the present case though his counsel has filed a separate Criminal Misc. Application No.26183 of 2015 Ovash Khan Vs. State of U.P. & Others with which the present criminal revision has also been connected and is also being heard and decided by this Court. Hence notice to him is sufficient.
8. It has been argued by the learned Government Advocate that the opposite party no.2-Owais @ Kallan has been falsely implicated in the present case due to political rivalry by the then ruling political party i.e. Bahujan Samaj Party as the father of the revisionist is strong supporter of Samajwadi Party and the State Government in public interest has decided to withdraw his prosecution from the present case. He next submitted that a false recovery of looted revolver of the informant has been shown from the possession of accused opposite party no.2 after ten months of the incident.
9. He further argued that there are chances of bleak conviction of the accused/Opposite Party No.2 as there is no cogent evidence against him due to which the State Government has decided to withdraw the case against the revisionist. The Public Prosecutor in pursuance of the order of the State Government had moved an application before the trial court seeking permission for withdrawal of the case which has been rejected by the trial court by passing the impugned order on 27.6.2015, hence prayed that the order of the trial court be set aside.
10. Sri Mewa Lal Shukla, appearing on behalf of the informant has vehemently opposed the prayer for quashing of the impugned order and submitted that the father of the applicant at present is a Member of Legislative Assembly of Ruling Party i.e. Samajwadi Party. He argued that the revisionist had conspired the murder of the deceased due to political ill-will with the accused persons who are named in the FIR and are languishing in jail and facing trial. He submitted that the accused/Opposite Party No.2-Owais @ Kallan was absconding from the clutches of law, though a separate charge sheet was submitted against him on 4.11.2007 and he was arrested by the police after ten months of the occurrence and a revolver of the informant was recovered from his possession on 10.7.2008 for which an FIR has also been lodged against him as case crime no.377 of 2008 under section 25 Arms Act. He submitted that as the father of the accused/Opposite Party No.2-Owais @ Kallan is a Member of Legislative Assembly of ruling party i.e. Samajwadi Party hence under his influence and pressure the State Government has passed an order for withdrawal of the prosecution of the revisionist from the present case under section 302, 394, 120-B, 411 IPC, P.S. Mainathar, District Moradabad which passed an order on 7.2.2014 In pursuance of the same the D.G.C. (Criminal) also moved an application for withdrawal of the prosecution before the trial court without application of mind and ascertaining whether the said withdrawal was in public interest or not. He submitted that the Public Prosecutor can not act like a Post Office on behalf of the State Government and he is required to act in good faith and considering the material on record and form an independent opinion that the withdrawal of the case would really subserve public interest. In support of his arguments he placed reliance on a judgment of the Apex Court, Bairam Muralidhar Vs. State of Andhra Pradesh reported in (2014) 10 SCC 380.
11. Considering the submissions of the learned counsel for the parties and perusing the entire record the accused/Opposite Party No.2-Owais @ Kallan though not named in the FIR but his name came into light in the confessional statement of co-accused persons on the basis of which a supplementary charge sheet was submitted against him on 4.2.2007. He was arrested by the police on 10.7.2008 and from his possession a looted revolver of the informant was recovered for which a separate FIR was lodged against him under section 25 Arms Act at P.S. Pakwada, District Moradabad on 10.7.2008 The allegation against the accused/Opposite Party No.2-Owais @ Kallan is that he has conspired the murder of the deceased with three accused persons named in the FIR who are confined in jail and also facing trial with the accused/Opposite Party No.2-Owais @ Kallan. It is admitted fact that the father of the accused/Opposite Party No.2-Owais @ Kallan is a sitting M.L.C. of the ruling political party and the order of the withdrawal of the prosecution of the accused/Opposite Party No.2-Owais @ Kallan passed by the State Government on 7.2.2014, it has been stated that the said withdrawal has been made by the State Government in the public interest and in pursuance of the same the Public Prosecutor on 7.2.2014 had moved an application under 321 Cr.P.C. to withdraw the present criminal case against the accused/Opposite Party No.2-Owais @ Kallan which has been rejected by the trial court on 27.6.2015 seeing his involvement in a case of murder. To say, that there is lack of evidence against the accused/Opposite Party No.2-Owais @ Kallan which may result in his acquittal cannot be decided at this stage. The trial court while considering various judgments of the Apex Court and of this Court has refused the permission to withdraw the prosecution of the accused/Opposite Party No.2-Owais @ Kallan from the present case. The application which has been moved by the Public Prosecutor for withdrawal of the prosecution of the accused/Opposite Party No.2-Owais @ Kallan shows that the Public Prosecutor has acted like a 'Post Office' on behalf of the State Government and he appears to have not acted in good faith and also not formed an independent opinion for withdrawal of the case would really subserve the public interest. The trial court was absolutely right in not giving permission under Section 321 Cr.P.C. for withdrawal of prosecution of the accused/Opposite Party No.2-Owais @ Kallan from the present case.
12. The Apex Court in the case of Bairwan Muralidhar Vs. State of Andhra Pradesh(supra) has laid down in paragraphs 18 to 19 certain conditions which the Public Prosecutor has to follow while moving an application under section 321 Cr.P.C. before the Court of the said judgment which are quoted hereunder:
"18. The central question is whether the public prosecutor has really applied his mind to all the relevant materials on record and satisfied himself that the withdrawal from the prosecution would subserve the cause of public interest or not. Be it stated, it is the obligation of the public prosecutor to state what material he has considered. It has to be set out in brief. The Court as has been held in Abdul Karim's case, is required to give an informed consent. It is obligatory on the part of the Court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the Court to weigh the material. However, it is necessary on the part of the Court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A Court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The Court cannot give such consent on a mere asking. It is expected of the Court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the Court is obliged to see whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the Court as well as his duty to the collective.
19.In the case at hand, as the application filed by the public prosecutor would show that he had mechanically stated about the conditions-precedent. It cannot be construed that he has really perused the materials and applied his independent mind solely because he has so stated. The application must indicate perusal of the materials by stating what are the materials he has perused, may be in brief, and whether such withdrawal of the prosecution would serve public interest and how he has formed his independent opinion. As we perceive, the learned public prosecutor has been totally guided by the order of the Government and really not applied his mind to the facts of the case. The learned trial Judge as well as the High Court has observed that it is a case under the Prevention of Corruption Act. They have taken note of the fact that the State Government had already granted sanction. It is also noticeable that the Anti Corruption Bureau has found there was no justification of withdrawal of the prosecution."
13. In the instant case the State Counsel has also not applied its mind while moving an application under Section 321 Cr.P.C. before the trial Court. He has also acted on the dictates of the State Government which passed an order for withdrawal of the prosecution of the accused/Opposite Party No.2-Owais @ Kallan in a murder case. Thus, taking into account the gravity of the offence which is of murder and the recovery made from the possession of the applicant of the looted revolver of the informant by no stretch of imagination shows that the order passed by the State Government for withdrawing the prosecution of the accused/Opposite Party No.2-Owais @ Kallan can be said to be in the public interest which is not at all justified.
14. It has been noticed by the Court at regular intervals that the State Government only passes orders in such matters where political persons of their party or any such other persons who can exert pressure on it are involved and to give shelter to them and to escape the liability of the criminal case the State Government passes such orders which may have far reaching the impact on the Society. The citizen will loose faith in the Government and its machinery which has the primary responsibility to maintain law and order in the Society. It is painful for the Court to notice that such persons are being shielded by the State Government who are involved in the cases of heinous crimes such as murder, embezzlement of public fund etc. The genuine cases in which the State Government has to come forward to protect the victim of the crime and innocent persons from harassment the State Government remains a mute spectator and does nothing,
15. The rule of law has to prevail in the State and every citizen is equal before the law of the country and State cannot pick and choose between an ordinary citizen and a person who can influence the State machinery at his own whims and escape the criminal prosecution.
16. The Court hopes and trusts that in future the State Government would take care before passing such orders.
17. In view of the above foregoing discussions, I am of the view that the impugned order does not suffer from any, illegality, infirmity or jurisdictional error and is based upon relevant considerations and supported by cogent reasons, hence requires no interference by this Court. Hence the revision lacks merit. It is liable to be dismissed and is, accordingly, dismissed.
18. The trial court is directed to expedite the trial and conclude the same within six months from the date a certified copy of this order is produced before it.
19. The Criminal Misc. Application No.26183 of 2015 Uvash Khan Vs. State of U.P. filed by Opposite Party No.2, Owais @ Kallan has also been decided and dismissed by this Court today with the present revision in which separate order has been passed.
Order Date :- 17.9.2015 IA