Sunil Kumar Gupta vs State Of U.P. And Another
2016 Latest Caselaw 780 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Case :- CRIMINAL REVISION No. - 3261 of 2015
 
Revisionist :- Sunil Kumar Gupta
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Kamal Kishor Mishra
 
Counsel for Opposite Party :- Govt.Advocate
 
Connected With 
 
Case :- CRIMINAL REVISION No. - 3461 of 2015
 
Revisionist :- Rama Shanker @ Majhawan
 
Opposite Party :- State Of U.P. Thru S.P., Siddharth Nagar
 
Counsel for Revisionist :- A. Kumar Srivastava,M.P. Pandey
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Harsh Kumar,J.

These two criminal revisions have arisen out of order dated 29.6.2015 passed by Additional District & Sessions Judge/F.T.C., Siddharth Nagar in S.T. No.40 of 2014, Case Crime No.313 of 2008, under Sections 147, 148, 323, 353, 224, 336, 504 & 489(C) I.P.C. and Section 7 Criminal Law Amendment Act, P.S. Dhebaruwa, District Siddharth Nagar, rejecting Application 9-B moved by Government Counsel (Crl.) for withdrawal from prosecution and discharge of 15 accused under Section 321 Cr.P.C. Feeling aggrieved with the rejection of application of prosecution, 2 out of 15 accused, have preferred above revision petitions separately.

Since two revisions have been filed by two accused separately and have arisen from one and the same order, they were heard together and are being disposed of by a common order.

The brief facts of F.I.R. dated 3.6.2008 lodged by Inspector, S.O.G., District Balrampur are that "upon information that one person is arriving from Nepal with unauthorised weapons and foreign currency with an intention to sell them in Panchdewa, he along with police-squad made preparations for the arrest of such persons and at about 5:00 p.m. found one person caming on red colour Honda motorcycle from the side of Badhani. On being checked he tried to escape but on being caught by use of force he disclosed his name to be Sanjeevan son of Guru Prasad and upon search a packet was recovered from his pocket containing unauthorised foreign currency "Iraqi Dinars" worth 50,000/- with 41 Dinars of the denomination of 1000/-, 17 Dinars of the denomination of 500/- and 2 Dinars of the denomination of 250/-. In the meantime, during search operations, Lalit son of Guru Prasad, the elder brother of above Sanjeevan @ Rama Shanker @ Majhawan arrived with eight named and 100-150 unnamed persons, made an attack on the police force by pelting bricks and stones, in order to get Sanjeevan rescued and causing injuries to members of squad ultimately got Sanjeevan rescued after entering in S.S.P.'s office and also created law and order problem in the locality resulting in closure of shutters of shops in market and doors of houses.

After completion of investigation the charge-sheet was submitted against 15 persons and since the case was triable by Sessions Judge, it was committed to sessions.

Subsequent to lodging of F.I.R. at Case Crime No.313 of 2008 another F.I.R. at Case Crime No.314 of 2008, under Sections 147, 148, 332, 353, 336, 341, 504, 506 I.P.C., Section 7 Criminal Law Amendment Act and Section 174 of Railways Act was lodged by Inspector in charge of the same police station against revisionist Sunil Kumar Gupta and seven others as well as 100-150 unknown persons, excluding Sanjeevan @ Majhawan @ Rama Shanker, the main culprit, who was caught with unauthorised foreign currency. Since all the offences under above sections were triable by a Magistrate, the Criminal Case No.501 of 2008 remain pending before the Magistrate Court.

In response to letter dated 27.1.2014 of District Magistrate, Siddharth Nagar, the Special Secretary, U.P. Government vide letter dated 11.6.2014 informed the District Magistrate, Siddharth Nagar that after consideration, the Government in public interest as well as in the interest of justice has taken decision for withdrawal of above Case Crime Nos.313 of 2008 and 314 of 2008 and has permitted the Public Prosecutor to move application for withdrawal from prosecution. By letter dated 9.7.2014 Senior Prosecuting Officer, Siddharth Nagar wrote to D.G.C. (Crl.), Siddharth Nagar for moving the requisite application in Case Crime No.313 of 2008 as the same was pending before Sessions Judge, Siddharth Nagar.

Learned counsel for the revisionists contended that in furtherance of above, permission by Government, the D.G.C. (Crl.) moved an application for withdrawal from prosecution in S.T. No.40 of 2014 before the Sessions Judge, Siddharth Nagar on 10.7.2014, the very next day of receipt of the letter of Senior Prosecuting Officer, and the above application has been rejected vide impugned order dated 29.6.2015 by the Additional Sessions Judge/F.T.C., Siddharth Nagar. Feeling aggrieved, out of 15 charge-sheeted accused persons, 2 Sunil Kumar Gupta and Rama Shanker @ Majhawan @ Sanjeevan (the main culprit caught with foreign currency) have preferred these revision petitions.

Learned counsel for the revisionists argued that learned Sessions Judge has acted wrongly in refusing to give consent for withdrawal from prosecution which was necessary in public interest as well in the interest of justice; that the revisionists have been falsely implicated; that the recovered foreign currency has a very low value in Indian currency and was not significant; that nothing incriminating is alleged to have been recovered from revisionist Sunil Kumar Gupta; that in the matter of subsequent F.I.R. registered at Case Crime No.314 of 2008, in Criminal Case No.501 of 2008, learned A.C.J.M. has accorded consent for withdrawal from prosecution to Assistant Prosecuting Officer and has discharged them on 16.7.2014; that if the impugned order is not set-aside, the revisionists will have to face the trial and will suffer unnecessarily; that the impugned order is wrong and illegal and is liable to be set-aside and the revisionists are entitled for an order of discharge.

Learned A.G.A. did not argue in support of the impugned order and only submitted that impugned order has been passed on an application moved by D.G.C. (Crl.) under Section 321 Cr.P.C.

Upon hearing learned counsel for the parties and perusal of record, I find that the trial court has passed a detailed order after taking into consideration the law laid down by Apex Court in the case of Balwant Singh and others Vs. State of Bihar, AIR 1977 SC 2265 and State of Orissa Vs. Chandrika Mohapatra & others, AIR 1977 SC 903.

The facts of the case as mentioned in F.I.R. discloses that revisionist Rama Shanker @ Majhawan @ Sanjeevan was caught with unauthorised foreign currency, Iraqi Dinars on 3.6.2008 and upon his arrest his elder brother along with his associates, revisionist Sunil Kumar Gupta and others committed an assault on police force as well as used criminal force to deter police personnel (public servants) from discharge of their duties in an attempt to get revisionist Rama Shanker @ Majhawan @ Sanjeevan free from police custody, endangering the life and personal safety of general public of locality, facilitated Rama Shanker above to escape from the custody and disrupted the law and order situation in the locality. The Application 9-B of D.G.C. (Crl.) under Section 321 Cr.P.C. specifically admits that the injuries were sustained to police personnel though it was stated that the above injuries may not be sustained upon pelting of pieces of bricks and stones. In Application 9-B moved by D.G.C. (Crl.) it has been stated that since the Government has taken a decision in public interest and in the interest of justice for withdrawal from prosecution, so the consent may be accorded and accused may be discharged.

It is settled principle of law that in the matters of withdrawal from prosecution the Prosecuting Officer/D.G.C. (Crl.) as the case may be cannot act on the dictates of State and the above power has to be exercised independently by him, independent from any direction by the Government. Being an officer of the Court, it is required from the Prosecuting Officer/D.G.C. (Crl.) that he shall apply his mind to the facts of the case and come to an independent conclusion as to whether the withdrawal from prosecution is required, irrespective of and independent from the Government Order issued in this respect.

Apart from the case laws relied by the trial court, certain more and recent case laws are being discussed as under:-

In the case of Yerneni Raja Ramchander @ Rajababu Vs. State of Andhra Pradesh & other, 2009 (15) SCC 604, where appellant an MLA was being prosecuted under Sections 420, 463, 467, 468, 471 read with 120B I.P.C. for obtaining huge amount on the basis of false and fabricated medical bills, and upon petition for withdrawal from prosecution moved on the ground that the apology tendered by him has been accepted and misappropriated amount has been refunded to Government on the recommendations of Ethics Committee, the Apex Court held that:-

"State was not acting in public interest and it showed unusual interest in appellant, which is not expected of an executive which believes in good governance."

It further held that:-

"it is really a matter of great surprise that the State independently filed revision before the High Court and did not stop at that and also filed SLP dismissing the appeals and confirming the orders of trial court, refusing to give consent for withdrawal of prosecution as well as that of High Court, the State was directed to pay Rs.1,00,000/- to the State Legal Services Authority."

In the case of S.K. Shukla Vs. State of U.P., 2006 (1) SCC 314, the Apex Court on finding, prima-facie case on facts, having been made out against accused Raghuraj Pratap @ Raja bhaiya, Udai Pratap and Akshay Pratap, quashed the application of public prosecutor and order of State Government for withdrawal of cases, holding that:-

"public prosecutor can not act like a postbox or on dictates of State Government but has to act objectively as befits an officer of the Court.

Furthermore Court is not bound by opinion of the public prosecutor and is free to access whether a prima-facie case is made out or not."

Similarly, a three Judges Bench of Apex Court in the case of Abdul Karim Vs. State of Karnataka, 2000 (8) SCC 710, held that:-

"for withdrawal from prosecution, public prosecutor must independently apply his mind to all relevant material and reach his satisfaction in good faith and public interest, disregarding any decision, order or direction of Government. It held that though the power of Court is supervisory but consent can not be granted as a matter of course and Court has also to be satisfied that on the basis of such material the satisfaction of a public prosecutor was bona-fide in public interest and will not thwart or stifle the process of law, or cause manifest injustice. Deprecating the conduct of the State Government and public prosecutor in moving withdrawal from prosecution and consent to grant bails to hardcore criminals Veerappan, the Apex Court held that the order granting consent for withdrawal did not meet the requirements of Section 321 and set-aside, being bad in law."

In the case of Rahul Agarwal Vs. Rakesh Jain, (2005) 2 SCC 377, the Apex Court, setting aside the order allowing withdrawal from prosecution passed by High Court, held that:-

"withdrawal of prosecution can be allowed after necessary consideration and only when valid reasons are made out. It can be allowed only in the interest of justice after finding out whether the withdrawal of prosecution would advance the cause of justice."

In view of provisions of Section 321 as amended in Uttar Pradesh and legal position discussed above, I find that Public Prosecutor or the D.G.C. (Crl.) Incharge of the case may, on the written permission of the State Government to that effect (which shall be filed in Court), with the consent of the Court, withdraw from prosecution any person in respect of any one or more of the offences for which he is tried, and before giving consent under its supervisory powers, the Court has to be satisfied that the application was moved by Public Prosecutor with (i) due application of mind, (ii) independently, (iii) in good faith and (iv) for valid reasons in public interest, in disregard to any decision, order or direction of the Government and that it will not thwart or stifle the process of law or cause manifest injustice.

It is also pertinent to mention that filing of 'written permission' of Government is condition precedent for moving of application under Section 321 Cr.P.C. in State of Uttar Pradesh, but the same may not be the basis for withdrawal.

The copy of G.O. permitting withdrawal filed as A-3 in Criminal Revision No.3461 of 2015 filed by Rama Shanker makes it clear that the decision taken by Government does not disclose any reason for withdrawal from prosecution of a case in which law & order situation was disrupted by accused and only speaks of decision having been taken in the public interest and interest of justice. Similarly Application 9-B for withdrawal from prosecution, also does not disclose that the District Government Counsel (Crl.) did apply his mind independently and bonafidely to the facts of the case rather only pleaded false implication of accused persons, which may not be the part of consideration is such matters, and Government Counsel had no business to speak so.

In the facts and circumstances of the case, it is crystal clear that D.G.C./A.D.G.C. (Crl.) did not apply his mind even to the seriousness of facts of the case, where the Government upon consideration of grievous allegations had earlier accorded prosecution sanction, and that no public interest or interest of justice could have been served by withdrawal from prosecution of such cases. The action taken by the Government Counsel (Crl.) in moving application from withdrawal from prosecution may not be held bonafide upon due application of mind, from any point of view.

It is also pertinent to mention that in the matters of withdrawal from prosecution under Section 321 Cr.P.C., the Court is not required to consider the merits of the case as to whether the trial is likely to be decided in conviction of the accused or acquittal of the accused. The prosecution has failed to show that in the matter where assault by use of criminal force was made by accused persons and they not only caused injuries to police personnel but also endangered the life and personal safety of others disrupting law and order and made escape of revisionist Rama Shanker from police custody, the withdrawal of prosecution and discharge of accused persons can be in public interest or in the interest of justice. There is nothing on record to show that withdrawal of prosecution in such case would advance the cause of justice.

Upon hearing the learned counsel and perusal of records, I find that (i) in moving the application for withdrawal from prosecution Government Counsel (Crl.) did not apply his mind to the facts and circumstances of the case independently and correctly, and moved application on mere dictate of State Government, (ii) The learned DGC/ADGC (Crl.) failed to consider independently that case of assault by use of criminal force to get revisionist escaped from police custody causing injuries to police personnel and endangering life and personal safety of others will neither be in the interest of justice nor would advance the cause of justice, (iii) The Sessions Judge has correctly exercised its judicial discretion in refusing to give consent for withdrawal from prosecution, within the scope of provisions of Section 321 Cr.P.C. and did not commit any mistake in rejecting application 9-B for withdrawal from prosecution as well as discharge of accused-revisionists and (iv) The application for discharge of accused-revisionists and for withdrawal from prosecution neither was moved with bonafide nor save the public interest or the interest of justice.

In view of the discussions made above, I have come to the conclusion that the learned counsel for both the revisionists have failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order and there is no sufficient ground for interfering with or setting it aside the impugned order. The revision has got no force and is liable to be dismissed.

The revision is dismissed, accordingly.

Interim order, if any, stands discharged.

Let a copy of order be transmitted to court below for expeditious disposal of trial in accordance with law without letting the revisionists make any misuse of liberty of bail. The revisionists shall appear before the court below on 05.04.2016.

Order Date :- 17/03/2016

Kpy