Ejaj Ahmad And 9 Others vs State Of U.P. And Another
2018 Latest Caselaw 3233 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 48
 

 
Case :- APPLICATION U/S 482 No. - 23856 of 2017
 

 
Applicant :- Ejaj Ahmad And 9 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- P.K. Upadhyay,Kalpna Upadhyay
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application u/s 482 Cr.P.C. has been filed seeking the quashing of order dated 30.6.2017 passed by Addl. Sessions Judge/ F.T.C. I Sant Kabir Nagar as well as the entire proceedings arising out of Case Crime No. 584 of 2009, "State vs. Rafiq Ahmad and others", u/s 147, 336, 332, 353 and 504 I.P.C. and 7 Criminal Law Amendment Act and 3 (1) X S.C./ S.T. Act, Police Station- Dudhara, District- Sant Kabir Nagar.

Heard learned counsel for the applicants.

Submission of the counsel for the applicants is that the prosecution of the accused in the case was sought to be withdrawn by the prosecuting officer and an application to that effect was moved before the court concerned but after hearing the matter the court below has refused to allow the application and in fact proceeded to reject the same as a result of which the inherent rights of the accused applicants got deleteriously affected and they are the aggrieved persons which has prompted them to come up before this court and express their grievance and challenge the order in question. It was pointed out by the counsel that in fact this is a case which emanated from a very trifling issue as in fact a cricket match was going on in between two sides which belonged to two different villages and because of some altercation a scuffle in between the players took place which snowballed into some kind of assault that was made against each other. When a police force arrived on the spot the situation worsened and in fact it appears that both the sides then made some brick batting on the police force. It is this case in which the applicants were made accused but later on the Government Authorities studied the matter and found it to be a fit case in which the prosecution should not be pursued any further. Submission is that as it is so apparent on the face of record that there was hardly any malice involved in the incident. The rival parties were friends and such kind of incidents during the course of some game are common. Some misunderstandings appears to have been erupted as a result of which the crowd that was there might have indulged in the indiscreet act of some brick batting against the police force. The courts and the State Agencies are already saddled with enormous responsibilities to pursue serious matters and in a matter like this where there was hardly any malafide intention against each other and there was hardly any motive to commit any serious crime, the continuation of the proceedings of such trifle nature would in fact eventually result in nothing except waste of valuable public time and therefore the Government took the decision and permitted the withdrawal of the prosecution. Nobody possibly should have any objection against the same decision. It is so obvious that such a decision is in the larger public interest. The application that was moved on behalf of the public prosecutor reflects that the public prosecutor had gone through the entire records and had studied the matter and it was also observed by the prosecuting officer that in the totality of facts and circumstances of the case the withdrawal of the prosecution was in larger interest of justice and also in larger public interest. It was in that view of the matter that a withdrawal application was moved. Submission is that the court below was of the view that public prosecutor was simply expressing the views of the State Authorities and was not expressing its own subjective discretion which he was otherwise required to exercise in order to seek the withdrawal of prosecution in any criminal case. The court below was also of the view that as certain assault was also made against the police force that also adds to the gravity of the incident and did not find it a fit case where the withdrawal should be allowed. Submission is that ordinarily the power to seek the withdrawal of prosecution in any case or any class of cases has been vested with the public prosecutor, and only the consent of the court is required in this process. According to the present law a written permission of the State Government is also required. Unless there are some very strong reasons, the court should not put a spanner in the wheel without any very strong valid reason in the decision of the public prosecutor and the State. Of course there may be cases where it may be found that the withdrawal of prosecution instead of serving the public interest is going to adversely affect the same. There may also be cases where it may be found by the court that the decision to withdraw the prosecution is actually a colourable exercise of State Authorities inspired by some ulterior purposes and in order to further some illegitimate political ends. There may also be cases where it may be found that the withdrawal application has been moved by the public prosecutor without at all applying its own mind and it may be said that it is a pure mechanical exercise and complete non-application of mind may go to vitiate the validity of the application moved on his behalf and may in turn go to justify the refusal of consent by the court. Contention is that in the present case at hand no such castigation can be leveled either against the application moved on behalf of public prosecutor or against the decision that has been taken by the State Authorities in this regard. If a discretion has been vested with certain authorities ordinarily it should be payed due regard unless it has been found that the same has been exercised in a perverted manner or has been exercised with malice. No such criticism can be validly leveled against the decision of the State or the decision of the public prosecutor. For all these reasons the refusal of the court to give its consent to the withdrawal is therefore not a very valid refusal and is in fact appears to be a judicial overreach which vitiates the validity of the order.

Learned AGA in this case has also been heard who submits that he stands by the decision of the State and he cannot raise any objection into the application that was moved by the public prosecutor to withdraw the case.

Perused the record in the light of the submissions made by the counsel.

Without going into the greater details of the matter suffice it to observe that the nature of the incident as is involved in the matter appears to be trivial and trifling both. It is unfortunate that a game that was organised for the recreation worsened into such kind of incident. It cannot be said that the incident was such which involved some grave offences or during the course of which some serious crimes were committed. After all the prosecutions in criminal cases are done only where some offences have indeed been committed but if an offence has been committed that is not a ground not to withdraw the same. The very fact that Section 321 Cr.P.C. exists in the Statute Book shows that in the wisdom of legislation it was found that there may be fit cases where the continuation of prosecution of the case may instead of serving the public interest, may go to adversely affect the same. The controversy as appears to be involved in this case appears to be such that in the considered opinion of this Court, refusal of the consent by the court below does not appear to be a very prudent judicious exercise. The court ought to have been loath to interfere or refuse its consent without very strong reasons which conspicuously are absent in this case. This court does not see very valid reasons in the order on the basis of which the consent has been held back.

Resultantly, this application succeeds and is allowed. The impugned order dated 30.6.2017 is being quashed. The matter is remanded back and it is directed that the public prosecutor may move again another application seeking withdrawal of the prosecution within one month from today or the public prosecutor if so chooses can also pursue the same application that has already been moved in this regard. The court below is required to reconsider the same and give a re-look to its decision in the light of the observations made by this court.

Order Date :- 12.10.2018

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