State Of U.P. vs Mohd. Furkan And Another
2019 Latest Caselaw 4530 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 14.03.2019
 
Delivered on 15.05.2019
 

 

 

 
Court No. - 67
 

 
Case :- CRIMINAL REVISION No. - 3971 of 2018
 

 
Revisionist :- State Of U.P.
 
Opposite Party :- Mohd. Furkan And Another
 
Counsel for Revisionist :- G.A.
 
Counsel for Opposite Party :- Vijaya Nand Maurya
 
AND
 
Case :- APPLICATION U/S 482 No. - 44691 of 2018
 

 
Applicant :- Aishwarya Chaudhary @ Mausam
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Dileep Kumar,Niraj Kumar Shukla,Rajrshi Gupta
 
Counsel for Opposite Party :- G.A.,Vijaya Nand Maurya
 

 
Hon'ble Rahul Chaturvedi,J.

1. Perusal of record establishes that Application U/S 482 No.- 44691 of 2018 (Aishwarya Chaudhary @ Mausam v. State of U.P. and another) has been filed against order dated 29.08.2018 passed by I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore whereby learned court has rejected application Kha 148 filed under section 321 Cr.P.C., by the Public Prosecutor/Prosecuting Officer for withdrawl of prosecution of aforesaid criminal case and acquittal of applicant Aishwarya Chaudhary @ Mausam and Criminal Revision No. 3971 of 2018 (State of U.P. v. Mohd. Furkan and another) has also been filed by the State challenging the aforesaid order on the ground of appreciation of evidence by the court of I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore, which is allegedly arbitrary and erroneous in the eyes of law.

2. As both the aforesaid connected matters, through different judicial provisions, have been targetted against solitary order dated 29.08.2018 passed by I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore in Session Trial No. 121 of 2016 (State v. Sansar and others) arising out of Case Crime No. 1036 of 2016, under sections 147, 148, 149, 302, 307, 452, 504, 436, 337 IPC and 7 of the Criminal Law Amendment Act, P.S. Khotwali Shahr, District Bijnore therefore, both the cases i.e., Application U/S 482 No.- 44691 of 2018 (Aishwarya Chaudhary @ Mausam v. State of U.P. and another) and Criminal Revision No. 3971 of 2018 (State of U.P. v. Mohd. Furkan and another) are being adjudicated and decided by this Court together with the consent of rival contesting parties.

Pleadings have been exchanged between the parties and the matter is ripe for final arguments.

3. Heard Sri Dileep Kumar, assisted by Sri Bhuvnesh Kumar Singh and Sri Rajarshi Gupta, learned counsel for the applicant, learned AGA for the State and Sri Vijaya Nand Maurya, learned counsel for private opposite party appearing in Application U/S 482 No.- 44691 of 2018 (Aishwarya Chaudhary @ Mausam v. State of U.P. and another).

4. Sri Vinod Kant, learned counsel for Additional Advocate General assisted by Sri Pantanjali Mishra Sri Nikhil Chaturvedi, learned AGAs for the revisionist, Sri Vijayanad Maurya, learned counsel for private opposite party has also been heard in Criminal Revision No.- 3971 of 2018 (State of U.P. v. Mohd. Furkan and another).

5. Before coming to the merits of the case, it is necessary to spell out the facts of the case in its entirety, therefore, they are being enumerated herein below:

6. As per prosecution, the applicant- Aishwarya Chaudhary alias Mausam, registered as an Advocate in Bar Council of U.P., Allahabad is a meritorious and well established practicing lawyer at Bijnore judgeship. He happens to be the ex-President of District Youth Bar Association, Bijnore, organized law awareness programmes, legal aid camps for poor litigants and instrumental in maintaining the administration of justice. In fact, he is a philanthropist, who is engrossed in dozens of social, cultural and political activities in Bijnore. In addition to this, he has helped number of young and upcoming lawyers in boosting up their respective careers, assisted them in hour of need. Besides this, he is an income tax payee for last so many years.

7. Learned counsel for the applicant submitted that in order to tarnish the image and reputation of the applicant, his opponents have hatched conspiracy to involve him at a later stage of the investigation in the case. The fact of the matter is that opposite party no. 2 - Md. Furqan lodged an FIR at 9.30 hours on 16.09.2016 at Police Station Kotwali Shahr, District Bijnore under sections 147, 148, 149, 302, 307, 452, 504, 436, 337 IPC and 7 of the Criminal Law Amendment Act with regard to a quarrel occurred between the rival parties, wherein 26 named and three unnamed persons were made accused by the informant. In the melee it is alleged that Anisuddin, Ehsan and Sarfaraz lost their lives and few others sustained simple injuries. In the entire text of the aforesaid FIR, the name of the applicant does not find place anywhere. The police, after conducting investigation submitted, its first charge sheet no. 723 of 2016 on 15.12.2016 against all the accused persons namely; Sasaar, Tikam Singh s/o Batti alias Ram Sharan, Tejpal, Pankaj, Anuj, Satish, Prem, Billu s/o Mahendra, Rinku, Sonu, Kukku, Sompal, Rajpal, Anil Kumar, Kuwar Sen, Billu alias Tillu s/o Ashok Kumar and Tikam Singh s/o Shaunath Singh and there too the name of the applicant was not even whispered. Thereafter there seems that the evil mind of the rivals of the applicants started playing which paved way for making hay while the sun shines and thus name of the applicant was got inserted in G.D. No. 56 on 19.09.2016 by maneuvering the police. Submission of the second charge sheet no. 723-A of 2016 on 24.12.2016 is the result of the dirty game played by the police in collusion with the rivals of the applicant because in the aforesaid second charge sheet, the name of the applicant Aishwarya Chaudhary alias Mausam has been dragged into as accused. Attention of the court has been drawn towards order dated 29.08.2018 passed by I-Additional Session Judge/Special Judge (POCSO, Bijnore while dismissing application Kha-148, it has been mentioned that third charge sheet no. 723-B was submitted by the police on 30.03.2017 and it has been penned therein that some of the named accused were not involved in the case whereas some named persons i.e., Dilawar, Prafull, Pappan, Naresh and Tishu were exonerated by the police and the court concerned summoned the accused persons vide the aforesaid order dated 30.03.2017 on the protest petition filed by the first informant to face trial. Thereafter final supplementary report was filed by the police on 16.09.2017 mentioning therein that the accused applicant was not found to be involved in the instant case. The aforesaid third charge sheet along with the final supplementary report submitted by the police was taken on record by the court of the Additional Session Judge/F.T.C.-I, Bijnore on 19.09.2017. In the aforesaid application Kha- 148, it has also been mentioned by the applicant that the name of the applicant neither appeared in the FIR nor in the G.D.C.S. No. 723, 723-A, 723-B and fourth SCD-12. It is also crystal clear that no adverse remark against the applicant was made in the further investigation conducted by the police and no recovery of any incriminating article was made either from the pointing out of the applicant or from his possession by the police during the aforesaid further investigation. It is also noteworthy that there is no cross-case of the incident in the instant case. It is pertinent to jot down that during further investigation, Statements of number of independent witnesses as well as the injured witnesses were recorded statements under section 161 Cr.P.C., who in their respective statements unequivocally submitted that they were not even present at the site of the incident at the relevant point of time and the name of the accused applicant -Aishawarya Chaudhary alias Mausam has been taken on the instigation made by the fellow villagers.

8. In the aforesaid backdrop following salient points comes into fora:

(i) Accused applicant Aishwarya Chaudhary was not named in the FIR.

(ii) None of the witnesses, whose names have been depicted in the FIR even whispered a word against the applicant to the effect that he was in any way involved in the commission of the aforesaid offence.

(iii) The police during further investigation as recorded statements of at least 38 witnesses including 16 injured persons but not of the witnesses took the name of the applicant that he was overtly or covertly involved in the commission of crime.

(iv) There was no recovery of any incriminating article or weapon from the possession of the accused applicant or on his pointing out.

(v) Vide order dated 14.11.2017 coordinate Bench of this Court while entertaining Criminal Misc. Bail Application No. 3820 of 2017 (Arun Kabadi v. State of U.P.) categorically mentioned by the learned counsel for the applicant Arun Kabadi that at the time of the incident dated 16.03.2016.

(vi) In the supplementary report filed on 19.07.2017 by the Investigating Officer Fateh Singh, it has been underlined that accused applicant Aishwarya Chaudhary @ Mausam was not involved in the incident.

9. It is next submitted that the applicant was made accused on the basis of the statements recorded under sections 161 Cr.P.C., by those witnesses, who were not even named in the FIR as witness or happened to be the injured in the case, resultantly, in the third charge sheet, the Investigating Officer removed some of the accused persons, who were earlier named in the charge sheet.

10. On the basis of the application and the affidavits filed in the court concerned, the investigation was conducted by the prosecution and statement of the complainant Furkan and other witnesses were recorded under section 161 Cr.P.C. wherein they explicitly resiling from their earlier statements, conceded that accused Aishwarya was not involved in the incident, which was the genesis for the submission of the final supplementary report dated 19.09.2017 by the police where the finding of non-involvement of the Aishwarya Chaudhary in the case had to be unveiled.

11. Learned counsel for the applicant has further drawn attention of this Court towards application of the informant Furkan, s/o Hasan, dated 20.08.2018, supported by his personal affidavit, filed in the court of the Additional District Judge, Bijnore, bearing his own signature, annexure 32 of the petition.

12. This Court has carefully perused the aforesaid application and its affidavit filed by the informant. Through the aforesaid application, the informant has himself conceded that he has been fastened in a criminal web and the present applicant- Aishwarya Chaudhary @ Mausam is not even remotely connected with the instant case.

13. On the aforesaid factual parameters, it is further submitted that in the present case the trial court has not framed charges against the applicant and the matter is still pending on the stage of appearing itself. The entire material available on record unveils that there is nothing on record to connect the present applicant in the aforesaid offence. He further harped upon that by no stretch of imagination as there is no evidence on record fastening the applicant in the offence, he is liable to be set free from the instant case.

14. Sri Vinod Kant, learned Additional Advocate General appearing for the revisionist, at this juncture intervened in the matter and submitted that the antecedental history of the applicant and narrating the reasons and cause of the involvement of the applicant submitted that much earlier to the registration of the present case, on 12.06.2007 an FIR was got registered by Smt. Vinod Kumari bearing Case Crime No. 775 of 2007, under section 376 IPC, P.s. Nagina, District Bijonore against Manoj Paras, Jaipal, Assu and Kunwar Saini naming them as accused. The accused applicant Aishwarya Chaudhary @ Mausam was appearing as counsel for the informant- Smt. Vinod Kumar in that case. The police submitted charge sheet for the offence under section 376 IPC against the accused named persons. Later on the said accused no. 1 Manoj Paras, became Member of Legislative Assembly in the U.P. State thereafter switched over to the post of a Minister in the U.P. Government during the session 2012 - 2016 and on account of his high political powers with the assistance of ex-MLA Kunwari Ruchi Veera and ex-M.P. Raja Bhartendu Singh, who were also political rivals of Aishwarya Chaudhary @ Mausam. The accused Manoj Paras tried to mount pressure upon Aishwarya Chaudhary @ Mausam for not appearing in the case before the Court in favour of the informant and get the matter compromised with the victim, which Aishwarya Chaudhary refused to follow. The adamant attitude of Aishwarya Chaudhary @ Mausam for not following diktats of the aforesaid Manoj Paras, made him furious and to settle score with him, the instant Case Crime No. 1036 of 2016, under sections 147, 148, 149, 302, 307, 452, 504, 436, 337 IPC and 7 of the Criminal Law Amendment Act, P.S. Khotwali Shahr, District Bijnore has been slapped upon him on the instigation of Manoj Paras.

15. The aforesaid back drop of the case turned to be the prime reason of implicating the applicant in the aforesaid case by luring the witnesses and putting words into their mouths for vomiting out the name of the applicant in their respective statements during investigation at the later stage.

16. After culmination of the entire investigation, when nothing incriminating article/material/evidence was found against the applicant, he approached the State Government through representation addressed to the Chief Minister, U.P., with the prayer that the prosecution in S.T. No. 121 of 2016 arising out of Crime 1036 of 2016 pending in the court of the Additional Session Judge/F.t.c.-I, Bijnore may be withdrawn under section 321 Cr.P.C. Responding to the above representation, the State Government summoned report from the prosecuting agency, thereafter the proposal of withdrawl of the present offence only against the applicant was communicated by the Incharge District Government Counsel (Criminal), Bijnore which was approved by the Joint Director (Prosecution), Bjnore and sent to the State Government through the District Magistrate concerned for his final report. The officers in the Government reported the State that there is no material on record to implicate the applicant in the offence, hence, no charge can be framed against him. Therefore, in the interest of public interest and in good faith the prosecution of the applicant in the present case can be withdrawn. The get the aforesaid stand of the State machinery double sure, the State Government sought legal opinion from the Advocate General of the State of U.P., whereupon the Advocate General categorically opined that the continuation of prosecution against the applicant would mount to be undue harassment on the applicant, as such valid reasons are available for withdrawing the prosecution against the applicant in the interest of public and in the interest of justice. After being assured from all the available quarters, the State Government (Department of Law) through Assistant Secretary, issued a Government Order dated 04.06.2018 to the District Magistrate, Bijnore to communicate the decision of withdrawl of prosecution of the instant case to Aishwarya Chaudhary @ Mausam with the request that Hon'ble the Advocate General has pleased to withdraw the prosecution of the applicant in exercise of power under section 319 Cr.P.C. in public interest and requested further to examine the material on record and move an appropriate application under section 321 Cr.P.C.

17. Persuant to the aforesaid direction by the Government of U.P., Sri Ajay Kumar, the Incharge District Government Counsel (Criminal), after examining the material thoroughly and after applying his judicial mind moved application Kha-148 supported by his personal affidavit, on 06.08.2018 in the court of I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore, mentioning all the relevant facts and circumstances of the case therein, with a prayer that in the interest of justice and public interest the prosecution of the applicant Aishwarya Chaudhary @ Mausam in Session Trial No. 121 of 2016 (State v. Sansar and others) arising out of Case Crime No. 1036 of 2016, under sections 147, 148, 149, 302, 307, 452, 504, 436, 337 IPC and 7 of the Criminal Law Amendment Act, P.S. Khotwali Shahr, District Bijnore may be withdrawn but the aforesaid application was rejected by the court concerned vide order dated 29.08.2018.

18. After considering the entire facts and circumstances narrated in both the petitions i.e. application filed under section 482 Cr.P.C. and Criminal Revision No. 3971 of 2018 and submissions made by the respective counsel, this Court is of the opinion that undoubtedly, any criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law of discharge its sacrosanct role responsibly and committedly, always accountable to the law-abiding citizenry for any lapse. [Pooja Pal v. Union of India (2016) 3 SCC 135].

19. The criminal justice is dependent on the agencies of government charged with enforcing law, adjudicating crime and correcting criminal conduct. Criminal justice mandates fair and proper investigation with an avowed object to bring out all material before the Court of competent jurisdiction to enable it to find out the truth. Unsolved crimes, unsuccessful prosecution, unpunished offenders and wrongful convictions brings our criminal justice system in disrepute thereby creating an impression on a commoner that they can get away with any crime, which tarnishes not only the image of the investigation agency but of judicial system as well. Truth will be a causality if due to external pressure, guilty person gets away from the clutches of law.

20. On these basic parameters, it would be appropriate to examine the provisions of Section 321 Cr.P.C., which is enumerated herein below for ready reference:

Section 321 in The Code Of Criminal Procedure, 1973:

321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence-

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he hag been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

STATE AMENDMENT

Uttar Pradesh;

In Section 321, after the words "in charge of a case may" insert the words "on the written permission of the State Government to that effect (which shall be filed in the Court)'

[Vide Uttar Pradesh Act 18 of 1991, sec 3 (w.e.f. 16-2-1991)

21. Section 321 of Cr.P.C. 1973 deals with the power of Public Prosecutor/Assistant Public Prosecutor to withdraw case of which he is in-charge after obtaining written permission from the State Government and that permission is required to be filed in Court. The power of withdrawal can be invoked by the Public Prosecutor/Assistant Public Prosecutor, In-charge of the case when same is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The aforesaid provision relating to withdrawal has been subject matter of consideration in various judgements of Apex Court as well as of this Court.

22. In this regard first and foremost, is in the case of RAJENDRA KUMAR JAIN ETC. v. STATE THROUGH SPECIAL POLICE ESTABLISHMENT AND ORS [1980 (3) SCC page 435], the Hon'ble Apex Court, after discussing the merit of the case has summarized the impact of Section 321 Cr.P.C. as follows:

"....Thus, from the precedents of this Court; we gather,

1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.

2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.

3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes Sans Tammany Hall enterprise.

6. The Public Prosecutor is an officer of the Court and responsible to the Court.

7. The Court performs a supervisory function in granting its consent to the withdrawal.

8. 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 paragraph 7 of the aforesaid case, the Hon'ble Apex Court has entrusted the power to the learned trial court, which is primarily the supervisory power for granting consent to the withdrawl of a case.

23. The word "consent" has been used in section 321 Cr.P.C., which means "to agree to something, to allow something to happen". Literal consent means to agree to something to happen or agreement to do something. Therefore the court below is vested with a very little jurisdiction while exercising powers envisaged under section 321 Cr.P.C. It can only examine as to what are the consideration before the State Government as well as before the public prosecutor to deviate from the normal tactics i.e., to prosecute offender/s. The court below cannot adjudicate upon the sufficiency of the material as to whether the prosecution would lead to conviction or not.

24. Learned counsel has further relied upon another judgement of the Hon'ble Apex Court in the case of Ghanshyam v. State of M.P. And others [2007(57) ACC 305]. The relevant portion of aforesaid case is enumerated below:

"The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to any one. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant factors as well in order to further the broad ends of justice, public order, peace and tranquility."

25. Similarly in the case of Abdul Karim v. State of Karnataka [(2000) 8 SCC, 710] the Hon'ble Apex Court has opined that section 321 Cr.P.C., contemplates consent by a court in a supervisory and not an adjudicatory manner and the court must see that the application moved by a public prosecutor for withdrawl of prosecution has been properly made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given by the court. For ready reference, a relevant portion envisaged in paragraph 18 of the aforesaid judgement is hereby enunciated herein below:

"18.....Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper."

26. Similarly in another judgement on the matter the Apex Court in the case of Rahul Agarwal v. Rakesh Jain [2005 (2) SCC 377] while relying upon the judgement of Abdul Karim's judgement (Supra) and earlier decision of the Consititution Bench in Sheonandan Paswan v. State of Bihar [1987 (1) SCC 288], made the following observations regarding withdrawl of case under section 321 Cr.P.C.:

"...What the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration of the material available, the order giving the consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by consent from the court on a consideration of the material before it. What is necessary to satisfy is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper."

27. Therefore, on the touchstones of the aforementioned celebrated judgements passed by Hon'ble Apex Court on different occasions in similar situation, comparing same with the factors, contents, circumstances of the case, submissions of the learned counsel for rival parties, testifying the validity and veracity of the impugned order dated 29.08.2018 passed by I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore, this Court screened out the entire case and pen down the salient features of the case, as below:

(i) the applicant is not even named in the FIR nor any of the witnesses divulging the name of the applicant either in the entire text of the FIR or in their respective statements given during the course of investigation to the effect that the applicant was either overtly or covertly involved in the commission of the offence. Rather all the 38 witnesses, including 16 injured witnesses, in their respective statements recorded under section 161 Cr.P.C. have stated that they named applicant only on the heresay of the village folks and fairly conceded that in fact they did not see the applicant at the relevant point of time and place of the incident. Besides this, no incriminating article was found either from the possession of the applicant or on his pointing out.

(ii) Supplementary report dated 19.07.2017 filed by the police has portrayed a complete and categorical narration of the investigation with regard to the (non) involvement of the applicant by incorporating all the effective evidence in the instant case.

(iii) At the top of it, when the ex-Minister of State Manoj Paras, who is himself an accused in Case Crime No. 775 of 2007, under section 376 IPC, P.S. Nagina, District Bijonore has exerted all his pressure upon the applicant for not pleading the case of informant- Smt. Vinod Kumar in the court of law else to face dire consequences.

28. On the aforesaid background, this Court has assessed the legality/validity/veracity of the order impugned dated dated 29.08.2018 passed by I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore.

29. No doubt, in the unfortunate incident of the case three persons lost their lives and 15 persons sustained injuries in the incident dated 16.03.2016 and the name of the applicant figured up on the basis of the respective statements of the witnesses, who have not even named the applicant in the text of the FIR nor they were injured in the aforesaid incident. The complainant Furkan initially made a statement before the police that he was informed by the persons assembled at the spot of the incident that applicant Aishwarya @ Mausam was involved in the alleged incident but later on he wriggled out from his earlier statement and in support of his statement given at the second occasion, he filed an affidavit stating therein that on the instigation of the co-villagers, he made his first statement. None of the witnesses, especially Shahrukh, Shadab and Rizwan made any statement recorded under section 161 Cr.P.C., stated anywhere in their respective statements that they ever saw the applicant at the place of occurrence on the fateful day.

30. Learned Session Judge while passing the order impugned has ventured into whelm and adjudicated the matter on merits instead of supervising the case, as per law whereas there was no material before him to challenge that this withdrawl of the prosecution or not; in the interest of public interest or in good faith and in order to maintain the broad ends of justice, public order, peace and tranquility or it would sub verse the case of public interest. There seems no material for justifying the same.

31. A person (herein the applicant), who happens to be a leading Advocate in Bijnore judgeship as well as the junior Advocates at Budaun judgeship and involved in a number of welfare work for common people outside the court premises, having no criminal antecedent, just because he was contesting a case against an erstwhile Minister of State, U.P., who was involved in a criminal case under section 376 IPC, is being penalized, was compelled to pay the cost for the reason that he was legally appearing before the court concerned for informant Smt. Vinod Kumari in Case Crime No. 775 of 2007, under section 376 IPC has been fastened in the instant case.

32. Therefore, in the aforesaid backdrop of the circumstances, such prosecution cannot be permitted to proceed any further.

33. This Court is afraid that the reasons embraced by the learned Session Judge while passing the order impugned dated dated 29.08.2018, the learned I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore is dehors and according to the guidelines provided by the Apex Court, in the case of RAJENDRA KUMAR JAIN ETC (Supra) the aforesaid order is liable to be set aside.

34. Accordingly, the order dated 29.08.2018, the learned I-Additional Sessions Judge/Special Judge (POCSO Act), Bijnore passed in Session Trial No. 121 of 2016 (State v. Sansar and others) arising out of Case Crime No. 1036 of 2016, under sections 147, 148, 149, 302, 307, 452, 504, 436, 337 IPC and 7 of the Criminal Law Amendment Act, P.S. Khotwali Shahr, District Bijnore is, hereby, set aside.

35. On the aforesaid mise-en-scène, discussions and circumstances, both the petitions i.e. Application U/S 482 No.- 44691 of 2018 (Aishwarya Chaudhary @ Mausam v. State of U.P. and another) and Criminal Revision No. 3971 of 2018 (State of U.P. v. Mohd. Furkan and another) are allowed.

Order Date :- 15.05.2019

shailesh