Dhirendra Pratap Singh @ Dhiru ... vs State Of U.P. Thru. Secy. Home ...
2023 Latest Caselaw 4810 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- APPLICATION U/S 482 No. - 727 of 2023
 

 
Applicant :- Dhirendra Pratap Singh @ Dhiru Singh And Others
 
Opposite Party :- State Of U.P. Thru. Secy. Home Civil Secrett. Lko. And Another
 
Counsel for Applicant :- Vikas Vikram Singh,Ashish Kumar Maurya,Raghvendra Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J. 

Heard Sri Vikas Vikram Singh, Learned Counsel for the applicant and Sri Rajesh Kumar Singh, learned A.G.A. By means of this application, the applicant has assailed the order dated 24.08.2021 passed in S. T. No. 64/2019 by the Additional Sessions Judge/Special Judge (Rape and POCSO) Court No.II, Balrampur. Sri Singh has submitted that the learned Court concerned ought to have determined whether the public prosecutor improperly exercised his power, however, such exercise has not been carried out strictly in accordance with law.

Learned counsel has referred para 26 of the recent judgment of the Apex Court in re; State of Kerala Vs. K. Ajith and Others (Criminal Appeal No. 697 of 2021, SC) wherein the conditions has been indicated to pass appropriate order by the learned Court concerned , if any application has been filed under section 321 of CrP.C. The learned counsel has submitted that vide impugned order dated 24.08.2021, the learned Court below has indicated that the Government Order dated 03.01.2011 clearly shows that no reason has been mentioned therein regarding withdrawal of prosecution against the accused person. As per Shri Singh, application under section 321 has been filed strictly in accordance with law and the learned Trial Court need not determine the matter judicially. The Court performs a supervisory function in granting its consent to withdrawal. The withdrawal from the prosecution is an executive function of the public prosecutor and none else. Para 26 is as under:

"26. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:

(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:

(a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law:

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

(d) The grant of consent sub-serves the administration of justice; and

(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent."

Learned A.G.A. has submitted that if there is an apparent error on the face of the order dated 24/8/2021, the matter may be remanded to the Court concerned to pass appropriate order following due procedure of law and the remaining prayer of the applicant may not be granted.

Be that as it may, since this is no more res integra that withdrawal from the prosecution is an executive function of the public prosecutor. The discretion to withdrawal from the prosecution is that of the public prosecutor and none else, so he cannot surrender with discretion to someone else. The Government may suggest to the public prosecutor that he may withdraw from the prosecution but none can compel him to do so. The public prosecutor may withdraw from the prosecution not merely on that ground of paucity of evidence but on other relevant grounds as well as in order to further the broad ends of public justice, public order and public peace. The public prosecutor is an officer of the Court and is responsible to the Court. The Court performs the supervisory function in granting its consent to the withdrawal. The Court's duty is not to re-appreciate 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 consideration.

The present case qualifies the aforesaid settled propositions of law settled by the Apex Court in catena of cases.

Considering the settled legal position on the subject by the Apex Court and the facts and circumstances of the present case, I find that the impugned order dated 24.08.2021 suffers from apparent illegality and perversity so the same is liable to be set aside. Further, I find that it would be a futile exercise if the matter is remanded back to the learned trial court to pass appropriate order when the application filed under Section 321 Cr.P.C. fulfills all the required conditions.

Thus, the present petition is allowed and the impugned order dated 24.08.2021,(Annexure No.1), passed in S.T. No.64 of 2019 by the learned Additional Session Judge/Special Judge(Rape and POCSO Act)-II, Balrampur, arising out of Case Crime No.178 of 2000, under Sections 147, 393, 353, 336, 504, 506, 171, 176, 224, 225, 398 & 341 I.P.C. & Sections 131, 135 Representation of People Act & Section 7 Criminal Law Amendment Act, P.S.- Kotwali Dehat, District Balrampur, pending in the Court of learned Additional Session Judge/Special Judge(M.P./M.L.A.), Balrampur, is hereby set aside and the application filed by the learned Public Prosecutor under Section 321 Cr.P.C. for withdrawal from the prosecution is hereby allowed.

Consequences to follow.

[Hon'ble Rajesh Singh Chauhan,J.]

Order Date :- 14.2.2023

Manoj K.