Allahabad High Court
Akshay Pratap Singh @ Gopalji And 19 ... vs State Of U.P. Thru. Prin. Secy. Home ... on 27 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SITTING AT LUCKNOW
Neutral Citation No. - 2025:AHC-LKO:50532
Court No. - 13
Case :- APPLICATION U/S 482 No. - 7038 of 2025
Applicant :- Akshay Pratap Singh @ Gopalji And 19 Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another
Counsel for Applicant :- Meenakshi Singh Parihar,Abhiuday Pratap Singh
Counsel for Opposite Party :- G.A.
Honble Subhash Vidyarthi, J.
1. Heard Sri H.G.S. Parihar, the learned Senior Advocate assisted by Smt. Meenakshi Singh Parihar and Sri Abhiuday Pratap Singh, the learned counsel for the petitioners, Sri Rao Narendra Singh, the learned A.G.A.-I appearing on behalf of the State, Sri Ravi Shanker Singh, Advocate who has put in appearance on behalf of the opposite party no.2 and Sri Ajmal Khan, Advocate who has filed an application for impleadment on behalf of co-accused Manoj Kumar Tiwari @ Manoj Kumar Tripathi.
2. This is an application for impleadment filed on behalf of co-accused Manoj Kumar Tiwari.
3. The petition has been filed assailing the validity of an order dated 12.08.2025, passed by learned trial Court rejecting an application under Section 321 Cr.P.C. filed by the State for withdrawal of prosecution against the petitioners.
4. The applicant being a co-accused, will not be adversely affected by the withdrawal of prosecution case against the petitioners and therefore the applicant is not a necessary party to this case. However, the Court is granting limited permission to the applicant to intervene in the matter and submissions of his counsel Sri Ajmal Khan are being heard on the petition.
5. The application for impleadment is disposed of accordingly.
Order on memo of the petition:
1. With the consent of learned counsel for the parties, the matter is being heard finally at the admission stage as the learned counsel for the opposite parties, including the learned A.G.A.-I, have stated that they will advance their submissions in the case without filing any counter affidavit.
2. The instant petition under Section 482 Cr.P.C./Section 528 BNSS has been filed by the petitioners assailing the validity of an order dated 12.08.2025, passed by the learned Special Judge (MP/MLA)/Additional Chief Judicial Magistrate, Court No.13, Pratapgarh in Criminal Case No.236 of 2011: State Vs. Raghuraj Pratap Singh and others, arising out of Case Crime No.513 of 2010, under Sections 395/397/307/364/323/325/504/506/427/34 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station Kunda, District Pratapgarh, whereby the application under Section 321 Cr.P.C. filed by the State seeking withdrawal of prosecution has been rejected.
3. Earlier also, the application under Section 321 Cr.P.C. was rejected by the learned trial Court by means of an order dated 17.03.2023. The petitioners had challenged the validity of the aforesaid order by filing three separate applications - Application U/s 482 Cr.P.C. Nos.2718 of 2023, 4038 of 2023 and 5595 of 2023, all of which had been allowed by means of a common judgment dated 01.03.2024, whereby the order dated 17.03.2023 passed by learned trial Court was set aside as this Court had come to a conclusion that the Public Prosecutor had taken a decision to withdraw the prosecution keeping in view the weaknesses and discrepancies in the prosecution case as noted in the judgment dated 01.03.2024 passed by this Court. This Court had held that the aforesaid decision of the Public Prosecutor was based on cogent reasons and that the continuance of prosecution against the persons against whom the State seeks to withdraw the prosecution, will clearly result in an abuse of the process of law. This Court had remanded the matter to the trial Court for passing fresh orders on the application under Section 321 Cr.P.C. keeping in view the observations made in the order dated 01.03.2024.
4. After remand the learned trial Court again rejected the application under Section 321 Cr.P.C. by the impugned order dated 12.08.2025 on a fresh ground that in the case of Ashwini Kumar Upadhyay and others Vs. Union of India and others: (2021) 20 SCC 599, the Honble Supreme Court provided that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without leave of the High Court in the respective suo-motu writ petitions registered in pursuance of the order dated 16.09.2020, passed by Honble Supreme Court. The learned trial Court held that in the present case, no permission has been obtained from this Court for withdrawal of prosecution against the petitioners.
5. Assailing the validity of the aforesaid order the learned counsel for the petitioners has drawn attention of the Court towards the judgment of Honble Supreme Court in the case of Ashwini Kumar Upadhyay (Supra), a copy of which has been annexed as Annexure No.21 to the petition. The relevant passage of the judgment of the Honble Supreme Court is reproduced below:
In view of the law laid down by this Court, we deem it appropriate to direct that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court in the respective suo-motu writ petitions registered in pursuance of our order dated 16.09.2020. The High Courts are requested to examine the withdrawals, whether pending or disposed of since 16.09.2020, in light of guidelines laid down by this Court.
6. The application for withdrawal of prosecution in the present case was filed on 01.03.2014 and, therefore, it does not fall within the category of cases dealt with by the Honble Supreme Court i.e. pending or disposed of since 16.09.2020. In these circumstances, permission of this Court for withdrawal of prosecution is not required in furtherance of the judgment of the Honble Supreme Court in the case of Ashwini Kumar Upadhyay (Supra).
7. The learned counsel for the intervenor has drawn attention of the Court to an order dated 19.02.2025, passed by a Division Bench of this Court at Allahabad in Criminal Misc. Writ Petition No.10256 of 2020: In Re Special Courts for MPs/MLAs/MLCs Vs. State of U.P., which is a suo-motu writ petition. The learned counsel for the intervenor has submitted that the State has already filed an application seeking permission for withdrawal of prosecution in the aforesaid suo-motu petition, which application is still pending.
8. The State has filed the application in the aforesaid suo-motu writ petition in view of the judgment in the case of Ashwini Kumar Upadhyay (Supra), in which the Honble Supreme Court has requested the High Courts to examine the withdrawal, whether pending or disposed of since 16.09.2020, whereas in the present case the application is pending since 01.03.2014.
9. In Ashwini Kumar Upadhyay v. Union of India: (2021) 20 SCC 599, the Honble Supreme Court has referred to the earlier decision in the case of State of Keralav.K. Ajith: (2021) 17 SCC 318, wherein it was held that : -
25. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321CrPC can now be formulated:
25.1. 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;
25.2. 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;
25.3. The Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;
25.4. 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;
25.5. 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 subserves 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;
25.6. While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinising 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
25.7. 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.
10. The validity of the States request for withdrawal of prosecution has already been examined by this Court on judicial side while passing the judgment and order dated 01.03.2024 in Application U/s 482 Cr.P.C. Nos.2718 of 2023, 4038 of 2023 and 5595 of 2023, wherein after a detailed discussion of the entire relevant material and the law on the point, this Court has drawn the following conclusions: -
31. When we examine the facts of the present case in light of the law laid down by the Honble Supreme Court in the above mentioned cases, the relevant facts which emerge are that the informant-opposite party no. 2 had lodged the FIR against 13 named persons stating that that he was Bahujan Samaj Partys candidate for Babaganj Block. When he had gone to have dinner with some other political leaders and numerous other party workers to have dinner at a Dhaba in Kunda, the accused persons Sudhakar Singh, Pradeep Singh and about a dozen other persons riding two SUVs stopped the vehicles of the complainant and started abusing them. When the complainant and other persons tried to escape, the accused persons fired shots with weapons towards them with intention to kill them. The complainant and the persons accompanying him reached in front of Kotwali Kunda but several persons riding two Fortuner SUVs and about a dozen other vehicles started firing shots with weapons towards the informant and his companions. The complainant and the persons accompanying him went inside the Kotwali to save themselves but the accused persons damaged the vehicles of the complainant and assaulted the persons accompanying him with buts of rifles causing fractures to Pushpendra Shukla and Rohit Mishra. The F.I.R. further alleges that some companions of the complainant had been taken away in the vehicles to some unknown destination and their whereabouts could not be known and that some weapons and goods had been snatched away by the accused persons.
32. Although the FIR alleges that initially only two named persons Sudhakar Singh, Pradeep Singh and about a dozen other persons riding two SUVs had apprehended the complainant and his companions and when he reached Kotwali Kunda, several persons riding two Fortuner SUVs and about a dozen other vehicles started firing shots with weapons towards the informant and his companions, he has named only 13 persons as accused in the FIR and he did not allege the involvement of any other unnamed persons in the FIR.
33. The alleged indiscriminate firing made by numerous persons riding more than a dozen vehicles towards the informant and his companions did not result in any single gun-shot injury to any person.
34. The first charge-sheet was submitted on 03.01.2011 against 11 persons. The first supplementary charge-sheet was submitted on 15.03.2011 against 15 persons although the FIR was lodged against 13 named persons only and no other unnamed person was made accused in it.
35. In the application for withdrawal of prosecution filed on 04.03.2014, the Public Prosecutor stated that he had applied his independent mind and perused the entire material available on record and he was of the view that the decision taken by the Government to withdraw the prosecution was in accordance with law and that from a perusal of the case diary it appears that the evidences collected against the accused persons are very weak and success in the prosecution was doubtful. The trial Court has not dealt with this aspect of the matter and has rejected the application merely because the offences alleged are grave and serious non compoundable offences.
36. The trial Court has noted that the missing weapons were recovered from co-accused persons Diwakar Tiwari, Manoj Kumar Tiwari and Rajesh Kumar Shukla, but it ignored the fact that prosecution against those three persons has not been sought to be withdrawn.
37. The informant has also filed an application before the trial Court supporting the application filed by the Public Prosecutor for withdrawal of the prosecution and he has filed a counter affidavit before this Court supporting withdrawal of prosecution stating that he had lodged the FIR under political pressure.
38. In these circumstances, the decision taken by the Public Prosecutor to withdraw the prosecution keeping in view the aforesaid weaknesses and discrepancies in the prosecution case is based on cogent. The continuance of prosecution against the persons against whom it has been sought to be withdrawn, will clearly result in an abuse of the process of law.
11. In view of the aforesaid findings recorded by this Court in the judgment and order dated 01.03.2024 holding that continuance of prosecution against the petitioners will clearly result in abuse of process of law, the trial Court has again committed a manifest error in rejecting the application for withdrawal of prosecution on a fresh ground, which is not tenable in law in view of foregoing discussions.
12. As the Court had previously recorded findings regarding validity of claim of State for withdrawal of the prosecution and after recording the findings and approving the States request for withdrawal of prosecution, this Court had remanded the matter to the trial Court and the trial Court again rejected the application for withdrawal of prosecution on a fresh ground, which ground again has not been found to be tenable in law, no useful purpose would be served in remanding the matter to the trial Court again for being decided afresh and it appears to be expedient in the interest of justice that the application under Section 321 Cr.P.C. filed by the State be allowed by this Court.
13. In view of the foregoing discussions, this Court is of the considered view that the impugned order dated 12.08.2025, passed by learned trial Court rejecting the application for withdrawal of prosecution on the ground that no approval has been sought by the High Court for this purpose, is unsustainable in law.
14. Accordingly, the petition is allowed and the impugned order dated 12.08.2025, passed by the learned Special Judge (MP/MLA)/Additional Chief Judicial Magistrate, Court No.13, Pratapgarh in Criminal Case No.236 of 2011: State Vs. Raghuraj Pratap Singh and others, arising out of Case Crime No.513 of 2010, under Sections 395/397/307/364/323/325/504/506/427/34 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station Kunda, District Pratapgarh is hereby set aside. The application under Section 321 Cr.P.C. filed by the State on 01.03.2014 (14-B/3) is allowed. The prosecution against the petitioners namely 1. Akshay Pratap Singh @ Gopalji, 2. Satyendra Singh, 3. Kailash Nath Ojha @ Dr. Kailash Nath Ojha, 4. Lalji Nigam @Nigam Srivastava @ Umesh Kumar Nigam, 5. Hitesh Kumar @ Pankaj Singh @ Hitesh, 6. Rohit Singh @ Rohit Kumar Singh, 7. Raghvendra Pratap Singh @ Mukur @ Ravendra Singh, 8. Monu Singh @ Ashutosh Singh, 9. Yogendra Singh, 10. Sarvesh Singh, 11. Prafulla Kumar Singh @ Dabbu Singh, 12. Zulfeqar Ahmad @ Zuleqar Ahmed Siddiqui @ Bhuddo, 13. Shailendra Kumar, 14. Vinod Kumar, 15. Raghuraj Pratap Singh @ Raja Bhaiya @ Kunwar Raghuraj Pratap Singh, 16. Ram Kumar @ Banti @ Gauri Shankar, 17. Hariom Shankar Srivastava @ Hariom Shankar, 18. Narendra Singh @ Nanhe Singh @ Narendra Kumar Singh, 19. Sheetla Singh @ Sheetla Prasad Singh, and 20. Dron Kumar Upadhyay @ Dron Upadhyay in furtherance of Case Crime No.513 of 2010, under Sections 395/397/307/364/323/325/504/506/ 427/34 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station Kunda, District Pratapgarh stands withdrawn.
(Subhash Vidyarthi, J.)
Order Date: 27.08.2025
Ram.
