Allahabad High Court
Anand Shankar Pathak vs State Of U.P. And Another on 30 July, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:127332
Court No. - 77
Case :- APPLICATION U/S 528 BNSS No. - 24741 of 2025
Applicant :- Anand Shankar Pathak
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Jeevanjee Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Srivastava,J.
1. Heard learned counsel for the applicant and perused the record.
2. The present application has been preferred under Section 482 Cr.P.C. for quashing of the order dated 30.05.2025 passed by learned Civil Judge (S.D.)/Additional Chief Judicial Magistrate, Sant Kabir Nagar in Case No.644 of 2015 (State Vs. Anand Shankar Pathak and others), arising out of Case Crime No.232 of 2015, under Sections 147, 149, 395, 397, 412, 323, 427 IPC and Section 7 of Criminal Law Amendment Act, Police Station Bakhira, District Sant Kabir Nagar as well as order of issuing non bailable warrants vide order dated 16.08.2017 against applicant in the said case.
3. It has been contended by the learned counsel for the applicant that in the aforesaid case, the prosecution had filed an application under Section 321 Cr.P.C. for withdrawal of prosecution on dated 10.08.2021 which was rejected by learned court concerned vide impugned order dated 30.05.2025 on the ground that since the case is triable by the Sessions Court, therefore, unless the case is committed to the court of session, no order can be passed and the court being the court of Magistrate is not empowered to pass any order under Section 321 Cr.P.C. in respect of those case which are triable by the court of session. It has also been submitted by learned counsel for applicant that non bailable warrants have also been issued against applicant.
4. Learned counsel for applicant has referred to a judgment of Hon'ble the Supreme Court in the case of Rajender Kumar Jain Vs. State [(1980) 3 SCC, page 345] wherein Hon'ble the Supreme Court has held that the power to discharge or acquit the accused under Section 321 Cr.P.C. is itself a special power conferred on the court before whom a prosecution is pending and is to be exercised by the court independently of its power of enquiry into the offence or try the accused. It is, therefore, not proper to say that only the court competent to discharge or acquit the accused under some other provision of the Code can exercised the power under Section 321 Cr.P.C.
5. Learned AGA also did not dispute the arguments raised by learned counsel for applicant.
6. From perusal of the aforesaid judgment of the Hon'ble the Apex Court, it is clear that any court before whom the proceedings are pending, can pass order under Section 321 Cr.P.C. seeking withdrawal of prosecution irrespective of the fact as to whether the court has power to discharge or acquit the accused and as such, the order impugned passed by learned court concerned, is erroneous and is liable to be quashed.
7. In view thereof, order dated 30.05.2025 passed by learned Civil Judge (S.D.)/Additional Chief Judicial Magistrate, Sant Kabir Nagar in Case No.644 of 2015 (State Vs. Anand Shankar Pathak and others), arising out of Case Crime No.232 of 2015, under Sections 147, 149, 395, 397, 412, 323, 427 IPC and Section 7 of Criminal Law Amendment Act, Police Station Bakhira, District Sant Kabir Nagar, is set aside directing learned court concerned to pass fresh order over the application preferred at the behest of prosecution under Section 321 Cr.P.C. keeping in view the law laid down by the Hon'ble Supreme Court in the case Rajender Kumar Jain (supra) on merit.
8. Accordingly, the instant application stands allowed in part.
Order Date :- 30.7.2025
Vivek Kr.
