Through: Shri Rakesh Thapliyal vs State Of Uttarakhand
2022 Latest Caselaw 4029 UK

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
            Writ Petition (Criminal) No. 2370 of 2022

Beearsheeba Educational and
Social Welfare Society, Haldwani.                     ................Petitioner.

                                  Through: Shri Rakesh Thapliyal, learned Sr.
                                  Advocate, assisted by Shri Lalit Sharma, learned
                                  counsel for the petitioner.


                                  -Versus-
State of Uttarakhand
and others.                                            .........Respondents.
                                  Through: Shri J.S. Virk, learned Deputy Advocate
                                  General for the State of Uttarakhand.


               Date of Hearing & Order : 16.12.2022

Shri Sanjaya Kumar Mishra, J.

1. By filing this writ petition, the petitioner, a society registered under Societies Registration Act, has prayed for the following reliefs:

"i. Issue a writ, order or direction in the nature of Certiorari quashing the order dated 30.09.2022 (Annexure 11) passed by the State Government along with its all consequential acts of respondent no. 1 to 6 including filing of application under Section 321 Cr.P.C. (Annexure 12).

ii. Issue an order, direction to dismiss the application under Section 321 Cr.P.C. (Annexure 12) filed by the respondent no. 3 which is presently pending before Chief Judicial Magistrate, Pithoragarh."

2. It is borne out from the records that an order was passed by this Court in WPMS No. 2297 of 2022 directing the Regional Officer, CBSE, to inquire into the matter and take a decision

thereon. The writ petition was filed by the petitioner with a prayer to issue a writ of Mandamus directing the respondents no. 1 to 3 to take appropriate action in the matter against the illegalities committed by respondent no. 5. Before that a charge- sheet has already been by the police in the FIR registered by the Chief Education Officer against private respondents. In the meantime, respondent no. 4 filed an application before the Hon'ble Chief Minister of the State for withdrawal of the prosecution. Office of the Chief Minister of the State called for opinion of the Public Prosecutor. The Public Prosecutor opined that case could not be withdrawn. Thereafter, an order was passed by the Government for withdrawal of the criminal case and the same Public Prosecutor filed an application for withdrawal criminal case.

3. Shri Rakesh Thapliyal, learned Sr. Advocate for the petitioner would submit that a great responsibility lies upon the Public Prosecutor and he cannot change his opinion at the drop of a hat. In support of his contention, he has placed reliance upon the judgment of Hon'ble Supreme Court in the case of S.K. Shukla and others Vs. State of U.P. and others (2006) 1 SCC 314. In paragraph 32 of the aforesaid reported judgment, the Hon'ble Supreme Court has held that this petition is filed against the order passed by the State Government whereby the Public Prosecutor was directed to withdraw POTA cases against the accused persons. An application for withdrawal of the case was moved by the Public Prosecutor for withdrawal of the cases before the Special Judge, though no order was passed permitting withdrawal of the criminal cases in view of finding recorded by Hon'ble Supreme Court in SLP (Criminal) No. 5609 of 2004. It was further held by the Hon'ble Supreme Court that order passed by the Government and the application moved by Public

Prosecutor before Special Judge, Kanpur cannot be sustained and accordingly, both were rejected.

4. It is a settled law as propounded by Hon'ble Supreme Court in various cases that withdrawal from the prosecution is an executive action of the Public Prosecutor and the ultimate decision for withdrawal of the prosecution is his. Before an application is made under Section 321 Cr.P.C, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so.

5. In the present case, as yet, learned Magistrate has not passed any order, so the question of withdrawal of criminal proceedings against respondents no. 4 to 6 is still sub judice before him.

6. In that view of the matter, the writ petition is disposed of by giving liberty to the petitioner to file its objections and raise all the issues before the learned Magistrate, who shall after considering the objections raised by the petitioner, shall take decision of the application filed by the Public Prosecutor under Section 321 of the Code Criminal Procedure, 1973. It is further directed that learned Magistrate shall abide by all the relevant citations and rulings governing the field, relied by the petitioner, if there are no contrary Rulings.

7. With the aforesaid observations, the writ petition is disposed of.

(Sanjaya Kumar Mishra, J.) (Grant urgent certified copy of this judgment, as per Rules)

SKS