Allahabad High Court
Ram Naresh Yadav vs State Of U.P. And Anr. on 8 December, 2000
Equivalent citations: 2001CRILJ2479
ORDER Naseemuddin, J.
1. This revision has been filed by Ram Naresh Yadav against order dated 28-7-1994 passed by Special Judge, Unnao in Criminal Case No. 17 of 1993 whereby application 12 Kha of the Opposite Party No. 1-State of U.P. moved through the Public Prosecutor for withdrawing from the prosecution in compliance with the orders of the State Government dated 11-4-1994 was rejected.
2. Learned counsel for the parties was heard and the record of the trial Court was perused.
3. An application was moved by the Assistant D.G.C.(Criminal), Unnao on 21-5-1994 before the learned Special Judge, mentioning that by virtue of order dated 11-4-1994 of the State he wanted to withdraw from the prosecution in public interest and that the prosecution did not want to prosecute the case and, therefore, the case be dropped. The learned Special Judge found that in this case punishable under Section 3/7 of the Essential Commodities Act the case was ripe and the case was fixed for statement, of the accused/revisionist and that there was no justification for the prosecution to withdraw from the prosecution under Section 321, Cr.P.C. He further observed that the word "public interest" was not explained by the prosecution and it was not disclosed as to how the present matter the cause of justice or cause of public was furthered by withdrawing from the prosecution It was mainly on these grounds that the application of the Public Prosecutor was rejected citing the case law in this respect. Slate Government had decided to direct the prosecution to be withdrawn in cases punishable under Section 3/7 of the Essential Commodities Act after due consideration of various aspects of the matter and mentioned in G.O. (Annexure 2 to the revision) that the cases which were pending before the Courts under the above Sections were to be withdrawn in public interest. The Prosecutors were accordingly directed to move applications. The Public Prosecutor who moved the present application did not explain to the Court the 'public interest' involved in the matter nor did the Court dwell upon it. It was a policy matter that the State took a decision after considering all the relevant aspect of the matter. It so appears that the learned Assistant D.G.C. (Criminal) who had argued the case before the learned Special Judge drafted the application incompletely. He could have, however, convinced the Court that it was in 'public interest' to withdraw from the prosecution. The allegations in the instant case were routine in nature and there was nothing special in the facts which constituted the offence punishable under Section 3 read with Section 7 of the Essential Commodities Act read with the relevant Control Order. The allegations against the revisionist/accused were that he had not mentioned the fact of sale on some cards and there were discrepancies in the Register maintained by him resulting in irregularities punishable under the Act read with the Control Orders. These allegations were minor and routine in nature. The learned Court below did not hold that the allegations were serious or were otherwise established. The case law referred to by the Court below was to the effect that the Public Prosecutor had to make out some ground for seeking withdrawal from the prosecution. It is true that the Public Prosecutor did not make out a case by giving details in his application to that effect and it also appears that orally also he did not try to make out a case. However, it was the duty of the Court also to look into the facts and circumstances, of the case and find out whether the case for withdrawal was made out or not. It was not a case of heinous crime and was a case simply of irregularities in the conduct of the business of the distribution of essential commodities by a petty licensed dealer. The order of the State Government speaks about the "consideration of all the aspects and issues involved" in passing of the Government order in respect of ordering the withdrawal of the Public Prosecutor from prosecution. In the facts and circumstances of the case there appears to be a justification for withdrawing from the prosecution. The learned Court below failed to consider this aspect of the matter in this case where the Assistant D.G.C. (Criminal) had failed to convince the Court due to his in competency in drafting the application and in puttting up the matter before the Court. So actually there existed sufficient grounds for withdrawing from the prosecution, although the grounds were not mentioned in detail in the application, which grounds could not be properly put up by the Prosecutor before the Court below. However, the Court itself should have taken pains in this matter and should have found out as to whether sufficient ground was made out to permit the withdrawal from the prosecution or not and public interest was served thereby. Under Section 321 of the Code of the Proscutor could withdraw from the prosecution of any person 'with the consent of the Court', only. It was for the Court to give consent or not to give consent after finding out whether sufficient grounds existed in view of facts and circumstances of the case and in view of the Govt. Policy or not. It was the duty of the Public Prosecutor also to give grounds in the application or in his submission, but at the same time it was also the duty of the Court to 'give' or 'refuse' the consent on the grounds recognised under the case and law referred to by the learned Special Judge him self. The duty to give grounds is also upon the shoulders of the Court as well. The accused cannot be made to suffer due to the incompetency of the Prosecutor in drafting the application or in making the submissions.
4. In view of the above facts and circumstances of the case it appears that the learned Special Judge failed to exercise his jurisdiction properly.A good case for consent of the Court to permit the Prosecution to withdraw from the prosecution, in view of the orders of the State Government, was made out. The Court ought to have allowed the application of the Public Prosecutor Assistant D.G.C. (Criminal) and should not have rejected it. When a policy decision after considering all aspects of the matter had been taken by the State Government and the case was of a routine nature and the application was moving mentioned that prosecution be permitted to withdraw from the prosecution in Public Interest then the Court could have rejected the application only after giving thought to all facts and circumstances of the case discarding the plea of Public Interest, irrespective of the fact whether these were mentioned in the application or not. Non mentioning details by the Public Prosecutor does not absolve the Court from going into the depth of 'Public Interest'. The ground given by the Court that the case was at its advanced stage was no ground to reject the application because under Section 321 of the Code consent of the Court could not be given at any time before the judgment is pronounced. So if the case was ripe and was fixed for statement of the accused, then it was no ground to reject the application. It so appears that the Court below was much influenced by the fact that the entire prosecution evidence had been recorded. This could not have been a ground at all to reject withdrawal from the case because Section 321, Cr.P.C. itself provides that the prosecution may withdraw even before the pronouncing of the judgment.
5. It view of the above the order under revision has to be set aside and the revision has to be allowed. The revision is allowed. The order under revision is set aside. The application of the Assistant D.G.C. (Criminal) for withdrawing from the prosecution of the accused-revisionist in the instant case stands allowed and the Prosecutor is permitted to withdraw from the prosecution of the revisionist.