Allahabad High Court
State Of U.P. vs Smt. Bijma Yadav on 19 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1328
Author: Govind Mathur
Bench: Govind Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Chief Justice's Court Case:- CRIMINAL REVISION No. - 874 of 2019 Revisionist:- State of U.P. Opposite Party :- Smt. Bijma Yadav Counsel for Revisionist:- G.A., Manish Goyal, A.K. Sand Counsel for Opposite Party:- Swati Agrawal Srivastava, Suresh Chandra Dwivedi With Case:- APPLICATION U/S 482 No. - 3002 of 2019 Applicant:- Uday Bhan Karwariya Opposite Party :- State of U.P. Counsel for Applicant:- In Person Counsel for Opposite Party:- G.A., Swati Agrawal Srivastava Hon'ble Govind Mathur, Chief Justice Heard Sri G.S. Chaturvedi, Senior Advocate assisted by Ms. Soumya Chaturvedi, Advocate appearing on behalf of the accused-Udai Bhan Karwariya, Sri Manish Goyal, Additional Advocate General assisted by Sri A.K. Sand, Additional Government Advocate appearing on behalf of the revisionist-State and Mrs. Swati Agrawal Srivastava, learned counsel appearing on behalf of opposite party-Smt. Bijma Yadav.
By the order dated 10th December, 2018 learned VIth Additional Sessions Judge, Court No.5, Allahabad refused to grant consent for withdrawal of accused from prosecution relating to Sessions Trial No.799 of 2014 arising out of Case Crime No.515 of 1996. To question correctness of the order aforesaid, a revision petition is preferred on behalf of the State of Uttar Pradesh and a Criminal Misc. Application U/s 482 Code of Criminal Procedure, 1973 is preferred by accused Udai Bhan Karwariya.
The facts necessary to be noticed for adjudication of both the matters are that on 13th August, 1996 at about 8.45 pm a first information report was lodged at Police Station Civil Lines, Allahabad at the instance of Sri Sulaki Yadav relating to offence under Sections 147, 148, 149, 302, 307 Indian Penal Code and Section 7 of Criminal Law Amendment Act. As per the averments contained in the first information report, Sri Jawahar Yadav @ Pandit a former Member of Legislative Assembly and brother of the informant Sulaki Yadav had enmity with Sri Kapil Muni Karwariya and his other family members. Sri Kapil Muni Karwariya and his other family members on account of the enmity wanted to kill Sri Jawahar Yadav @ Pandit. Apprehending threat to life, Jawahar Yadav demanded security from the administration. The informant Sulaki Yadav too used to take care of his brother. On 13th August, 1996 at about 6.30 pm Jawahar Yadav was on way to his house situated at 28/38 Lowther Road. He was in a Maruti car bearing registration no.UP 70 E 3479. The car was driven by Sri Gulab Yadav, Jawahar Yadav was sitting next to the driver and one Sri Kallan Yadav was sitting on a rear seat behind Jawahar Yadav. The informant Sulaki Yadav was following the Maruti car in a vehicle "Tata Sumo" that was driven by Lochan Yadav. One Abhimanyu was also accompanying him. At about 7.00 pm while passing from the Palace Talkies, a Jeep intercepted the Maruti car and in the meanwhile, a white Maruti Van overtook the car in which Jawahar Yadav was sitting. At that time some noise of exhortation was heard. Gulab Yadav the driver tried to speed up his car but a Jeep wherein accused Ram Chandra Tripathi @ Kallu armed with a rifle, Kapil Muni Karwariya, Suraj Bhan Karwariya, Udai Bhan Karwariya and Shyam Narayan Karwariya @ Moula all armed with AK 47 rifles were sitting, hit the Maruti car and on the exhortation of Moula indiscriminate firing was made on the Maruti car. As a consequence, Jawahar Yadav, Gulab Yadav, Kallan Yadav and one passer on the road received gun shot injuries. The informant Sulaki Yadav and other persons raised alarm for rescue and at that time the accused fled from the spot of occurrence in their vehicle. On account of the incident, an atmosphere of terror existed in the area concerned and all the shops around were shuttered down. On going close to the Maruti car, Sulaki Yadav found that his brother Jawahar Yadav and driver Gulab Yadav had died and the passer who also received firearm injuries lost his life. Kallan Yadav received injuries. The entire incident as per the informant was witnessed by several persons including the persons accompanying him and one Sri Rajendra Kumar S/o Shaym Lal. No one among the other persons was ready to speak anything looking being afraid of Kapil Muni Karwariya and his brothers. Kallan Yadav was taken to the hospital and then the police authorities were approached.
After registration of the first information report, investigation commenced and that remained with the Police Station Civil Line, Allahabad from 14th August, 1996 to 29th August, 1996. The investigation then was transferred to Crime Branch (CID), Allahabad on 7th September, 1996 in pursuance of a letter written by Dr. Murli Manohar Joshi a prominent leader and then Member of Parliament from Allahabad parliamentary constituency. The Crime Branch (CID) Allahabad conducted the investigation from 7th September, 1996 to 27th September, 1996 but that was again transferred to Crime Branch (CID), Varanasi and was further transferred to Crime Branch (CID), Lucknow on 22nd June, 2002. The Crime Branch (CID), Lucknow after completing the investigation on 20th January, 2004 i.e. after a lapse of about 8 years from the date of incident filed a report as per provisions of Section 173 of the Code of Criminal Procedure, 1973 before the court of Special Chief Judicial Magistrate, Allahabad. The court, on 27th January, 2004 after taking cognizance registered a case bearing Case No.102 of 2004, State Vs. Kapil Muni Karwariya and others. An application then was filed by accused Kapil Muni Karwariya on 27th July, 2008 for further investigation in the matter. The State Government on 19th November, 2008 ordered for further investigation by Crime Branch (CID), Allahabad and that came to be completed on 28th October, 2009.
It would be appropriate to state that the accused persons preferred a Criminal Misc. Petition Under Section 482 of Code of Criminal Procedure, 1973 (Application No.4950 of 2004) before single Bench of this Court to challenge the chargesheet that was submitted to the court competent on 20th January, 2004. In the case aforesaid, a single Bench completed hearing on 16th August, 2005 and reserved the judgment. While reserving the judgment, the Court stayed further proceedings of the criminal case. The order passed by learned single Bench of this Court on 16th August, 2005 while concluding the hearing reads as under:-
"Judgment reserved.
Till delivery of the judgment further proceedings of Case No.201 of 2004 State Vs. Kapil Muni Karwariya and others pending before Special Chief Judicial Magistrate, Allahabad shall remain stayed against applicants Kallu @ Ram Chandra Tripathi, Suraj Bhan Karwariya and Kapil Muni Karwariya only shall remain stayed."
It would be unfortunate to notice that the judgment in the matter was not delivered by the Judge for a period of more than two years and ultimately demitted the office on attaining the age of superannuation on 30th September, 2007 without delivering the judgment. Even after retirement of the Judge, it appears that the matter was not brought to the notice of the then Chief Justice and as such no progress took place in the matter and the interim order dated 16th August, 2005 remained in currency. The entire case would have not seen dais of the Court, if Smt. Bijma Yadav, W/o deceased Jawahar Yadav @ Pandit had not approached Hon'ble the Supreme Court by way of filing Writ Petition (Criminal) No.148 of 2014. The petition for writ aforesaid came to be disposed of on 5th January, 2015 by an order in following terms:-
"In the course of hearing, we have been informed that although the arguments have already been heard in Criminal Miscellaneous Application No.4950 of 2004 on 16th August, 2005, but till date judgment has not been pronounced.
On these facts, we request the Chief Justice of the Allahabad High Court to look into the matter and seek reason why the case had not yet been disposed of. In the event, the matter is still pending, we request the High Court of Allahabad to dispose of the case within three months.
The writ petition is, accordingly, disposed of."
After disposal of the writ petition aforesaid on 5th January, 2015, record of Criminal Misc. Application No.4950 of 2004 was placed before the then Chief Justice, who in turn passed the following order:-
"All fresh and listed criminal matters of any nature including bail matters, matter u/s 482 Cr.P.C., revision, writ or other applications pertaining to Sessions Trial No.351 of 2015 (Old No.799 of 2014) "State of U.P. vs. Kapil Muni Karwariya & others" relating to Case Crime No.515 of 1996 u/s 147, 148, 149, 302, 307, 34 I.P.C. and Section 7 Criminal Law Amendment Act, chargesheet no.6 of 2004 dated 20.01.2004, Police Station - Civil Lines, District - Allahabad, in view of earlier orders of nomination after the order of Hon'ble the Apex Court and to consolidate various cases, are assigned to Hon. Mr. Justice Ramesh Sinha till final disposal.
Any criminal matter pending before this Court arising out of the aforesaid Sessions Trial and Case Crime number shall also stand assigned to Hon. Mr. Justice Ramesh Sinha till final disposal and henceforth be listed before His Lordship."
In view of the order passed by the then Chief Justice, the Criminal Misc. Application u/s 482 Cr.P.C. along with three other matters arising out of the same incident were listed before Hon'ble Justice Ramesh Sinha. The Bench heard all the matters and disposed of the same vide judgment dated 8th April, 2015. The Bench on disposal of the petitions also vacated the interim order dated 16th August, 2015. The accused Kallu @ Ram Chandra Tripathi, Suraj Bhan Karwariya and Kapil Muni Karwariya were directed to surrender before the court concerned forthwith and the Special Chief Judicial Magistrate, Allahabad was directed to commit the case to the court of sessions within a period of 10 days. In pursuance to the directions given by learned single Bench vide judgment dated 8th April, 2015, the case was committed to the court of sessions and the trial commenced as desired by the accused persons on denial of the charges.
During course of the trial, the trial court examined all the prosecution witnesses and also afforded opportunity to the accused persons to explain all the adverse and incriminating circumstances in the evidence adduced by the prosecution. A big number of witnesses in defense too were examined.
At this stage, Smt. Neelam Karwariya, a sitting Member of Legislative Assembly and wife of accused Udai Bhan Karwariya submitted an application on 17th July, 2017 to withdraw the accused persons from the prosecution on several counts. The Special Secretary to the Government of Uttar Pradesh, Department of Justice acting upon the application aforesaid, sought a report from the District Magistrate, Allahabad. The District Magistrate, Allahabad under a communication dated 31st May, 2017 conveyed to the Principal Secretary, Department of Justice, Government of Uttar Pradesh that looking to the seriousness of the matter and also the evidence available, it would not be appropriate to withdraw the accused persons from the prosecution. While doing so, the District Magistrate, Allahabad sought a detailed report from the Special Public Prosecutor conducting the trial and the Senior Superintendent of Police, Allahabad. The Special Public Prosecutor submitted a detailed report touching all aspects of the matter to substantiate his conclusion for not withdrawing the accused persons from the prosecution. The report given by the Special Public Prosecutor deserves to be quoted and that is as follows:-
"To, The Ld. District Government Counsel (Crl.), Allahabad.
Subject:- Regarding withdrawal of the prosecution of C.C.No.- 515/1996 S.T. No.-799/14, U/s- 147, 148, 149, 302, 349, 307 & 7 C.L.A. Act, P.S.- Civil Lines, District-Allahabad, State versus Kapilmuni Karvariya.
Sir, The report/information sought on 13 points regarding withdrawal of the prosecution in the aforesaid case are serially as follows:-
1. Case No./ C.C.No. -S.T. No.- 799/2014, C. No.- 515/1996
2. Sections of Offence -147, 148, 149, 302, 349, 307 IPC & 7 C.L.A. Act
3. Name of the Court -Additional Sessions Judge Court No.-Fifth, Allahabad.
4. Name of the accused against 1- Udaybhan Karvariya whom the charge-sheet has been 2- Kapilmuni Karvariya forwarded, if any accused has died 3- Surajbhan Karvariya then his clear details. 4- Ramchandra Tripathi alias Kallu Tripathi 5- Shyam Narayan Tripathi alias Moula wherein accused Shyam Narayan Karvariya alias Moula has died before examination.
5. Facts of the case (First - Enclosed Information Report/ legible copy of the charge-sheet) 6- Description of injuries of -Kallan Yadav and Pankaj Srivastava the complainant side have sustained firearm injuries. Kallan Yadav had died naturally, hence not produced in the evidence. Injured Pankaj Srivastava was discharged due to his collusion with the accused persons.
7- Description of the recovery -Empty cartridge from the during the investigation place of occurrence, cartridge, blood-stained seat and plain seat, rifle from the Maruti Car, 4 bullets and 2 jackets.
8- Updated status of the case -After completion of the in the court prosecution evidence, the case is currently at the stage of defence evidence, till 0.10.2017 total 16 witnesses have been produced by the defence.
9. Detail and updated - Nil.
status of the cross case, if any
10. Examination and analysis of the evidences available in the case diary:
Brief of the above case is that on 13.8.1996 around 6.30 p.m, when Jawahar Yadav @ Pandit, the former MLA, left from his office situated in Lowder road by his Maruti Car, which was being driven by Gulab Yadav and beside whom Pandit ji (Jawahar Yadav) was sitting. On the rear seat of the car of Jawahar Yadav, Kallan Yadav was sitting. Behind him, complainant of the case Sulaki Yadav left in his Tata Sumo which Lochan Yadav (Ram Lochan Yadav) was driving. Abhimanyu Yadav was also sitting beside. When, around 7.00 p.m., Jawahar Yadav's car reached a bit ahead of Palace Cinema, a jeep running ahead of the car, slowed down. Meanwhile a Maruti Van of white colour, the number of which was UP 70 8070, overtaking the car, reached beside. A voice of exhorting was heard from that. Driver Gulab tried to escape by rushing the car ahead, but Ram Chandra Tripathi @ Kallu Tripathi, sitting in the jeep stopped the way by parking (?) in front of car, because of which the car collided with. Then Ram Chandra Tripathi @ Kallu, holding a rifle, got off the jeep. Meanwhile Kapil Muni Karvariya, Uday Bhan Karvariya, Surya Bhan Karvariya and their grand-fahter Moula (Shyam Narayan Karvariya) holding rifles, AK-47 and other weapons in their hands, appeared from the Maruti Van. On being exhorted by Maula and Ram Chandra, all above, with the weapons in their hands, started shooting at the Maruti Car, because of which Jawahar Yadav, the driver Gulab and Kallan received gun-shots. One other man, being hit by a bullet, fell down and a few others also received gun-shots. Chaotic condition, stampede were caused and terror prevailed after the bullet shots were fired. When the complainant came near and saw then Jawahar Yadav, driver Gulab had died in the vehicle. One person was lying dead on the road, Kallan who was sitting in the vehicle had sustained serious injuries, the incident was also witnessed by Rajendra Kumar other than the complainant, Ramlochan Yadav, Abhimanyu Yadav.
Copy of the FIR/ written complaint is enclosed for complete details-
The primary investigation was started by the Civil Lines Police station, Allahabad, thereafter as per the Government Order, the investigation of the case was completed by C.B.C.I.D. and charge-sheet was filed against the accused persons.
The trial of the case started before the Hon'ble Additional Sessions Court Room No. 5. Witnesses were examined by the Prosecution Officer of the C.B.C.I.D. before the Hon'ble Court. Eye-witness namely P.W. -1 Sulaki Yadav complainant, P.W. - 2 Rajendra Prasad, other than P.W.-3 Ramlochan Yadav, P.W.-4 Ram Sundar S.I. (chik writer), P.W.-5 Dr. Vinod Kumar Koyal, P.W.-6 Ashok Kumar Mishra S.I. (inquest report), P.W.-7 Dr. A.K. Gupta, P.W.-8 Udayraj Singh C.P. no. 244, P.W.-9 Umashanker Tiwari retired Head Constable, P.W. 10 Ashwani Kumar Saxena retired Engineer Electricity Department, P.W.- 11 Aatmaram Dubey In-charge Inspection, Police Station Civil Lines (Investigator- II), P.W. 12 Triveni Prasad Pathak H.C.M.T., P.W.- 13 Rukmangal Singh Inspector/ Investigator C.B.C.I.I., PW-14 Shivratan Singh Inspector/Investigator C.B.C.I.D., PW-15 Dr. Ajay Kumar Radiologist, PW-16 Radha Mohan Dubey Incharge Inspector Civil Line (First Investigator), PW-17 Kedarnath Singh retired S.I.M., PW-18 P.L. Prabhakar retired Inspector/Investigator C.B.C.I.D. were examined by the prosecution in the case.
Eyewitnesses PW-1, 2 and 3 have fully supported the prosecution story about the incident and the relevant facts have been completely supported and corroborated by the formal witnesses. In sum, the matter is quite contested.
On perusal and analysis of the entire evidence, it is evident that the aforementioned incident was was carried out by the accused persons.
Conclusion In my opinion, the evidences on record are quite sufficient to convict the accused persons. Under the above circumstance and at this level (While under the order, dated 15 September 2017, passed by the Hon'ble Supreme Court, the matter is to be decided by the trial court in a period of three weeks, the last week of which has begun), it would not be proper to withdraw the prosecution.
Report/Information is submitted with regard.
Dated- 30.10.2017 Enclosures:- sd/illegible 30 x 17 (Ranendra Pratap Singh) 1- First Information Report/Copy Special Advocate Crime of complaint. Allahabad. 2-Copy of charge-sheet. 3-Order of the Ho'nble Supreme Court Dated 15.09.2017 Point No:12
I concur with the report of District Government Advocate(Criminal), Allahabad. Since case is not worthy for withdrawal, thus withdrawal from prosecution is not recommended.
- Sd-(Illegible) Senior Superintendent of police Allahabad Point No-13 I concur with the report of Senior Superintendent of Police - Sd-(Illegible)" (authentic translation has been made under instructions of the Court).
As evident, Special Public Prosecutor concluded that the evidence on record is sufficient to convict the accused persons and also that in light of the order passed by Hon'ble Supreme Court, the trial is to be concluded expeditiously.
The Senior Superintendent of Police, Allahabad accepted and adopted the reasoning given by the Special Public Prosecutor.
After receiving the opinion, the Special Secretary to the Government of Uttar Pradesh, Department of Justice under a communication dated 16th January, 2018 directed the District Magistrate, Allahabad to remit a copy of "Medical Report" for perusal. The material demanded was sent to the Special Secretary and subsequent thereto, a demand was made to have the case diary relating to the investigation. The case diary of the investigation was sent to the Special Secretary on 20th September, 2018 and thereafter, further demand was made to remit copies of the statements recorded during the course of trial. Copies of all the statements were also sent to the State on 28th September, 2018. After having the material, the State Government desired to have opinion of the Advocate General in the matter.
The Advocate General provided his written opinion to the State on 24th October, 2018. The Advocate General opined that looking into the parameters laid down by the Supreme Court regarding withdrawal of criminal prosecution in the case of Sheo Nandan Paswan Vs. State of Bihar, 1987 (1) SCC 288, Rahul Agarwal Vs. Rakesh Jain., 2005 (2) SCC 377, Abdul Karim and others Vs. State of Karnataka, 2000 (8) SCC 710 and Tek Chand and another Vs. Superintendent of Police and others, AIR 1987 SC 349 a valid reason is made out for withdrawal from prosecution in Case Crime No.515 of 1996 relating to offence under Sections 147, 148, 149, 302/34, 307 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Civil Lines, District Allahabad. Learned Advocate General also advised to have necessary steps for withdrawal from prosecution as per provisions of Section 321 of the Code of Criminal Procedure, 1973.
It appears that after having opinion from the learned Advocate General, the matter was examined at State level and the Governor granted sanction for presenting an application for withdrawing accused persons from prosecution. The decision taken by the State was communicated to the District Magistrate, Allahabad under a letter dated 1st November, 2018. After receiving the letter aforesaid, the District Magistrate, Allahabad under a letter dated 2nd November, 2018 communicated the Special Public Prosecutor to move an appropriate application for withdrawal from prosecution.
The Special Public Prosecutor then filed an application on 3rd November, 2018 to have consent for withdrawal from prosecution as per provisions of Section 321 of the Code of Criminal Procedure, 1973. The application aforesaid (authentic translation) reads as follows:-
"In The Court of Additional Sessions Judge, Court No.-5, Allahabad.
State versus Kapil Muni Karvariya and others Crime No.-515/96 U/s.- 147, 148, 149, 302, 34 307 IPC & 7 C.L. Amendment Act PS- Civil Lines, District-Allahabad S.T. No.- 799/2014 & 351/2015 Application under section-321 of Cr.P.C. :-
Sir, It is submitted in pursuance of the Government Order:-
1. That, the above mentioned case is pending in the court for trial wherein today i.e. 3.11.2018 is fixed for hearing.
2. That, after due consideration of the facts of the case and the available report/documents, the Government, vide Government Order No.12/W/VII-Nyay-5-2018-206/WC/2017, has given consent to the Public Prosecutor for moving application in Court for withdrawal of the above case. The order of the Government has been received by the District Government Counsel Criminal, Allahabad on 2.11.2018 through the District Magistrate/Additional District Magistrate. On account of being the in-charge of the above case, I have been authorized to move the application for withdrawal of the case. The Government Order as well as the order of the District Magistrate/Additional District Magistrate, Prayagraj are enclosed in original.
The file, case diary and statements of the witnesses have been perused by me. It is the statement of the complainant namely Sulaki Yadav that he was present on the spot whereas seeing the incident by himself appears doubtful due to following reasons.
1. In another case, giving this statement before the Magistrate that he reached the spot only after getting the information of the incident.
2. It being told to the defence witness by the complainant on mobile that on being asked by someone else, Udaybhan got the incident committed, and indirectly giving clean chit to Kapil Muni Karvariya.
3. It seems unnatural to drive the vehicle behind for security of deceased Jawahar Yadav and keeping the licenced weapon at home itself.
4. Despite being old history-sheeter with several cognizable offences including various murders, etc, and a muscle-man, neither taking his brother and others to the hospital nor extending help therein, and waiting for the arrival of the police being seated in the car. In such circumstances, it is hard to consider such a person as reliable one.
5. This statement of the first investigator and the constables who took the injured persons and the deceased persons to the hospital that neither there had been any other vehicle behind the vehicle of the deceased nor was the complainant seen there.
6. It is the statement of the defence witnesses, i.e. the Cabinet Minister of the Centre Government and one Parliamentarian as well as one Legislator and several other independent witnesses that Kapil Muni Karvariya and Ramchandra Tripathi alias Kallu were present in Lucknow at the time of the incident.
7. This statement in the evidence of respected persons of every section of the society, advocates and traders and others that they were near the place of incident and they had not witnessed the presence of the named accused persons and the complainant and others.
8. This statement of the investigators themselves that apart from the alleged eye-witnesses of this case, they did not come across any such person who has claimed it that these are the accused persons who have caused this incident. On the contrary, persons from all the sections have termed them as innocents.
Earlier, witness no. 2 Rajendra Kumar has given an affidavit in the Court of C.J.M. Allahabad of this effect that he was not present at the place of occurrence, nor did he witness any incident. The investigator of C.B.I. had received the copy of this affidavit. During the course of investigation, when he asked Rajendra Kumar about this affidavit, he accepted submitting the affidavit. The counsel who had written the affidavit has given evidence in the Court about the contents of the affidavit. This witness was a co-accused in a murder case along with the real brother-in-law of the deceased namely witness No. 3 Ramlochan Yadav prior to this incident. He himself told in the Court that he had seen the incident hiding behind the tree. Despite meeting the complainant and family members of the deceased person, he didn't tell about seeing the incident to his family members and to any other person.
Witness No. 3 Ramlochan Yadav is the real brother-in-law of the deceased. He tells about accompanying the complainant for the purpose of security. He also had a licensed firearm during the time of the incident but he too had kept the firearm at the house and was accompanying for security. He too had a long criminal history. Case of murder, attempt to murder and three cases of gangster are pending against him. Other than being a history-sheeter criminal, (he) is also a gangster. (He) does not go to injured and deceased persons even after the accused flee away. When the police come and carry the deceased and injured persons to the hospital, they go to vehicle of the deceased person after getting off the vehicle behind. His conduct too is unnatural in the same way. There are similarities among all except the mobile conversation of the complainant, the statement and the statement given before the Magistrate.
In the above case, the statements of 65 defense witnesses have been recorded from the side of the accused persons.
Regarding the presence of Kapil Muni Karvariya and Ram Chandra Tripathi in Lucknow on the date and day of occurrence, the Cabinet Minister of the Central Government DW15 Mr. Kalraj Misra and the M.P from Banda DW5 Mr. Bhairo Prasad Misra and the former MLA from Amethi DW3 Mr. Jamuna Prasad Misra, the driver DW1 Dinesh Chandra Upadhyaye, DW39 Sharad Pandey, DW59 Maithili Sharan Shukla etc. have stated about them to be present in Lucknow.
An officer sitting in the jeep, running ahead of the vehicle of the defence witnesses, Dr. Ram Khelawan Singh DW17 the retired DFO, several advocates and the shopkeepers around the place of occurrence have also stated that the accused named in the occurrence, were not present there, and that the complainant or his vehicle were also not present there.
DW26 Mr. Vinay Kumar Misra, the chief correspondent of the 'Swatantra Bharat' and DW10 Mr. Anuj Khanna the independent photographer who immediately reached the spot and started collecting photographs, and the photographs collected by them were published in the news papers, have also stated that the complainant or his vehicle were not present there at the time of occurrence.
The F.I.R lodged regarding this occurrence is also not beyond doubt, because the then Senior Superintendent of Police, Allahabad Mr. Rajni Kant Misra, after coming back from the place of occurrence and the police station, around 12.21 'O' clock at night, informed the higher authorities and the government in which there is the reference of some unknown persons, and not the name of those accused who are named. The personnel in the S.S.P. Office have also verified these facts and during the investigation, the Investigating Officer of CBCID has enclosed the FAX message in the case diary which is present on the record. In addition to this scribe of report Madhup Agrawal has furnished evidence as DW-14 who stated to have written the report at 1-2 am. All these facts indicate FIR to be ante timed.
After seriously considering the aforesaid facts I am of the opinion that in the aforesaid case there appears no sufficient ground for punishment. Criminal history of accused involving a former parliamentarian, a former legislator, a former M.L.C. and a former headmaster is not known from record. There is no probability of adverse effect on society and public if the aforesaid accused are acquitted. Investigators have clearly stated in the Court that besides three prosecution witnesses no other person stated that accused were guilty. Nobody heard of their involvement. The aforesaid accused appear to have been falsely implicated due to political rivalry.
In the case the opinion of Advocate General U.P. has been received by the Government on the point of withdrawal of case. According to his opinion the presence of informant is doubtful.
On the basis of aforesaid facts the aforesaid case is liable to be withdrawn in public interest and in the interest of justice.
Therefore the Hon'ble Court is requested to kindly grant permission for withdrawal of case.
Date- 03.11.2018 By Sd/- illegible Ranendra Pratap Singh Special Counsel (Criminal)/Special Public Prosecutor Allahabad."
The reply to the application was filed on behalf of Smt. Bijma Yadav stating therein several facts including that the application deserves to be rejected as the Special Public Prosecutor has presented the same without application of his independent mind and just by acting upon the directives received from the State Government. It was also stated that in light of several judgments of the Apex Court authority under Section 321 of Code of Criminal Procedure, 1973 is required to be invoked only in good faith and in public interest but in the instant matter both ingredients are conspicuously absent. The reply to the objections was also filed by the Special Public Prosecutor.
The trial court after examining contents of the application and hearing the rival parties, refused to accord consent under an order dated 10th December, 2018. The trial court after considering contents of the application, reply thereto and rejoinder given by the Special Public Prosecutor arrived at the conclusion that the application is neither in public interest nor in good faith. The application though mentions that the decision for withdrawal from prosecution is taken in public interest but no material is available on record to establish the public interest and further the Special Public Prosecutor failed to satisfy the court that the withdrawal from prosecution would serve the interest of justice and that would also not cause any injustice or shall not cause any hindrance in process of law. The trial court noticed that during the course of trial entire prosecution evidence has already been completed, the opportunity has already been given to the accused persons to explain adverse and incriminating circumstances in prosecution evidence and further that enormous defense evidence too has been completed. A definite finding is given by the trial court that looking to the facts of the case it would not be appropriate in public interest to withdraw the accused persons from the prosecution.
Being aggrieved by the order dated 10th December, 2018 passed by the learned trial court, instant revision petition was preferred by the State of Uttar Pradesh and the Application U/s 482 Cr.P.C. by the accused Udai Bhan Karwariya.
While pressing the revision petition, Learned Additional Advocate General, Sri Manish Goyal assisted by Sri A.K. Sand, learned Additional Government Advocate submitted that the trial court while refusing to grant consent for withdrawal of accused persons from prosecution failed to appreciate that the Special Public Prosecutor considered and examined all relevant facts, the evidence available on record and the fact that the prosecution of the accused persons would neither be in good faith nor be in public interest. He emphasized that the State at its level thoroughly examined each and every fact and then only the Governor of the State granted sanction to move an application as per provisions of Section 321 of the Code of Criminal Procedure, 1973. The Special Public Prosecutor on having sanction from the State Government applied his mind without any extraneous pressure and submitted a detailed application narrating the facts that warrants withdrawal of the accused persons from prosecution.
According to learned Additional Advocate General, as per provisions of Section 321 of the Code of Criminal Procedure, 1973 the Special Public Prosecutor being incharge of a case is empowered to withdraw a person from the prosecution at any time before the judgment is pronounced on the written permission of the State Government to that effect. Therefore, the anxiety of the court relating to the stage on that the application is preferred is absolutely non-consequential for examining the application. By citing several judgments of Hon'ble Apex Court, learned Additional Advocate General states that the application is absolutely in good faith and also in advancement to a public policy as the continuance of the innocent accused in prosecution shall not at all be in interest of justice.
While meeting with the reasoning given by learned trial court to arrive at a conclusion that the Special Public Prosecutor sought consent for withdrawal from prosecution without independent application of mind, it is urged that though the application under Section 321 of Code of Criminal Procedure, 1973 was filed within a period of 24 hours after receiving the instructions from the State Government but merely on that count non-application of mind on part of Special Public Prosecutor cannot be presumed. The court was required to look into the contents of the application and if that was disclosing adequate reasons then consent should have been granted instead of drawing irrelevant presumptions. It is reiterated that the application is self speaking and that deals with each and every aspect of the matter. The trial court as such while refusing to grant consent failed to exercise jurisdiction vested with it. The order impugned in view of learned Additional Advocate General thus, is unsustainable and deserves to be quashed.
Sri Gopal Chaturvedi, learned Senior Advocate assisted by Ms. Soumya Chaturvedi, Advocate while pressing the criminal misc. petition preferred as per provisions of Section 482 Cr.P.C. on behalf of accused Udai Bhan Karwariya submits that learned trial court failed to appreciate that the Special Public Prosecutor was dealing with the case from last several years and he was acquaint with each and every fact related thereto, the period of 24 hours as such was sufficient to draw on paper the facts necessary to have consent for withdrawal from prosecution.
According to Sri Gopal Chaturvedi, learned Senior Advocate, the trial court should have examined the contents of the application instead of the fact that the application to have consent for withdrawal from prosecution as per Section 321 of Code of Criminal Procedure, 1973 was filed only on the day next after receiving necessary sanction from the State Government. While placing reliance upon various judgments of Hon'ble the Supreme Court, Sri Chaturvedi states that for withdrawal of a person from prosecution the only requirement is that such withdrawal must be in good faith and in public interest. The term good faith is required to be understood as that is defined under Section 52 of the Indian Penal Code. As per Section 52, nothing is said to be done or believed "good faith" which is done or believed without due care and caution. In other words, if an act is done with due care and caution then that is in good faith only.
He further submits that in the case in hand, the State before arriving at a conclusion to have withdrawal of accused persons from prosecution, examined each and every aspect quite vigilantly, with due care and attention. The State at the first instance sought necessary details from the District Magistrate, Allahabad, who in turn provided the same with the aid of Special Public Prosecutor and Senior Superintendent of Police. Examining the report given by the District Magistrate, the medical evidence that was adduced by the prosecution was also called and that was examined. The statements recorded during the course of trial and the case diary relating to investigation were also looked into and then opinion from learned Advocate General was taken. After having opinion from the learned Advocate General, the matter was again considered at the State level. These facts are sufficient to establish due care and attention taken while granting permission as required under Section 321 of Code of Criminal Procedure, 1973.
While referring provisions of Section 114 of the Indian Evidence Act, learned Senior Advocate states that even if something minor is missing in the application, then too presumption is to be drawn that the facts stated exists and happened as per the common course.
While opposing the revision petition as well as the application preferred under Section 482 Code of Criminal Procedure, 1973, Mrs. Swati Agarwal Srivastava, learned counsel appearing on behalf of Smt. Bijma Yadav states that the facts of the case from inception indicates that the accused being powerful political persons are trying to thwart the trial. In detail she has narrated all the events taken place from the date of incident i.e. 13th August, 1996. It is submitted that accused persons successfully stifle the trial for good 18 years. They would have not permitted to proceed the trial ahead, but it is only under the directions of the Supreme Court the trial commenced and now that is at the verge of completion. In the trial after completing prosecution evidence and the defense evidence arguments are in progress.
Mrs. Swati Agarwal Srivastava has also brought in notice of the Court about the various applications preferred and the orders passed thereon to substantiate her assertion relating to the efforts said to be made by the accused to get rid from the course of law.
Heard learned counsels.
The provisions relating to withdrawal from prosecution as per provisions of Section 321 Code of Criminal Procedure, 1973 have been considered by the Apex Court as well as different High Courts of the country in several cases. However, looking to the gravity of the matter, it would be appropriate to have little introduction of the law relating to the issue.
"Criminal Justice" is the most important limb of criminal jurisprudence. It delivers justice to those who have committed crimes or alleged for that. The primary institutions of criminal justice are the police, prosecution, defence, courts and prisons or probation. Out of this chain, the institutions relevant to resolve the issue under consideration are "prosecution" and "courts".
The prosecution is the legal party responsible for presenting case in a criminal trial against accused for breaking the law. The Prosecutor represents the Government in the case brought against the accused person. He is the representative of sovereign authority whose obligation is to govern impartially, therefore, in a criminal prosecution the prime responsibility of the Prosecutor is to ensure delivery of justice and not to simply get the conviction recorded. The Prosecutor in true sense is a servant of law and vanguard of justice. The justice in criminal jurisprudence is multi folded but the foremost thrust should be to bring the guilty on board and to shield the innocent from any harassment. Looking to this broad concept, the Prosecutor is also having discretion not to pursue criminal charges even where there is a probable cause for certain eventualities, including that there may be no reasonable likelihood of conviction. Under the Code of Criminal Procedure, 1973, Section 321 enables the Public Prosecutor to withdraw any person from the prosecution, either generally or in respect of anyone or more of the offences for which he is tried. This provision reserves power with sovereign to withdraw any criminal case on the grounds of public policy such as inexpediency of prosecution for reasons of the State, broader public interest, etc. However, the power available is not absolute but subject to consent of the court. Section 321 Code of Criminal Procedure, 1973 (U.P. Amendment) on its face is quite clear in this regard and for ready reference relevant part of the same is quoted below:-
"The Public Prosecutor or Assistant Public Prosecutor in charge of a case may on the written permission of the State Government to that effect, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried."
As per the provision aforesaid, the Prosecutor with the consent of the court, on having written permission of the State Government may withdraw any person from the prosecution. For such withdrawal all that is necessary is to see that the Public Prosecutor acts in a good faith and the court must be satisfied with proper exercise of discretion by Public Prosecutor. The discretion of the Public Prosecutor must not be lightly interfered unless the court comes to the conclusion that the Public Prosecutor has not applied his mind or his decision is not in interest of public policy. The court while granting consent to withdraw from the prosecution bears a special responsibility being ultimately repository of legislative confidence.
The legal position summarized above is based on the law laid down by the Supreme Court in several judgments. Most of the judgments have been cited by learned counsels appearing on behalf of the petitioners.
In Sheo Nandan Paswan Vs. State of Bihar and others, 1983 (1) SCC 438, the Supreme Court opined that Section 321 of of the Code enables the Public Prosecutor to withdraw from the prosecution with consent of the Court and while doing so the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence and, secondly that the court before which the case is pending cannot give its consent to withdraw without itself applying mind to the facts of the case. The Apex Court emphasized for objectivity of the Public Prosecutor being representative of the sovereign State. While keeping available a broad authority to the court to assess facts of the case, observed to understand real thrust of the provision on the touchstone of four requirements which are:- (i) lack of prospect of successful prosecution in the light of evidence, (ii) implication of persons as a result of political and personal vendetta, (iii) inexpediency of the prosecution for reasons of the State and public policy and, (iv) adverse effects that the continuanance of the prosecution will bring to the public interest in the light of changed situation.
In Subhash Chandra Vs. Chandigarh Administration, 1980 (2) SCC 155 the Apex Court examined the wide discretion available to the Public Prosecutor while considering facts of a case in the application of power available under Section 321. The Court held that Public Prosecutor represents sovereign authority but he is not required to act as a part of executive but as a judicial limb and in praying for withdrawal he is to exercise his independent discretion even if that incurs displeasure of his master.
In Abdul Karim Vs. State of Karnataka, 2000 (8) SCC 710 the Supreme Court held that under Section 321 Code of Criminal Procedure, 1973 court has to see whether the withdrawal demanded is in good faith and in interest of public policy. The withdrawal must not be to thwart and stifle the process of law. The court has to examine whether the withdrawal from prosecution is out of the illegalities those may cause manifest injustice, if consent be given.
In Rajendra Kumar Vs. State, 1980 (3) SCC 435 the Supreme Court has held that the court has a responsibility and a stake in the administration of criminal justice and so as the Public Prosecutor. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to provisions of Section 321 of the Code of Criminal Procedure, 1973. The independent judiciary require that once the case has travelled to the court, the court and its officers alone must have control over the case and decide what is to be done in each case.
In Rahul Agarwal Vs. Rakesh Jain and another, 2005 (2) SCC 377 the Apex Court held that even if the government direct the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end and the continuance of the case is only causing harassment to the accused, the court may permit withdrawal of the prosecution. However, while arriving at the conclusion the court also observed that discretion under Section 321 Code of Criminal Procedure, 1973 is to be carefully exercised with due regard to all the relevant facts and must not be exercised in stifle the prosecution. The court also emphasized fundamental of the criminal jurisprudence that every crime is an offence against the society and if the accused committed the offence then he should be punished. Punishing the person who perpetrated the crime is an essential requirement for maintenance of law and order and peace in the society. The withdrawal of prosecution therefore, should be permitted only when valid reasons are made out for the same.
It would be appropriate to state that out of the judgments referred above, except the judgment given in the case of Rajendra Kumar (supra) all are referred by the Advocate General while tendering his opinion to the State for withdrawal of the accused persons from prosecution in the case under consideration.
On examination of complete record, I am of considered opinion that in the case in hand, the order passed by the trial court deserves approval on the scale of law settled by the Apex Court through various judgments. As already stated, the prime consideration before the court while exercising an application under Section 321 Code of Criminal Procedure is that whether the Public Prosecutor has exercised his discretion in good faith and that will serve the public interest. The term good faith as defined under Section 52 of the Indian Penal Code (adopted in light of Section 24 of the Code of Criminal Procedure, 1973) emphasized for due care and attention in doing of the Act concerned.
From the facts stated, it is apparent that at the first instance the Public Prosecutor in the month of December, 2017 was of the opinion that instant one is not a case fit for withdrawal of any person from prosecution. While doing so, he referred the evidence which in his opinion was sufficient to get conviction of the accused persons recorded. He also referred directions given by Hon'ble Supreme Court for concluding the trial at earliest. The report submitted deals with the eye-witnesses, the medical evidence, the evidence relating to documents prepared during course of trial and the recovery of articles by investigating agency during course of investigation. He also stated that all the three eye-witnesses have supported the prosecution story relating to the incident which are further corroborated by other witnesses. The opinion given by the Public Prosecutor was supported by the Senior Superintendent of Police as well as by the District Magistrate.
After availing opinion from the Public Prosecutor, the Principal Secretary to the Government of Uttar Pradesh demanded for "medical report". On supply of it, a demand was made for copies of the statements recorded during the course of trial. It would be appropriate to mention here that the medical evidence in the case in hand, in view of its preliminary facts must be pertaining to culpable homicide only. The "medical report" as such would have been of no use so far as withdrawal from prosecution is concerned. The Special Secretary understanding this aspect of the matter, appears to have demanded copies of the statements. After having copies of the statements, the matter was referred to the Advocate General for his opinion. The Advocate General while tendering opinion relied upon certain judgments, which as a matter of fact settles the law that Public Prosecutor must act in good faith and the withdrawal from prosecution sought for is in public interest. The opinion given by the Advocate General no where discusses as to how the withdrawal shall be in extension to public policy and public interest. The opinion refers statements of some of the witnesses, especially the evidence adduced in defence. On basis of that, it is stated that there is major contradiction in the evidence adduced. If any contradiction exists in the evidence adduced in a criminal case, then that is required to be examined by the court and not at the table of executives even on basis of advice availed from the Advocate General. The State would have looked into the record for getting itself satisfied that by no stretch of imagination conviction is possible and for all purposes the trial would be against the policy to book the criminals under penal law, but the comparative merits of the evidence is not open to be examined by the executive.
The Public Prosecutor, who in the month of December 2017, after examining the evidence available on record arrived at the conclusion that the evidence is sufficient to record conviction, changed his view immediately after receiving the instructions from the Government. True it is, the Public Prosecutor was adjudicating the trial and he was aware of all the facts but there must be some rational to change a well reasoned opinion, especially in a case of serious nature where three persons were brutally killed by the use of sensitive firearms in busy market during busy hours. The firing was so indiscriminate that even an innocent road passer also lost his life. The FIR disclosing names of the accused persons was also lodged within few hours of the incident.
It would also be appropriate to state that the Public Prosecutor while arriving at the conclusion that no application as per provisions of Section 321 Cr.P.C. is required to be submitted stated that the eye-witnesses have supported the prosecution case and the evidence adduced by them is adequately corroborated by the other formal witnesses. In normal course there would have been no hesitation in presuming that the Public Prosecutor must have acted in good faith but, the chain of facts and a hurried somersault in change of opinion of the Public Prosecutor restrains to draw such presumption.
It is quite easy to say that the discretion exercised by Public Prosecutor in the instant matter is based on objective consideration of entire material, but the series of events taken place establishes otherwise. The expeditious movement of administrative actions and hurried actions are two different things. Expeditious movement take necessary care, caution and attention but hurried movement reflects anxiety to complete the task by any means, even ignoring objectivity. In this matter, it appears that instructions were given by the executive to the Prosecutor not only to submit an application under Section 321 Cr.P.C. but to do that hurriedly. The Public Prosecutor while doing so failed to adhere his principle duty as an Officer of the court and a servant of law. An important aspect of the matter is that entire exercise to close down prosecution of the accused persons was initiated on basis of an application submitted by Smt. Neelam Karwariya wife of accused Udai Bhan Karwariya. Mrs. Neelam Karwariya is a sitting Member of Legislative Assembly and her husband was also a Member of Legislative Assembly in earlier years. Two other accused persons also remained elected representatives either for Parliament or Legislative Council. During course of hearing, it is also stated that accused persons have no criminal history, but in my considered opinion that is not a fact of much relevance as the consideration while dealing with an application under Section 321 Code of Criminal Procedure is required to be kept confined to the facts of the present case. In entirety, I am having no hesitation in concurring with the trial court that the application submitted under Section 321 Cr.P.C. is not in good faith.
On examination of entire record, I am also of the view that the application submitted under Section 321 Cr.P.C. is not going to serve any public policy or interest. It would be appropriate to notice that the incident which is subject matter of the trial occurred much back in the year 1996. For one or other reason the investigation was transferred from one agency to other. The police report in the matter was filed after a huge lapse. In the meanwhile, on consideration of an application u/s 482 Cr.P.C. a single Bench of this Court while reserving judgment stayed proceedings of the trial and the judgment was not delivered though the Judge retired after a period of more than two years from the date he completed hearing in the matter and reserved the judgment. Even after his retirement, the case was not brought in streamline and it is only after directions of Hon'ble the Apex Court, the petition u/s 482 Cr.P.C. came to be listed before the High Court in the year 2015. The Court rejected the application and thereafter, trial in true sense commenced. True it is, delay caused is a wrong on part of the court administration, but it is also true that the beneficiaries were the accused persons only. Even after commencement of trial, the accused persons approached this Court for different causes and while doing so several applications were filed in continuity. One application was dismissed as withdrawn by tendering unconditional and unqualified apology for filing obnoxious application. As a matter of fact, instant one is a case where continuous efforts appears to have been made to stifle the trial. The criminal trial, which as a matter of fact is at its fag end, is yet tried to be failed by one or other means. If such efforts be permitted to have positive outcome then that would be absolutely against public interest and public policy. In Sheo Nandan Paswan Vs. State of Bihar (supra), the Supreme Court noticed four factors to invoke power under Section 321 Code of Criminal Procedure, but none of those stands satisfied in this matter. The Public Prosecutor in his report of 2017 found the evidence cogent and sufficient enough to record conviction, but changed his version after having instructions from the executives of the State. The change doesn't bear confidence, hence, it cannot be said that the success of prosecution is absolutely blink. It is also to be kept in mind that the deceased and accused are having political background. Out of four accused three (including one who is no more now) were members of either Parliament or State Legislature. Mrs. Neelam Karwariya on whose application the process to file application under Section 321 Cr.P.C. has been initiated is a sitting Member of Uttar Pradesh State Legislative Assembly. In this background the political interference in withdrawal from prosecution cannot be denied. It would also be appropriate to state that so far as political vendetta in naming the accused persons in the case is concern, their names were disclosed in the FIR itself which was filed on the day of occurrence itself. With regard to inexpediency of the prosecution for reasons of the State and public policy, and in relation to adverse effects to the public interest, suffice to state that nothing is stated from this aspect in the application preferred by the Public Prosecutor and even before me this factor has not been addressed by learned Additional Advocate General. However, I have pondered facts of the case from this aspect also and my opinion has already been mentioned in early part of this paragraph itself. I failed to understand where and how the executive is searching extension of public interest in withdrawal from the prosecution in the instant matter.
While placing reliance on the law laid down in Sheo Nandan Paswan's case (supra), Sri Manish Goyal, learned Additional Advocate General states that the court before which the case is pending cannot give its consent to withdraw an accused from prosecution without itself applying mind to the facts of the case. The same analogy also applies for rejecting an application under Section 321 of Code of Criminal Procedure, 1973. If any application is rejected without application of mind, then the conclusion arrived is perverse. Learned trial court under the order dated 10th December, 2018 has not applied its mind on the facts applicable. The court confined its reasoning only to filing of the application by learned Public Prosecutor within a period of 24 hours after receiving approval from the Government of Uttar Pradesh. I do not find any merit with the argument advanced. The order passed by the court subordinate discusses all relevant facts in length while arriving at the conclusion that such complicated facts could have not been considered by the Public Prosecutor in a short span of time to conclude for withdrawal from prosecution. The term "non application of mind" reflects absolute carelessness, ignorance of facts of the case and the law applicable thereto. The order impugned no where discloses any carelessness or ignorance of facts and the law applicable thereon. The trial court systematically considered all the facts and then arrived at the conclusion that the reasons given in the application are hurriedly compiled and that discloses non application of mind on part of the Public Prosecutor.
In light of whatever stated above, I am of considered opinion that the trial court rightly refused to grant consent for withdrawal of the accused persons from prosecution. The order impugned dated 10th December, 2018 passed by VIth Additional Sessions Judge, Court No.5, Allahabad does not suffer from any error. The revision petition as well as Criminal Misc. Application U/s 482 Cr.P.C. hence are dismissed.
Order Date :- 19.7.2019 Bhaskar (Govind Mathur, C.J.)