Allahabad High Court
Surendra Bir Singh Maurya And Others vs State Of U.P. And Another on 22 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:242594 Judgment reserve on 29.08.2023 Judgment delivered on 22.12.2023 In Chamber Case :- CRIMINAL REVISION No. - 691 of 2012 Revisionist :- Surendra Bir Singh Maurya And Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- R.H. Srivastava,Mamta Maurya,Subhas Kumar,Surendra Bir Maurya,V.P. Srivastava Counsel for Opposite Party :- Govt. Advocate,Anand Prakash Pandey Hon'ble Ram Manohar Narayan Mishra,J.
1. By means of instant Criminal Revision the revisionists who are accused Session Trial No.92 of 2003, (State Vs Surenda Bir Singh and others) have assailed the order dated 15.12.2011 passed by learned Additional Sessions Judge, Court No.26, Allahabad, whereby the application of Public Prosecutor/Assistant DGC (Criminal) under Section 321 Cr.P.C. seeking withdrawal of prosecution has been dismissed.
2. Learned counsel for the revisionists, learned counsel for the respondent No.2 and learned A.G.A. for the State.
3. The factual matrix of the case in brief are that defacto complainant (X) wife of Shyam Babu Mishra filed an application before JMI Allahabad under Section 156(3) Cr.P.C. with averment that she lives in the house of accused Dr. R.R. Maurya as a tenant for last two years at Nawabganj, Allahabad, her husband is a police constable. Complainant was having good relationship with accused Dr. R.R. Maurya and his family, marriage of nephew of Dr.R.R.Maurya was solemnized six months ago, wherein the complainant spend Rs.25,000/- towards crackers and hiring of vehicles. On asking of accused Dr.R.R.Maurya, but after lapse of one month when she demanded the money spent by her, he stated that he will pay the money within one or two months. However, even after lapse of next two months, he did not pay the money and on making demand by the complainant he firstly adopted procrastinating attitude and subsequently the doctor and his family members had asked her to vacate the house otherwise they would implicate her husband and kill them. On 28.04.2001 Vikram Bahadur Singh the nephew of said Dr.R.R. Maurya trespassed into the house of the complainant and tried to commit rape on her, when she shouted to this, the other accused Dr. R.R. Maurya, Vikram Bahadur Singh, Surendra Bir Singh Maurya, Harendra Pratap Singh and his compounder Ramesh Kanaujiya barged into her portion of house, they dashed her on floor and attempted to commit rape on her. When her husband came back to home after his duties, he reached the spot accompanied by some other person who saw that accused persons were grabbing hold of the complainant. The accused persons left the place on arrival of husband of the victim and other witnesses, but they gave threat that they would implicate her husband in some false case and if she dares to report, they would kill her.
4. An FIR was registered at Police Station at P.S. Nawabganj, on the basis of order passed by learned Magistrate on the application under Section 156(3), at Police Station Nawabganj under Section 376, 511, 506 of I.P.C. on 17.04.2002 at 19-20 hours against Vikram Bahadur Singh, Surendra Bir Singh Maurya, Dr. R.R. Maurya, Harendra Pratap Singh. The police investigated the case and recorded statement of the complainant and witnesses. The name of accused Vikram Bahadur Singh was dropped during investigation, as in the statement of witnesses it emerged that he was employee in Secretariat Lucknow, the said incident occurred on a working day and during that period session of Assembly was running from morning to 09:00 pm and he was residing in Lucknow at that time. The police submitted chargesheet against other accused persons named in the FIR namely Surendra Bir Singh Maurya, Dr. R.R.Maurya, Harendra Pratap Singh and Ramesh Kanaugiya for said charges. The matter was committed to court of session by Magistrate on commencement of trial, the accused/revisionist was charged for offence under Sections 376, 511 and 506 of IPC by the trial court under Sections 147, 376, 511 and 506 of IPC.
5. On 15.11.2005 at the stage of prosecution evidence ADG (Criminal) incharge of the case moved an application under Section 321 Cr.P.C. seeking consent of the court to withdraw from prosecution on 05.09.2008 which was accompanied with Government Order dated 393 WC/7-Naya-5-2008-5057WC/2005 dated 07.08.2008, wherein it is stated that Government has decided to withdraw criminal case arising out of Case Crime No.160 of 2002 under Section 147, 376,511, 506 of I.P.C., Police Station Nawabgang, State Vs. Surendra Bir Singh after due consideration of facts of the case and District Magistrate, Allahabad was directed to proceed accordingly.
6. Learned trial court after hearing the submissions of both the sides dismissed the application under Section 321 Cr.P.C. moved by Sri R.P. Singh ADC (Criminal).
7. Feeling aggrieved by the impugned order accused persons face trial in the said case for charge under Section 376, 511 and 506 of I.P.C. preferred in the present revision. Learned counsel for the revisionists submitted that present revision was initially dismissed in default by this Court on 24.04.2015, as no one appeared on behalf of the revisionists even in the revised list. The recall application was filed thereafter by the revisionists on 17.09.2016 alongwith an application for condonation of delay, which was allowed and revision was restored to its original number.
8. In fact, the present FIR was lodged on orders of learned Magistrate dated 09.08.2001 on application under Section 156(3) Cr.P.C. is counter blast of the previous FIR lodged at the instance of Dr. R.R. Maurya against Shyam Babu Mishra, husband of the present informant/complainant registered on 05.05.2001 vide Case Crime No.111/2001 with regard to incident dated 1/2.05.2001 on orders of S.P. (Rural) Allahabad under Sections 376 and 506 of I.P.C., wherein the informant Dr. Surendra Bir Singh Maurya had alleged that the accused Shyam Babu Mishra who is a constable and resides in upper floor of nursing home, committed rape on his sister around mid night and he also threatened to kill the entire family, if the matter was reported any where. After lodging of FIR in this case at the instance of revisionists Dr. Surendra Bir Singh Maurya, the present false case was created by said Shyam Babu Mishra and his wife who is complainant in the present case and with a view to create a false counter case. She had moved an application under Section 156(3) Cr.P.C. before the Magistrate, the said application was initially dismissed by learned Magistrate vide order dated 12.09.2001, but the complainant (wife of Shyam Babu Mishra ) moved a criminal revision before the court of Session, which was allowed vide order dated 15.03.2002 and matter was remanded to the court of ACJM for deciding a fresh. Thereafter the learned ACJM heard and allowed the application under Section 156(3) Cr.P.C. By virtue of second order of learned Magistrate dated 17.04.2002, present FIR was lodged against the revisionists and co-accused Vikram Bahadur Singh (non accused).
9. He next submitted that an application under Section 319 of Cr.P.C. was filed by the complainant to summon the named accused Vikram Bahadur Singh during the course of trial on the basis of evidence of PW1, but said application was dismissed by learned Additional Session Judge vide order dated 06.09.2023, as the trial court had not found sufficient grounds to summon the said Vikram Bahadur Singh for facing trial alongwith co-accused in present session trial.
10. He next submitted that during the course of trial, complainant filed an application on 01.12.2022 before the trial court with prayer to discharge eyewitnesses Hare Krisnha Mishra, Vijay Prakash and Shiv Dutta as they have colluded with accused persons under their influence, the said application was allowed on same day. Thus the independent witnesses who are projected as eyewitness in the FIR were discharged at the instance of the complainant herself, which depicts there is no cogent and plausible evidence against accused persons and probability of their conviction is remote. The learned trial court has rejected the withdrawal application filed by the Public Prosecutor without considering the grounds taken therein in proper prospective. The withdrawal application has been dismissed by learned trial judge on technical grounds. Had the allegations of the complainant against the accused persons been true, there was no reason that the police would not have lodged an FIR, inasmuch as her husband Shyam Babu Mishra was posted in Police Station Nawabganj itself. There is no medical evidence in support of the allegation of commission of attempt to rape or assaulting the victim by accused persons which also indicates that no such offence as alleged in the FIR was committed against the complainant. The accused persons belong to a respectable family, Dr.R.R. Maurya is a 75 years old person. Surendra Bir Singh Maurya is an Advocate in the High Court. It is quite unnatural that two real brothers and one nephew alongwith an employee of nursing home operated by accused Dr. R.R.Maurya will engage in such type of offence as alleged against the revisionists.
11. The learned court below has failed to take note of these aspects also, the husband of the complainant Shyam Babu Mishra who is an accused in FIR lodged in connection with rape of the daughter of Dr. R.R. Maurya was having such clout in police department that his arrest could only be effected after interference of this Court in said rape case.
12. The learned Public Prosecutor has mentioned his satisfaction in elaborated manner for withdrawal from prosecution in the case and enumerated the grounds which forms basis of his satisfaction, but the learned trial court has rejected the application on technical grounds, narrating the conduct of the accused in delayed trial of the case.
13. Per contra, learned counsel appearing for the respondent No.2 submitted that there is no illegality, irregularity or perversity in the impugned order passed by the learned court below. The revisionists are accused of a serious offence of attempt to rape and criminal intimidation, no public interest appears to be served on withdrawal of their prosecution at the instance of Government followed by the application under Section 321 Cr.P.C. moved by Public Prosecutor.
14. He further submitted that the evidence of PW1 the victim, PW2 husband Shyam Babu Mishra has already been recorded during trial who has supported prosecution version in their evidence. Learned trial court has recorded cogent finding while rejecting the application under section 321 Cr.P.C.. The complainant in her counter affidavit dated 27.09.2018 stated that in fact the FIR was lodged at the instance of revisionists against husband of the complainant was counter blast of present FIR. Shyam Babu Mishra, the husband of the complainant has been acquitted of all charges in said case by orders of trial court dated 09.10.2006 and the Government Appeal No.2673 of 2007 filed by the State against acquittal of Shyam Babu Mishra has also been dismissed on 14.08.2015 by orders of this Court.
15. He lastly submitted that the learned trial court has rightly observed in impugned order that trial is lingering since long time due to litigations. The revision is liable to be dismissed.
16. Provisions of Section 321 of Cr.P.C. are reproduced as under:-
321. Withdrawal from prosecution:- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, 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; and upon such withdrawal;
(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required he shall be acquitted in respect of such offence or offences;
Provided that where such offence--
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.
17. In Ashwani Kumar Upadhyay Vs. Union of India writ petition (Civil) 699 of 2016, decided on 10.08.2021, the Hon'ble Supreme Court placed reliance on State of Kerala Vs. K. Ajith (2021) SCC Online SC 510, wherein Hon'ble Apex Court held as Under :-
12. "The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:
(i) 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;
(ii) 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;
(iii) The Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;
(iv) 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;
(v) 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 sub-serves 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;
(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing 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
(viii) 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."
18. In case of Sheonandan Paswan v. State of Bihar and others AIR 1987 SC 877, the Constitution Bench of Hon'ble Supreme Court while interpreting Section 333 of Code of Criminal Procedure, 1882 which was woven in same language employed under Section 321 of the present Code, held that Section 333 enables the Public Prosecutor, in charge of the case, to withdraw from the prosecution of any person at any time before the judgment is pronounced, but the application for withdrawal has to get the consent of the court and if the court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. It clothes the Public Prosecutor to withdraw from the prosecution of any person, accused of an offence, both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is 'at any time before the judgment is pronounced'. It was also observed by Apex Court that the judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the court has to satisfy itself that the executive 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. Consent will be given by Public Prosecutor only if Public Justice in the larger sense is promoted rather than subverted by such withdrawal. In doing so, he acts as a limb of the judicial process, and not as extension of the executive. He has to decide about withdrawal by himself, even where displeasure may affect his continuance in offence. None can compel him to withdraw a case. The Pubic Prosecutor is an officer of the Court and is responsible to the court.
19. The Hon'ble Apex Court in Rahul Agarwal v. Rakesh Jain and another (2005) 2 SCC 377, held that law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs 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 in acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution witness.
20. On the facts of the the public prosecutor while citing the facts of the case leading to filing of FIR, filing of Chargesheet, taking of cognizance by the court below of the offence in question and filing of withdrawal of application for withdrawal of prosecution at the stage of prosecution evidence on 05.09.2008 has enumerated following grounds on which he has been satisfied to move an application for withdrawal from prosecution in compliance of Government Order and on perusal of case diary and other material on record.
(i) The prosecution story appears doubtful as according to prosecution version the complainant and her husband were tenant in the house of accused Dr.R.R. Maurya. There was tenancy dispute between the complainant side and accused. The accused persons had threatened the victim prior to the incident that they would falsely implicate her husband and kill him, if she had not vacated the house and on 28.04.2001 all the five named accused persons which consisted father, son, nephew and one compounder committed attempt of rape on complainant. The commission of such an act only with a view to evict the complainant and her husband did by accused persons who belong to same family is beyond understanding. They could avail other option for getting the house vacated.
(ii) If the allegations made by the complainant against the accused persons would be true, there was no reason that her husband, who was a police constable could not succeed to lodge an FIR, at Police Station in respect of offence allegedly committed against his wife by accused persons. This implies that no such type of occurrence occurred.
(iii) The presence of main accused Vikram Bahadur Singh Maurya was not established during investigation as he was posted in Lucknow as a Secretariat employee and the Under Secretary of his department issue certificate to the effect that on 24.08.2001 he was present in the Secretariat by 8:00 pm. Therefore his name was dropped in chargesheet, as his complicity in the offence was not found. Thus, the genesis of the occurrence ended due to his non implication in chargesheet.
(iv) Accused Dr.R.R. Maurya, is an old and respectable person of the locality whose age was around 75 years at the time of filing of application under Section 321 such a person cannot indulge in such type of act, accompanied with his son, nephew and compounder that too with a view to vacate a house given on rent to husband of the complainant.
(v) The incident is said to have occurred on 28.04.2001 at around 10:00 pm, whereas in an incident occurred on 01.05.2001 between 12:00 to 12:30 hours in the night the husband of the complainant was made an accused of committing rape on daughter of Dr.R.R. Maurya in FIR lodged at the instance of present accused persons. Whereas in the present case according to the complainant's version instead of sending the information by registered post to S.P. she sent the informant through UPC with regard to the allegations in the present case which does not inspire confidence. This shows that present case was created by the informant as after thought as a counter blast and information with regard to that was sent to Superintendent of Police by UPC.
21. According to Public Prosecutor, the aforesaid grounds reveal that the present case was instituted by the complainant with a view to falsely implicate the accused persons who are respectable citizen. He has also concluded that there is no cogent and specific evidence which will be of her assistance to convict the accused persons in the case.
22. Learned court below in the impugned order has narrated the grounds as mentioned in application for withdrawal from prosecution and observed that the accused persons are making every effort to keep the matter pending for last ten years. Whereas, the complainant is prosecuting her case from the very beginning. The arguments of ADC (Criminal) are matter of evidence and it cannot be said at this stage that no matter is made out against the accused persons for commission of offence by the accused persons does not look probable. All the matters involved in the case cannot be predetermined. In the present case the matter has not been withdrawn by the Government on account of any general policy. The matter does not relate to social, economic or political justice, the case is pending at the stage of prosecution evidence and the evidence is yet to be adduced in the case. It cannot be said at this stage that case will eventually result in acquittal of accused persons or the parties are likely to bury the dispute and it will bring about harmony between them and it would be in the best interest of justice.
23. The victim is a poor women, whereas accused persons appear to be an influential people, matter is of serious nature and every person is equal before law.
24. On acceptance of application for withdrawal, the fundamental rights of the complainant are likely to be hampered. The grounds mentioned in application for withdrawal moved by the prosecution are not justifiable.
25. With the above observations, learned court below has dismissed the application by the impugned order dated 15.12.2011.
26. On perusal of the impugned order passed by learned court below it appears that main focus has been given to the conduct of the accused persons in filing various petitions before superior courts to avoid their prosecution in the case, which resulted in delayed commencement of trial. The learned court below has not duly addressed the grounds taken by Public Prosecutor in application for withdrawal of prosecution under Section 321 Cr.P.C. and has passed over those grounds with observation that these are matters for further evidence and on that stage it cannot be said that no case is made out against accused persons. The grounds taken in the application are not sufficient to grant consent of the court for withdrawal of prosecution.
27. The observations of the court below that motion of withdrawal of prosecution in the case has not been initiated under any general policy the Government, cannot be countenanced, as this is not a prerequisite for moving an application for withdrawal from prosecution by Public Prosecutor. From perusal of above referred case laws, it is apparent that for withdrawal of prosecution under Section 321 consent of the Court it necessary, the public prosecutor is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the material on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large.
28. 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. The function of the court while exercising its power under Section 321 Cr.P.C. is of supervisory in nature.
29. Out of five accused persons named in the FIR three persons are real nephew of accused Dr. R.R. Maurya who is elderly person. The complicity of main accused Vikram Bahadur Maurya was not found by the Investigating Officer during investigation and his name was dropped in the chargesheet. The application of the informant /prosecutrix to summon him as an accused in exercise of power under Section 319 Cr.P.C. has already been dismissed by the trial court.
30. Considering the nature of accusations and the facts of the case Public Prosecutor has produced a case for withdrawal of the prosecution against revisionists, prosecution is carried out against accused persons. In the facts and circumstances of the case, it cannot be said that Public Prosecutor has not applied his mind independently and failed to discharge his discretion by moving an application in accordance with law. He has given elaborate reasons for his satisfaction that on facts of the case the prosecution is liable to be withdrawn, inspite of the fact that initiative in this regard has been taken from Government. There is no formal defect in moving application for withdrawal by Public Prosecutor in respect of accused/revisionists.
31. Learned court below concerned is required to give a fresh finding as to whether withdrawal of prosecution from accused persons in the case will subserve the administration of justice and larger public interest on the facts and circumstances attending this case.
32. In view of the aforesaid discussions, the instant criminal revision stands allowed. The impugned order passed by learned court below dated 15.12.2011 is set-aside. The matter is remitted to court concerned, where case is pending at present for trial to hear and decide the application for withdrawal dated 15.11.2011 moved by ADGC (Criminal) incharge of the case a fresh, in light of the observations made in this judgment after giving opportunity of hearing to all the stake holders in accordance with law preferably within a period of two moths from the date of production of a certified copy of this order.
Order Date :- 22.12.2023 Ashish/-