Allahabad High Court
Sri Surendra Pratap Singh And 3 Others vs State Of U.P. on 28 June, 2022
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 10 Case :- APPLICATION U/S 482 No. - 15907 of 2022 Applicant :- Sri Surendra Pratap Singh And 3 Others Opposite Party :- State of U.P. Counsel for Applicant :- Prakash Chandra Srivastava,Vishnu Prakash Counsel for Opposite Party :- G.A. Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Prakash Chandra Srivastava, learned counsel for the applicants and learned A.G.A. for the State.
2. This application u/s 482 Cr.P.C. has been filed seeking quashing of the order dated 26.10.2021 passed by Special Judge (MP/MLA Allahabad) in Criminal Case No.1464 of 2012 (CNRNUPAD01-008961-2012) (State Versus Surendra Pratap Singh and Others), under Sections 186, 353, 504, 506 and 427 IPC and Section 7 of Criminal Law Amendment Act, Police Station-Kotwali, District-Jaunpur and the withdrawal application filed as Paper No.30-A dated 05.03.2021 be allowed.
3. Facts, in nutshell, are that the applicant no.1, who is an Ex-MLA along with other three applicants and some of the supporters and media persons had gone to Police Station Kotwali, Jaunpur in connection with release of four persons, namely, Suraj Seth, Deep Narain Seth, Prabhat Seth and Pradeep Seth, who were detained by police in connection with Case Crime No.885 of 2011, under Sections 147, 452, 323, 504 and 506 IPC and Case Crime No.885-A of 2011, under Sections 147, 452, 323, 504 and 506 IPC, and tried to put undue pressure upon the police and thereafter indulged in violence which led to the lodging of First Information Report against the applicants being Case Crime No.886 of 2011, under Sections 186, 353, 504, 506 and 427 IPC and Section 7 of Criminal Law Amendment Act.
4. After the investigation, charge sheet was submitted, in which the Court below on 05.07.2012 took cognizance. The applicants challenged the charge sheet as well as cognizance order before this Court through Criminal Misc. Case No.30918 of 2013 under Section 482 Cr.P.C.
5. This Court on 11.09.2013 dismissed the application, and granted liberty to the applicants to move discharge application before the concerned Court. The discharge application filed by the applicants was rejected on 29.11.2018. On 05.03.2021, Special Public Prosecutor filed an application under Section 321 Cr.P.C. for withdrawing the case from prosecution on the ground that the prosecution was lodged due to political event, and no force was used nor there is any role assigned to the applicants in the First Information Report nor any damage has been done to the public property.
6. The Court below refused to grant permission for withdrawal of the prosecution vide judgment and order dated 26.10.2021 and rejected the application moved by the public prosecutor, hence the present application.
7. Sri Srivastava, learned counsel for the applicants submitted that the application at the behest of the Special Public Prosecutor clearly mentions the ground on which the withdrawal of prosecution was sought, as the First information Report was lodged due to political enmity and no force was used by the applicants nor there is any role assigned to any of the applicants in causing any damage to the public property or preventing the public servants from discharging his duty.
8. It was further contended that there is no material on record to show that any damage was made to the public property. He has relied upon the judgment of the Apex Court in case of State of Kerala Vs. K. Ajith and others 2021 SCC Online SC 510.
9. According to applicants' counsel, Section 321 Cr.P.C. mandates that the public prosecutor with the consent of 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. According to him, no case is made out against the applicants and the case being politically motivated should not continue and the application moved by the Public Prosecutor needs to be allowed.
10. Learned A.G.A. while opposing the prayer so made submitted that the charge sheet has already been filed and Court below had taken cognizance in the matter, and moreover, the discharge application filed by the applicants has already been dismissed. Now, it is the Court to see whether the evidence collected by the Investigating Agency is sufficient to warrant conviction and the prosecution cannot withdraw the case.
11. I have heard counsel for the parties and perused the material on record.
12. The case in hand hovers around the issue whether sanction can be granted for withdrawal of prosecution. Section 321 of Cr.P.C. covers the field as to withdrawal from prosecution. For ready reference, Section 321 is extracted hereasunder:-
"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 hag hot been appointed by the Central Government, he shall not, unless he hag 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."
13. From the glance of the aforesaid provision, it is clear that 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 prosecution of any person either generally or in respect of any one or more of the offences for which he is tried.
14. This power is subject to the consent of the Court. Grant of sanction for withdrawal from prosecution had been under active consideration of the Hon'ble Apex Court since long. The Courts have been of the constant view that the sanction granted for withdrawal must be for a legitimate purpose, initiated without mala fides.
15. In a recent decision of the Apex Court in case of K. Ajith (Supra), His Lordship Justice D.Y. Chandrachud while considering all the previous decisions of the Apex Court laid down the principles which emerge from the various earlier decisions on the withdrawal of the prosecution under Section 321 Cr.P.C. Relevant para 26 is extracted hereasunder:-
"26. 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
(vii) 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."
16. This judgment was recently considered by the Hon'ble Apex Court in Writ Petition (S) (Civil) No(s).699 of 2016, and on 10.08.2021 while considering misuse of the prosecutor's power to withdraw cases under Section 321 Cr.P.C., the Hon'ble Supreme Court held that power under Section 321 Cr.P.C. is a responsibility which is to be utilized in public interest and cannot be used for extraneous and political consideration.
17. This power is required to be utilized with utmost good faith to serve the larger public interest. The Court also took note of the judgment of Apex Court in Case of K. Ajith (Supra). The Hon'ble Supreme Court further directed that no prosecution against a sitting or former MP/MLA shall be withdrawn without the leave of the High Court.
18. Coming to the case in hand, it is not in dispute that the First Information Report is of the year 2011, wherein charge sheet was submitted after investigation and cognizance was taken by the Court on 05.07.2012. Both the charge sheet and the cognizance order was put to challenge before this Court, and the Court declined to grant any relief to the applicants and dismissed their application on 11.09.2013. Moreover, the discharge application has also been rejected on 29.11.2018.
19. Once, when the cognizance order has been upheld by this Court and the discharge application having been dismissed, the effort made through Public Prosecutor in withdrawal of prosecution, this Court finds that the Special Public Prosecutor had not made out any case and the application under Section 321 Cr.P.C. was rightly rejected. Once, the evidence has been collected after investigation by the Investigating Agency and have been brought before the Court along with charge sheet is sufficient to warrant conviction and discharge application having been rejected, no ground for withdrawal of prosecution arises.
20. The normal rule of criminal trial is to continue to reach its end and withdrawal is an exception. If there is some policy consideration, then withdrawal is justified and Court may allow the application, but if there is no public policy bearing on the administration of justice is involved, then no question arises for allowing the withdrawal application.
21. The Apex Court in K. Ajith (Supra) had categorically laid down the principles on which withdrawal of prosecution can be made under Section 321 Cr.P.C. It categorically lays down that merely on the ground of paucity of evidence, the Public Prosecutor cannot withdraw from prosecution. The Court also held that granting consent to withdrawal, the Court exercises a judicial function and it must be satisfied that the Public Prosecutor has discharged his function properly, or that it is not an attempt to interfere with the normal course of justice or illegitimate reasons and purpose. Moreover, the application has been made in good faith and interest of public policy and justice and not to thwart or stifle the process of law.
22. From the perusal of record and the argument made at the behest of the applicants' counsel, no such case is made out so as to demonstrate that the withdrawal from prosecution is being made on some public policy. The only argument was that the First Information Report was lodged due to political reasons and no criminal force was used nor any damage was made to the public property.
23. This Court finds that once the investigation was over and the material was brought before the Court below and charge sheet was submitted and the cognizance order was passed, the applicants should face the trial and moreover, their discharge application has already been dismissed in the year 2018.
24. Apart from the said fact, the applicants' counsel could not place any material before the Court which warrants interference by this Court exercising inherent power under Section 482 Cr.P.C. for granting sanction from withdrawal of prosecution.
25. The application under Section 482 Cr.P.C. is misconceived and is, hereby, dismissed.
Order Date:-28.06.2022 SK Goswami [Rohit Ranjan Agarwal, J.]