Allahabad High Court
Zafar Iqbal And Anothers vs State Of U.P.And 2 Others on 10 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:6405 Court No. - 89 Case :- APPLICATION U/S 482 No. - 25965 of 2023 Applicant :- Zafar Iqbal And Anothers Opposite Party :- State Of U.P.And 2 Others Counsel for Applicant :- Mohd Raghib Ali,Sr. Advocate Counsel for Opposite Party :- G.A.,Seraj Ahmad Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard the learned counsel for the applicants, learned counsel for opp. party nos. 2 and 3 and perused the record.
By moving this application u/s 482 Cr.P.C., the prayer is made to quash the judgment dated 16.1.2023 passed by the Chief Judicial Magistrate, Muzaffarnagar rejecting the application u/s 321 Cr.P.C. of the applicants and the order dated 9.6.2023 passed by the revisional court, whereby the revision of the applicants was rejected against the order dated 16.1.2023 above.
The application under section 321 Cr.P.C. was moved by the Prosecuting Officer, Muzaffarnagar on 19.4.2014 with the prayer that vide letter no. 2629WC/seven-nyay-5-2013-3691 WC/2012 dated 4.3.2014, the State of U.P. decided to withdraw from the prosecution of case crime no. 2273A/2006, case 2517/9/2013 u/s 147, 148, 149, 307, 504, 506 I.P.C., police station Kotwali Muzaffarnagar District Muzaffarnagar in the interest of public and in the interest of justice. The Prosecuting Officer was said to had gone through the prosecution file properly and in his opinion, it was quiet legal to withdraw the prosecution case in the interest of public and in the interest of justice, hence, the permission was sought for withdrawal from the prosecution in the above mentioned case.
After hearing the parties, the Chief Judicial Magistrate concerned passed the impugned order dated 16.1.2023 and opined that the Public Prosecutor had merely filed one page application mentioning the Government Order for withdrawal of the prosecution that it was lawful, in the interest of public and in the interest of justice. He did not mention and discussed even in brief about the perusal of the material on record which formed the basis of his opinion. There was no reasoning in his application on the basis of which it could be said that the withdrawal of prosecution would advance the cause of justice and it was in public interest. The court also opined that the argument on merit by the Prosecuting Officer did not help him in the disposal of the application u/s 321 Cr.P.C. The court found that the Prosecuting Officer did not apply his independent mind and finding no sufficient ground and circumstance for withdrawal from the prosecution in the offence of rioting and offence u/s 307 I.P.C. rejected the application.
The revision against this order was also rejected almost on the same grounds. The revisional court also opined that withdrawal from the prosecution is not merely a formality but the Magistrate was duty bound to find out whether the application was moved in public interest and in the interest of justice or not ? The revisional court further opined that falsity of the case and opinion of the Government could not form the basis of public interest. It was further observed that when the party to which the accused person belongs comes into power, it issues letters for withdrawal of the prosecution. The court did not find any consideration before the State Government while directing for withdrawal from the prosecution. In the opinion of the revisional court even the Prosecuting Officer did not consider any of the necessary aspect keeping in mind the public interest or interest of justice. With the above findings the revision against the order dated 16.1.2023 was also rejected.
By moving this application the only argument made before this court by the learned counsel for the applicants is that as by this application moved by the Prosecuting Officer the interest of the victim/ first informant was affected, so he had to file objections but no objection has been filed against this application on behalf of the first informant. It is further argued that in the application under section 321 Cr.P.C., no ground has been mentioned for the withdrawal of the prosecution.
This application is opposed by the learned counsel for the opp. party nos. 2 and 3 that in the Government letter dated 4.3.2014, no ground has been mentioned for withdrawal of the prosecution. In that letter 3 cases are directed to withdraw but only one case, the present case, has been prayed to be withdrawn by the Prosecuting Officer. Admittedly, the charge sheet was filed against 4 accused persons and against two accused persons after committal the case is proceeding as per the procedure and initially the government order, by the Special Secretary to Government, was issued on 4.3.214 for withdrawal of 3 cases. The present case is mentioned at serial no. 2 of the letter and after issuing of this letter on 4.3.2014, a second letter was issued by Sri J.P.Singh II, the Special Secretary to the Government on 22.5.2014 whereby in the case no. 2273 of 2006 the accused persons were restricted to Rashid Siddiqui and Jafar Iqbal only. This amendment was not directed with regard to case crime no. 2273A of 2006 while in compliance of the previous letter dated 4.3.2014 an application was moved by the Prosecuting Officer on 19.4.2014 to withdraw the case crime no. 2273A of 2006 with regard to accused Rashid Siddiqui and Zafar Iqbal only. It has been pointed out that as per the case crime no. 2273A of 2006 charge sheet was filed against 4 accused persons regarding this case crime number two other accused persons Fauzul and Muzammil are also facing trial though in separate Sessions case but no such application has been moved to withdraw the prosecution against them, while as per Government letter dated 10.4.2014 prosecution to be withdrawn was directed against all the four accused persons in case crime no. 2273A of 2006 and no amendment was seeked regarding withdrawal of case cr. no. 2273A of 2006 by subsequent Government letter dated 22.5.2014.
So far as the merit of the application u/s 321 Cr.P.C. is concerned, it is true that the first informant, who was the most affected person from the government order has not filed any written objection against this application, though from the order, it is clear that he had opposed this application at the time of its disposal before the court. In the opinion of the court, it was not compulsory for the first informant to file any written objections before the court, as it was the duty of the court to accept or reject this application. Second argument of the applicants' counsel is that under section 321 Cr.P.C., no specific ground has been mentioned for the withdrawal of the prosecution. In support of this contention, learned counsel for the applicants placed before the court the judgment in Sheo Nandan Paswan Vs. State of Bihar, 1986 0 Supreme (SC) 588, wherein the Apex Court found that under section 321 Cr.P.C., it has not given any guideline regarding the grounds on which a withdrawal application can be made, such guideline is to be ascertained with reference to the decided cases under this section as well as its predecessor section 494. The Apex Court found that in the judgements rendered by various High Courts, public policy, interests of the administration, inexpediency to proceed with the prosecution for reasons of State and paucity of evidence were considered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other cases depending upon the peculiar facts and circumstances of the cases.
On the basis of above opinion of the Apex Court, it can be said that what ground can be considered sufficient for moving a withdrawal application would depend on the peculiar facts and circumstances of each case.
If we go through the present application moved by the Prosecuting Officer, he has summed up his whole prayer in one line that after sufficient perusal of the prosecution file, in his opinion, in the interest of justice and in the interest of public, it is necessary to withdraw the prosecution case.
As per the FIR, the allegation on the applicants is of attempt to murder, causing fire arm injury to Furkan. It is nowhere made clear by the Prosecuting Officer in the application that how in the incident of rivalry in the election of Nagar Palika Parishad where allegedly accused persons armed with fire arms fired with intention to murder at one Furkan who happened to be the nephew of the first informant he could be justified to withdraw from the prosecution in the public interest and in the interest of justice. It is also not on record that how the Prosecuting Officer found the basis of his opinion for withdrawal of the prosecution. The application moved by the Prosecuting Officer on the basis of government letter dated 4.3.2014 appears to be mere a formality without any reasoning. In the opinion of the court, the application without any reasoning, that too of the withdrawal of the prosecution of grievous offence under section 307 I.P.C., cannot be said to be a proper application praying for withdrawal of the prosecution on the basis of public interest or in the interest of justice. No sufficient ground is found to quash the impugned orders dated 16.1.2023 and 9.6.2023 above. The application u/s 482 Cr.P.C. being devoid of merits is liable to be dismissed.
It is hereby dismissed.
Order Date :- 10.1.2024 Gss