Allahabad High Court
Ram Prakash Yadav vs State Of U.P. on 24 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1797
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 11 Reserved Case :- U/S 482/378/407 No. - 2673 of 2019 Applicant :- Ram Prakash Yadav Opposite Party :- State Of U.P. Counsel for Applicant :- Nandit Kumar Srivastava,Manoj Kumar Dixit,Pranjal Krishna,Prashant Singh Gaur,Sudhanshu Mishra Counsel for Opposite Party :- Govt. Advocate Hon'ble Rajeev Singh,J.
1. Heard Shri Nandit Kumar Srivastava, learned Senior Counsel assisted by Ms. Aishwarya Mishra, learned counsel for the applicant and Shri Aniruddh Kumar Singh, learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 29.03.2019 passed Special Judge, P.C. Act-IVth, Lucknow Prakash Yadav in Case No.02 of 2014 (State Vs. Ram Prakash Yadav), arising out of Crime No.239 of 2013, under Section 7 and 13 (1) (d) read with Section 13 (2) of P.C. Act, 1988, Police Station Naka Hindola, District Lucknow including entire proceedings.
3. Learned counsel for the applicant has submitted that Assistant Government District Counsel (hereinafter referred as "AGDC") moved an application under Section 321 Cr.P.C. in Criminal Case No.02 of 2014 (supra) arising out of Case Crime No.239 of 2013 (supra) on 16.11.2018, but the same was rejected by learned Special Judge-IV, P.C. Act, Lucknow, vide order dated 29.03.2019, subjecting the applicant to illegal prosecution. Learned counsel for the applicant has further submitted that court below failed to apply the principles laid down by the Full Bench of this Hon'ble Court in the case of Withdrawal of Criminal Cases by State Government reported in 2017 (2) JIC 249 (All).
4. It is further submitted the facts of case that a written complaint was filed by Sri Arjun Chaudhary in the office of Anti Corruption Organization, Lucknow, alleging therein that the applicant was demanding an illegal gratification of Rs.25,000/- for correction in his electricity bill of amounting to Rs.26,000/-. Therefore, the FIR was lodged on 12.12.2013 containing the Post Trap Memorandum dated 12.12.2013 under Section 7 and 13 (1) (d) read with Section 13 (1) 2 of P.C. Act. Thereafter, chargesheet dated 06.02.2014 was filed in the case against the applicant under Section 7 and 13 (1) (d) read with Section 13 (2) of P.C. Act, 1988 and learned Special Judge-IV, P.C. Act, Lucknow was took cognizance of the instant case on 07.02.2014. Thereafter, the applicant filed his discharge application under Section 239 Cr.P.C. on 22.09.2014. However, his application was rejected by the Special Judge-IV, P.C. Act, Lucknow vide order dated 01.10.2018. In the meantime, the District Magistrate, Lucknow, examined the entire matter and reached to the conclusion that the prosecution of the applicant would be an abuse of process of the Court and accordingly recommended to the Government of U.P. to withdraw the prosecution of applicant vide letter dated 31.07.2015 and reminder letter dated 05.03.2018, resulting to which Government of U.P. after considering the matter in detail formed the opinion that the prosecution of the applicant would be an abuse of process of Court by using a Government order dated 29.10.2018. Thus, the Public Prosecutor was allowed to move application for withdrawal of the prosecution in accordance with provision of Section 321 Cr.P.C. Thereafter, AGDC filed an application on 16.11.2018 in pursuance of the Government Order dated 29.10.2018.
5. Learned counsel for the applicant has submitted that the aforesaid application filed by the AGDC under Section 321 Cr.P.C. was rejected vide order dated 29.03.2019. It has further submitted on behalf of the applicant that impugned order 29.03.2019 does not reveals any discussion or comment on the grounds raised in the application. Learned counsel for the applicant has submitted that the learned Special Judge-IV, P.C. Act, Lucknow has failed to take into account the stipulated position in law that the application under Section 321 of Cr.P.C. can be filed at any stage before the judgment is pronounced. The Provision of Section 321 Cr.P.C. reads 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."
6. Learned counsel for the applicant has further submitted that learned Special Judge-IV, P.C. Act, Lucknow has failed to consider the fact that the outstanding bill of the complainant was only Rs.26,594/- for which it is alleged that the applicant demanded Rs.25,000/- bribe to correct the aforesaid bill is highly impractical. In the application under Section 321 Cr.P.C. dated 16.11.2018 it has been enumerated in great detail that the complainant has been a previous and a consistent defaulter in paying the Electricity Bills. It has also been shown that earlier the F.I.R. dated 20.06.2011 bearing FIR No.516 of 2011 has also been registered against the complainant at Police Station Naka Hindola, District Lucknow in electricity theft case.
7. Learned counsel for the applicant has also relied on case law of this Hon'ble High Court in the case of Withdrawal of Criminal Cases by State Government reported in 2017 (2) JIC 249 (All). The relevant paragraphs of the judgment are reproduced as under:-
"2. In Criminal Misc. Writ Petition No. 10816 of 2015 filed by Ram Narayan Yadav before this Court, the Court took serious note of the manner in which power under Section 321 Cr.P.C. was sought to be exercised. Accordingly, a detailed order was passed by the Court asking for an affidavit of the Principal Secretary, Law and Legal Remembrancer, as well as Special Secretary, Law, Government of U.P., Lucknow. It is also reflected from the record that before the Bench seized of the matter, Ram Narayan Yadav through his counsel made a request that as the Magistrate has already heard the matter and reserved the order, he may be permitted to withdraw the petition. The Division Bench seized of the matter though dismissed the petition as withdrawn by observing that it was the privilege of the petitioner to prosecute his petition or not but after noticing the fact that petitioner Ram Narayan Yadav had political access and was running an educational institution in connection with which he had been found to have indulged in offences, in which, after collecting credible evidences, charge-sheet had been submitted and trial was pending, proceeded to make the following reference:
"1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations, just, valid and judicially tenable?
2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India?
3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr.P.C. irrespective of fact that accused or anyone else has approached the government for this purpose or not? "
9. Section 321 of Cr.P.C. 1973 deals with the power of Public Prosecutor/Assistant Public Prosecutor to withdraw case of which he is in-charge after obtaining written permission from the State Government and that permission is required to be filed in Court. The power of withdrawal can be invoked by the Public Prosecutor/Assistant Public Prosecutor, In-charge of the case when same is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The aforesaid provision relating to withdrawal has been subject matter of consideration in various judgments of Apex Court as well as of this Court.
10. Apex Court in the case of Sheonandan Paswan versus State of Bihar, (1983) 1 SCC 438, ruled that ultimate decision to withdraw from the prosecution should be of Public Prosecutor. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The government may make suggestion but cannot compel the Public Prosecutor. The Public Prosecutor may receive any instruction from the government but it is not necessary for him to abide by it. The Public Prosecutor has to apply his own independent mind before moving the application under Section 321 Cr.P.C. Public Prosecutor has a right to disagree with the government instruction and may refuse to move application for withdrawal of prosecution.
12. In State of Punjab versus Union of India, (1986) 4 SCC 335, Apex Court ruled that it is the duty of the Court, while granting permission to the Public Prosecutor to withdraw from prosecution, 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. The administration of justice is the touch stone on which the question must be determined whether the prosecution should be allowed to withdraw. Not only the material or paucity of evidence but broad ends of public justice including appropriate socio economic conditions may be ground to move withdrawal application.
13. In Sheonandan Paswan versus State of Bihar, : (1987) 1 SCC 288, Apex Court held that while considering the application moved by the Public Prosecutor, the court has to see that the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given by the court.
18. In Rahul Agarwal versus Rakesh Jain and another, 2005 SCC (Cri.) 506, Apex Court considered when an application under Section 321 Cr.P.C. may be allowed. It was held by Apex Court that it may be permitted when valid reasons are made out for the same and it can be allowed only in the interest of justice. It shall be obligatory for the court to consider all relevant circumstances and find out whether the withdrawal of prosecution advances the cause of justice. Discretion under Section 321 should not be exercised to stifle the prosecution. Withdrawal can be permitted if the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused or to bring out harmony between the parties. In the facts of that case, their Lordships found that it was not proper for the High Court to have allowed the withdrawal application. While reiterating the settled proposition of law, Apex Court in the case of Rahul Agarwal (supra) held as under:
"10. From these decisions as well as other decisions on the same question, the 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 an 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. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."
20. The judgment noted above has been considered in extenso by a Full Bench of this Court in the case of Ms. Ranjana Agnihotri Vs. Union of India, : 2013 (11) ADJ 22 (FB), wherein Full Bench has answered the issues raised in following terms;
Questions Answers
(i) Whether the State Government can issue Government Order for withdrawal of cases without there being any request by the Public Prosecutor in charge of the case?
The Government can issue an order or instruction for withdrawal from prosecution without there being request from the Public Prosecutor Incharge of the case, subject to the rider that the Public Prosecutor shall apply his/her independent mind and record satisfaction before moving an application for withdrawal from prosecution (supra).
(ii) Whether the prosecution can be withdrawn without assigning any reason as to why the prosecution was sought to be withdrawn and is therefore unconstitutional and violative of Article 14 of the Constitution of India?
The prosecution cannot be withdrawn without assigning reason, may be precisely. If an application is moved for withdrawal from prosecution in a case relating to terrorism and waging of war against the country, special and specific reason has to be assigned keeping in view the discussion, made in the body of judgment (supra).
(iii) Whether the prosecution of offence relating to Central Act be withdrawn without taking permission from the Central Government?
Prosecution under Central Acts where with regard to the offences, executive power of the Union extends, prosecution cannot be withdrawn without permission of the Central Government (supra). For offences under Unlawful Activities (Prevention) Act, 1967, Explosive Substances Act, 1908 and Arms Act, 1959 etc and the offences falling in Chapter VI of Indian Penal Code or alike offences the executive power of the Union of India extends, hence permission from the Central Government with regard to withdrawal of prosecution under Section 321 Cr.P.C. shall be necessary.
(iv) Whether the State Government after giving sanction for prosecution, review its own order by issuing orders for withdrawal of the cases?"
State Government has got power to issue instruction or pass order even after sanction for prosecution has been given in a pending criminal case, subject to condition that the Prosecuting Officer has to take independent decision with due satisfaction in accordance with law on his own, before moving the application for withdrawal from prosecution in the trial court.
23. The provisions of Section 321 Cr.P.C. exists on statute book with all checks and balances with defined role to be played by Public Prosecutor; the State and the Court. Prosecution of an alleged offender is primarily the responsibility of State which through investigating authorities file charge-sheet and initiates prosecution. The power to withdraw prosecution is, therefore, an exception to the general obligation of the State to discover, vindicate and establish truth before a Court of Law in furtherance of Criminal Justice System. Crimes being public wrong arising from breach and violation of public rights and duties, affecting the whole community, are not to be tolerated by the State. Concept of fair trial entails balancing the interest of the accused, the victim, society and the community with the help of the agencies of State. In the State of U.P., by means of State Amendment, State Government has now been conferred power to accord written permission for withdrawal of prosecution, if any. Such conferment of authority, is certainly function assumed by the State Government to assert and reiterate its sovereign authority in matters relating to State prosecution. State Government under the scheme of things exercises statutory function i.e. executive in nature.
28. A Division Bench of this Court in the case of Yogesh Agrawal Vs. State of U.P. & others, : 2015 (10) ADJ 472 (DB), has taken the view that if there are serious legal errors in the decision making process then such executive action can be interfered with in the exercise of jurisdiction under Article 226 of the Constitution of India. Relevant extract of the said judgment is as follows:
"Then is the question as to what is the nature of the power that is exercised by the State Government while granting permission to withdraw the prosecution. It is by now settled and has been clearly explained in the full bench decision of Ranjana Agnihotri's case (supra) that the power of the State Government is statutory, executive and administrative in nature. The reason for this is that the adjudicatory power on such an issue under Section 321 Cr.P.C. is clearly saved for the courts and therefore the nature of the power exercised by the State Government is an administrative opinion formation function based on some policy of public justice or in public interest or under the parameters as explained above. The State Government does not have the power to ultimately decide the issue of withdrawal which according to Section 321 Cr.P.C. itself is subject to the twin conditions of the independent opinion of the Public Prosecutor and the consent of the State. Nonetheless it is a statutory power which is being exercised and therefore any executive power controlled by statute has to be reasonably exercised, and not arbitrarily, as per the mandate of Article 14 of the Constitution of India. It need not be re-emphasised that non-arbitrariness in executive functions can be tested on the anvil of Article 14 of the Constitution of India and this aspect also has been clearly indicated to be available even to the trial court in Ranjana Agnihotri's case (supra)."
30. In the background of the provisions, that have been quoted above, and various judicial pronouncement, that has been noted above, the issues referred are answered by us as follows:
Issue No. I: State Government is not at all free to exercise its authority under Section 321 Cr.P.C. in whimsical or arbitrary manner or for extraneous considerations apart from just and valid reasons.
Issue No. II: The decision taken by the State Government for withdrawal of the case communicated to the Public Prosecutor, is open to judicial review under Article 226 of the Constitution of India on the same parameters as are prescribed for invoking the authority of judicial review.
Issue No. III: The State Government is free to act under the parameters provided for to make scrutiny of criminal cases pending in subordinate courts to find out as to whether they deserve withdrawal under Section 321 Cr.P.C. or not as it is in the realm of the policy decision, and call on the said score has to be taken by the State Government and same has to be based on the parameters required to be observed while moving an application for withdrawal of prosecution under Section 321 Cr.P.C.
8. Learned counsel for the applicant has given emphasis on his argument that Section 321 Cr.P.C defines the power of public prosecutor to withdraw the case of which he is incharge after obtaining written permission from the State Government and the Power of withdrawal can be invoked by the Public Prosecutor/Assistant Public Prosecutor incharge of the case when same is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law.
9. In the present case, the court below rejected the application without considering the fact that the application for withdrawal of the prosecution was moved in the interest of public policy and justice and the application was rejected with the observation that at the time of discharge application, the (AGDC) has not brought into the notice of the court about the process of withdrawal of prosecution.
10. Shri Aniruddh Kumar Singh, learned A.G.A. vehemently opposes the argument of counsel for the applicant and submitted that the order passed by the Court below dated 29.03.2019 is in accordance with law and the application is liable to be dismissed.
11. After considering the argument advanced by the counsel for the parties and going through the record. It is very much evident that the complainant Shri Arjun Chaudhary was the defaulter of electricity dues amounting to Rs.26,594 and only for making correction in the aforesaid bill. It is alleged that Rs.25,000/- was asked as a bribe by the applicant. As the correction of bill is under the domain of Executive Engineer Revenue and not under the domain of applicant and it is highly improbable that only to save Rs.1,594/- and Rs25,000/- bribe was given to the applicant. As the complainant moved an application in the office of Anti Corruption Organization, Lucknow and thereafter, trap was made and the applicant was forcibly booked for taking a bribe of Rs.25,000/- for making correction in the aforesaid bill and later on chargesheet was filed. Thereafter, State Government issued a Government Order dated 29.10.2018 and permitted the (AGDC) to proceed under Section 321 Cr.P.C. for withdrawal of the proceeding of Case Crime No. 239 of 2013 (supra), the application dated 16.11.2018 was moved by (AGDC) under Section 321 Cr.P.C. by specifically mentioning that Mr. Arjun Chaudhary (complainant) was a defaulter of electricity dues for a period of 30.09.2013 to 19.10.2013 and the recovery proceedings of revenue was going on, but the court below rejected the application with the observation that the applicant moved discharge application and during the course of disposal of discharge application, the (AGDC) opposed the same and thereafter, the discharge application was rejected vide order dated 01.10.2018 and at this stage (AGDC) filed an application under Section 321 Cr.P.C. dated 16.11.2018. In such circumstances, (AGDC) has not informed the Court during the course of disposal of discharge application that proceedings for withdrawal of the prosecution is under process and the court below also observed that no any ground has been mentioned in the application that why the withdrawal of prosecution is in the interest of justice, thereafter, the application was rejected. The Full Bench of this Hon'ble Court in the case of Withdrawal of Criminal Cases by State Government held that State Government is free to act under the parameters provided to make scrutiny of criminal cases pending in subordinate Court to find out as to whether withdrawal under Section 321 Cr.P.C. of such case is required or not, as it is in the realm of the policy decision and call on the said score has to be taken by the State Government and same has to be based on parameters required to be observed while moving an application for withdrawal of prosecution under Section 321 Cr.P.C. As it is also observed by the Full Bench relying on the decision of Hon'ble Supreme Court in the case of Rahul Agarwal Vs. Rakesh Jain & Anr. reported in 2005 SCC (Cri) 506, wherein the Hon'ble Apex court considered when an application under Section 321 Cr.P.C. is allowed, it shall be obligatory for the Court to consider all relevant circumstances and find out whether the withdrawal of prosecution advances the cause of justice. Discretion under Section 321 Cr.P.C. should not be exercised to stifle the prosecution. Withdrawal can be permitted if the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused or to bring out harmony between the parties.
12. In view of above, the application (u/s 482 Cr.P.C.) is allowed and the order dated 29.03.2019 is hereby quashed and the matter is remanded back for directing the court below to take fresh decision on the application No.A23, under Section 321 Cr.P.C. dated 16.11.2018 within one month from the date of production of certified copy of this order.
Order date:-24.10.2019.
Amit/-