Allahabad High Court
State Of Up vs Ramkripal Singh Patel S/O Bhagwan Deen on 5 September, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 28.08.2023
Delivered on: 05.09.2023
Neutral Citation No. - 2023:AHC:175165
Court No. - 78
Case :- CRIMINAL REVISION No. - 3920 of 2023
Revisionist :- State of U.P.
Opposite Party :- Ramkripal Singh Patel S/O Bhagwan Deen
Counsel for Revisionist :- Ashutosh Kumar Sand
Counsel for Opposite Party :- Saroj Kumar Dubey,Birendra Singh
Hon'ble Raj Beer Singh,J.
1. Heard Shri Manish Goyal, learned Additional Advocate General along with Shri Ashutosh Kumar Sand, learned A.G.A. for the revisionist/State and Shri V. P. Srivastava, learned Senior Advocate, assisted by Shri Birendra Singh, learned counsel for opposite party.
2. This criminal revision has been preferred on behalf of the State against order dated 19.05.2023, passed by the learned Special Judge (M.P./M.LA.)/Additional Sessions Judge, Court No. 1, Chitrakoot in Special Session Trial No. 393A of 2005 (State Vs. Ramkripal Singh Patel and Others), arising out of Case Crime No. 42 of 1998, under Section 216A I.P.C. and Section 14 D.A.A. Act, Police Station-Manikpur, District-Chitrakoot, whereby, the application filed by the Public Prosecutor under Section 321 Cr.P.C for withdrawal of prosecution of the opposite party, has been rejected.
3. Shri Manish Goyal, learned Additional Advocate General submitted that the impugned order is against the law and thus, liable to be set aside. It was submitted that the first information report of this case was lodged on 01.08.1998 against eight accused persons, including, Dadua @ Shiv Kumar, Radhe @ Subedar, Angad @ Sugreev, Gopal @ Chandu, Bhunda @ Gotar, Tahsildar @ Rohni, Kamta @ Saiyyad and Nathhu @ Chela, under Sections 147, 148, 149, 307 I.P.C. and Section 12/14 D.A.A. Act. The opposite party was not named in the first information report. It was alleged in the first information report that above referred accused persons are members of a gang of dacoits and that an information was received that they are assembling in jungle of Chamroha to commit some heinous incident. The police team reached there and when the members of the said gang realised the presence of police, they started making firing on the police party. The police warn the gang to surrender but they continued to make firing and police also made firing and encounter has taken place. Later on, some of the members of the gang succeeded in running away and two of the gang members were found dead and another member was found in injured condition, who later on died. During investigation, the police implicated the opposite party-R. K. Singh Patel, the then M.L.A., for offence under Section 216A I.P.C. and Section 12/14 D.A.A. Act without any cogent evidence, by alleging that he used to harbour the dacoits and that one of the accused, namely, Daddu Prasad used to work as gunner of the opposite party. Learned Additional Advocate General submitted that there was absolutely no evidence to support the said allegation and that the opposite party-R.K. Singh Patel was falsely implicated merely on the basis of recovery of some expired railway coupons, which does not satisfy the ingredients of the offence under Section 216A I.P.C. Referring to facts of the matter, it was submitted that the opposite party-R.K. Singh Patel was charge-sheeted under Section 216A I.P.C. and Section 12/14 D.A.A. Act without any cogent evidence. The said charge-sheet was submitted in the year 1999 but trial could not commence so far. Meanwhile, State of U.P. has decided to withdraw the said prosecution against the opposite party. The Public Prosecutor has moved an application under Section 321 Cr.P.C. before the Trial Court to withdraw the prosecution. Referring to application moved by learned Public Prosecutor (ADGC) and facts of the matter, it was submitted that the Public Prosecutor has applied his mind independently and came to the conclusion that in the public interest, the withdrawal of the prosecution against opposite party is necessary. It is further submitted that co-accused/alleged dacoits, namely, Lala @ Ahmad Ali, Lalman Kol and Shrilal Yadav have already been acquitted by the Court of Special Judge (D.A.A. Act)/ Additional Sessions Judge, Court No. 4, Chitrakoot, vide order dated 27.05.2016. When the said accused persons have already been acquitted, the prosecution of the opposite party regarding allegation that he used to harbour said dacoits, is nothing but abuse of process of Court. It is further submitted that the charge-sheet against the opposite party was submitted in the year 1999 but charges have been framed on 30.07.2022 and that, not a single witness has been examined so far.
4. Learned Additional Advocate General further submitted that there is absolutely no evidence against the opposite party and that the Public Prosecutor has filed an application for withdrawal of prosecution in accordance with law by applying his mind independently and that the main co-accused persons have already been acquitted for substantial charges and thus, in view of these facts and circumstances, it was quite desirable that the Trial Court must have granted consent for withdrawal of the prosecution against the opposite party. Referring to the impugned order, it was submitted that the Trial Court did not consider the matter in accordance with law and the application, filed by the Public Prosecutor under Section 321 Cr.P.C., was rejected in an arbitrary manner. In support of his contention, learned Additional Advocate General has placed reliance upon case of Vijaykumar Baldev Mishra @ Sharma Vs. State of Maharashtra (2007) 12 Supreme Court Cases 687 and Sheonandan Paswan Vs. State of Bihar and Other (1987) 1 Supreme Court Cases 288.
5. Shri V.P. Srivastava, learned Senior Advocate appearing for opposite party has concurred with the arguments raised by learned Additional Advocate General and submitted that in view of aforesaid facts and circumstance, a case for withdrawal of prosecution against opposite party, was made out. There is no credible evidence against the opposite party and thus, no useful purpose was going to be served by exhausting the process of trial and it would be a sheer misuse of time of the Court. Further, the accused persons, charged for substantial offence, have already been acquitted. Referring to legal position regarding withdrawal of prosecution, it was submitted by learned Senior Advocate that the Trial Court has committed error by refusing to grant consent for withdrawal of the prosecution.
6. I have considered the rival submissions and perused the record.
7. To appreciate the contentions raised by the learned counsel for the parties, it would be useful to refer the provisions of section 321 of Cr.P.C. which reads as follows:-
"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."
8. In case of Sheonandan Paswan v. State of Bihar and others AIR 1987 SC 877, the Court referred to Section 333 of the old Code and after taking note of the language employed under Section 321 of the present Code, came to hold that Section 321 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 has also been observed 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. The Apex Court after referring to the authorities in Bansi Lal v. Chandan Lal and others (1976) 1 SCC 421 Balwant Singh v. State of Bihar (1977) 4 SCC 448, Subhash Chander v. State (Chandigarh Admn.) (1980) 2 SCC 155, Rajender Kumar Jain v. State (1980) 3 SCC 435 and the principles stated in State of Bihar v. Ram Naresh Pandey AIR 1957 SC 389, came to hold thus:
"99. All the above decisions have followed the reasoning of Ram Naresh Pandey case (supra) and the principles settled in that decision were not doubted.
100. It is in the light of these decisions that the case on hand has to be considered. I find the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the materials placed before him and the order of consent given by the Magistrate was also after due consideration of various details, as indicated above. It would be improper for this Court, keeping in view the scheme of Section 321, to embark upon a detailed enquiry into the facts and evidence of the case or to direct retrial for that would be destructive of the object and intent of the section."
9. In Rahul Agarwal v. Rakesh Jain and another (2005) 2 SCC 377, the Court while dealing with the application under Section 321 Cr.P.C. referred to certain decisions and held:-
"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."
10. Recently in case of State of Kerala Vs. K. Ajith, (2021) SCC Online SC 510, the Hon'ble Apex held as under:
"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."
11. From above referred case laws, it is apparent that for withdrawal of prosecution, consent of the Court is necessary. While submitting such an application, 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. 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 but the Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution. 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. 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.
12. Keeping in view the aforesaid position of law, in the instant matter, it may be observed that the opposite party was not named in the first information report. The involvement of the opposite party was shown during investigation by alleging that the opposite party has harboured the said dacoits but there is absolutely no evidence to support the said allegation. Another allegation, levelled against the opposite party, was that one of the accused person, namely, Daddu Prasad used to work as gunner of the opposite party but there is also no evidence to support the same. The mere recovery of three expired railway coupons, cannot be said an incriminating evidence. Further, the main accused persons, named in the first information report, have already been acquitted. It is also relevant to mention that charge-sheet against the opposite party was filed under Sections 147, 148, 149, 307, 216A I.P.C. and 12/14 D.A.A. Act in the year 1999 but trial has not commenced so far. It was also shown that the application for withdrawal of prosecution was moved by obtaining due leave from High Court in view of law laid down in case of Ashwini Kumar Upadhyay Vs. Union of India (Writ Petition (Civil) No. 699/2016), decided on 10.08.2021 by the Hon'ble Apex Court. It is also apparent from the facts of the matter that the Public Prosecutor has applied his mind independently and exercised his discretion in accordance with law. It is well settled that the Public Prosecutor, incharge of the case, may withdraw from a prosecution not merely on the ground of paucity of evidence but also in order to further brought on so public justice. The discretion to withdraw from prosecution is solely that of the Public Prosecutor and the Court performs a supervisory function and has a duty in granting its consent of the withdrawal. The Court, while considering such matters, is not to re-appreciate the grounds which laid the Public Prosecutor to request for withdrawal from prosecution but to consider whether the Public Prosecutor has applied his mind in a free and impartial manner.
13. Considering the settled position of law and the facts and circumstances of the present case, it appears that the impugned order dated 19.05.2023 suffers from patent illegality and perversity and thus, the same is not sustainable. This Court is of considered view that it would be futile exercise to remand back the matter and to pass afresh order, when the application under Section 321 Cr.P.C. fulfils all the required conditions.
14. Thus, the impugned order dated 19.05.2023, passed in Special Session Trial No. 393A of 2005 (State Vs. Ramkripal Singh Patel and Others), arising out of Case Crime No. 42 of 1998, under Section 216A I.P.C. and Section 14 D.A.A. Act, is hereby set aside and the application filed by learned Public Prosecutor under Section 321 Cr.P.C. for withdrawal from the prosecution, is hereby allowed. The prosecution of the opposite party in the aforesaid case stand withdrawn accordingly.
15. In view of aforesaid, the revision is allowed. Consequences to follow.
Order Date :- 05.09.2023 Suraj