Rajasthan High Court - Jaipur
Deshraj Meena S/O Shri Naresh Chand ... vs State Of Rajasthan on 12 January, 2022
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ Petition No. 125/2021
Deshraj Meena S/o Shri Naresh Chand Meena, Aged About 27
Years, R/o 251 Vill. Kutti Sahab Das Dhani Teh. Kathumar Dist.
Alwar Raj.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr.Prakash Thakuriya
For Respondent(s) : Mr.Arvind Kumar, PP
HON'BLE MR. JUSTICE FARJAND ALI
Judgment / Order
DATE OF RESERVED : 06/01/2022
DATE OF PRONOUNCEMENT : 12/01/2022
BY THE COURT:
The instant criminal writ Petition has been preferred in the matter of order dated 24.11.2020 passed by the learned Judicial Magistrate, Kherli Mandi, Distt. Alwar, in criminal regular case no. 23/180/20 arose out of FIR No. 149/2018 registered at P.S. Kherli, Alwar, for the offence under Section 147, 149, 283, 336, 332, 353 IPC and Sec.3 of Prevention of Damage to Public Property Act (for short as 'PDP Act') whereby the application filed by the Asstt. Prosecution Officer for withdrawal of the prosecution has been dismissed.
Brief facts giving rise to the instant criminal Petition are that for the accusation as mentioned above, an FIR came to be (Downloaded on 18/01/2022 at 09:09:06 PM) (2 of 6) [CRLW-125/2021] lodged and charge-sheet came to be submitted against 46 persons including the petitioner while keeping the investigation pending under Section 173(8) CrPC for certain other accused persons. During the course of trial, an application under Section 321 CrPC came to be submitted by the Asstt. Prosecution Officer seeking withdrawal of the prosecution. The learned Judl. Magistrate after hearing the counsel for the parties, vide a reasoned order dated 24.11.2020 rejected the application preferred on behalf of the State of Rajasthan and proceeded further in the matter.
The State of Rajasthan has not opted to challenge the order passed by the learned Magistrate. It is only the accused, the petitioner herein, who has assailed the order rejecting the application filed at the instace of the State of Rajasthan by way of filing the instant criminal writ petition.
Interestingly, when the notices were issued by this court, reply to the writ petition has been submitted by the State of Rajasthan through Government Advocate-cum-Addl. Advocate General which is supported with an affidavit wherein prayer has been made to dismiss the writ petition.
Thus the intent of the State of Rajasthan is not subsisting for withdrawal of the prosecution. Whether the petitioner who has been made an accused in the case, has accrued a right in his favour to seek withdrawal of the prosecution, is a question to be determined by this court. This court is of the considered view that the petitioner has no authority or locus to challenge the (Downloaded on 18/01/2022 at 09:09:06 PM) (3 of 6) [CRLW-125/2021] order passed on an application preferred on behalf of the State of Rajasthan and merely filing an application by the Asstt. Prosecution Officer does not accrue an indefeasible right in favour of the petitioner to challenge the rejection of withdrawal plea. Thus, prima facie the instant petition deserves to be dismissed on account of maintainability.
Since the question regarding withdrawal of prosecution at the instance of State of Rajasthan has arisen, therefore, this court deems it appropriate to determine the issue.
The Hon'ble Supreme Court in the case of State of Kerala Vs. K.Ajeet (2021 SCC 510) has propounded that the application under Sec. 321 Cr.PC must contain the plea that the withdrawal would be in the broad ends of public justice and withdrawal of the prosecution is necessary for good and relevant reasons. The Public Prosecutor must formulate an independent opinion before seeking consent of the court to withdraw from the prosecution. The application should have been made in good faith, in the interest of public policy and justice, and not with a view to thwart or stifle the process of law.
This court takes note of the parameters laid down by the Hon'ble Supreme Court in the case of K.Ajeet (supra), particularly the relevant para/s read as under:
"The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the Cr.PC can now (Downloaded on 18/01/2022 at 09:09:06 PM) (4 of 6) [CRLW-125/2021] 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 or 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 (Downloaded on 18/01/2022 at 09:09:06 PM) (5 of 6) [CRLW-125/2021] 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."
Thus, in view of above, following the judgment referred to supra, this court hold that the withdrawal of prosecution would not subserve the administration of justice as well as the withdrawal of the prosecution can only be sought in the parameters referred to in the case mentioned above.
Here in this case, a bare perusal of the application preferred by the Asstt. Prosecution Officer, does not convince this court so as to interfere in the orders passed by the courts below. The petition is not moved on behalf of the State of Rajasthan, rather it is filed at the instance of the accused. On (Downloaded on 18/01/2022 at 09:09:06 PM) (6 of 6) [CRLW-125/2021] the contrary, the State of Rajasthan has filed a reply to the petition making prayer for dismissal of writ petition, therefore, looking to the overall facts & circumstances of the case, the settled legal position and following the judgment passed by Hon'ble Supreme Court, referred to supra, I do not deem it appropriate to allow the petition and to interfere in the orders passed by the courts below. The submissions made by counsel for the petitioner are devoid of merit.
Accordingly, the instant criminal writ Petition is dismissed with no order as to cost.
The stay application also stands disposed of.
(FARJAND ALI),J SANDEEP RAWAT /18 (Downloaded on 18/01/2022 at 09:09:06 PM) Powered by TCPDF (www.tcpdf.org)