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2004 DIGILAW 111 (ALL)

Pankaj Deo Mlshra v. State of Utter Pradesh

2004-01-23

GHANSHYAM DASS

body2004
( 1 ) THE Instant revision has been filed against the order dated 10-8-2001 passed by the then 1st Additional Sessions judge Bahralch in Sessions Trial No. 260 of 1994 (State of U. P. v. Pankaj Deo Mlshra and others) whereby the permission to withdraw the case under Section 321 ef the criminal Procedure Code was refused by the learned trial Judge. ( 2 ) THE sessions trial in question was pending before the Court below in which charge against the accused had been framed on 23rd April 1997. The public prosecutor first moved an application Paper No. 45b and when It was opposed to another application was moved as Paper No. 59b and request was made by the public prosecutor for withdrawal of the case in view of the sanction accorded by the Government in this regard and that eye witnesses were not supporting the prosecution. The request made by the public prosecutor has been rejected by the Court below on the ground tfcat there is a cross case of the same incident which is still pending for trial and no sanction for withdrawal has been accorded by the Government for cross case. The complainant is an Advocate who has received fire arm injury and he wants to prosecute the, case. Further it has been observed by the Court below that it is wrong to allege that the witnesses were not supporting the prosecution since they were not produced before the court below so far and hence it could hot be presumed that they were not going to support the prosecution. ( 3 ) HEARD the learned counsel for the parties and gone through the record. ( 4 ) IN the instant case the admitted position is that the request for withdrawal of the case by the prosecution is opposed to vehemently by the complainant of the case. It is also admitted position that no witness of fact has been examined before the Court hence it cannot be presumed that they would not go to support the prosecution when examined before the Court. It is also admitted position that the cross case is pending and there is no request for withdrawal of the cross case. The request for withdrawal of this case appears to have been made by the public prosecutor having been influenced by the sanction accorded by the Government for withdrawal of the case. It is also admitted position that the cross case is pending and there is no request for withdrawal of the cross case. The request for withdrawal of this case appears to have been made by the public prosecutor having been influenced by the sanction accorded by the Government for withdrawal of the case. The facts of the case go to show that the public prosecutor did not take his decision independently and not being influenced by the decision of the government. ( 5 ) IN view of the law laid down by the honble Supreme Court in the case reported in 1994 (4) SCC 299 : ( AIR 1995 SC 436 ), (V. S. Achuthanandan v. R. B. Pillai), 2000 (8) SCC 710 : (2001 Cri LJ 148 : AIR 2000 sc 116 ); (Abdul Karim v. State of Karnataka)the public prosecutor may be granted permission for withdrawal if the public prosecutor is found to have applied his mind independently to all relevant material and reach his own satisfaction regarding need for withdrawal from prosecution in good faith disregarding any decision, order or direction of the Government in that regard. Though the power of the Court is supervisory but consent cannot be granted as a matter of course. The Court has to satisfy itself that the act of the public prosecutor for withdrawal of the case is bona fide in public interest and will not thwart, stifle the process of law or cause manifest injustice. If the Court finds that the request for withdrawal is not influenced by irrelevant and extraneous considerations, it may grant permission. ( 6 ) THE learned counsel for the State, has placed before me the judgment of Criminal revision No. 204 of 1998 decided by the court on 30-9-2003 and submitted that the permission be granted to the prosecution for withdrawal of the case. In this case, this court having placed reliance upon the case reported in AIR 1980 SC 1510 : (1980 Cri lj 1084) (R. K. Jain v. State), 1983 (1) SCC 438 : (1983 Cri LJ 348 : AIR 1983 SC 194 ) (Sheq Nandan Paswan v. State of Bihar) observed that the withdrawal from the prosecution is an executive function of the public prosecutor and the discretion tp withdraw from the prosecution is that of public prosecutor and none else, and so fie cannot surrender that discretion to some one else. The public prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace, ( 7 ) TO my mind, the aforesaid observation-does not help the prosecution. In the instant case since there appears to be no material on record on the basis of which it can be said that the request for withdrawal was made in public interest or to maintain public order and peace. The request of the public prosecutor does not appear to be bona fide nor it appears to be just and proper for the obvious reason that there is a cross case for which no request is there for withdrawal. If the cross case is allowed to remain pending and the present case is allowed to be withdrawn, the situation would be ridiculous. The Court would be left With one sided version. Since there are cross cases, Court has to judge the respective case on both sides on merits. The request made by the public prosecutor for withdrawal of the instant case appears to have been influenced by the decision of the Government and it does not appear to be independent decision of the public prosecutor. ( 8 ) HAVING considered the overall facts and circumstances of the case I am of the opinion that the discretion exercised by the court below does hot appear to be a result of any error of law. I do not find any force in the instant revision. ( 9 ) IN the result, this revision is accordingly dismissed. Petition dismissed. . .