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2010 DIGILAW 2820 (ALL)

Tabarakullah v. State of U. P.

2010-09-15

RAJ MANI CHAUHAN

body2010
JUDGMENT: Raj Mani Chauhan, J. Heard learned counsel for the petitioner and learned A.G.A for the State as well as perused the documents available on record. 2. This petition under Section 482 of Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the petitioner for quashing the order dated 04.08.2010 passed by the learned Chief Judicial Magistrate, Balrampur in Criminal Case No.3168 of 2008 (Crime No. 29 of 2000), State Vs Tabarakullah, under Section 3/7 Essential Commodities Act, Police Station Pachperwa, District Balrampur, whereby the learned Chief Judicial Magistrate has rejected the application moved by the accused for permission to withdraw the criminal case pending against him. 3. From a perusal of the record, it appears that the accused Tabarakullah moved an application on 28.07.2008 for permission to withdraw the criminal case pending against him on the ground that the government in view of the unnecessary harassment of fair price shop licensee and other traders involving them under Section 3/7 E.C. Act had taken a decision to withdraw the cases pending against them under Section 3/7 E.C. Act. Consequently, the government issued Government Order No. CM 566/ lkekU; 5-2001-358 WC/2001TC dated 24.12.2001 to this effect. Therefore, in view of the Government Order dated 24.12.2001 the court may permit the prosecution to withdraw the criminal case pending against him. On the application of the accused, Prosecuting Officer, Sri Ram Lakhan In-charge of the case, made an endorsement that it will be justified to pass an order in view of the government order and he has no objection in the government policy in permitting the court for withdrawal the criminal case. Learned Chief Judicial Magistrate after hearing the parties rejected the application observing that the charges levelled against the accused was that he had sold food grains in black market which were meant to the poor persons, keeping in view the nature of offence, it will not be proper to permit the accused for withdrawal of the criminal case pending against him. 4. The submission of learned counsel for the petitioner is that the Government had taken policy decision to withdraw the pending criminal cases under Section 3/7 E.C.Act. Consequently, government on 24.12.2001 issued a Government Order to this effect. Accused had moved an application in view of the government order for permission to withdraw the criminal case. 4. The submission of learned counsel for the petitioner is that the Government had taken policy decision to withdraw the pending criminal cases under Section 3/7 E.C.Act. Consequently, government on 24.12.2001 issued a Government Order to this effect. Accused had moved an application in view of the government order for permission to withdraw the criminal case. The Prosecuting Officer had no objection to withdraw the criminal case pending against the accused. The court has no power to examine the ground on which the government has taken a decision to withdraw the criminal case. Although the power of the court to permit the withdrawal of criminal case is discretionary but in the given facts and circumstances, the learned Chief Judicial Magistrate had not option except to accord his permission to withdraw the criminal case. The impugned order passed by the learned Chief Judicial Magistrate rejecting the application of the accused for withdrawal of the case is illegal and is liable to be quashed. 5. Learned counsel for the petitioner in support of his argument has placed reliance on the cases of Ayyub Vs State of U.P. reported in 2002 Supreme Court Cases (Cri) 673, Rajendra Kumar Jain Vs State through Special Police Establishment and others reported 1980, Supreme Court Cases (Cri) 757 and Girish Chand Gupta @ Ram Babu Vs State of U.P. and another reported in 2002 (Suppl) ACC 180. 6. Sri Rajendra Kumar Dwivedi, learned A.G.A. opposed the petition and argued that Section 321 of the Code provides as and when 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. As per provision under Section 321 of the Code, it is only Public Prosecutor or Assistant Public Prosecutor in charge of a case can move an application for withdrawal of the criminal case. In this case, it is very peculiar that the case relates to the year 2001 and the application for withdrawal was moved by the accused in the year 2008 after a very long gap on which the Prosecuting Officer made an endorsement as he had no objection. This endorsement of the Prosecuting Officer is highly objectionable in the given circumstances. The accused has got no locus standi to move the application. This endorsement of the Prosecuting Officer is highly objectionable in the given circumstances. The accused has got no locus standi to move the application. The learned Chief Judicial Magistrate keeping in view the nature of offence did not find to exercise his discretion in favour of the accused who has got no locus standi to move application for withdrawal of the criminal case pending against him. The impugned order passed by the learned Chief Judicial Magistrate does not suffer from any illegality and calls for any interference. 7. Considered the submissions of learned counsel for the petitioner and learned A.G.A. 8. From a perusal of the record, it appears that the Government had issued government order on 24.12.2001. The criminal case was pending against the accused since 2000 and the accused moved the application for withdrawal of the criminal case on 28.07.2008 which is highly belated. Section 321 of the Code lays down the procedure for withdrawal of the criminal case which is being extracted below:- 321. Withdrawal from prosecution. The criminal case was pending against the accused since 2000 and the accused moved the application for withdrawal of the criminal case on 28.07.2008 which is highly belated. Section 321 of the Code lays down the procedure for withdrawal of the criminal case which is being extracted below:- 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 hag hot been appointed by the Central Government, he shall not, unless he hag 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. 9. As per provision under Section 321 of the Code, it is clear that it is the only Public Prosecutor or Assistant Public Prosecutor in charge of the case who can withdraw from prosecution with the consent of the Court. Accused has got no locus standi to move application before the learned Chief Judicial Magistrate for withdrawal of criminal case pending against him. Accused has got no locus standi to move application before the learned Chief Judicial Magistrate for withdrawal of criminal case pending against him. In this case, admittedly the prosecuting officer had not moved any application for withdrawal of the criminal case pending against the accused; rather he had made an endorsement on the application moved by the accused that as he had no objection in view of the government order. If the Public Prosecutor was of the opinion that in view of the government order as referred above the criminal case pending against the accused should be withdrawn he himself would have moved the application for withdrawal from the prosecution himself but he instead of moving an application made an endorsement on the application of the accused for withdrawal of the case that he had no objection. It appears that Prosecuting Officer colluding with the accused just to favour him had made an endorsement on the application of the accused that he had no objection. The conduct of the Prosecuting Officer in the given circumstances does not appear to be fair. The learned Magistrate has rejected the application of the accused for withdrawal of criminal case by the impugned order. I do not find any illegality or infirmity in the impugned order as accused-petitioner had got no locus standi to move application for withdrawal of the criminal case. The petition has no force and is liable to be dismissed. 10. The petition is, therefore, dismissed. 11. However, it is provided that in case accused-petitioner appears before the trial court within one week from today and moves any application for bail, the same will be disposed of by the courts below according to law. 12. Till then, no coercive steps will be taken by the trial court against the petitioner. This order will come to an automatic end after one week from today.