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2014 DIGILAW 1477 (ALL)

Dara Nishad v. State of U. P.

2014-05-06

KARUNA NAND BAJPAYEE

body2014
JUDGMENT Karuna Nand Bajpayee, J.: - This revision has been filed assailing the validity of the impugned order dated 19.12.2013 passed by Judicial Magistrate, IIIrd, Gorakhpur, in case no.32 of 2007 State v. Dara Nishad, arising out of case crime no.377A of 2004, u/s 147, 148, 149, 307, 323, 426, 504, 506, I.P.C., P.S. Barhalganj, district Gorakhpur whereby the application of the Public Prosecutor seeking the withdrawal of the prosecution was rejected by the Court. 2. Heard Sri Gaurav Kakkar, learned counsel for the revisionist as well as learned A.G.A. The entire record has been perused including the impugned order. 3. The contention of the learned counsel is that to withdraw the prosecution of a case is primarily the discretion of State and it was exercised in favour of the accused. The court below should not have put a spanner in the exercise of withdrawal which was initiated by the Additional Public Prosecutor . The submission is that the court below has encroached upon the discretionary right of the State authorities which makes the impugned order bad in the eyes of law. 4. I have perused the impugned order and relevant record in the light of the submissions made at the bar. It appears that with regard to the aforesaid case, which the accused-revisionist was facing, a letter of communication was sent to the District Magistrate whereby he was conveyed the decision of the government to withdraw the prosecution against the accused. The District Magistrate was instructed to take steps for the same purpose. It transpires that in compliance of the aforesaid direction sent by the Principal Secretary of government of U.P. the Additional Public Prosecutor moved the application before the Judicial Magistrate and sought his consent to allow the withdrawal of the case which was pending against the accused revisionist. From the perusal of the impugned order, it further transpires that this application of Additional Public Prosecutor did not find favour with the court who vide its order dated 19.12.2013 rejected the application and withheld its consent. 5. From the perusal of the impugned order, it further transpires that this application of Additional Public Prosecutor did not find favour with the court who vide its order dated 19.12.2013 rejected the application and withheld its consent. 5. It is preeminently perceptible from the perusal of the impugned order that the court below has taken note of the fact that the application moved on behalf of Additional Public Prosecutor is completely reticent about the merits of the case and does not reflect anything on the basis of which it may be inferred that the withdrawal of prosecution is inspired by any bonafide intentions. The court has also taken cognizance of the fact that the application moved by the Additional Public Prosecutor also does not disclose as to how or in what manner the proposed step of withdrawal was going to further the larger public interests or was going to prosper the ends of justice. The court had also taken cognizance of the fact that the application moved on behalf of the State reflected complete non application of mind and was absolutely mechanical in nature. The Apex Court decision given in Bansi Lal v. Chandan Lal, 1976 ACC 1935, was also duly considered and the court was of the view that the people who wielded strong clout and have influence in the Government cannot be allowed to capitalize upon the same and the larger public interest and interest of justice cannot be wholly ignored or trampled upon. 6. The impugned order reflects judicial application of mind. It is a very well reasoned order and the facts and circumstances of the case and also the relevant law has been well considered. This court is of the view that no doubt it is the discretion of the State Government to decide upon the appropriateness of the withdrawal of prosecution in a given case but it does not authorise the same to act it in such an arbitrary manner. The powers to be exercised u/s 321 Cr.P.C. cannot be used as if they are some kind of a royal privilege nor can they be exercised unguided or uninspired by the larger object of public interest and its welfare. The impugned order does not reflect anything illegal or incorrect. Nor does it contain anything which may be castigated on any justifiable ground whatsoever. 7. The revision being sans merit stands rejected.