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2018 DIGILAW 2333 (ALL)

Bhola Nath Gupta v. State of U. P.

2018-11-15

BALA KRISHNA NARAYANA, RAJIV JOSHI

body2018
JUDGMENT : Rajiv Joshi, J. 1. Heard learned counsel for the petitioner and learned AGA for the State. 2. Present writ petition under Article 226 of the Constitution has been filed for the issuance of writ of mandamus commanding the respondent no.1 to decide the representation dated 28.9.2018 dispatched through registered post on 1.10.2018 under Section 321 Cr.P.C. within stipulated time. 3. As per the averments made in the writ petition, petitioner's son is involved in Case Crime No. 446 of 2018, registered at Police Station Kotwali, District Maharajganj on the basis of F.I.R. dated 5.7.2018 under Section 66/67 of Information Technology Amendment Act, 2008 and 17/18 Protection of Children From Sexual Offences Act. It is further averred in the writ petition that against the son of the petitioner, Case Crime No. 546 of 2018, under Section 3(1) Gangster and Anti Social Activities (Prevention) Act, 1986 has been registered. According to the petitioner, the police of concerned police station is investigating the matter but there is no hope for getting justice from the Investigating Officer and therefore, application/representation dated 28.9.2018 has been filed through registered post on 1.10.2018 before the State Government under Section 321 Cr.P.C for withdrawal of prosecution, but no decision on the said representation has been taken. Hence, the present writ petition. 4. Preliminary objection has been raised by learned AGA that the prayer made by the petitioner in the writ petition cannot be granted in view of the fact that petitioner's claim is not covered under Section 321 Cr.P.C. and therefore, the writ petition deserves to be dismissed summarily. 5. We have considered the objection as raised by learned AGA and perused the record. 6. Section 321 of Cr.P.C. reads as under : "321. 5. We have considered the objection as raised by learned AGA and perused the record. 6. Section 321 of Cr.P.C. reads as under : "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." 7. From a bare perusal of Section 321 Cr.P.C., it is apparent that it is the Public Prosecutor or Assistant Public Prosecutor in charge of a case, who may, with the consent of the Court, 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, before the judgment is pronounced. 8. 8. Thus, it is clear that the application for withdrawal of prosecution under Section 321 Cr.P.C. cannot be moved on behalf of the accused himself and hence, the application/representation filed under Section 321 Cr.P.C. at the instance of the petitioner on behalf of his son is not maintainable at all. 9. Apart from above, it is well settled that for issuance of a writ in the nature of mandamus, the petitioner must satisfy the Court that he has a legal right to the performance of statutory duty by the party, against whom mandamus is prayed for. In other words, in the absence of a judicially enforceable or a legally protected right, no writ in the nature of mandamus can be issued. The petitioner has no such right. 10. In view of the above, the application filed by the petitioner on behalf of accused-son is not at all maintainable, as the State respondent is not duty bound to decide the application filed by the petitioner. 11. Therefore, the preliminary objection so raised by the learned A.G.A. has force and is sustained. 12. The present writ petition is totally misconceived and is, accordingly, dismissed as not maintainable.