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2023 DIGILAW 2067 (ALL)

Harkesh v. State of U. P.

2023-08-28

GAJENDRA KUMAR

body2023
JUDGMENT : 1. Heard learned counsel for the applicants and learned AGA for the State. 2. The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash the order dated 22.05.2023 passed by ADJ/Special Judge (D.A.A.), Court No.13, Agra as well as the entire proceedings of Case Crime No.211 of 2011 (S.S.T. No.75 of 2013), under Sections 147, 148, 149, 435, 427, 395, 397, 506 IPC, Police Station Etmadpur, District Agra, pending in the court of ADJ/Special Judge (D.A.A.), Court No.13, Agra. 3. Brief facts of the case, as per the pleadings are that on 08.05.2011 at about 07:30 am, the hundreds of people including women, who were armed with deadly weapons, made an attack upon the camp office of Vijay Construction Company Pvt. Ltd., after pouring the kerosene oil, set it on fire and in huge quantity of steel plates and others shattering plates were taken away, had also broken the light, welding machine and when the workers of the company tried to protect the same, the accused persons also committed the tussle with them, they hardly saved their lives from the accused persons and some of them were identified and their names were mentioned in the F.I.R.. 4. It is submitted by the learned counsel for the applicants that the applicants are innocent and have been falsely implicated in the present case. Further submission is that the F.I.R. was lodged against the applicants and others on 08.05.2011 at about 11:15 am regarding the alleged occurrence dated 08.05.2011 at about 07:50 am at the place of Bridge Channel Yamuna Express Way, Agra situated at a distance of nine kilometers from the police station. Further submission is that a false and fabricated F.I.R. has been lodged by the complainant against the applicants and others co-accused. Further submission is that applicants had nothing to do with the said incident. Further submission is that neither the applicants went to the place of complainant nor committed tussle with the complainant and others. The name of the applicants were falsely disclosed in the F.I.R. Further submission is that the similar allegations were made against the co-accused persons in another cases, in which government had taken the decision to withdraw the cases and on the basis of the same, the court below passed the orders in favour of the applicants. The name of the applicants were falsely disclosed in the F.I.R. Further submission is that the similar allegations were made against the co-accused persons in another cases, in which government had taken the decision to withdraw the cases and on the basis of the same, the court below passed the orders in favour of the applicants. As such, the impugned order is liable to be set aside. 5. On the other hand, learned AGA has opposed the prayer but did not dispute the aforesaid facts. 6. In the case of State of Kerala Vs. K Ajith and others (2021) 6 SCR 774, the relevant paragraph nos. 14 to 23 are quoted as under:- 14. The powers under Section 321 of the CrPC have been interpreted by this Court on a number of occasions. In State of Bihar vs Ram Naresh Pandey & Anr, AIR 1957 SC 389 , a three-judge Bench of this Court analysed Section 494 of the earlier Code of Criminal Procedure 1898 (similar to Section 321 of the CrPC). Justice B. Jagannadhadas observed that in granting consent to withdraw a prosecution, the court exercises a judicial function. However, in doing so, the court need not determine the matter judicially. The court only needs to be satisfied that "the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes". This Court also observed that the Magistrate's power under Section 494 was to prevent abuse of power of the executive. Addressing the question of whether insufficiency of evidence is a ground for withdrawal of prosecution, the Court held that:- "9. […] we find it difficult to appreciate why the opinion arrived at by both the trial court and the Sessions Court that the view taken of that material by the Public Prosecutor viz. that it was meagre evidence on which no conviction could be asked for, should be said to be so improper that the consent of the Court under Section 494 of the Code of Criminal Procedure has to be withheld. Even the private complainant who was allowed to participate in these proceedings in all its stages, does not, in his objection petition, or revision petitions, indicate the availability of any other material or better material. Even the private complainant who was allowed to participate in these proceedings in all its stages, does not, in his objection petition, or revision petitions, indicate the availability of any other material or better material. Nor, could the complainant's counsel, in the course of arguments before us inform us that there was any additional material available. In the situation, therefore, excepting for the view that no order to withdraw should be passed in such cases either as a matter of law or as a matter of propriety but that the matter should [b]e disposed of only after the evidence is judicially taken, we apprehend that the learned Chief Justice himself would not have felt called upon to interfere with the order of the Magistrate in the exercise of his revisional jurisdiction." (emphasis supplied) 15 In M.N Sankarayaraynan Nair vs P.V Balakrishnan, (1972) 1 SCC 318 , this Court held that the powers conferred on the Prosecutor under Section 494 of the Code of Criminal Procedure 1898 are to be exercised in "furtherance of the object of law". On the power of the court to grant consent, Justice P. Jaganmohan Reddy observed that:- "8. […] The Court also while considering the request to grant permission under the said section should not do so as a necessary formality — the grant of it for the mere asking. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain." (emphasis supplied) 16. In Rajender Kumar Jain vs State through Special Police Establishment and Ors, (1980) 3 SCC 435 , there was an application for the withdrawal of the prosecution against Mr George Fernandes, Chairperson of the Socialist Party of India. Mr Fernandes had been accused of rousing resistance against the Emergency imposed in 1975 and of participating in a conspiracy to do acts which may have resulted in the destruction of property. After the Emergency was revoked, the Special Public Prosecutor filed an application under Section 321 of the CrPC 'in view of the changed circumstances and public interest'. Mr Fernandes had been accused of rousing resistance against the Emergency imposed in 1975 and of participating in a conspiracy to do acts which may have resulted in the destruction of property. After the Emergency was revoked, the Special Public Prosecutor filed an application under Section 321 of the CrPC 'in view of the changed circumstances and public interest'. Given the political background of the dispute, a two judge bench of this Court, speaking through Justice O. Chinnappa Reddy highlighted the importance of the independence of the Public Prosecutor in exercising the power under Section 321. In the context of a withdrawal of prosecution where matters of public policy are involved, the Court held that:- "16. In the past, we have often known how expedient and necessary it is in the public interest for the public prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecution already launched. In such matters who but the Government can and should decide, in the first instance, whether it should be baneful or beneficial to launch or continue prosecutions. If the Government decides that it would be in the public interest to withdraw from prosecutions, how is the Government to go about this task? 17. Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the court that has to give its consent to such withdrawal. […] it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. 17. Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the court that has to give its consent to such withdrawal. […] it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. But, where such large and sensitive issues of public policy are involved, he must, if he is right-minded, seek advice and guidance from the policy- makers. His sources of information and resources are of a very limited nature unlike those of the policy-makers. If the policy-makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the court to say that the initiative comes from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words. If ill informed but well meaning bureaucrats choose to use expressions like "the Public Prosecutor is directed" or "the Public Prosecutor is instructed", the court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy. The court, in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons." Thus the fact that the withdrawal was initiated by the government was held not to vitiate the application, so long as the Public Prosecutor had independently applied his mind. Elaborating on the scope of withdrawal on the ground of public justice, and in particular the ambit of the expression 'political offence', the Court held:- "19.[…] For our present purpose it is really unnecessary for us to enter into a discussion as to what are political offences except in a sketchy way. Elaborating on the scope of withdrawal on the ground of public justice, and in particular the ambit of the expression 'political offence', the Court held:- "19.[…] For our present purpose it is really unnecessary for us to enter into a discussion as to what are political offences except in a sketchy way. It is sufficient to say that politics are about Government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy. Mahatma Gandhi, the father of the Nation, was convicted and jailed for offences against the municipal laws; so was his spiritual son and the first Prime Minister of our country. 21. To say that an offence is of a political character is not to absolve the offender of the offence. But the question is, is it a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution? We mentioned earlier that the Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice and that such broad ends of public justice may well include appropriate social, economic and political purposes. It is now a matter of history that the motivating force of the party which was formed to fight the elections in 1977 was the same as the motivating force of the criminal conspiracy as alleged in the order sanctioning the prosecution; only the means were different. The party which came to power as a result of 1977 elections chose to interpret the result of the elections as a mandate of the people against the politics and the policy of the party led by Shrimati Gandhi. Subsequent events leading up to the 1980 elections which reversed the result of the 1977 elections may cast a doubt whether such interpretation was correct; only history can tell. Subsequent events leading up to the 1980 elections which reversed the result of the 1977 elections may cast a doubt whether such interpretation was correct; only history can tell. But, if the Government of the day interpreted the result of the 1977 elections as a mandate of the people and on the basis of that interpretation the Government advised the Public Prosecutor to withdraw from the prosecution, one cannot say that the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor can one say that the Magistrate failed to exercise the supervisory function vested in him in giving his consent." (emphasis supplied) 17. The locus classicus on the interpretation of the powers conferred by Section 321 of the CrPC is the decision of the Constitution Bench in Sheonandan Paswan Vs. State of Bihar and others, (1987) 1 SCC 288. In this case, the Board of Directors of the Patna Urban Cooperative Bank was charged with misdemeanours such as misappropriation of the funds of the bank by giving multiple loans to the same person under different names and approving loans for fictitious persons. The Registrar of Cooperative Societies at the instance of the Reserve Bank of India directed legal action to be initiated against the stakeholders. On investigation, statements were made against Dr Jagannath Mishra, the ex-Chief Minister of Bihar, and it was alleged that he misused his office and made illegal personal gains for himself while holding office of the Chief Minister. A charge sheet was filed and the CJM took cognizance of the matter. However, before the case could progress further, Dr Mishra once again took oath as the Chief Minister of Bihar and a communication was issued by the Government that it had decided to withdraw the case. A withdrawal application was filed by the Public Prosecutor on grounds of lack of evidence, implication due to political vendetta, and that the prosecution would be against public policy and public interest. The CJM gave consent for the withdrawal, and the High Court affirmed the order of the CJM. 18. When the matter came up before this Court, the appeal was dismissed by a 2:1 majority. A review petition was allowed, and the scope of Section 321 of the CrPC was addressed by a Constitution Bench. The CJM gave consent for the withdrawal, and the High Court affirmed the order of the CJM. 18. When the matter came up before this Court, the appeal was dismissed by a 2:1 majority. A review petition was allowed, and the scope of Section 321 of the CrPC was addressed by a Constitution Bench. Chief Justice Bhagwati in his minority opinion held that in a case where a withdrawal petition has been filed on the ground of paucity of evidence, after the charge sheet has been filed but before the charge has been framed in a warrant case, the exercise of power by the court granting consent is similar to the power of the court to discharge the accused under Section 239 of the CrPC. Hence, in such cases, it would not be competent for the public prosecutor to file a withdrawal petition unless there is material change in the evidence. The Chief Justice was of the opinion that the court must take up the exercise of discharge in such cases since it would carry greater conviction with the people. He observed:- “30. The second qualification[..] What the court, therefore, does while exercising its function under Section 239 is to consider the police report and the document sent along with it as also any statement made by the accused if the court chooses to examine him. And if the court finds that there is no prima facie case against the accused the court discharges him. But that is precisely what the court is called upon to do when an application for withdrawal from the prosecution is made by the Public Prosecutor on the ground that there is insufficient or no evidence to support the prosecution. There also the court would have to consider the material placed before it on behalf of the prosecution for the purpose of deciding whether the ground urged by the Public Prosecutor for withdrawal of the prosecution is justified or not and this material would be the same as the material before the court while discharging its function under Section 239. There also the court would have to consider the material placed before it on behalf of the prosecution for the purpose of deciding whether the ground urged by the Public Prosecutor for withdrawal of the prosecution is justified or not and this material would be the same as the material before the court while discharging its function under Section 239. If the court while considering an application for withdrawal on the ground of insufficiency or absence of evidence to support the prosecution has to scrutinise the material for the purpose of deciding whether there is in fact insufficient evidence or no evidence at all in support of the prosecution, the court might as well engage itself in this exercise while considering under Section 239 whether the accused shall be discharged or a charge shall be framed against him. It is an identical exercise which the court will be performing whether the court acts. “Section 239: When accused shall be discharged: If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” under Section 239 or under Section 321. If that be so, we do not think that in a warrant case instituted on a police report the Public Prosecutor should be entitled to make an application for withdrawal from the prosecution on the ground that there is insufficient or no evidence in support of the prosecution. ” (emphasis supplied) “Section 239: When accused shall be discharged: If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” under Section 239 or under Section 321. If that be so, we do not think that in a warrant case instituted on a police report the Public Prosecutor should be entitled to make an application for withdrawal from the prosecution on the ground that there is insufficient or no evidence in support of the prosecution. ” (emphasis supplied) 19 Justice Khalid (speaking for himself and Justice Natarajan) rendered the majority opinion holding that the power of the court to grant consent for a withdrawal petition is similar to the power under Section 320 of the CrPC to compound offences. The court in both the cases will not have to enquire into the issue of conviction or acquittal of the accused person, and will only need to restrict itself to providing consent through the exercise of jurisdiction in a supervisory manner. It was held that though Section 321 does not provide any grounds for seeking withdrawal, “public policy, interest of administration, inexpediency to proceed with the prosecution for reasons of State, and paucity of evidence” are considered valid grounds for seeking withdrawal. Further, it was held that the court in deciding to grant consent to the withdrawal petition must restrict itself to only determining if the Prosecutor has exercised the power for the above legitimate reasons:- “73 […]When an application under Section 321 CrPC is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. To contend that the court when it exercises its limited power of giving consent under Section 321 has to assess the evidence and find out whether the case would end in acquittal or conviction, would be to rewrite Section 321 CrPC and would be to concede to the court a power which the scheme of Section 321 does not contemplate. The acquittal or discharge order under Section 321 are not the same as the normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion of the evidence in the case of acquittal or absence of prima facie case or groundlessness in the case of discharge. All that the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. All that the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court after considering these facets of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. In this case, on a reading of the application for withdrawal, the order of consent and the other attendant circumstances, I have no hesitation to hold that the application for withdrawal and the order giving consent were proper and strictly within the confines of Section 321 CrPC. 78. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the court is to grant its consent. The initiative is that of the Public Prosecutor and what the court has to do is only to give its consent and not to determine any matter judicially. The judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.” (emphasis supplied) The Court also held that while granting or denying consent to a withdrawal petition, the court is not to review the purported grounds warranting withdrawal that the public prosecutor has provided, but must only make sure that it is for a legitimate purpose, initiated without mala fides. 20. Both, Justice Khalid in his majority opinion and Justice Venkataramiah (as the learned Chief Justice then was) in his concurring opinion, held that this Court must be circumspect in interfering with the concurrent findings of the courts below, allowing or dismissing the withdrawal petition. Highlighting that this Court is not a court of facts and evidence it was observed:- “89. An order passed under Section 321 comes to this Court by special leave, under Article 136 of the Constitution of India. The appeal before us came thus. It has been the declared policy of this Court not to embark upon a roving enquiry into the facts and evidence of cases like this or even an order against discharge. An order passed under Section 321 comes to this Court by special leave, under Article 136 of the Constitution of India. The appeal before us came thus. It has been the declared policy of this Court not to embark upon a roving enquiry into the facts and evidence of cases like this or even an order against discharge. This Court will not allow itself to be converted into a court of PART C facts and evidence. This Court seldom goes into evidence and facts. That is as it should be. Any departure from this salutary self-imposed restraint is not a healthy practice and does not commend itself to me. It is necessary for this Court to remember that as an apex court, any observation on merits or on facts and evidence of a case which has to go back to the courts below will seriously prejudice the party affected and it should be the policy of this Court not to tread upon this prohibited ground and invite unsavoury but justifiable criticism. Is this Court to assess the evidence to find out whether there is a case for acquittal or conviction and convert itself into a trial court? Or is this Court to order a retrial and examination of hundred witnesses to find out whether the case would end in acquittal or conviction? Either of these conclusions in the case is outside the scope of Section 321. This can be done only if we rewrite Section 321.” (emphasis supplied) 21. The decision in Sheonandan Paswan (supra) has held the ground since then. An instance of its application was when this Court dealt with the withdrawal of prosecution of an MLA for offences involving misappropriation of public money. In Yerneni Raja Ramchandar vs State of Andhra Pradesh & Ors, (2009) 15 SCC 604 , the appellant, an MLA, was accused of fabricating hospital records to repeatedly claim medical reimbursement for a sum of Rs. 2,89,489, Rs. 1,33,939, and Rs. 1,22,825 from the Government. Amounts of Rs. 289,489, Rs. 60,000 and Rs. 60,000 were sanctioned by the Government time and again in response to these requests. Charges of misappropriation were levelled against him. Since the appellant was an MLA, the matter was referred to the Ethics Committee of the Legislative Assembly, where the appellant tendered an apology and refunded Rs. 60,000 to the Government. Amounts of Rs. 289,489, Rs. 60,000 and Rs. 60,000 were sanctioned by the Government time and again in response to these requests. Charges of misappropriation were levelled against him. Since the appellant was an MLA, the matter was referred to the Ethics Committee of the Legislative Assembly, where the appellant tendered an apology and refunded Rs. 60,000 to the Government. Pursuant to this, the Ethics Committee recommended a withdrawal of the prosecution against the appellant. The State Government also issued an order requiring the District Collector to direct the Prosecutor to withdraw the case. Multiple applications for withdrawal of prosecution were made, which were dismissed by the Magistrate. These, however, were ultimately allowed by the High Court. In refusing to allow the withdrawal of the prosecution against the appellant, this Court opined that in view of decision in Sheonandan Paswan (supra), the power of judicial review of the High Court was limited. It could have only interfered if there was an error of law committed by the Magistrate. Further, the Court also considered the implication of the disciplinary action taken by the Ethics Committee of the Legislative Assembly on the withdrawal of prosecution under Section 321 of the CrPC. Justice SB Sinha, speaking for the two-judge Bench, held that:- “15. The Ethics Committee of the legislature of the State of Andhra Pradesh was empowered to deal with the disciplinary action or otherwise which may be taken against the Members of the Legislative Assembly. A criminal case against a Member of the Legislative Assembly, ordinarily, should be allowed to be continued on its own merit, particularly, in the light of the facts of the present matter wherein the High Court had refused to interfere at the earlier stages of the proceedings. We have also noticed hereinbefore that the High Court, in fact, had not only been monitoring the investigation, but also directed the learned trial Judge to complete the trial within a period of three months. The action on the part of the State to issue the said government order despite the earlier orders of the High Court must be considered keeping in view the said factual matrix. 18. The government order was issued even according to the State in terms of the recommendations made by the Ethics Committee alone. […] The Ethics Committee had no jurisdiction to make such recommendations. 18. The government order was issued even according to the State in terms of the recommendations made by the Ethics Committee alone. […] The Ethics Committee had no jurisdiction to make such recommendations. If the State had acted on the basis of recommendations made by a body who had no role to play, its action would be vitiated in law, recommendations of the Ethics Committee being unauthorised, the action of the State would attract the doctrine of malice in law. 19. Even otherwise, the action on the part of the State, in our opinion, suffers from malice on fact as well. The State is the PART C protector of law. When it deals with a public fund, it must act in terms of the procedure established by law. In respect of public fund, the doctrine of public trust would also be applicable so far as the State and its officers are concerned. It could not, save and except for very strong and cogent reasons, have issued the said government order despite the orders of the High Court.” (emphasis supplied) 22. In offences involving the violation of public trust by executive or legislative authorities, this Court has evaluated the gravity of the offence and the impact of the withdrawal of prosecution on public life. In Bairam Muralidhar vs State of Andhra Pradesh, (2014) 10 SCC 380 , the Prosecutor was seeking a withdrawal of the prosecution against a police officer who had been accused of demanding a bribe in exchange of not implicating a particular individual for an offence of kidnapping and for reducing the charges against the individual’s son. The police officer was accused of offences under Sections 7 and 13(1) of the Prevention of Corruption Act 1988. An application under Section 321 of the CrPC was filed by the Prosecutor based on the fact that the Government had issued an order for withdrawal of prosecution against the officer given his meritorious service and directed that his case be placed before the Administrative Tribunal for disciplinary proceedings. This Court affirmed the concurrent findings of the High Court and the Trial Court and rejected the application for withdrawal. Justice Dipak Misra (as he then was), speaking on behalf of the two judge Bench, held that:- “19. This Court affirmed the concurrent findings of the High Court and the Trial Court and rejected the application for withdrawal. Justice Dipak Misra (as he then was), speaking on behalf of the two judge Bench, held that:- “19. In the case at hand, as the application filed by the Public Prosecutor would show that he had mechanically stated about the conditions precedent, it cannot be construed that he has really perused the materials and applied his independent mind solely because he has so stated. The application must indicate perusal of the materials by stating what are the materials he has perused, may be in brief, and whether such withdrawal of the prosecution would serve public interest and how he has formed his independent opinion. As we perceive, the learned Public Prosecutor has been totally guided by the order of the Government and really not applied his mind to the facts of the case. The learned trial Judge as well as the High Court has observed that it is a case under the Prevention of Corruption Act. They have taken note of the fact that the State Government had already granted sanction. It is also noticeable that the Anti- Corruption Bureau has found there was no justification of withdrawal of the prosecution. 22. We have referred to these authorities only to show that in the case at hand, regard being had to the gravity of the offence and the impact on public life apart from the nature of application filed by the Public Prosecutor, we are of the considered opinion that view expressed by the learned trial Judge as well as the High Court cannot be found fault with. We say so as we are inclined to think that there is no ground to show that such withdrawal would advance the cause of justice and serve the public interest. We say so as we are inclined to think that there is no ground to show that such withdrawal would advance the cause of justice and serve the public interest. That apart, there was no independent application of mind on the part of the learned Public Prosecutor, possibly thinking that the court would pass an order on a mere asking.” (emphasis supplied) 23 The principles which emerge from the decisions of this withdrawal of a prosecution under Section 321 of the CrPC can now 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 of 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 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. 7. As from the record of the case at hand, it is apparent that an F.I.R. was lodged by the Safety Manager of Vijay Construction Company Pvt. Ltd. Agra against 24 named persons regarding setting on fire the articles of the company and taking away the certain plates of the company and when the people of the company tried to protect the same, they tussled with them and the people of the company hardly saved themselves from the illegal acts. After investigation, charge sheet was submitted and cognizance was taken by the Court. After investigation, charge sheet was submitted and cognizance was taken by the Court. Thereafter, at the stage of appearance of the accused persons, an application dated 20.05.2023 was moved by Uttam Chandel, SPP (DAA) ASJ 13 with the averment therein that as the case is pending before the Court, vide letter/communication no.344 WC/7 Justice-5 2023-24 WC/2022 dated 15.02.2023 of Special Secretary, Justice, Section-5 (Criminal) U.P. Government, his highness the Governor of U.P. has been pleased to withdraw the 24 prosecutions and he has been accordingly directed to seek consent of the court for withdrawal of the same in compliance of the letters/communications Sr. No.(i) to (xxiv). It has been further averred that at the Sr. No. xiv, case crime no.211 of 2011 is related with S.S.T. No.75 of 2013 State Vs. Ashu and others is pending in the court. The complainant of which is Shivsen Safety Manager Vijay Construction Company Pvt. Ltd., Agra, he has lodged an F.I.R. on the basis of information gathered from the people and the witnesses have stated that the named accused persons have been the part of the crowd and no specific roles have been assigned by the witnesses. The incident is connected with the farmer's agitation and it is expedient to withdraw the prosecution in the interest of justice. The learned Additional Sessions Judge/Special Judge (DDA), Court No.13 Agra after hearing thereon has passed the impugned order dated 22.05.2023 to the effect that from the perusal of the record, it is apparent that the present case is connected with the riot and loot committed by the accused persons in prosecution of the common object and being armed with deadly weapons. From the photographs annexed with the C.D. available on record, some accused persons are seen committing the offence and are causing injuries to the police personnel. The case is not connected with any public policy or public interest or any object of judicial administration. Accused persons are absconding and NBW and process under Section 82 Cr.P.C have been issued against them, therefore, in view of the facts and circumstances of the case, accordingly the consent to the withdrawal of the prosecution is not in the public interest and is likely to adversaly affect the judicial administration and resultantly, the application was rejected. Accused persons are absconding and NBW and process under Section 82 Cr.P.C have been issued against them, therefore, in view of the facts and circumstances of the case, accordingly the consent to the withdrawal of the prosecution is not in the public interest and is likely to adversaly affect the judicial administration and resultantly, the application was rejected. From the perusal of the impugned order, in the light of the application made for the withdrawal of the prosecution by the public prosecution, it is apparent that the court needs to be satisfied that the executive function of the public prosecutor has not been improperly exercised or that it not an attempt to interfere with the normal course of justice or illegitimate reasons or purposes. It is also important to note that grant of permission to seek withdrawal cannot be made only on the mere asking by the public prosecutor, the court has to be satisfied on the material placed before it that the grant of which subserved the administration of justice. As the matter relates to mass agitation launched by the farmer as is disclosed in the application made by the public prosecutor, the court is expected in such situation to make an effort to elicit the reasons for withdrawal and satisfied itself that the prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. Withdrawal as initiated by the government cannot be held to vitiate the application so long as the public prosecutor had independently applied his mind. The court in deciding to grant consent to withdraw the prosecution must restrict itself to only determining if the public prosecutor has exercised the power for the legitimate reasons. All the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of court. The court after considering these facets of the case will have to see whether the application suffers from such improperties or illegalities as to cause manifest injustice if the consent is given. The court after considering these facets of the case will have to see whether the application suffers from such improperties or illegalities as to cause manifest injustice if the consent is given. The judicial function implicit in the exercise of judicial discretion for grant of consent would normally mean that the court has to satisfy itself that the executive function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for the illegitimate reason and purposes. In this case on the reading of the application for withdrawal, the impugned order and the other attendant circumstances, this Court has no hesitation to hold that the learned court has not considered and recorded his satisfaction whether the application made by the public prosecutor was in good faith and after having applied his independent mind to the facts and circumstances of the case and whether the application suffers from any improprieties or illegalities as to cause manifest injustice if the consent is given specifically in view of the applications moved in other cases have been allowed and consent has been granted to withdraw the prosecution. 8. Keeping in view the entire facts and circumstances of the case and the manner in which the application under Section 321 Cr.P.C. has been considered and decided by the trial court, it is apparent that the order has been passed against the principles of law as stated above, which is not sustainable in the eye of law and the impugned order is liable to be set aside with the direction to the court concerned that after giving opportunity to both sides, matter shall be decided afresh. 9. In view of the such facts and circumstances of the case, the impugned order dated 22.05.2023 passed by ADJ/Special Judge (D.A.A.), Court No.13, Agra is hereby set aside. 10. Accordingly, the instant application u/s 482 Cr.P.C. is disposed off.