# (2011) 1 ILRA 454

- **Citation:** (2011) 1 ILRA 454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-22
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-1-ilra-454-41878
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section
321-Application
for
withdrawal
of
prosecution-as offence under Section
309 I.P.C.-applicant already deposited
entire
amount
of
embezzlementrejection by magistrate confining its
consideration
on
gravity
of
caseignoring other factors like growing
age, pendency of criminal case for last
28 years-held-not proper direction for
re-consideration issued.

Held: Para 8

The learned Magistrate seems to have
passed
the
impugned
order
in
a
slipshod manner without considering
the relevant facts of the case and
guided himself on the basis of gravity
of the crime and held that it was not in
public interest to allow the prayer for
withdrawal
from
prosecution.
The
gravity of the crime cannot be said to
be the sole guiding factor for deciding
the petition under section 321 of the
Code
of
Criminal
Procedure.
The
learned Magistrate should have taken
into account other relevant factors
such as the old age of the applicant, his
criminal history, if any, as well as the
fact that he had deposited the entire
amount involved the present case. It
was also a relevant factor that the
F.I.R. is of the year 1982 and since
then more than 28 years have elapsed
but the trial is still pending with no
logical progress. Was it in public
interest to keep the trial pending after
about 28 years specially in a case
where embezzled amount had been
deposited and the Public Prosecutor
wanted
withdrawal
from
the
prosecution. All these facts need to be
given due consideration by the learned
Magistrate
while
considering
the
application filed under section 321 of
the Code of Criminal Procedure. In
view of the fact that the learned
Magistrate has not considered all the
relevant aspects of the matter and
passed
the
impugned
order
in
a
summary manner, it would be just and
expedient
to
direct
the
learned
Magistrate to reconsider the matter.
Case law discussed:
(1980) 3 SCC 435; (1976) 4 SCC 250; 2005
(51) ACC 724 (SC)

## Text

454 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.04.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

U/S 482/378/407 No. - 3849 of 2008

Dev Sharan Yadav

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Balram Yadav

Counsel for the Respondent:
Govt.Advocate

Code of Criminal Procedure-Section
321-Application
for
withdrawal
of
prosecution-as offence under Section
309 I.P.C.-applicant already deposited
entire
amount
of
embezzlementrejection by magistrate confining its
consideration
on
gravity
of
caseignoring other factors like growing
age, pendency of criminal case for last
28 years-held-not proper direction for
re-consideration issued.

Held: Para 8

The learned Magistrate seems to have
passed
the
impugned
order
in
a
slipshod manner without considering
the relevant facts of the case and
guided himself on the basis of gravity
of the crime and held that it was not in
public interest to allow the prayer for
withdrawal
from
prosecution.
The
gravity of the crime cannot be said to
be the sole guiding factor for deciding
the petition under section 321 of the
Code
of
Criminal
Procedure.
The
learned Magistrate should have taken
into account other relevant factors
such as the old age of the applicant, his
criminal history, if any, as well as the
fact that he had deposited the entire
amount involved the present case. It
was also a relevant factor that the
F.I.R. is of the year 1982 and since
then more than 28 years have elapsed
but the trial is still pending with no
logical progress. Was it in public
interest to keep the trial pending after
about 28 years specially in a case
where embezzled amount had been
deposited and the Public Prosecutor
wanted
withdrawal
from
the
prosecution. All these facts need to be
given due consideration by the learned
Magistrate
while
considering
the
application filed under section 321 of
the Code of Criminal Procedure. In
view of the fact that the learned
Magistrate has not considered all the
relevant aspects of the matter and
passed
the
impugned
order
in
a
summary manner, it would be just and
expedient
to
direct
the
learned
Magistrate to reconsider the matter.
Case law discussed:
(1980) 3 SCC 435; (1976) 4 SCC 250; 2005
(51) ACC 724 (SC)

(Delivered by Hon'ble Shri Kant Tripathi,J.)

1. Heard learned counsel applicant
and learned AGA for the respondents
and perused the record.

2. Counter and rejoinder affidavits
have been exchanged.

3. With the consent of the learned
counsel for the parties, this application
is being disposed of finally.

4. It appears that the applicant is
an accused in the case crime no. 197 of
1982, under section 409 I.P.C., Police
Station-Inayatnagar, District-Faizabad,
pending in the court of First Judicial
Magistrate, Faizabad. The Assistant
Prosecuting Officer in-charge of the
case moved an application under section
321 of the Code of Criminal Procedure
for withdrawal from the prosecution of
1 All Dev Sharan Yadav V. State of U.P.
455
the applicant under the instruction dated
21.02.2007
given
by
the
State
Government.
Learned
Magistrate
considered the application and arrived at
the conclusion that the charge against
the applicant was of serious in nature,
therefore, it was not proper in public
interest to permit withdrawal from
prosecution. Accordingly, the learned
Magistrate rejected the application vide
his order dated 14.12.2007.

5. The learned counsel for the
applicant submitted that the applicant is
an old person aged about 63 years who
has
deposited
the
entire
amount
involved in the present case in the
Government treasury. More so he has no
criminal antecedent, therefore, no useful
purpose would be served to try the
applicant, therefore, it was desirable on
the part of the learned Magistrate to
allow the application for withdrawal
from the prosecution. It was next
submitted that the application for
withdrawal from the prosecution could
be moved on the instruction of the State
Government because the Uttar Pradesh
Act No. 18 of 1991 has amended section
321 of the Code of Criminal Procedure
with effect from 16.02.1991 which
provides
that
the
application
for
withdrawal from the prosecution can be
moved by the Public Prosecutor or the
Assistant Public Prosecutor in-charge of
the case on the written permission of the
State Government which shall be filed
in the court.

6. Learned counsel for the
applicant further submitted that in view
of the Apex Court verdict in the case of
Rajender Kumar Jain Vs. State (1980)
3 SCC 435, the ultimate discretion to
withdraw from prosecution was of the
Assistant Prosecuting Officer in-charge
of the case and the court's jurisdiction
was merely supervisory in nature,
therefore, what was open to the court
was
to
see
whether
the
Public
Prosecutor acted with independent mind
in the broader interest of public justice,
therefore, according to that verdict the
court is required to see the broader
interest of public justice, public order
and
peace
while
considering
an
application under section 321 of the
Code of Criminal Procedure. It was
further held in that case that the court's
duty is not to reappreciate the grounds
which led the Public Prosecutor to
request
withdrawal
from
the
prosecution but to consider whether the
Public Prosecutor applied his mind as a
free agent, uninfluenced by irrelevant
and extraneous considerations. The
court has a special duty in this regard
as it is the ultimate repository of
legislative confidence in granting or
withholding its consent to withdrawal
from the prosecution. In the case of
State
of
Orissa
Vs.
Chandrika
Mohapatra and others (1976) 4 SCC
250 , the Apex Court propounded the
principles that the ultimate guiding
consideration must always be the
interest of administration of justice and
that is touch stone on which the
question must be determined. However,
the Apex Court further opined that no
hard and fast rule can be laid down nor
can any categories of cases be defined
in which consent should be granted or
refused. It must ultimately depend on
the facts and circumstances of each case
in the light of what is necessary in order
to promote the ends of justice, because
the objective of every judicial process
must be the attainment of justice.
456 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

7. In the case of Rahul Agarwal
Vs. Rakesh Jain and another, 2005
(51) ACC 724 (SC) the Apex Court
reiterated the aforesaid principles and
held:

"From these decisions, as well as
other decisions on the same question,
the law is very clear that the withdrawal
of prosecution can be allowed only in
the interest of justice. Even if the
Government
directs
the
Public
Prosecutor to withdraw the prosecution
and an application is filed to that effect,
the Court must consider all relevant
circumstances and find out whether the
withdrawal
of
prosecution
would
advance the cause of justice. If the case
is likely to end in an acquittal and the
continuance of the case is only causing
severe harassment to the accused, the
Court may permit withdrawal of the
prosecution is likely to bury the dispute
and bring about harmony between the
parties and it would be in the best
interest of justice, the Court may allow
the withdrawal of prosecution. The
discretion under section 321, Code of
Criminal Procedure is to be carefully
exercised by the Court having due
regard to all the relevant facts and shall
not be exercised to stifle the prosecution
which is being done at the instance of
the aggrieved parties or the State for
redressing their grievance".

8. The learned Magistrate seems to
have passed the impugned order in a
slipshod manner without considering the
relevant facts of the case and guided
himself on the basis of gravity of the
crime and held that it was not in public
interest
to
allow
the
prayer
for
withdrawal
from
prosecution.
The
gravity of the crime cannot be said to be
the sole guiding factor for deciding the
petition under section 321 of the Code
of Criminal Procedure. The learned
Magistrate should have taken into
account other relevant factors such as
the old age of the applicant, his criminal
history, if any, as well as the fact that he
had
deposited
the
entire
amount
involved the present case. It was also a
relevant factor that the F.I.R. is of the
year 1982 and since then more than 28
years have elapsed but the trial is still
pending with no logical progress. Was it
in public interest to keep the trial
pending after about 28 years specially in
a case where embezzled amount had
been
deposited
and
the
Public
Prosecutor wanted withdrawal from the
prosecution. All these facts need to be
given due consideration by the learned
Magistrate
while
considering
the
application filed under section 321 of
the Code of Criminal Procedure. In view
of the fact that the learned Magistrate
has not considered all the relevant
aspects of the matter and passed the
impugned order in a summary manner,
it would be just and expedient to direct
the learned Magistrate to reconsider the
matter.

9. Therefore, the application is
allowed and the impugned order dated
14.12.2007
(Annexure
No.
1)
is
quashed. The learned Magistrate is
directed to reconsider the matter in the
light
of
the
observations
made
hereinbefore and pass appropriate order
afresh in accordance with law.
---------
1 All Abdul Aziz Ansari V. State of U.P. and another
457
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2011

BEFORE
THE HON'BLE F.I.REBELLO, C.J.
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 7849 of 2011

Abdul Aziz Ansari

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Amit Saxena
Sri P.N.Saxena

Counsel for the respondents
Sri Irshad Hussain
C.S.C.

U.P. Municipalities Act 1916-Section 48
(2) (a) and (b) (vi)(xi)(xiv)-necessity of
recording reasons-ceasure of financial
and administrative Power of President
Nagar
Palika
Parishad-without
considering reply as well as written
submission-mere
saying
no
material
available-highly
shocking-even
administrative authority are bound to
give reasons-order can not sustain.

Held: Para 9

In the present case, what we see is that
the entire exercise has been undertaken
by the respondent authorities with a
predetermined mind, throwing to the
winds the entire procedure prescribed in
law. This is evident from a plain reading
of impugned order as well as the conduct
of the respondents while dealing with a
serious
matter
of
removal
of
the
petitioner
who
is
a
democratically
elected
President
of
Nagar
Palika
Parishad. Neither his reply has been
properly
considered
nor
written
submissions taken into account, except
for a mere mention in the order that
nothing
material
has
been
stated
therein. If this is permitted, then in
every case all replies, arguments and
submissions can always be brushed
aside in a sentence by stating that
nothing material has been argued or
submitted
and
thus
the
reply
or
submission
is
rejected.
Authorities
performing quasi judicial functions are
obliged to give reasons for not accepting
the replies or submissions of a party.
This is to ensure that there is nothing
arbitrary in the actions of the authorities
and that the authority has looked into
the matter after applying his mind. In
the present case, the same is totally
lacking. This Court strongly deprecates
the same. What we also notice is that the
conduct of the respondents in the case of
the petitioner earlier also has not been
very fair as once after the order ceasing
the financial and administrative powers
of the petitioner as President had been
stayed by this Court on 4.2.2010, the
same was not restored for more than
four months till 23.6.2010, without there
even being any stay order from the Apex
Court in the Special Leave Petition filed
by
the
respondents,
which
was
ultimately dismissed.

(Delivered by Hon'ble F.I.Rebello, C.J.)

1. The petitioner was elected as
President of Nagar Palika Parishad,
Kairana, Muzaffar Nagar and took charge
of the said office on 16.11.2006. The term
of office of the petitioner is five years. In
the preceding five years term also, the
petitioner was elected and functioned as
President of Nagar Palika Parishad. On
20.1.2009, a complaint was lodged by the
two members of the Nagar Palika
Parishad, which related to the business of
the Parishad conducted during the term
prior to 2006 as well as for the current
term. On 27.8.2009, the petitioner was
issued a show cause notice by the State
Government as to why the petitioner may
not be removed from the office of the