# Akshay Pratap Singh @ Gopalji & Ors v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-01
- **Case number:** Application U/S 482. No. 2718 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akshay-pratap-singh-gopalji-ors-v-state-of-u-p-anr-51720
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 395/ 397/ 307/ 364/ 323/ 325/
504/ 506/ 427/ 34 - Criminal Law
Amendment Act, 1932 - Section 7 - Code
of Criminal Procedure, 1973 - Section 321
-
Application
for
withdrawal
of
prosecution against applicants rejected -
Validity of - Informant, BSP candidate,
lodged FIR against 13 named persons
alleging that while dining with some other
political leaders and party workers at
Dhaba, accused persons, including dozen
other persons in two SUVs, intercepted,
abused, and opened fire with intent to kill
-
Assailants pursued up to Kotwali,
continued firing, damaged vehicles and
assaulted companions, causing fractures
to two persons - Further alleged that
some
companions
were
abducted,
weapons and belongings snatched away -
Despite indiscriminate firing by several
persons from over dozen vehicles, no
gunshot injury sustained by anyone - First
charge sheet filed on 03.01.2011 against
11 persons, followed by supplementary
charge sheet on 15.03.2011 against 15
persons, though FIR named only 13
accused
-
In withdrawal application,
Public
Prosecutor,
opined
that
Government's decision was lawful as
evidence
was
weak
and
prosecution
doubtful - Trial court rejected application
solely on ground that alleged offences
were grave and non-compoundable - Trial
court noted recovery of missing weapons
from co-accused persons, but ignored that
prosecution against them was not sought
to
be
withdrawn
-
Informant
filed
application
and
counter
affidavit
supporting withdrawal of prosecution,
stating FIR lodged under political pressure
-Thus, impugned order, quashed. (Para
31, 33 to 37)

Application allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,947 of 42,919. This is a partial read: ask again with offset=39947 for what follows._

3 All. Akshay Pratap Singh @ Gopalji & Ors. Vs. State of U.P. & Anr.
949
----------
(2024) 3 ILRA 949
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.03.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 2718 of 2023
&
Other Connected Cases

Akshay Pratap Singh @ Gopalji & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Meenakshi Singh Parihar, Abhiuday Pratap
Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 395/ 397/ 307/ 364/ 323/ 325/
504/ 506/ 427/ 34 - Criminal Law
Amendment Act, 1932 - Section 7 - Code
of Criminal Procedure, 1973 - Section 321
-
Application
for
withdrawal
of
prosecution against applicants rejected -
Validity of - Informant, BSP candidate,
lodged FIR against 13 named persons
alleging that while dining with some other
political leaders and party workers at
Dhaba, accused persons, including dozen
other persons in two SUVs, intercepted,
abused, and opened fire with intent to kill
-
Assailants pursued up to Kotwali,
continued firing, damaged vehicles and
assaulted companions, causing fractures
to two persons - Further alleged that
some
companions
were
abducted,
weapons and belongings snatched away -
Despite indiscriminate firing by several
persons from over dozen vehicles, no
gunshot injury sustained by anyone - First
charge sheet filed on 03.01.2011 against
11 persons, followed by supplementary
charge sheet on 15.03.2011 against 15
persons, though FIR named only 13
accused
-
In withdrawal application,
Public
Prosecutor,
opined
that
Government's decision was lawful as
evidence
was
weak
and
prosecution
doubtful - Trial court rejected application
solely on ground that alleged offences
were grave and non-compoundable - Trial
court noted recovery of missing weapons
from co-accused persons, but ignored that
prosecution against them was not sought
to
be
withdrawn
-
Informant
filed
application
and
counter
affidavit
supporting withdrawal of prosecution,
stating FIR lodged under political pressure
-Thus, impugned order, quashed. (Para
31, 33 to 37)

Application allowed. (E-13)

List of Cases cited:

1. Daxa Ben Vs St. of Gujarat, 2022 SCC OnLine
SC 936

2. Ashwani Kumar Upadhyay Vs U.O.I. reported
in (2021) 20 SCC 599, decided on 10.08.2021

3. Sheonandan Paswan Vs St. of Bihar, (1987) 1
SCC 288, (Paras 30, 37, 73, 78, 87, 90)

4. Ashwini Kumar Upadhyay Vs U.O.I., (2021)
20 SCC 599

5. Rajender Kumar Jain Vs St. (1980) 3 SCC
435, (Paras 14, 15)

6. St. of Kerala Vs K. Ajith, (2021) 17 SCC 318,
(Para 25)

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard the submissions of Sri H.G.S
Parihar, Senior Advocate assisted by Smt.
Meenakshi Singh Parihar and Abhiuday
Pratap Singh Advocates, the learned
counsel for the applicants in Application
under Section 482 Nos. 2718 of 2023, Sri.
P. K. Singh Bisen Advocate, the learned
950 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the applicant in Applications
under Section 482 No. 4038 of 2023 and
5595 of 2023 and Sri Rao Narendra Singh,
the learned A.G.A-I for the State, Sri Ravi
Shanker Singh, the learned counsel for the
informant and Sri Ajmal Khan, the learned
counsel for the intervener.

2. The application No. 2718 of 2023
has been filed by (1) Akshay Pratap Singh
alias Gopalji, (2) Satyendra Singh, (3)
Kailash Nath Ojha, (4) Lalji Nigam, (5)
Hitesh Kumar alias Pankaj Singh, (6) Rohit
Singh alias Rohit Kumar Singh, (7)
Raghvendra Pratap Singh alias Mukur alias
Raghvendra Singh, (8) Monu sinsh alias
Ashutosh Singh, (9) Yogendra Singh, (10)
Sarvesh Singh, (11) Prafulla Kumar Singh
alias Dabbu Singh, (12) Zulfeqar Ahmad
alias Zulfeqar Ahmad Siddiqui, (13)
Shailendra Kumar, (14) VInod Kumar, (15)
Raghuraj Pratap Singh alias Raja Bhaiya
alias Kunwar Raghuraj Pratap Singh, (16)
Ram Kumar alias Banti, (17) Hariom
Shankar Srivastava alias Hariom Shankar,
(18) Narendra Singh alias Nanhe Singh,
(19) Sheetla Singh alias Sheetla Prasad
Singh and (20) Dron Kumar Upadhyay
alias Dron Upadhyay. Application No.
4038 of 2023 has been filed by the
applicant Sudhakar Singh. Application No.
5595 of 2023 has been filed by the
applicant Sanjay Pratap Singh alias Guddu
Singh.

3. By means of the all the aforesaid
three applications filed under Section 482
Cr.P.C. the applicants have challenged the
validity of an order dated 17.03.2023
passed by the Special Judge MP/MLA/
Civil
Judge
(SD)/FTC-II,
District
Pratapgarh in Case No. 236 of 2011 (State
v. Raghuraj Pratap Singh & Others) arising
out of Case Crime No. 513 of 2010, under
Sections
395/397/307/364/323/325/504/506/ 427/34
of the Indian Penal Code (hereinafter
referred to as 'IPC') & Section 7 of the
Criminal Law Amendment Act, Police
Station
Kunda,
District
Pratapgarh,
whereby the application under Section 321
Cr.P.C. for withdrawal of the prosecution
against the applicants, has been rejected.

4. The points involved in these cases
are similar, therefore, these cases are being
decided together by a common judgment.

5. The informant-opposite party no. 2
had lodged First Information Report
(hereinafter referred to as 'FIR') No.
189/2010 on 19.12.2010 against 13 named
persons alleging that he was Bahujan
Samaj Party's candidate for Babaganj
Block. When he had gone to have dinner
with some other political leaders and
numerous other party workers to have
dinner at a Dhaba (roadside eatery) in
Kunda, the accused persons Sudhakar
Singh, Pradeep Singh and about a dozen
other persons riding two SUVs stopped the
vehicles of the complainant and started
abusing them. When the complainant and
other persons tried to escape, the accused
persons fired shots with weapons. The
complainant and the persons accompanying
him reached in front of Kotwali Kunda but
several persons riding two Fortuner SUVs
and about a dozen other vehicles started
firing shots with weapons towards the
informant
and
his
companions.
The
complainant and the persons accompanying
him went inside the Kotwali to save
themselves
but
the
accused
persons
damaged the vehicles of the complainant
and assaulted the persons accompanying
him with buts of rifles causing fractures to
Pushpendra Shukla and Rohit Mishra. The
F.I.R. further alleges that some companions
of the complainant had been taken away in
3 All. Akshay Pratap Singh @ Gopalji & Ors. Vs. State of U.P. & Anr.
951
the vehicles to some unknown destination
and their whereabouts could not be known
and that some weapons and goods had been
snatched away by the accused persons.

6. A charge sheet no. 01 of 2011 was
submitted by the police on 03.01.2011
against 11 persons. Thereafter another
charge sheet was submitted on 15.03.2011
against 15 persons.

7. On 04.03.2014, the Public
Prosecutor
filed
an
application
for
withdrawal of prosecution under Section
321 Cr.P.C. stating that the Government
had taken a decision to withdraw the
prosecution and that the Public Prosecutor
had also applied his independent mind and
perused the entire material available on
record and he was of the view that the
decision taken by the Government to
withdraw
the
prosecution
was
in
accordance with law and that from a
perusal of the case diary it appears that the
evidences collected against the accused
persons are very weak and success in the
prosecution was doubtful.

8. The aforesaid application remained
pending and meanwhile under the orders
passed by the trial court, the police
conducted further investigation and had
submitted a supplementary charge-sheet on
22.07.2015 stating that upon investigation,
the charges under Sections 182, 195, 379,
411, 120-B/34 IPC and 3/25 Arms Act
were established against the accused
persons Diwakar Tiwari alias Dabloo and
Manoj Kumar Tiwari.

9. Yet another supplementary chargesheet was submitted at 08.02.2019 stating
that the allegations of beating, assault,
abduction and loot as also of firing gun
shots and damaging vehicles, could not be
established and that the stolen weapons had
been recovered from Rajesh Shukla alias
Budul Shukla and charges under Section
379/411 IPC is established against Rajesh
Shukla alias Bubul Shukla.

10. Subsequently the informant has
also filed an application dated 27.02.2023
before the trial court supporting the
application filed by the Public Prosecutor
for withdrawal of the prosecution.

11. After submission of the aforesaid
supplementary
charge-sheets,
the
applicants had filed application under
Section 482 Cr.P.C. No. 688 of 2023 before
this Court praying for quashing of the
proceedings of Criminal Case No. 236 of
2011 arising out of Case Crime No. 513 of
2010, cognizance orders dated 27.01.2011
and 29.03.2011 and the charge-sheet dated
03.01.2011 and 15.03.2011 filed in Case
Crime No. 236 of 2011, so far as it relates
to the applicants. The aforesaid application
was disposed of by means of the order
dated
09.02.2023
observing
that
the
application under Section 321 Cr.P.C. was
pending before the trial court and a
direction was issued to the trial court to
consider and disposed of the application in
accordance with law.

12. The application under Section 321
Cr.P.C. filed by the prosecution was
rejected by the trial court by means of the
impugned order dated 17.03.2023 stating
that while deciding an application under
Section 321 Cr.P.C., the court has to take
into consideration the following points:-

(i) Whether the application for
withdrawal of prosecution has been moved
with the object of strengthening the
administration of justice or it has been
moved by the prosecution for improper and
extraneous reasons.
952 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii)
Whether
withdrawal
of
prosecution would be in the interest of
administration of justice.

(iii) Whether the prosecution has
given the application for withdrawal in a
bona fide manner.

(iv) Whether it has been moved to
stop misuse of the judicial process by
making it a vehicle of injustice.

(v) Whether the prosecution will
culminate in acquittal of the accused
persons for want of evidence.

(vi) Whether the accused persons
are victims of personal/political animosity.

13. The trial court held that the
offences involved in the present case fall
within the category of grave and serious
non compoundable offences. The missing
weapons have been recovered from coaccused persons Diwakar Tiwari, Manoj
Kumar Tiwari and Rajesh Kumar Shukla.
The subject matter of the present case is
very
serious
and
challenges
the
administration of justice and it has adverse
impact on a civilized society. Therefore,
the
application
for
withdrawal
of
prosecution moved by the State cannot be
allowed.

14. The trial court further held that
although the prosecution claims that
withdrawal of prosecution would be in
public interest but no basis for this
contention has been lead. The trial court
referred to the decision of the Hon'ble
Supreme Court in Daxa Ben v. State of
Gujarat, 2022 SCC OnLine SC 936
wherein it has been held that in case of
grave
and
serious
non-compoundable
offences which impact the society, the
informant and/or complainant only has the
right of hearing to the interest of ensuring
that justice is done by conviction or
punishment of the offence and the
informant has no right to withdraw the FIR
in respect of an offence of a grave, serious,
or heinous nature, which impacts the
society at large.

15. The trial court has also referred to
the decision of Supreme Court in Ashwani
Kumar Upadhyay versus Union of India
decided on 10.08.2021, which is reported in
(2021) 20 SCC 599, directing that
prosecution against a sitting or former MP
or MLA cannot be withdrawn without
sanction High Court.

16. A supplementary affidavit has
been filed on behalf of the applicant stating
that only two persons namely Pushpendra
Shukla and Rohit Mishra had suffered
injuries in the incident and copies of their
injury reports have been annexed with the
Supplementary affidavit.

17. Pushpendra had suffered a
lacerated wound of size 6 cm X 0.5 cm on
the left side of his head - scalp deep, and a
traumatic swelling around his left wrist
joint. The injuries were simple in nature
and had been caused by a hard and blunt
object. Rohit had suffered two lacerated
wounds - (i) 2.5 cm X 0.5 cm. 0.5 cm. and
(ii) 1.5 c.m. x 0.3 cm., both on his
forehead. Both the injuries were simple in
nature and had been caused by a hard and
blunt object. It has categorically been stated
in the supplementary affidavit that no
person had received any gun-shot injury in
the incident.

18. The State has filed a counter
affidavit and a supplementary counter
affidavit annexing therewith a copy of the
application
for
withdrawal
of
the
prosecution and a copy of the opinion of
District
Government
Counsel
(Crl.)
wherein the following points have been
highlighted: -
3 All. Akshay Pratap Singh @ Gopalji & Ors. Vs. State of U.P. & Anr.
953

(i) The place of incident is said to
be the main gate of the police station
whereas the guard on duty had not
intervened in the matter and no police
person has lodged any FIR, which fortifies
the probability that the incident did not
occur in the matter alleged in the F.I.R.

(ii) The public representatives
made accused in the matter were arrested
soon after the incident but nothing was
recovered from them, which also raises
doubt against the credibility of the
allegation.

(iii) No intimation of arrest of the
public representative was sent to the
Chairperson of the Parliament, legislative
assembly and legislative Council.

(iv) No statement of the security
guards employed in security of the public
representatives
was
recorded
by
the
Investigating Officer. The investigation
appears to be merely a table work and the
entire proceedings from the time of
registration of the FIR till the arrest of the
accused persons, appear to be suspicious.

(v) The complainant was a
candidate for Kshetra Panchayat Babaganj.
As to why he and his companions carrying
weapons were present at 12 in the night
within the limits of Kshetra Panchayat,
Kunda, is a matter to be questioned. The
complainant and his associates were
connected to the ruling party and their act
was affecting the election process, which
amounts to commission of offence and this
fact was ignored by the administration. It
appears that the entire proceedings were
taken because of political vendetta and
continuance of such proceedings would
carry an adverse effect on administration of
justice. The member of parliament, member
of legislative assembly and member of
legislative council are public servants and
before taking cognizance of the offences
committed by them no previous sanction
was taken under Section 197 IPC.

In view of the aforesaid facts and
circumstances, the District Government
Counsel
(Criminal)
recommended
withdrawal of prosecution under Section
321 (b) Cr.P.C.

19. The Court had summoned the
original record regarding withdrawal of
prosecution, from which it appears that on
29.03.2012, the Government had written a
letter to the District Magistrate, Pratapgarh
for furnishing certain information regarding
withdrawal of prosecution of 8 cases,
including
the
present
case.

The
information
sought
included
the
information regarding the facts of the case,
injuries suffered by the persons from the
complainant's side, recoveries made during
investigation, the latest status of case,
assessment of public prosecutor regarding
strength/weakness of the case and opinion
of the public prosecutor and Superintendent
of
Police
regarding
withdrawal
of
prosecution.

20. The prosecution officer gave
opinion that there were contradictions in
the material collected, which might benefit
the
accused
persons.
However,
subsequently a revised opinion was given
by the prosecution officer, which has been
referred to above.

21. The informant - opposite party
no. 2 has also filed a counter affidavit
stating that the ruling Bahujan Samaj Party
was interested to win the seat of Block
Pramukh of every block and he had lodged
the F.I.R. under party pressure. Nothing
was recovered from the applicants yet a
charge-sheet was submitted against 11
persons. A supplementary charge-sheet was
submitted
against
15
more
persons,
954 INDIAN LAW REPORTS ALLAHABAD SERIES
although nothing was recovered from them
also.

22. Sri H.G.S. Parihar, Senior
Advocate, the learned counsel for the
applicant has submitted that the impugned
order dated 17.08.2023 does not make any
reference to the findings in the subsequent
charge-sheets to the effect that no charge
was established against applicants and,
therefore, the order has been passed
without dealing with the relevant material
available on record.

23. Sri Ajmal Khan has opposed the
application on behalf of intervener Manoj
Kumar Tiwari, who is co-accused in the
present case. He has placed reliance on the
judgment of the Hon'ble Supreme Court in
Sheonandan Paswan v. State of Bihar,
(1987) 1 SCC 288 and Ashwini Kumar
Upadhyay v. Union of India, (2021) 20
SCC 599.

24. Sri Jayant Singh Tomar, the
learned AGA-I has submitted that the
application for withdrawal of prosecution
was filed under political pressure and the
trial court was justified in rejecting the
application keeping in view the nature and
gravity of the offence and its impact upon
the public life.

25. Section 321 Cr.P.C., as it applies
to the State of Uttar Pradesh, reads as
follows: -

"321.
Withdrawal
from
prosecution.-The Public Prosecutor or
Assistant Public Prosecutor in charge of a
case may, on the written permission of the
State Government to that effect (which
shall be filed in Court), 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 ..."

26. Sheonandan Paswan versus
State of Bihar, (1987) 1 SCC 288, is a
judgment
of
a
Constitution
Bench
consisting of 5 Hon'ble Judges of the
Hon'ble Supreme Court - (1) P. N.
Bhagwati, C.J., (2) E. S. Venkataramiah, J,
(3) V. Khalid, J, (4) G. L. Oza, J and (5) S.
Natarajan, J. The majority view was
expressed by a judgment written by
Hon'ble V. Khalid, J for himself and
Hon'ble S. Natarajan, J. Hon'ble E. S.
Venkataramiah, J gave a separate judgment
concurring with the majority view. The
minority view was expressed by Hon'ble P.
N. Bhagwati C.J. and Hon'ble G. L. Oza, J.

27. In the majority judgment
delivered by Hon'ble V. Khalid, J with the
concurrence of Hon'ble S. Natarajan, J, his
lordships
laid
down
the
principles
regarding Section 321 Cr.P.C. in the
following words: -

"73. ... When an application
under Section 321CrPC 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
3 All. Akshay Pratap Singh @ Gopalji & Ors. Vs. State of U.P. & Anr.
955
find out whether the case would end in
acquittal or conviction, would be to rewrite
Section 321CrPC 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.
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 321CrPC.
***

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.
* * *

87. ... Section 321, in view of the
wide language it uses, enables the Public
Prosecutor
to
withdraw
from
the
prosecution any accused, the discretion
exercisable under which is fettered only by
a consent from court on a consideration of
the materials before it and that at any stage
of the case. The section does not insist upon
a reasoned order by the Magistrate while
giving consent. All that is necessary to
satisfy the section is to see that the Public
Prosecutor acts in good faith and that the
Magistrate is satisfied that the exercise of
discretion by the Public Prosecutor is
proper.
* * *

90. Section 321 CrPC is virtually
a step by way of composition of the
offence by the State. The State is the
master of the litigation in criminal cases.
It is useful to remember that by the
exercise of functions under Section 321,
the accountability of the concerned person
or persons does not disappear. A private
complaint can still be filed if a party is
aggrieved by the withdrawal of the
prosecution but running the possible risk
of a suit of malicious prosecution if the
complaint is bereft of any basis."
(Emphasis supplied)

28. Hon'ble G. L. Oza, J has
expressing the following view while
concurring with the majority view: -

"37. At the outset it should be
stated that merely because a court
discharges or acquits an accused arraigned
before it, the court cannot be considered to
have
compromised
with
the
crime.
Corruption, particularly at high places
should be put down with a heavy hand. But
956 INDIAN LAW REPORTS ALLAHABAD SERIES
our passion to do so should not overtake
reason. The court always acts on the
material before it and if it finds that the
material is not sufficient to connect the
accused with the crime, it has to discharge
or acquit him, as the case may be,
notwithstanding the fact that the crime
complained of is a grave one."

29. Hon'ble G. L. Oza, J quoted with
approval legal position flowing from
Section 321 Cr.P.C. as explained by
Hon'ble Krishna Iyer and Chinnappa
Reddy, JJ. in Rajender Kumar Jain
versus State (1980) 3 SCC 435: -

"14. Thus, from the precedents of
this Court, we gather:

(1) Under the scheme of the Code
prosecution of an offender for a serious
offence is primarily the responsibility of the
executive.

(2) The withdrawal from the
prosecution is an executive function of the
Public Prosecutor.

(3) The discretion to withdraw
from the prosecution is that of the Public
Prosecutor and none else, and so, he
cannot
surrender
that
discretion
to
someone else.

(4) The Government may suggest
to the Public Prosecutor that he may
withdraw from the prosecution but none
can compel him to do so.

(5) The Public Prosecutor may
withdraw from the prosecution not merely
on the ground of paucity of evidence but
on other relevant grounds as well in order
to further the broad ends of public justice,
public order and peace. The broad ends of
public justice
will
certainly
include
appropriate social, economic and, we add,
political purposes sans Tammary Hall
enterprises.

(6) The Public Prosecutor is an
officer of the court and responsible to the
court.

(7)
The
court
performs
a
supervisory function in granting its
consent to the withdrawal.

(8) 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.

15. We may add it shall be the
duty of the Public Prosecutor to inform the
court and it shall be the duty of the court to
apprise itself of the reasons which prompt
the Public Prosecutor to withdraw from the
prosecution. The court has a responsibility
and a stake in the administration of
criminal justice and so has the Public
Prosecutor, its 'Minister of Justice'. Both
have a duty to protect the administration of
criminal justice against possible abuse or
misuse by the executive by resort to the
provisions
of
Section
321,
Criminal
Procedure Code. The independence of the
judiciary requires that once the case has
travelled to the court, the court and its
officers alone must have control over the
case and decide what is to be done in each
case."

14. Sri. Ajmal Khan has relied
upon the following passage from the
judgment in Sheonandan Paswan (Supra),
which is from the minority view contained
in the judgment delivered by P. N.
Bhagwati C.J. with the concurrence of
Hon'ble G. L. Oza, J: -
3 All. Akshay Pratap Singh @ Gopalji & Ors. Vs. State of U.P. & Anr.
957

"30. Now when a warrant case
instituted on a police report comes before
the court, the court is required to consider
only the police report and the documents
sent along with it and the court may make
such examination, if any, of the accused as
it thinks necessary and on the basis of such
material if the court, after giving the
prosecution and the accused an opportunity
of being heard, considers the charge
against the accused to be groundless, the
court is bound to discharge the accused.
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. 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 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. The
court will have to consider the same issue
under Section 239 and it will most certainly
further or advance the cause of public
justice if the court examines the issue under
Section 239 and gives its reasons for
discharging the accused after a judicial
consideration of the material before it,
rather than allow the prosecution to be
withdrawn by the Public Prosecutor. When
the prosecution is allowed to be withdrawn
there is always an uneasy feeling in the
public mind that the case has not been
allowed to be agitated before the court and
the court has not given a judicial verdict.
But, if on the other hand, the court
examines the material and discharges the
accused under Section 239, it will always
carry greater conviction with the people
because instead of the prosecution being
withdrawn and taken out of the ken of
judicial scrutiny the judicial verdict based
on assessment and evaluation of the
material before the court will always
inspire greater confidence. Since the
guiding consideration in all these cases is
the imperative of public justice and it is
absolutely essential that justice must not
only be done but also appear to be done,
we would hold that in a warrant case
instituted on a police report - which the
present case against Dr Jagannath Mishra
and others admittedly is - it should not be
a legitimate ground for the Public
Prosecutor to urge in support of the
958 INDIAN LAW REPORTS ALLAHABAD SERIES
application for withdrawal that there is
insufficient or no evidence in support of the
prosecution. The court in such a case
should be left to decide under Section 239
whether the accused should be discharged
or a charge should be framed against
him."

However, the aforesaid view
being the minority view, undoubtedly it
would give way to the majority view.

15. In State of Kerala Versus K.
Ajith, (2021) 17 SCC 318, Hon'ble
Supreme Court has held as under: -

"25. The principles which emerge
from the decisions of this Court on the
withdrawal of a prosecution under Section
321 of the CrPC can now be formulated:

25.1. 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;

25.2. 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;

25.3. The public prosecutor must
formulate an independent opinion before
seeking the consent of the court to
withdraw from the prosecution;

25.4 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;

25.5. 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 subserves 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;

25.6. 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

25.7 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."
3 All. Akshay Pratap Singh @ Gopalji & Ors. Vs. State of U.P. & Anr.
959
(Emphasis supplied)

30. From a cumulative reading of the
aforesaid judgment, the principles which
can culled out are as follows: -

(i) The withdrawal from the
prosecution is an executive function of the
Public Prosecutor and he has to exercise the
discretion to withdraw from the prosecution
independently. However, the Government
may suggest to the Public Prosecutor that
he may withdraw from the prosecution,
without compelling him to do so.

(ii) The mere fact that the
initiative has come from the government
will
not
vitiate
an
application
for
withdrawal, if the public prosecutor is
satisfied that the withdrawal of the
prosecution is necessary for good and
relevant reasons.

(iii) The Public Prosecutor may
withdraw from the prosecution on the
ground of paucity of evidence or on any
other relevant ground in order to further the
broad ends of public justice, public order
and peace.

(iv) The Public Prosecutor is an
officer of the court and responsible to the
court. However, the Court is not required to
reappreciate the grounds which led the
Public Prosecutor to request withdrawal
from the prosecution While granting its
consent to the withdrawal of prosecution
under Section 321, the court performs a
supervisory function and it has to examine
whether the Public Prosecutor has applied
his
mind
properly,
uninfluenced
by
irrelevant and extraneous considerations
and the application has been moved by him
in good faith, in the interest of public
policy and justice or whether the move for
withdrawal is an attempt to interfere with
the normal course of justice for illegitimate
reasons or purposes.

(v) If the court finds that the
material before it is not sufficient to
connect the accused with the crime, it has
to discharge or acquit him, as the case may
be, notwithstanding the fact that the crime
complained of is a grave one.

31. When we examine the facts of the
present case in light of the law laid down
by the Hon'ble Supreme Court in the above
mentioned cases, the relevant facts which
emerge are that the informant-opposite
party no. 2 had lodged the FIR against 13
named persons stating that that he was
Bahujan Samaj Party's candidate for
Babaganj Block. When he had gone to have
dinner with some other political leaders and
numerous other party workers to have
dinner at a Dhaba in Kunda, the accused
persons Sudhakar Singh, Pradeep Singh
and about a dozen other persons riding two
SUVs
stopped
the
vehicles
of
the
complainant and started abusing them.
When the complainant and other persons
tried to escape, the accused persons fired
shots with weapons towards them with
intention to kill them. The complainant and
the persons accompanying him reached in
front of Kotwali Kunda but several persons
riding two Fortuner SUVs and about a
dozen other vehicles started firing shots
with weapons towards the informant and
his companions. The complainant and the
persons accompanying him went inside the
Kotwali to save themselves but the accused
persons damaged the vehicles of the
complainant and assaulted the persons
accompanying him with buts of rifles
causing fractures to Pushpendra Shukla and
Rohit Mishra. The F.I.R. further alleges
that some companions of the complainant
had been taken away in the vehicles to
some unknown destination and their
whereabouts could not be known and that
960 INDIAN LAW REPORTS ALLAHABAD SERIES
some weapons and goods had been
snatched away by the accused persons.

32. Although the FIR alleges that
initially only two named persons Sudhakar
Singh, Pradeep Singh and about a dozen
other persons riding two SUVs had
apprehended the complainant and his
companions and when he reached Kotwali
Kunda, several persons riding two Fortuner
SUVs and about a dozen other vehicles
started firing shots with weapons towards
the informant and his companions, he has
named only 13 persons as accused in the
FIR and he did not allege the involvement
of any other unnamed persons in the FIR.

33. The alleged indiscriminate firing
made by numerous persons riding more
than
a
dozen
vehicles
towards
the
informant and his companions did not
result in any single gun-shot injury to any
person.

34. The first charge-sheet was
submitted
on
03.01.2011
against
11
persons. The first supplementary chargesheet was submitted on 15.03.2011 against
15 persons although the FIR was lodged
against 13 named persons only and no other
unnamed person was made accused in it.

35. In the application for withdrawal
of prosecution filed on 04.03.2014, the
Public Prosecutor stated that he had applied
his independent mind and perused the
entire material available on record and he
was of the view that the decision taken by
the
Government
to
withdraw
the
prosecution was in accordance with law
and that from a perusal of the case diary it
appears that the evidences collected against
the accused persons are very weak and
success in the prosecution was doubtful.
The trial Court has not dealt with this
aspect of the matter and has rejected the
application merely because the offences
alleged
are
grave
and
serious
non
compoundable offences.

36. The trial Court has noted that the
missing weapons were recovered from coaccused persons Diwakar Tiwari, Manoj
Kumar Tiwari and Rajesh Kumar Shukla,
but it ignored the fact that prosecution
against those three persons has not been
sought to be withdrawn.

37. The informant has also filed an
application before the trial court supporting
the
application
filed
by
the
Public
Prosecutor
for
withdrawal
of
the
prosecution and he has filed a counter
affidavit before this Court supporting
withdrawal of prosecution stating that he
had lodged the FIR under political pressure.

38. In these circumstances, the
decision taken by the Public Prosecutor to
withdraw the prosecution keeping in view
the aforesaid weaknesses and discrepancies
in the prosecution case is based on cogent.
The continuance of prosecution against the
persons against whom it has been sought to
be withdrawn, will clearly result in an
abuse of the process of law.

39. In view of the foregoing
discussion, the application under Section
482 Cr.P.C. is allowed. The order dated
17.03.2023 passed by the Special Judge
MP/MLA/
Civil
Judge
(SD)/FTC-II,
District Pratapgarh in Case No. 236 of
2011 (State versus Raghuraj Pratap Singh
& Ors) arising out of Case Crime No. 513
of
2010,
under
Sections
395/397/307/364/323/ 325/504/506/427/34
IPC
&
Section
7
Criminal
Law
Amendment Act, Police Station Kunda,
District
Pratapgarh,
whereby
the
3 All. Dr. Vinod Kumar Bassi Vs. State of U.P. & Anr.
961
application under Section 321 Cr.P.C., is
quashed.

40. The trial Court is directed to
decide the application under Section 321
Cr.P.C.