# Bhola Nath Gupta v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-11-15
- **Case number:** Crl. Misc. W.P. No. 32551 of 2018
- **Bench:** Bala Krishna Narayana, Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhola-nath-gupta-v-state-of-u-p-ors-44348
- **Pages:** 3

## Headnote

A. Constitution of India,1950 - Article 226 &
Code of Criminal Procedure, 1973-Section
321-application-issuance
of
writ
of
mandamus to decide the representation-
maintainability
of-
application
for
withdrawal of prosecution cannot be moved
on behalf of the accused-under section 321
CrPC, it is the Public Prosecutor or Assistant
Public Prosecutor in charge of the case with
the consent of the Court, withdraw from the
prosecution
before
the
judgment
is
pronounced-the petitioner has no such
right-in
the
absence
of
a
judicially
enforceable or a legally protected right, no
writ in the nature of mandamus can be
issued-Hence, application/representation at
the
instance
of
petitioner
is
not
maintainable at all.(Para 3 to 12)

The Petition is dismissed. (E-6)

## Text

12 All. Bhola Nath Gupta Vs. State of U.P. & Ors.
577
victim, in the light of statement made by
Dr. Monia Agrawal, possibility of victim's
poisoning
could
be
inferred.
Mobile
number and whatsapp chat history, as
mentioned in FIR, also supports the
accusation made by prosecution.

18. Accordingly, present revision is
dismissed. Judgment and order dated
05.11.2020 passed by Additional Sessions
Judge/Fast Track Court (Offence Against
Women), District-Rampur in Sessions Trial
No.04 of 2020 is hereby affirmed and
maintained.

19. Let a copy of this order be sent to
the concerned Court below forthwith for
information and follow up action, if
required.
----------
(2020)12ILR A577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2018

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAJIV JOSHI, J.

Crl. Misc. W.P. No. 32551 of 2018

Bhola Nath Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Kumar Shukla

Counsel for the Respondents:
A.G.A.

A. Constitution of India,1950 - Article 226 &
Code of Criminal Procedure, 1973-Section
321-application-issuance
of
writ
of
mandamus to decide the representation-
maintainability
of-
application
for
withdrawal of prosecution cannot be moved
on behalf of the accused-under section 321
CrPC, it is the Public Prosecutor or Assistant
Public Prosecutor in charge of the case with
the consent of the Court, withdraw from the
prosecution
before
the
judgment
is
pronounced-the petitioner has no such
right-in
the
absence
of
a
judicially
enforceable or a legally protected right, no
writ in the nature of mandamus can be
issued-Hence, application/representation at
the
instance
of
petitioner
is
not
maintainable at all.(Para 3 to 12)

The Petition is dismissed. (E-6)

(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard learned counsel for the
petitioner and learned AGA for the State.

2. Present writ petition under Article
226 of the Constitution has been filed for
the
issuance
of
writ
of
mandamus
commanding the respondent no.1 to decide
the
representation
dated
28.9.2018
dispatched through registered post on
1.10.2018 under Section 321 Cr.P.C. within
stipulated time.

3. As per the averments made in the
writ petition, petitioner's son is involved in
Case Crime No. 446 of 2018, registered at
Police
Station
Kotwali,
District
Maharajganj on the basis of F.I.R. dated
5.7.2018
under
Section
66/67
of
Information Technology Amendment Act,
2008 and 17/18 Protection of Children
From Sexual Offences Act. It is further
averred in the writ petition that against the
son of the petitioner, Case Crime No. 546
of 2018, under Section 3 (1) Gangster and
Anti Social Activities (Prevention) Act,
1986 has been registered. According to the
petitioner, the police of concerned police
station is investigating the matter but there
is no hope for getting justice from the
Investigating
Officer
and
therefore,
578 INDIAN LAW REPORTS ALLAHABAD SERIES
application/representation dated 28.9.2018
has been filed through registered post on
1.10.2018 before the State Government
under Section 321 Cr.P.C for withdrawal of
prosecution, but no decision on the said
representation has been taken. Hence, the
present writ petition.

4. Preliminary objection has been
raised by learned AGA that the prayer made
by the petitioner in the writ petition cannot
be granted in view of the fact that
petitioner's claim is not covered under
Section 321 Cr.P.C. and therefore, the writ
petition
deserves
to
be
dismissed
summarily.

5. We have considered the objection
as raised by learned AGA and perused the
record.

6. Section 321 of Cr.P.C. reads as
under:

"321. Withdrawal from prosecution:-
The Public Prosecutor or Assistant Public
Prosecutor in charge of a case may, with
the consent of the Court, at any time before
the judgment is pronounced, withdraw from
the prosecution of any person either
generally or in respect of any one or more
of the offences for which he is tried; and,
upon such withdrawal,-

(a) if it is made before a charge has
been
framed,
the
accused
shall
be
discharged in respect of such offence or
offences;

(b) if it is made after a charge has
been framed, or when under this Code no
charge is required, he shall be acquitted in
respect of such offence or offences:
Provided that where such offence-

(i) was against any law relating to a
matter to which the executive power of the
Union extends, or

(ii) was investigated by the Delhi
Special Police Establishment under the
Delhi Special Police Establishment Act,
1946 (25 of 1946 ), or

(iii) involved the misappropriation or
destruction of, or damage to, any property
belonging to the Central Government, or

(iv) was committed by a person in the
service of the Central Government while
acting or purporting to act in the discharge
of his official duty, and the Prosecutor in
charge of the case hag hot been appointed
by the Central Government, he shall not,
unless he hag been permitted by the
Central Government to do so, move the
Court for its consent to withdraw from the
prosecution and the Court shall, before
according consent, direct the Prosecutor to
produce before it the permission granted by
the Central Government to withdraw from
the prosecution."

7. From a bare perusal of Section 321
Cr.P.C., it is apparent that it is the Public
Prosecutor or Assistant Public Prosecutor in
charge of a case, who may, with the consent
of
the
Court,
withdraw
from
the
prosecution of any person either generally
or in respect of any one or more of the
offences for which he is tried, before the
judgment is pronounced.

8. Thus, it is clear that the application
for withdrawal of prosecution under
Section 321 Cr.P.C. cannot be moved on
behalf of the accused himself and hence,
the application/representation filed under
Section 321 Cr.P.C. at the instance of the
petitioner on behalf of his son is not
maintainable at all.

9. Apart from above, it is well settled
that for issuance of a writ in the nature of
mandamus, the petitioner must satisfy the
Court that he has a legal right to the
12 All. Smt. Neelam Devi Vs. Vikas Singh
579
performance of statutory duty by the party,
against whom mandamus is prayed for. In
other words, in the absence of a judicially
enforceable or a legally protected right, no
writ in the nature of mandamus can be
issued. The petitioner has no such right.

10. In view of the above, the
application filed by the petitioner on behalf
of accused-son is not at all maintainable, as
the State respondent is not duty bound to
decide
the
application
filed
by
the
petitioner.

11.

Therefore,
the
preliminary
objection so raised by the learned A.G.A.
has force and is sustained.

12. The present writ petition is totally
misconceived
and
is,
accordingly,
dismissed as not maintainable.
----------
(2020)12ILR A579
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appeal No. 305 of 2017

Smt. Neelam Devi ...Appellant
Versus
Vikas Singh ...Respondent

Counsel for the Appelant:
Sri Arun K. Singh Deshwal

Counsel for the Respondent:
Sri Manoj Kumar Tripathi, Sri Namit
Srivastava, Sri Naresh Chandra Tripathi

Civil Law -Hindu Marriage Act (25 of 1955)
- Section 13(1)(ia) - Divorce - On grounds
of 'cruelty'
- Cruelty in relation to
matrimonial matters consists of acts
where one spouse has so treated the other
& manifested such feelings towards her or
him as to have inflicted bodily injury, or to
have caused reasonable apprehension of
bodily injury, suffering - Cruelty consists
of conduct of such nature as to cause a
reasonable apprehension in petitioner's
mind that it would be harmful or injurious
to live with other party - Cruelty has to be
distinguished from ordinary wear and tear
of family life - Mere trivial irritations,
quarrels, which happens in day to day life
would not be adequate for grant of
divorce - Ill-conduct must be persistent
for a fairly lengthy period, where the
relationship has deteriorated to an extent
that the wronged party finds it extremely
difficult to live with the other party (Para
9, 14)

Husband filed divorce petition on the ground of
cruelty and desertion by wife - allegation that
wife had not performed her matrimonial
obligations for last 6 years, putting pressure
upon him to live separately, regularly talked on
telephone to some unknown person and on
being queried she used to quarrel - Family court
disbelieved allegations of adultery however the
divorce petition was allowed on the ground that
wife used to live at her parental house & made
allegations against her husband without any
basis amounting to cruelty - Held - Wife not
living separately on account of her own free-will
but always ready and is still ready to live with
husband but husband refused to live with wife -
Husband failed to establish that wife committed
cruelty or deserted him without any sufficient
reasons - Decree of divorce set aside. (Para 17
18 19)

Appeal allowed. (E-5)

List of Cases cited: -

1. Savitri Pandey Vs Prem Chandra Pandey,
(2002) 2 SCC 73, AIR 2002 SC 591

2. Hitesh Bhatnager Vs Deepa Bhatnagar AIR
2011 SC1637

3. Smt.Sarita Devi Vs Sri Ashok Kumar Singh
2018 (3) AWC 2328