# Fazl-Ul-Rahman & Anr v. State of U.P. & Ors

- **Citation:** (2016) 5 ILRA 588
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-19
- **Bench:** Ashwani Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fazl-ul-rahman-anr-v-state-of-u-p-ors-43882
- **Pages:** 7

## Headnote

This petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of the order dated 14th
March, 2007 passed by learned Additional Chief Judicial Magistrate, court no. 25 in case no. 4050 of 2003,
State of U.P. Versus Fazl-Ul-Rahman and others under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393,
506 IPC(relating to crime no. 231K of 2001 police station Chowk, district Lucknow), whereby the application
moved by Additional Public Prosecutor under Section 321 Cr.P.C. for withdrawal from prosecution was
rejected by court of Additional Chief Judicial Magistrate, court no. 25, district Lucknow.

I am of the considered opinion that the impugned orders suffers from illegality and infirmity and deserves to
be quashed. Accordingly, the petition is allowed and the order dated 14th March, 2007 passed by learned
Additional Chief Judicial Magistrate, court no. 25 in case no. 4050 of 2003, State of U.P. Versus Fazl-UlRahman and others under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 IPC(relating to crime
no. 231K of 2001 police station Chowk, district Lucknow) is hereby quashed. The application under Section
321 Cr.P.C. is allowed. The petitioners namely Fazl-ul-Rahman and Abdul Mannan are discharged in case
crime no. Crime no. 231K of 2001, under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 I.P.C.
police station Chowk, district Lucknow.

Held: Para-

Case Law discussed:
Sheonandan Paswan versus State of Biahr and others (1987)
Name Dasrat versus State of Andhra Pradesh,2014
State of Orrisa versus C. Mohapatra, AIR 1977 SCC

## Text

588 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.5.2016

BEFORE

THE HON'BLE ASHWANI KUMAR SINGH, J.

Application U/s 482/378/407 No.- 1514 Of 2007

Fazl-Ul-Rahman & Anr. ...Applicants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicants:
Vivek Shrotria

Counsel for the Respondents:
G.A

This petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of the order dated 14th
March, 2007 passed by learned Additional Chief Judicial Magistrate, court no. 25 in case no. 4050 of 2003,
State of U.P. Versus Fazl-Ul-Rahman and others under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393,
506 IPC(relating to crime no. 231K of 2001 police station Chowk, district Lucknow), whereby the application
moved by Additional Public Prosecutor under Section 321 Cr.P.C. for withdrawal from prosecution was
rejected by court of Additional Chief Judicial Magistrate, court no. 25, district Lucknow.

I am of the considered opinion that the impugned orders suffers from illegality and infirmity and deserves to
be quashed. Accordingly, the petition is allowed and the order dated 14th March, 2007 passed by learned
Additional Chief Judicial Magistrate, court no. 25 in case no. 4050 of 2003, State of U.P. Versus Fazl-UlRahman and others under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 IPC(relating to crime
no. 231K of 2001 police station Chowk, district Lucknow) is hereby quashed. The application under Section
321 Cr.P.C. is allowed. The petitioners namely Fazl-ul-Rahman and Abdul Mannan are discharged in case
crime no. Crime no. 231K of 2001, under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 I.P.C.
police station Chowk, district Lucknow.

Held: Para-

Case Law discussed:
Sheonandan Paswan versus State of Biahr and others (1987)
Name Dasrat versus State of Andhra Pradesh,2014
State of Orrisa versus C. Mohapatra, AIR 1977 SCC

(Delivered by Hon'ble Ashwani Kumar Singh, J.)

1. This petition under Section 482 Cr.P.C. has been filed by the petitioners for quashing of
the order dated 14th March, 2007 passed by learned Additional Chief Judicial Magistrate, court no.
25 in case no. 4050 of 2003, State of U.P. Versus Fazl-Ul-Rahman and others under Sections 147,
148, 149, 307, 436, 336, 452, 332, 393, 506 IPC(relating to crime no. 231K of 2001 police station
5 All. Fazl-Ul-Rahman & Anr. Vs State Of U.P. & Ors.

589
 Chowk, district Lucknow), whereby the application moved by Additional Public
Prosecutor under Section 321 Cr.P.C. for withdrawal from prosecution was rejected by
court of Additional Chief Judicial Magistrate, court no. 25, district Lucknow.

2. The brief facts of the case are that in the year 2001, on the occasion of festival
of 'Barawafat', there was a large gathering at Tile Waali Masjid to celebrate the festival.
In the morning at about 5.00 a.m. one Samsuddin along with Naimuddin, Mohd. Chand
and Bablu started protesting upon receiving information of misbehavior of some police
personnel with a girl of the vicinity. The protest resulted into indiscriminate firing by
police personnel resulting in the death one Naimuddin who sustained firearm injury and
died on the spot.

3. Samsuddin, father of the deceased, lodged an F.I.R. at 8.00 a.m. at police
station Chowk, district Lucknow against Rakesh Kumar, Mahendra Kumar, Suresh
Chandra Tiwari. The same was registered at case crime no. 231 of 2001 under Section
302/294 I.P.C.

4. The case of the petitioner is that petitioner no. 1 is respectable citizen and is
Shahi Imam of Tile Wali Masjid and is respected highly by people of all communities.
He had reached at the place of the incident to pacify the people, who had assembled there
and he is a witness in the F.I.R. of case crime no. 231 of 2012 which was registered
against the police personnel who had fired upon the protesters. Further the case of the
petitioner is that after registration of the F.I.R. at case crime no. 231 of 2001, local
police lodged three more F.I.Rs. in order to implicate the protesters in the incident. These
FIRs were registered at case crime no. 231A of 2001 under Sections 147, 148, 149, 332,
336, 435, 436, 338, 427 I.P.C. and Section 7 of criminal law Amendment Act, case crime
no. 231K of 2001 under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 I.P.C.
and case crime no. 231Q of 2001 under Section 395, 436, 295, 427 I.P.C., police station
Chowk, district Lucknow.

5. The allegation in all the three F.I.R.s against petitioners is that they instigated
the protesters but no specific or overt act is attributed to them.

6. All the three cases were investigated by the police but in the first information
report which was lodged by father of deceased at case crime no. 231 of 2001 under
Section 302/294 I.P.C., the investigating agency submitted a final report and exonerated
the police personnel. However, in case crime no. 231A, 231K and 231Q of 2001 the
police submitted charge-sheet.

7. After submission of the charge-sheet, the State government on appraisal of the
entire material on record decided to invoke the power under Section 321 Cr.P.C. relating
to withdrawal from the prosecution. On 5th April, 2006, Assistant Public Prosecutor
590 INDIAN LAW REPORTS ALLAHABAD SERIES
moved an application under Section 321 Cr.P.C. for withdrawal from prosecution
annexed as annexure 9 to this petition.
8. Learned Magistrate after hearing the parties passed an order rejecting the
application moved under Section 321 Cr.P.C.

9. Aggrieved by the order of learned Magistrate passed on an application moved
under Section 321 Cr.P.C. the petitioners have filed the present petition under Section
482 Cr.P.C.

10. Heard learned counsel for the parties.

11. The main contention of learned counsel for the petitioners is that the
impugned order passed by learned Magistrate dated 14.3.2007 is not in accordance with
law as laid down by the Hon'ble Apex Court in the recent judgments.

Sections 321 Cr.P.C. deals with the 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 has not been appointed by the
Central Government he shall not, unless he has been permitted by the Central
5 All. Fazl-Ul-Rahman & Anr. Vs State Of U.P. & Ors.

591
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.

12. Learned counsel has pointed out that the learned Magistrate while rejecting
the application under Section 321 Cr.P.C. observed that there should be fulfillment of
four conditions for withdrawing from the prosecution; (i) in the interest of justice, (ii)
public interest, (iii) that there should be every chance of acquittal if the trial proceeds the
accused shall be put to great inconvenience and (iv) some of the accused have not
appeared.

13. Learned counsel has relied upon the decision of Hon'ble Supreme Court in
Sheonandan Paswan versus State of Biahr and others reported in (1987) 1 Supreme
Court Cases page 288, paragraphs 77 to 79 of the judgment reads as follows :-

"77. Section 321 reads as follows :

"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."
(Proviso omitted)

This Section enables the Public prosecutor, in charge of the case to
withdraw from the prosecution of any person at any time before the Judgment is
pronounced, but this application for withdrawal has to get the consent of the Court and if
the Court gives consent for such withdrawal the accused will be discharged if no charge
has been framed or acquitted if charge has been framed or where no such charge is
required to be framed. It clothes the public prosecutor to withdraw from the prosecution
of any person, accused of an offence both when no evidence is taken or even if entire
evidence has been taken. The outer limit for the exercise of this power is "at any time
before the Judgment is pronounced".

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
592 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

79. The Court's function is to give consent. This section does not obligate
the Court to record reasons before consent is given. However, I should not be taken to
hold that consent of the Court is a matter of course. When the Public Prosecutor makes
the application for withdrawal after taking into consideration all the materials before
him, the Court exercises its judicial discretion by considering such materials and on such
consideration, either gives consent or declines consent. The section should not be
construed to mean that the Court has to give a detailed reasoned order when it gives
consent. If on a reading of the order giving consent, a higher Court is satisfied that such
consent was given on an overall consideration of the materials available, the order
giving consent has necessarily to be upheld".

14. The Hon'ble Apex Court has observed that it is clear that the court while
granting or refusing consent under Section 321 Cr.P.C. performs supervisory and not
adjudicatory function. It is not necessary for the court to assess the evidence to discover
whether the case would end in conviction or acquittal. The acquittal or discharge orders
under Section 321 Cr.P.C. 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. The
Section should not be construed to mean that the court has to give a detailed reasoned
order when it gives consent. If on a reading of the order giving consent, a higher court is
satisfied that such consent was given on an overall consideration of the materials
available, the order giving consent has necessarily to be upheld.

15. In another recent judgment of Hon'ble Supreme Court of India, Name Dasrat
versus State of Andhra Pradesh reported in (2014) 10 Supreme Court Cases 395, the
apex Court has held as follows :-

"9. The provision of Section 321 Cr.P.C. enables the Public Prosecutor
Incharge of the case to withdraw the prosecuiton of any person at any time before the
judgment is pronounced but there has to be consent of the court. If the court gives
consent for such withdrawal, the accused shall be discharged if no charge has been
framed but if the charge has been framed, such accused will be acquitted. The Section
does not provide any ground on which Public prosecutor can apply for withdrawal of the
5 All. Fazl-Ul-Rahman & Anr. Vs State Of U.P. & Ors.

593
prosecution. The Section also does not specify the consideration on which the court is to
grant its consent. In these circumstances, the only implication which arises is 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. The function of the court is to give consent. The court is not obliged to record
the reasons for giving its consent. The court is also not required to give detailed reason
or for giving consent. If the court is satisfied that the consent should be given on
consideration of the material available, the order giving consent is perfectly justified".

16. Learned counsel for the petitioner has strongly contended that the State
government exercised its power for some extraneous consideration. The application was
made in good faith and public interest.

17. In another case of State of Orrisa versus C. Mohapatra, AIR 1977 SCC 903,
it has been held that paramount consideration in such a case must be in the interest of
administration of justice. No hard and fast rule can be laid down in which consent should
be granted or refused. It must define on the facts and circumstances of each case in the
light of what is necessary in order to promote the ends of justice. In the present case, it
may be pointed that the case lodged from the petitioner's side i.e. case crime no. 231
under Section 302 and 294 I.P.C., the investigating agency exonerated the accused
persons and in the present case where there was hardly any cogent and reliable evidence
against the petitioners, the Investigating agency submitted charge-sheet as stated above.
No overt act or any specific allegation has been collected in evidence against the
petitioners.

18. To repeat again, the merits of the case are not to be seen while withdrawing
the prosecution as laid down by the apex court but certainly it should be in the interest of
justice and public interest, the withdrawal of the case would be permitted.

19. Learned counsel states that in the present case the application has been moved
in good faith without any mala fide intention and in public interest. Thus, the order dated
14th March, 2007 passed by learned Additional Chief Judicial Magistrate, court no. 25 is
bad in the eyes of law.

20. I am of the considered opinion that the impugned orders suffers from
illegality and infirmity and deserves to be quashed. Accordingly, the petition is allowed
and the order dated 14th March, 2007 passed by learned Additional Chief Judicial
Magistrate, court no. 25 in case no. 4050 of 2003, State of U.P. Versus Fazl -Ul-Rahman
and others under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 IPC(relating
to crime no. 231K of 2001 police station Chowk, district Lucknow) is hereby quashed.
The application under Section 321 Cr.P.C. is allowed. The petitioners namely Fazl -ulRahman and Abdul Mannan are discharged in case crime no. Crime no. 231K of 2001,
594 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 I.P.C. police station
Chowk, district Lucknow.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Service Bench/Writ Petition No.- 1542 Of 2011

Sushil Kumar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Upendra Nath Mishra
Counsel for the Respondents:
Sushil Kumar Dwivedi, Mr. R.D. Shahi, assisted by Mr. O.P. Tiwari, learned Counsel for the contesting
respondent-Satish Kumar Tripathi.

Sushil Kumar Dwivedi has approached this Court by filing writ petition No. 1542 (S/B) of 2011, whereas
State authorities have preferred writ petition No. 2058 (S/B) of 2011, challenging the judgment and order
dated 27.6.2012 passed in Claim Petition No. 656 of 1998 :Satish Kumar Tripathi Vs. State of U.P. & others by
the State Public Services Tribunal, Lucknow (hereinafter referred to as the "Tribunal"), whereby the Tribunal,
while allowing the claim petition preferred by respondent-Satish Kumar Tripathi, set-aside the final seniority
list dated 22/23.7.1990 for the post of Routine Grade Clerk/Assistant Accountant of District Treasury, Unnao,
and appellate order dated 9.10.1997, directed the State authorities for consideration of the appointment of
the claimant-Satish Kumar Tripathi for the post of Treasury Clerk w.e.f. 7.11.1986 after modifying the
gradation list/seniority list dated 23.7.1990 and issue appointment order after placing claimant/ private
respondent over and above to the writ petitioner-Sushil Kumar Dwivedi with all consequential service benefits.

In the present case, it is an admitted position that claimant-respondent has raised no objection between
24.4.1987 (when the claimant/private respondent joined on the newly created post) to 23.7.1990 (when final
seniority list was issued). Surprisingly, against the final seniority list dated 23.7.1990, the claimant/
respondent has raised objection on 26.2.1991 by giving a representation and when the representation was
rejected, he preferred appeal before the Commissioner, Lucknow Division, Lucknow. It is pertinent to point
out that proper course available to the petitioner after circulation of final seniority list, was to approach the
appropriate forum as available under law. Instead, the petitioner first filed representation and then filed the
appeal without there being any provision of filing representation and appeal, which of course is a creation by
the statute.

On considering the aforesaid legal proposition in the present facts and circumstances of the case,
admittedly, the claimant/respondent was given fresh appointment on newly created post and he joined as
such on 24.4.1987. At that relevant time, writ petitioner was working as he was given appointment and joined
on substantive post of Treasury Clerk in accounts cadre much earlier i.e. on 2.12.1986. Therefore, the