# Harkesh & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 2 ILRA 1238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Application u/s 482 No. 28166 of 2023
- **Bench:** Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harkesh-ors-v-state-of-u-p-anr-opp-parties-50873
- **Pages:** 12

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 321 - Withdrawal from
prosecution, Indian Penal Code, 1860 -
Sections 147, 148, 149, 435, 427, 395,
397, 506 - Court must ensure the Public
Prosecutor's decision isn't improper or an
attempt
to
interfere
with
justice
-
Withdrawal from prosecution requires
legitimate
reasons,
good
faith,
and
consideration of public policy and justice
and not to thwart or stifle the process of
law.(Para - 7)

FIR against 24 persons for setting company
property on fire, theft, and physical altercation -
Public
Prosecutor
moved
to
withdraw
prosecution based on the UP-Government's
directive - citing incident's connection to
farmer's agitation and interest of justice -
Sessions court rejected application - noting the
case involved riot, loot, harm to police
personnel, and absconding accused persons.

(Para-7)

HELD:
-
Trial
court
erred
in
rejecting
withdrawal application without considering if the
Public
Prosecutor
acted
in
good
faith.
Application for withdrawal under Section 321
Cr.P.C. requires court to assess legitimacy and
public interest. Impugned order set aside. Case
remanded to trial court for fresh consideration
after hearing both sides. (Para -7,8,9)

Application u/s 482 Cr.P.C. disposed off.
(E-7)

List of Cases cited:

## Text

_Characters 0–39,823 of 41,859. This is a partial read: ask again with offset=39823 for what follows._

1238 INDIAN LAW REPORTS ALLAHABAD SERIES
situations where an appeal would lie under
Section 14A and aggrieved person having
remedy of appeal under Section 14A of the
1989 Act, cannot be allowed to invoke
inherent jurisdiction of this Court under
Section482Cr. P.C.

15. Accordingly, as the applicant has
the remedy of filing an appeal under
Section 14-A available to him, he cannot
invoke the inherent powers of this Court
under Section 482 Cr.P.C. The application
under Section 482 Cr.P.C. is dismissed for
this reason, leaving it open to the applicant
to file an appeal under Section 14-A of the
Scheduled Caste and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
----------
(2024) 2 ILRA 1238
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application u/s 482 No. 28166 of 2023

Harkesh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Raghuveer Singh

Counsel for the Opp. Parties:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power, Section 321 - Withdrawal from
prosecution, Indian Penal Code, 1860 -
Sections 147, 148, 149, 435, 427, 395,
397, 506 - Court must ensure the Public
Prosecutor's decision isn't improper or an
attempt
to
interfere
with
justice
-
Withdrawal from prosecution requires
legitimate
reasons,
good
faith,
and
consideration of public policy and justice
and not to thwart or stifle the process of
law.(Para - 7)

FIR against 24 persons for setting company
property on fire, theft, and physical altercation -
Public
Prosecutor
moved
to
withdraw
prosecution based on the UP-Government's
directive - citing incident's connection to
farmer's agitation and interest of justice -
Sessions court rejected application - noting the
case involved riot, loot, harm to police
personnel, and absconding accused persons.

(Para-7)

HELD:
-
Trial
court
erred
in
rejecting
withdrawal application without considering if the
Public
Prosecutor
acted
in
good
faith.
Application for withdrawal under Section 321
Cr.P.C. requires court to assess legitimacy and
public interest. Impugned order set aside. Case
remanded to trial court for fresh consideration
after hearing both sides. (Para -7,8,9)

Application u/s 482 Cr.P.C. disposed off.
(E-7)

List of Cases cited:

1. St. of Kerala Vs K Ajith & ors., (2021) 6 SCR
774

2. St. of Bihar Vs Ram Naresh Pandey & anr,,
AIR 1957 SC 389

3.
M.N
Sankarayaraynan
Nair
Vs
P.V
Balakrishnan, (1972) 1 SCC 318

4. R.K. Jain Vs St. through Special Police
Establishment & ors,, (1980) 3 SCC 435

5. Sheonandan Paswan Vs. St. of Bihar & ors.,
(1987) 1 SCC 288

6. Yerneni Raja Ramchandar Vs St. of A.P. &
ors,, (2009) 15 SCC 604

7. Bairam Muralidhar Vs St. of A.P., (2014) 10
SCC 380

(Delivered by Hon'ble Gajendra Kumar, J.)
2 All. Harkesh & Ors. Vs. State of U.P. & Anr.
1239

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. 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
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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'. 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
2 All. Harkesh & Ors. Vs. State of U.P. & Anr.
1241
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. 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. It is
sufficient to say that politics are about
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
Pr[o]secutor
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
2 All. Harkesh & Ors. Vs. State of U.P. & Anr.
1243
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. 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)

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
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
2 All. Harkesh & Ors. Vs. State of U.P. & Anr.
1245
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. 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. 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
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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. 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
2 All. Harkesh & Ors. Vs. State of U.P. & Anr.
1247
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. 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 Court on the 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

(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;

(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
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 Justice5 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. 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
2 All. Kunal Shah & Ors. Vs. State of U.P. & Anr.
1249
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.