# Prem Narayan Pandey v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 681
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** Application U/S 482 No. 666 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-narayan-pandey-v-state-of-u-p-anr-49729
- **Pages:** 6

## Headnote

Law-
Code
of
Criminal
Procedure,
1973
-
Section
321-
Withdrawal of Prosecution- If the Public
Prosecutor is able to show that he may
not be able to produce sufficient evidence
sustaining the charges, an application for
withdrawal from the prosecution may be
legitimately filed by him- The Public
Prosecutor
may
withdraw
from
a
prosecution not merely on the ground of
paucity of evidence but also in order to
further the broad ends of public justice
which may include the social, economic
and political purpose. The ultimate
guiding consideration while granting the
permission
to
withdraw
from
a
prosecution must always be the interest
of administration of justice. The learned
trial court may not examine the purpose
for what the application for withdrawal
of
the
prosecution
has
been
filed
inasmuch as the withdrawal from a
prosecution is an executive function of
the
Public
Prosecutor.

The
court
performs a supervisory function and has
a special duty in granting its consent to
the withdrawal. The courts duty is not to
reappreciate the grounds which led the
Public
Prosecutor
to
request
the
withdrawal from the prosecution but to
consider whether the Public Prosecutor
applied his mind as a free agent.

Where an application for withdrawing the
prosecution is filed by the public prosecutor the
court cannot examine the evidence or the
purpose for filing the said application, but has
only to see that the withdrawal of prosecution
would be in public interest and as to whether
the public prosecutor has applied his mind freely
and without any duress or influence. (Para 15,
17, 18)

Criminal Application allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

2 All. Prem Narayan Pandey Vs. State of U.P. & Anr.
681
summoned to face the trial provided during
the trial some evidence surfaces against the
proposed accused.

17. Heard learned counsels for the
parties and perused the impugned order
dated 09.11.2022 passed by the trial court,
copy of the first information report,
statement of informant PW-1 Rashid dated
08.09.2022 and other material relied upon
by the appellant in this appeal.

18. From the above rulings of Hon'ble
Supreme Court, it can be concluded that the
trial court can summon persons who have
been charge-sheeted as accused on the basis
of examination-in-chief of a witness. It is not
necessary that the witness should be crossexamined before such person can be
summoned under Section 319 Cr.P.C. The
evidence required for summoning such
persons under Section 319 Cr.P.C. is more
than prima facie case but it is short of such
evidence which if not rebutted will result in
conviction of the persons summoned for trial.

19. The informant, Rashid, had lodged
the first information report against the
revisionists on 02.02.2022 for the murder of
his brother, Asif s/o Aas Mohammad. The
Investigating Officer during the investigation
on the basis of statement recorded under
Section 161 Cr.P.C. of Mursaleen which was
recorded on 05.03.2022, exonerated the
revisionists/accused named in the first
information report of the offence and on the
basis of statement of Mursaleen, filed chargesheet against Rakib, Zulfequar Rana and
Mobeen for committing the murder of Asif
whereas in their statement recorded under
Section 161 Cr.P.C., informant Rashid and
Wasim have supported the allegations made
against the accused/revisionists mentioned in
the first information report. The statement of
Mursaleen was recorded after a delay of 1
month 2 days after the date of incident. The
arguments made on behalf of revisionists
does not mention any reason why the
informant instead of accusing the real
accused involved in the murder of his brother,
will name revisionists for his murder.

20. Considering the impugned order in
light of the statement of Rashid recorded in
the court in the light of law laid down by the
Hon'ble
Apex
Court
regarding
the
summoning of persons who have not been
named in the charge-sheet as accused under
Section 319 Cr.P.C., I find no illegality,
irregularity or jurisdictional error in the
impugned order passed by the trial court.

21. The criminal revision is rejected,
accordingly.

22. In case the revisionists, Bhura and
Mobin alias Lilla sons of Salamu, Usman s/o
Bhura, Saleem s/o Lilla and Inam s/o Khalil,
surrender before the court concerned and
apply for bail within 30 days from today, no
coercive action shall be taken against them
till then.

23. Let a copy of this order be sent to
the court concerned for necessary action.
----------
(2023) 2 ILRA 681
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.02.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 666 of 2023

Prem Narayan Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
682 INDIAN LAW REPORTS ALLAHABAD SERIES
Rajendra Prasad Mishra

Counsel for the Opposite Parties:
G.A.

Criminal
Law-
Code
of
Criminal
Procedure,
1973
-
Section
321-
Withdrawal of Prosecution- If the Public
Prosecutor is able to show that he may
not be able to produce sufficient evidence
sustaining the charges, an application for
withdrawal from the prosecution may be
legitimately filed by him- The Public
Prosecutor
may
withdraw
from
a
prosecution not merely on the ground of
paucity of evidence but also in order to
further the broad ends of public justice
which may include the social, economic
and political purpose. The ultimate
guiding consideration while granting the
permission
to
withdraw
from
a
prosecution must always be the interest
of administration of justice. The learned
trial court may not examine the purpose
for what the application for withdrawal
of
the
prosecution
has
been
filed
inasmuch as the withdrawal from a
prosecution is an executive function of
the
Public
Prosecutor.

The
court
performs a supervisory function and has
a special duty in granting its consent to
the withdrawal. The courts duty is not to
reappreciate the grounds which led the
Public
Prosecutor
to
request
the
withdrawal from the prosecution but to
consider whether the Public Prosecutor
applied his mind as a free agent.

Where an application for withdrawing the
prosecution is filed by the public prosecutor the
court cannot examine the evidence or the
purpose for filing the said application, but has
only to see that the withdrawal of prosecution
would be in public interest and as to whether
the public prosecutor has applied his mind freely
and without any duress or influence. (Para 15,
17, 18)

Criminal Application allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Sheonandan Paswan Vs St. of Bih. (1987) 1
SCC 288 (cited)

2. Punj. Vs U.O.I (1986) 4 SCC 335(cited)

3. Rajendra Kumar Jain Vs State (1980) 3 SCC
435(cited)

4. St. of Ker. Vs K. Ajith & ors. (2021) SCC
OnLine SC 510

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Rajendra Prasad Mishra
along with Sri Pradeep Kumar Shukla,
learned counsels for the applicant and Sri
Alok Saran with Sri Rajesh Kumar Singh,
learned Additional Government Advocates
for the State.

2. Sri Rajendra Prasad Mishra,
learned counsel for the applicant has filed
supplementary affidavit, today in the Court,
the same is taken on record.

3.

By
means
of
this
application/petition filed under Section 482
Cr.P.C., the applicant has prayed for the
following reliefs:-

"(i) to quash the impugned
judgment and order dated 04.11.2020,
passed by the learned Additional Session
Judge,
Court
No.3/
Special
Judge
(M.P./M.L.A.), Gonda in Crl. Case No.100
of 2019; State vs. Prem Narayan Pandey,
arising out of Case Crime No.109 of 2003,
under Section 60/72 of Excise Act, Police
Station-Tarabganj, District-Gonda.

(ii) to allow the application filed
by the Public Prosecutor under Section 321
Cr.P.C. bearing Application No.26Ka.

(iii) to quash the entire criminal
proceedings of Crl. Case No.100 of 2019;
State vs. Prem Narayan Pandey, arising out
2 All. Prem Narayan Pandey Vs. State of U.P. & Anr.
683
of Case Crime No.109 of 2003, under
Section 60/72 of Excise Act, Police StationTarabganj, District-Gonda pendng in the
Court of learned Addl. Chief Judicial
Magistrate, Court No.1/ Special Judge
M.P./M.L.A., Gonda."

4. At the very outset, learned counsel
for the applicant has drawn attention of this
Court towards the order dated 04.02.2023
passed by the learned trial court rejecting
the discharge application of the petitioner
which was filed pursuant to the order dated
01.12.2022 passed by this Hon'ble Court in
Crl. Misc. Application (U/S 482 Cr.P.C.)
No.8615 of 2022 marked as 57Kha, as the
order has been enclosed as Annexure
No.SA-1 to the supplementary affidavit
filed on 09.02.2023.

5. Learned counsel for the applicant
has stated that a letter dated 14.11.2019 has
been preferred from the office of the
District Magistrate, Gonda addressing to
the Joint Director, Prosecution, Gonda
referring a letter dated 01.11.2019 for
withdrawal of the prosecution against the
present
applicant
(Annexure
No.3).
Pursuant thereof an application under
Section
321
Cr.P.C.
was
filed
on
23.11.2019 before the learned trial court
concerned
by
the
Assistant
Public
Prosecutor (Criminal).

6. Learned counsel for the applicant
has stated that the learned trial court
refused to allow the application filed under
Section 321 Cr.P.C. only on the ground that
no documentary material has been put forth
demonstrating that such withdrawal is in
the interest of public justice.

7. Learned counsel for the applicant
has further stated that Section 321 Cr.P.C.
clothes the Public Prosecutor to withdraw
from prosecution of any person accused of
an offence, both when no evidence was
taken or even if entire evidence has been
taken. The outer limit for the exercise of
this power at any time before the judgment
is pronounced. The caveat for moving the
application under Section 321 Cr.P.C. is the
Public Prosecutor has to make out some
ground which would advance or further the
cause of public justice. If the Public
Prosecutor shows that he may not be able
to produce sufficient evidence so sustained
the charge, an application for withdrawal
from prosecution may be legitimately made
by him, as held in the case of Sheonandan
Paswan vs. State of Bihar (1987) 1 SCC
288.

8. Learned counsel for the applicant
has further stated that the nature of the case
which is sought to be withdrawn would not
affect the society at large, thus, such
withdrawal would not be against the public
justice.

9. Learned counsel for the applicant
has stated that in the case of State of
Punjab vs. Union of India (1986) 4 SCC
335, it has been held 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,
which
may
include
social,
economic and political purpose. The
ultimate
guiding
consideration
while
granting a permission to withdraw from the
prosecution must always be the interest of
administration of justice.

10. Learned counsel for the applicant
has also submitted that the Apex Court in
the case of Rajendra Kumar Jain vs. State
(1980) 3 SCC 435 has summarized the
legal position for withdrawal of prosecution
684 INDIAN LAW REPORTS ALLAHABAD SERIES
and has held that the Public Prosecutor may
withdraw from prosecution not merely on
the ground of paucity of evidence but on
other relevant ground as well as 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 political
purpose.

11. Learned counsel for the applicant
has also submitted that though after
framing of the charge, the evidence of the
witnesses of fact by prosecution has been
examined
but
the
application
for
withdrawal can be allowed at any stage
before pronouncement of judgment, thus,
even at this stage there is no prohibition for
allowed application under Section 321
Cr.P.C.

12. Learned counsel for the applicant
has stated that due to Covid-19 Pandemic
period he could not challenge the order
dated 04.11.2020 immediately after passing
the said order. However, the Apex Court
has extended the time in sou motu writ
petition bearing Writ (Civil) No.03 of 2020
for challenging the orders which have been
passed during Covid-19 Pandemic period.

13. Per contra, learned Additional
Government Advocates, Sri Alok Saran and
Sri Rajesh Kumar Singh, have submitted
that pursuant to the directions being issued
by this Court the applicant filed the
discharge application and the same has
been rejected by the learned trial court.

14. However, on being confronted the
learned Additional Government Advocates as
to whether the impugned order dated
04.11.2020 has been passed within the four
corners of law as settled by the Apex Court,
the
learned
Additional
Government
Advocates have fairly submitted that the
learned trial court has erred in passing the
impugned order by indicating that the
prosecution could not file any document/
material to convince the court to withdraw
the prosecution against the present applicant.
They have further submitted that as per the
settled law even after framing of the charges
the application for withdrawal of the
prosecution can be allowed at that stage,
therefore, any appropriate order may be
passed.

15. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that if the Public Prosecutor is able to
show that he may not be able to produce
sufficient evidence sustaining the charges, an
application
for
withdrawal
from
the
prosecution may be legitimately filed by him.

16. In the recent judgment of the Apex
Court in para-26 rendered in the case in re:
State of Kerala vs. K. Ajith and others
reported in (2021) SCC OnLine SC 510
observed as under:-

"26. 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;
2 All. Prem Narayan Pandey Vs. State of U.P. & Anr.
685

(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 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;

(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
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."

17. Besides, the Apex Court in catena
of cases, some of them have been referred
by the learned counsel for the applicant,
held that the Public Prosecutor may
withdraw from a prosecution not merely on
the ground of paucity of evidence but also
in order to further the broad ends of public
justice which may include the social,
economic and political purpose. The
ultimate
guiding
consideration
while
granting the permission to withdraw from a
prosecution must always be the interest of
administration of justice. The learned trial
court may not examine the purpose for
what the application for withdrawal of the
prosecution has been filed inasmuch as the
withdrawal from a prosecution is an
executive function of the Public Prosecutor.
The discretion to withdraw from the
prosecution is solely that of the Public
Prosecutor and so he cannot surrender that
discretion to someone else. Admittedly, the
Public Prosecutor is an Officer of the Court
and therefore, responsible to the Court.
The court performs a supervisory function
and has a special duty in granting its
consent to the withdrawal. The courts duty
is not to reappreciate the grounds which led
the Public Prosecutor to request the
withdrawal from the prosecution but to
686 INDIAN LAW REPORTS ALLAHABAD SERIES
consider whether the Public Prosecutor
applied his mind as a free agent. 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.

18. Considering the settled legal
position on the subject by the Apex Court
and the facts and circumstances of the
present case, I find that the impugned order
dated 04.11.2020 suffers from apparent
illegality and perversity so the same is
liable to be set aside. Further, I find that it
would be a futile exercise if the matter is
remanded back to the learned trial court to
pass appropriate order when the application
filed under Section 321 Cr.P.C. fulfills all
the required conditions.

19. Thus, the present petition is
allowed and the impugned judgment and
order dated 04.11.2020 (Annexure No.1),
passed by the learned Additional Session
Judge,
Court
No.3/
Special
Judge
(M.P./M.L.A.), Gonda in Crl. Case No.100
of 2019; State vs. Prem Narayan Pandey,
arising out of Case Crime No.109 of 2003,
under Section 60/72 of Excise Act, Police
Station-Tarabganj, District-Gonda is hereby
set aside and the application filed by the
learned Public Prosecutor under Section
321 Cr.P.C. for withdrawal from the
prosecution is hereby allowed.

20. Consequences to follow.
----------
(2023) 2 ILRA 686
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.01.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.
Application U/s 482 No. 28523 of 2022

Sadab ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Akhilesh Kumar Mishra

Counsel for the Opposite Parties:
G.A., Sri Syed Shahnawaz Shah

Criminal Law- Code of Criminal Procedure,
1973-
Section-190(1)(b)
Cr.P.C.-
Magistrate is having authority to disagree
with the police report and if from the
perusal of the report submitted under
Section 173(2) Cr.P.C. he arrives at the
conclusion that an offence exclusively
triable by the court of session is made out
against the accused then he can commit
the case to the Sessions Court after taking
cognizance and Magistrate is not bound by
the police report submitted under Section
173(2) Cr.P.C. - Magistrate can ignore the
conclusion arrived at by the Investigation
Officer and he should apply his mind
independently to the facts emerging from
the investigation -If a Magistrate can
proceed against a person against whom
charge-sheet has not been filed then it
cannot be said that Magistrate is not
empowered to take cognizance of an
offence, in which, charge-sheet was not
submitted although from the police report,
such offence also discloses.

As the Magistrate is empowered to take
cognizance against a person against whom
chargesheet has not been submitted by the
investigating agency, then the Magistrate can
also take cognizance of an offence not
mentioned in the chargesheet.

Precedent-
Not
Binding
Precedent
-
Although,
in
the
case
of
Girish
Radhakrishnan Varde (supra), the two
judges Bench of the Apex Court held that
Magistrate is not empowered either to add
or subtract section in the charge-sheet at
the time of taking cognizance and he can
take cognizance only of those offences, in