# State of U.P. Revisionist v. Amar Bahadur & Ors. Opp. Parties

- **Citation:** (2019) 2 ILRA 947
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-12-13
- **Case number:** Meerut in Matrimonial Case No. 127 of 2003
- **Bench:** Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-revisionist-v-amar-bahadur-ors-opp-parties-44345
- **Pages:** 10

## Headnote

A. Cr.P.C., 1973 - Section 397/401 and
Section 321 -Application for withdrawal
of prosecution rejected by trial court -
Public Prosecutor-Duty and powers- is
not empowered to exercise his authority
under Section 321 Cr.P.C. in a whimsical
and arbitrary manner and to follow the
command of the Government blindly but
is required to apply his mind-Discretion
of Trial Court - is not to be exercised
mechanically and the consent applied for
has not to be granted as a matter of
formality
or
for
the
mere
askingPendency of Cross Case - not in the
interest of justice that no decision has
been
taken
to
withdraw
from
prosecution of the cross case - Trial of
present case resulting in conviction of
accused-Revision rendered infructuous.
 (Para 16,17 & 18)

The Public Prosecutor is not empowered to
exercise its authority under Section 321 Cr.P.C.
in a whimsical and arbitrary manner and to
follow the command of the Government blindly
but he is required to apply his mind on the
parameters set forth by the Apex Court and
this power can only be exercised for just,
reasonable and valid reasons, for public good.

Paucity of evidence is not the only ground on
which a public prosecutor may withdraw from
the prosecution.

The Court has to exercise its judicial discretion
with reference to such material as is then
available to it and in exercise of this discretion
the Court has to satisfy itself that the
executive function of the public prosecutor has
not been improperly exercised and that the
grounds urged in support of the application for
withdrawal
are
legitimate
grounds
in
furtherance of public justice.

The
application
for
withdrawal
from
prosecution moved by prosecutor in the
present case is not commensurate with the
guidelines laid down by the Supreme Court in
Sheo Nandan Paswan and Rajendra Kumar
Jain (supra), more so when no decision has
been taken to withdraw from prosecution of
the cross case, therefore their appears no
illegality or impropriety in the judgment of the
Court below whereby the application of the
Prosecutor to withdraw from prosecution has
been rejected.

The Session Trial case wherein application 40A was moved has been decided on merits by
the Additional District and Session Judge Court
No.3, Raibareilly vide judgment and order
dated 26.04.2017 and accused persons have
been convicted under section 427 IPC and
sentenced with fine of Rs. 2000/- each. The
adjudication of criminal case on merits also
renders this criminal revision infructuous. The
revision preferred by the State is devoid of
merit and liable to be dismissed at the
admission stage.

Criminal Revision dismissed (E-3)

Case Law relied upon/discussed: -

## Text

2 All. State of U.P. Vs Amar Bahadur & Ors.
947
Act, which is the function of legislature. It
also referred to some judgments of
Supreme Court in which dissolution of
marriage was allowed on the ground of
irretrievable breakdown but held that
those judgments do not lay down any
precedent.
Supreme
Court
very
categorically observed as under:-

"If we grant divorce on the ground of
irretrievable breakdown, then we shall by
judicial verdict be adding a clause to
Section 13 of the Act to the effect that
irretrievable breakdown of marriage is
also a ground for divorce. In our opinion,
this can only be done by the legislature
and not by the Court. It is for the
Parliament to enact or amend the law and
not for the Court. Hence, we do not find
force in the submission of learned counsel
for the appellant."

13. The above view has been
followed in Darshan Gupta Vs. Radhika
Gupta (2013) 9 SCC 1. Similar view was
expressed
in
''Gurubux
Singh
Vs.
Harminder Kaur' (2010) 14 SCC 301.
This Court also has followed the above
view in Shailesh Kumari Vs. Amod Kumar
Sachan 2016 (115) ALR 689."

41. In the case in hand, we find that
parties have not been living separately on
account of their own free will. The record
shows, it is plaintiff-respondent, who has
refused to keep defendant-appellant with
him. The defendant-appellant has herself
not deserted plaintiff-respondent. In this
view of the matter, the argument raised by
learned counsel for plaintiff-respondent
that there has been an irretrievable break
down
of
marriage
has
no
factual
foundation. That apart this Court in
Ashwani Kumar Kohli (supra) has held
that divorce cannot be granted on
aforesaid ground particularly when such a
plea is raised by one party alone. In
addition to aforesaid, decree of divorce was
not prayed for on ground of irretrievable break
down of marriage as the parties are alleged to
have been living separately since 17.3.2002.
The plaint was presented in the year 2003
whereas, divorce petition was finally decided
vide judgement and decree dated 20.12.2006,
passed by Principal Judge (Family Court),
Meerut in Matrimonial Case No. 127 of 2003
(Rajesh Kumar Chaudhary Vs. Savita). For a
period of fourteen long years, plaintiffrespondent kept quiet and now for the first
time, this issue is being raised. We are of the
considered opinion that in view of what has
been stated above, plaintiff-respondent is
estopped from raising this plea.

42. In view of discussions made
herein above, appeal is liable to succeed.
It is accordingly allowed. Judgement and
decree dated 20.12.2006, passed by
Principal Judge, Family Court, Meerut in
Matrimonial Case No. 123 of 2003 (Dr.
Vikas Kannaujia Vs. Smt. (Dr.) Sarita),
are hereby set aside. The suit filed by
plaintiff respondent shall stand dismissed.
Parties to bear their own cost.
----------

(2019)10ILR A 947

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.12.2018

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Revision No. 95 of 2010

State of U.P. ...Revisionist
Versus
Amar Bahadur & Ors. ...Opp. Parties

Counsel for the Revisionist:
Govt. Advocate
948 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Parties:

A. Cr.P.C., 1973 - Section 397/401 and
Section 321 -Application for withdrawal
of prosecution rejected by trial court -
Public Prosecutor-Duty and powers- is
not empowered to exercise his authority
under Section 321 Cr.P.C. in a whimsical
and arbitrary manner and to follow the
command of the Government blindly but
is required to apply his mind-Discretion
of Trial Court - is not to be exercised
mechanically and the consent applied for
has not to be granted as a matter of
formality
or
for
the
mere
askingPendency of Cross Case - not in the
interest of justice that no decision has
been
taken
to
withdraw
from
prosecution of the cross case - Trial of
present case resulting in conviction of
accused-Revision rendered infructuous.
 (Para 16,17 & 18)

The Public Prosecutor is not empowered to
exercise its authority under Section 321 Cr.P.C.
in a whimsical and arbitrary manner and to
follow the command of the Government blindly
but he is required to apply his mind on the
parameters set forth by the Apex Court and
this power can only be exercised for just,
reasonable and valid reasons, for public good.

Paucity of evidence is not the only ground on
which a public prosecutor may withdraw from
the prosecution.

The Court has to exercise its judicial discretion
with reference to such material as is then
available to it and in exercise of this discretion
the Court has to satisfy itself that the
executive function of the public prosecutor has
not been improperly exercised and that the
grounds urged in support of the application for
withdrawal
are
legitimate
grounds
in
furtherance of public justice.

The
application
for
withdrawal
from
prosecution moved by prosecutor in the
present case is not commensurate with the
guidelines laid down by the Supreme Court in
Sheo Nandan Paswan and Rajendra Kumar
Jain (supra), more so when no decision has
been taken to withdraw from prosecution of
the cross case, therefore their appears no
illegality or impropriety in the judgment of the
Court below whereby the application of the
Prosecutor to withdraw from prosecution has
been rejected.

The Session Trial case wherein application 40A was moved has been decided on merits by
the Additional District and Session Judge Court
No.3, Raibareilly vide judgment and order
dated 26.04.2017 and accused persons have
been convicted under section 427 IPC and
sentenced with fine of Rs. 2000/- each. The
adjudication of criminal case on merits also
renders this criminal revision infructuous. The
revision preferred by the State is devoid of
merit and liable to be dismissed at the
admission stage.

Criminal Revision dismissed (E-3)

Case Law relied upon/discussed: -

1. Sheo Nandan Paswan Vs St. of Bihar AIR
1987 SC Page 877
2. Ram Naresh Pandey's case 1957 SCR 279:
(AIR 1957 SC 389)
3. St. of Ori. Vs Chandrika Mohapatra & ors.
1977 CRI. L. J. 773
4. Rajendra Kumar Jain Vs St. through Special
Police Establishment & ors. AIR 1980 SC 1510
(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1. Heard learned A.G.A. on behalf
of the State on the point of admission.

2. This Criminal Revision has been
preferred by the State of U.P. against the
order dated 18.01.2010 of Additional
District and Sessions Judge Court No. 6,
Raibareilly, whereby an application No.
40-A moved under Section 321 of the
Cr.P.C. to grant permission to withdraw
from prosecution of Session Trial No. 137
2 All. State of U.P. Vs Amar Bahadur & Ors.
949
of 2007 (State Vs. Amar Bahadur) under
Sections 147, 148, 149, 307, 427, 506
I.P.C has been rejected.
This Revision petition is pending for the
last ten years at the stage of admission.

3. Brief facts necessary for the
disposal of this criminal revision are that
one Devendra Bahadur Singh lodged an
First
Information
Report
that
on
08.02.1995 at about 7:00 p.m. accused
persons Ayodhya, Amar Bahadur, Om
Prakash s/o Gajadhar , Shankara and
Vijay Kumar along with other persons
started demolishing the boundary wall of
his plot. On being confronted all accused
persons fired Gun shots on him. He did
not get injured in the incident however he
sustained
monetory
loss
by
such
demolition
of
the
wall.
On
the
information so provided by Sri Devendra
Bahadur Singh an First Information
Report was registered at Case Crime No.
46 of 1995 under Sections 147, 148, 149,
307, 427, 504, 506 I.P.C. at Police Station
Lal
Ganj
District
Raibareilly.After
investigation Charge Sheet was also filed
in the above mentioned sections.

4. The case being triable by the
Court of Sessions was committed to the
Court of Session and charges in the above
mentioned
sections
were
framed
accordingly.

5. During the course of trial an
application (40-A) was moved by Sri
Ashok
Kumar
Srivastava
District
Government
Counsel
(Criminal)
enclosing
therewith
the
Government
Order dated 28.02.2009 stating that
accused
Ayodhya
Prasad
and
Smt.
Shankara Devi had died and the nature of
Fire Arms, allegdly used in the incident,
have not been mentioned in the F.I.R. It is
also stated that nobody had been injured
in the incident and the incident had
occurred in the spur of the moment,
therefore, permission be granted to
withdraw from the prosecution, so that the
valuable
time
of
the
Court
and
Government money may be saved.

6. After hearing parties the Court
below rejected this application by the
impugned order dated 18.01.2010 on the
ground that the fact whether accused
persons may be convicted or acquitted can
only be decided after full fledge criminal
trial, there is a cross version of the
incident regarding which an F.I.R. had
also been lodged by the accused persons
at Case Crime No. 59 of 1995 under
Section 147, 504, 435, 379, 506, 307
I.P.C. Section 3(2)(5), 3(1)(10) of SC/ST
Act, at Police Station Lalganj District
Raibareilly.The Cross Case is pending in
the Court of Additional Chief Judicial
Magistrate Court No.1, Raibareilly and
both these incidents are stated to have
occurred on 08.02.1995.The trial Court,
while rejecting the application, concluded
that it is not in the interest of justice that
from amongst cross cases consent be
given only in one case to withdraw from
prosecution.

7. The Stae Government feeling
Aggrieved by this order has challenged
the same in this criminal revision .

8. Sri Aniruddh Kumar Singh,
learned A.G.A. overwhelmingly argued
that the Court below has passed the
impugned order without looking into the
fact that there was no hope of conviction
in the case as there were inherent
weaknesses in the case and there is no bar
to seek withdrawal from prosecution even
if there is a cross case of the incident
950 INDIAN LAW REPORTS ALLAHABAD SERIES
remained pending. He further submits that
a decision to this effect is usually taken by
the prosecutor and in this case the
prosecutor after applying his mind came
to the conclusion that it is for the public
good and Public peace and in the interest
of society that he should be permitted to
withdraw from the prosecution of this
case, therefore, the Court below has
materially
erred
in
rejecting
the
application of the prosecutor moved under
Section 321 of the Cr.P.C. He requested
that the order of the Court below be
quashed.

9. During the course of argument he
also submits that the Session Trial No.
137 of 2007, wherein the above stated
application
for
withdrawal
from
prosecution was moved, has also been
decided on merits by Additional District
and
Sessions
Judge
Court
No.3,
Raibareilly vide judgment and order dated
26.04.2017 whereby the accused persons
Amar Bahadur and Om Prakash have
been convicted under Section 427 and had
been sentencedto pay fine of Rs.2000/-
each or two months simple imprisonment
in
default.
He
also
submits
a
computerized copy of the judgment dated
26.04.2017 passed in Session Trial No.
137 of 2007 ,State Vs. Amar Bahadur and
Others, which has been taken on record.

10. I have given thoughtful
consideration to the submissions of Ld.
A.G.A. and have also perused the record
in the background of the arguments.

Section 321 of the Cr.P.C. provides
as under:

"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."

11. The scope and ambit of Section
321 of the Cr.P.C. was considered by the
Full Bench of the Allahabad High Court
2 All. State of U.P. Vs Amar Bahadur & Ors.
951
in a public interest litigation namely In Re
withdrawal of criminal cases by State
Government (State of U.P. & Others) PIL
No.16507/2015 decided on 20.02.2017
where in after discussing at length various
authorities on the subject the Full Bench
concluded as under:

"In the background of the provisions,
that have been quoted above, and various
judicial pronouncement, that has been
noted above, the issues referred are
answerred by us as follows:

Issue No.1: State Government is not at
all free to exercise its authority under
Section 321 Cr.P.C. in whimsical or
arbitrary
manner
or
for
extraneous
considerations apart from just and valid
reasons.

Issue No.II: The decision taken by the
State Government for withdrawal of the
case
communicated
to
the
Public
Prosecutor, is open to judicial review under
Article 226 of the Constitution of India on
the same parameters as are prescribed for
invoking the authority of judicial review.

Issue No.III: The State Government
is free to act under the parameters
provided for to make scrutiny of criminal
cases pending in subordinate courts to
find out as to whether they deserve
withdrawal under Section 321 Cr.P.C. or
not as it is in the realm of the policy
decision, and call on the said score has to
be taken by the State Government and
same has to be based on the parameters
required to be observed while moving an
application for withdrawal of prosecution
under Section 321 Cr.P.C."

12. In Sheo Nandan Paswan vs.
State of Bihar reported in AIR 1987
Supreme Court Page 877, Supreme
Court while expressing majority view
held as under :-

"44. I respectfully agree with the
legal position flowing from S. 321 of the
Code of Criminal Procedure as explained
by Krishna Iyer and Chinnappa Reddy,
JJ. in respect of cases relating to Bansi
Lal and Fernandes in R. K. Jain v. State
through Special Police Establishment,
(1980) 3 SCR 982 : (AIR 1980 SC 1510).
In that case Chinnappa eddy, J. has
summarised the true legal position thus :

"1. Under the scheme of the Code
prosecution of an offender for a serious
offence is primarily the responsibility of
the Executive.

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

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

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

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

6. The Public Prosecutor is an
officer of the Court and responsible to the
Court.

7. The Court performs a supervisory
function in granting its consent to the
withdrawal.

8. The Court's duty is not to
reappreciate the grounds which led the
Public Prosecutor to request withdrawal
952 INDIAN LAW REPORTS ALLAHABAD SERIES
from the prosecution but to consider
whether the Public Prosecutor applied his
mind as a free agent, uninfluenced by
irrelevant and extraneous considerations.
The Court has a special duty in this
regard as it is the ultimate repository of
legislative confidence in granting or
withholding its consent to withdrawal
from the prosecution.

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

"45. In the circumstances of this case
I find it difficult to say that the Public
Prosecutor had not applied his mind to
the case or had conducted himself in an
improper way. If in the light of the
material before him the Public Prosecutor
has taken the view that there was no
prospect of securing a conviction of the
accused it cannot be said that his view is
an unreasonable one. We should bear in
mind the nature of the role of a Public
Prosecutor. He is not a persecutor. He is
the representative not of an ordinary
party to a controversy, but of sovereignty
whose obligation to govern impartially is
as compelling as its obligation to govern
at all, and whose interest, therefore, in a
criminal prosecution is not that it shall
win a case, but that justice shall be done.
As such he is in a peculiar and very
definite sense the servant of the land the
two-fold aim of which is that guilt shall
not escape or innocence suffer. He may
prosecute with earnest and vigour indeed,
he should do so. But while he may strike
hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain
from improper methods calculated to
produce a wrongful conviction as it is to
use every legitimate one to bring about a
just one. (See Berger v. United States,
(1934) 295 US 78). It is a privilege of an
accused that he should be prosecuted by a
Public Prosecutor in all cases involving
heinous charges whenever the State
undertakes prosecution. The judgment of
a Public Prosecutor under S. 321 of the
Criminal P.C., 1973 cannot be lightly
interfered with unless the Court comes to
the conclusion that he has not applied his
mind or that his decision is not bona
fide."

"70. 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."

"75. Since S. 321 does not give any
guideline regarding the grounds on which
a withdrawal application can be made,
2 All. State of U.P. Vs Amar Bahadur & Ors.
953
such guidelines have to be ascertained
with reference to decided cases under this
section as well as its predecessor S. 494. I
do not propose to consider all the
authorities cited before me for the reason
that this Court had occasion to consider
the question in all its aspects in some of
its decisions. Suffice it to say that in the
judgments rendered by various High
Courts, public policy, interests of the
administration, inexpediency to proceed
with the prosecution for reasons of State
and paucity of evidence were considered
good grounds for withdrawal in many
cases
and
not
good
grounds
for
withdrawal
in
certain
other
cases
depending upon the peculiar facts and
circumstances of the cases in those
decisions. AIR 1932 Cal 699 (Giribala
Dasi v. Mader Gazi), AIR 1943 Sind 161
(Emperor v. Sital Das) (Milan Mal?), AIR
1936 Cal 356 (FB) (Harihar Sinha v.
Emperor), AIR 1941) Patna 233 (FB)
(The King v. Moule Bux). AIR 1952 Raj
42 and AIR 1938 PC 266 are some of the
cases which were brought to our notice."

13. The Court than quoted with
authority the following paragraph from
Ram Naresh Pandey's case reported in
1957 SCR 279 : (AIR 1957 SC 389),
"His discretion in such matters has
necessarily to be exercised with reference
to such material as is by then available
and it is not a prima facie judicial
determination of any specific issue. The
Magistrate's functions in these matters are
not only supplementary, at a higher level,
to those of the executive but are intended
to prevent abuse. Section 494 requiring
the consent of the Court for withdrawal
by the public prosecutor is more in line
with this scheme, than with the provisions
of the Code relating to inquiries and trials
by Court. It cannot be taken to place on
the Court the responsibility for a prima
facie determination of the triable issue.
For instance the discharge that results
therefrom need not always conform to the
standard of "no prima facie case" under
Sections 209 (1) and 253(1) or of
'groundlessness' under Sections 209 (2)
and 253(2). This is not to say that a
consent is to be lightly given on the
application of the public prosecutor,
without a careful and proper scrutiny of
the grounds on which the application for
consent is made."

Supreme Court than quoted excerpts
from, M. N. Sankaranarayanan Nair v. P.
V. Balakrishnan ,AIR 1972 SC 496,Bansi
Lal v. Chandan Lal, AIR 1976 SC
370,Balwant Singh v. State of Bihar ,AIR
1977 SC 2265, Subhash Chander v. State
AIR 1980 SC 423, Rajendra Kumar Jain
v. State, AIR 1980 SC 1510),Sheonandan
Paswan. v. State of Bihar, AIR 1983 SC
1125 and hold in para "77.that all above
decisions have followed the reasoning of
Ram Naresh Pandey's case (AIR 1957 SC
389) and the principles settled in that
decision were not doubted."

It is also desirable to place on record
the minority view expressed by Chief
Justice Bhagwati ,as His Lordship than
was, Speking on behalf of himself and
Justice Oza in following words :-

"32.
When
the
application
for
consent to the withdrawal from the
prosecution comes for consideration, the
Court has to decide whether to grant such
consent or not. The function which the
Court exercises in arriving at this
decision, as pointed out by this Court in
State of Bihar v. Ram Naresh, (AIR 1957
SC 389), is a judicial function. The Court
has to exercise its judicial discretion with
reference to such material as is then
954 INDIAN LAW REPORTS ALLAHABAD SERIES
available to it and in exercise of this
discretion the Court has to satisfy itself
that the executive function of the public
prosecutor has not been improperly
exercised and that the grounds urged in
support of the application for withdrawal
are legitimate grounds in furtherance of
public justice. The discretion has not to be
exercised by the Court mechanically and
the consent applied for has not to be
granted as a matter of formality or for the
mere asking. The Court has to consider
the material placed before it and satisfy
itself that the grant of consent would
serve the interest of justice. That is why
this Court in State of Bihar v. Ram
Naresh (supra) examined the entire
material which was available to it for the
purpose of coming to the conclusion that
there was no evidence worth the name on
the basis of which the prosecution could
be sustained against the accused Mahesh
Desai. This Court pointed out that
consent is not to be lightly given on the
application of public prosecutor "without
a careful and proper scrutiny of the
grounds on which the application for
consent is made".(Emphasis Mine)

14. Similarly in State of Orissa vs.
Chandrika
Mohapatra
and
others
reported in 1977 CRI. L. J. 773 Supreme
Court held as under:

"6. It will, therefore, be seen that it is
not sufficient for the Public Prosecutor
merely to say that it is not expedient to
proceed with the prosecution. He has to
make out some ground which would show
that the prosecution is sought to be withdrawn because inter alia the prosecution
may not be able to produce sufficient
evidence to sustain the charge or that the
prosecution does not appear to be well
founded
or
that
there
are
other
circumstances which clearly show that the
object of administration of justice would
not be advanced or furthered by going on
with the prosecution. The ultimate guiding
consideration must always be the interest
of administration of justice and that is the
touchstone on which the question must be
determined
whether
the
prosecution
should be allowed to be withdrawn.
10. We have already discussed the
principles which should govern cases of
this kind where an application is made by
the Public Prosecutor for grant of consent
to the withdrawal of prosecution under
Section 494 of the Criminal Procedure
Code. We have pointed out that the
paramount consideration in all these
cases
must
be
the
interest
of
administration of justice. No hard and
fast rule can be laid down nor can any
categories of cases be defined in which
consent should be granted or refused. It
must ultimately depend on the facts and
circumstances of each case in the light of
what is necessary in order to promote the
ends of justice, because the objective of
every judicial process must be the
attainment of justice."

15. Supreme Court again considered
this issue in Rajendra Kumar Jain vs.
State
through
Special
Police
Establishment and others reported in
AIR 1980 Supreme Court 1510 laid
down the principles which will govern the
issue of withdrawal of prosecution in Para
13 A and 14 of the judgment the same are
produced as under:

"13-A. We may add, it shall be the
duty of the Public Prosecutor to inform
the Court and it shall be the duty of the
Court to appraise itself of the reasons
which prompt the Public Prosecutor to
withdraw from the prosecution. The Court
2 All. State of U.P. Vs Amar Bahadur & Ors.
955
has a responsibility and a stake in the
administration of criminal justice and so
has the Public Prosecutor, its 'Minister of
Justice'. Both have a duty to protect the
administration of criminal justice against
possible abuse or misuse by the Executive
by resort to the provisions of s. 321
Criminal
Procedure
Code.
The
independence of the judiciary requires
that once the case has travelled to the
Court, the Court and its officers alone
must have control over the case and
decide what is to be done in each case.
14. We have referred to the precedents of
this Court where it has been said that
paucity of evidence is not the only ground
on which the Public Prosecutor may
withdraw from the prosecution. In the
past, we have often known how expedient
and necessary it is in the public interest
for the Public Prosecutor 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 prosecutions 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 ?"

16. From the authorities cited herein
above
it
emerges
that
the
Public
Prosecutor is not empowered to exercise
its authority under Section 321 Cr.P.C. in
a whimsical and arbitrary manner and to
follow the command of the Government
blindly but he is required to apply his
mind on the parameters set forth by the
Apex
Court
in
above
mentioned
authorities and this power can only be
exercised for just, reasonable and valid
reasons, for public good, as has been
specifically held in the cases of Sheo
Nandan Paswan and Rajendra Kumar Jain
(Supra) .Moreover, paucity of evidence is
not the only ground on which a public
prosecutor may withdraw from the
prosecution, In fact in the case of
Rajendra Kumar Jain (Supra) Supreme
Court has given wide guidelines which
may guide the State Government in taking
the decision under Section 321 of the
Cr.P.C. In Sheo Nandan Paswan (Supra)
Supreme Court emphasized that when the
application for consent to the withdrawal
from
the
prosecution
comes
for
consideration, the Court has to decide
whether to grant such consent or not. The
Court
has
to
exercise
its
judicial
discretion with reference to such material
as is then available to it and in exercise of
this discretion the Court has to satisfy
itself that the executive function of the
public prosecutor has not been improperly
exercised and that the grounds urged in
956 INDIAN LAW REPORTS ALLAHABAD SERIES
support of the application for withdrawal
are legitimate grounds in furtherance of
public justice. The discretion has not to be
exercised by the Court mechanically and
the consent applied for has not to be
granted as a matter of formality or for the
mere asking.

17. From the principles of Law as
enunciated in the authorities mentioned
herein
above,
the
application
for
withdrawal from prosecution moved by
prosecutor in the present case is not
commensurate with the guidelines laid
down by the Supreme Court in Sheo
Nandan Paswan and Rajendra Kumar Jain
(supra), more so when no decision has
been taken to withdraw from prosecution
of the cross case , therefore their appears
no illegality or impropriety in the
judgment of the Court below whereby the
application of the Prosecutor to withdraw
from prosecution has been rejected. In
these circumstances, this Court is of the
considered
view
that
the
findings
recorded by the trial Court, while
rejecting the application 40-A of the
prosecutor under Section 321 of Cr.P.C.,
could not be faulted in any manner and
there
is
no
requirement
of
any
interference in the impugned order.

18. Moreover, during the pendency
of this Revision Petition, the Session Trial
case wherein application 40-A was moved
has been decided on merits by the
Additional District and Session Judge
Court No.3, Raibareilly vide judgment
and order dated 26.04.2017 and accused
persons have been convicted under
section 427 IPC and sentenced with fine
of Rs. 2000/- each. The adjudication of
criminal case on merits also renders this
criminal revision infructuous. So on this
score also the revision lacks merits. The
net result of the above mentioned
discussion is that the revision preferred by
the State is devoid of merit and liable to
be dismissed at the admission stage.

19. The revision is dismissed.
----------

(2019)10ILR A 956

APPEALLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2019

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal from Order No. 414 of 2018

Union of India ...Appellant
Versus
Om Prakash & Anr. ...Respondents

Counsel for the Appellant:
Sri Anuj Dayal.

Counsel for the Respondents:
Sri Anil Srivastava, Sri Divyam Krishna, Sri
Indu Lal.

A. Railway Claims Tribunal Act, 1987 -
Section 16 r/w Section 123(c)(2) of the
Railways Act, 1989 - Railway Accidents
and Untoward Incidents (Compensation)
Rules, 1990 - Claim Petition - Computation
of compensation - Whether the quantum
of compensation should be as per the
prescribed rate of compensation as on the
date of application/incident or on the date
of order awarding compensation ?
Held: -Tribunal should first calculate the
compensation as per the schedule operating
on the date of the accident, along with a
reasonable rate of interest applicable till the
date of award. If the amount, so calculated is
less than the amount prescribed under the
schedule on the date of award, the Tribunal
should award the higher of the said two
amounts towards compensation. (Para 15)