# State of U.P. Revisionist v. Rakesh Kumar Verma Opp. Party

- **Citation:** (2022) 7 ILRA 1018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** Crl. Revision No. 275 of 2021
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-revisionist-v-rakesh-kumar-verma-opp-party-48711
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section 321 - Withdrawal from
prosecution - Principles - Court, while
considering the application u/s 321 CrPC,
is required to consider whether the
withdrawal
from
prosecution
would
further cause of justice or not and,
7 All. State of U.P. Vs. Rakesh Kumar Verma
1019
whether it would be in the interest of
justice to allow the withdrawal from
prosecution - application should show that
the Public Prosecutor has applied his
independent mind, on the basis of the
material placed before him, including the
evidence collected by the prosecution
during the course of investigation - It is
not required for the Public Prosecutor to
give in detail reasoning in the application
regarding analysis
of every evidence
available on file - If, the Public Prosecutor
is of considered opinion that success of
the prosecution appears to be weak and,
the withdrawal from prosecution would
further the cause of justice and it would
be in the public interest, it cannot be said
that the Public Prosecutor has not applied
his independent mind (Para 24)

Government took a decision giving permission
to the Public Prosecutor to withdraw from
prosecution
-
Public
Prosecutor
filed
application u/s 321 CrPC in good faith and,
after careful consideration of the material
placed before him & considering the evidence
collected by the prosecuting agency which
appears to be weak and success of the
prosecution is not bright - learned Special
Judge rejected the application on the ground
that the Public Prosecutor did not St. that
how
the
evidence
collected
by
the
investigating agency was of weak quality -
Held present case has political overtone, case
got registered in relation to the political
activity of the accused - nature of offence,
allegedly committed by the accused is of
trivial in nature - Government had taken a
decision to withdraw from prosecution and
had given consent to the Public Prosecutor -
Application filed u/s 321 CrPC by the Public
Prosecutor shows that he applied his
independent mind and considered facts,
material
and
evidence
in
the
case
-
application filed u/s 321 CrPC by the Public
Prosecutor is allowed (Para 23, 25)

Allowed. (E-5)

List of Cases cited:

## Text

1018 INDIAN LAW REPORTS ALLAHABAD SERIES
others
Vs.
U.P.
Public
Service
Commission and another reported in
2008(14) SCC 139; 2008 (14) SCC 144;
2008 (14) SCC 146 and 2002 (93) FLR
1208.

It is expected that the Board shall
now consider the matter more objectively.
Thus the reasons given in the impugned order
dated 13.3.2013 cannot be sustained. The
impugned order is quashed.

The writ petition is allowed with a
direction to the respondent Board to consider
the experience of the petitioner in the light of
observations made hereinabove and pass an
appropriate order within six weeks."

22. Lastly, this Court finds substance in
the submission made by the learned counsel
for the petitioner that the impugned decision
has been taken by the Regional Level
Committee refusing to accord financial
approval to the appointment of the petitioner
on the post of principal without affording any
opportunity of hearing to the petitioner and
the respondent-Committee of Management,
which has offered appointment letter to the
petitioner. Therefore, the same hits Article 14
and 16 of the Constitution of India, as the
same has been made in violation of principles
of natural justice.

23. Thus, for the parameter and reasons
noted above, this Court is of the considered
opinion that the impugned decision taken by
the
Regional
Level
Committee,
Prayagraj/Allahabad Region, Prayagraj dated
4th September, 2015, which has been
communicated by the Regional Joint Director
of Education, Prayagraj/Allahabad Region,
Prayagraj vide letter dated 4th September,
2015 as also by the District Inspector of
Schools, Fatehpur vide letter dated 7th
January, 2016 to the respondent-Committee
of Management cannot be legally sustained
and is hereby quashed. This matter is remitted
back to the Regional Level Committee,
Prayagraj/Allahabad Region, Prayagraj for
decision afresh qua financial approval to the
appointment of the petitioner on the post of
the principal of the institution of which
relevant papers have been sent by the
respondent-Committee
of
Management.
While deciding this matter afresh, the
Regional
Level
Committee,
Prayagraj/Allahabad Region, Prayagraj shall
pass a reasoned and speaking order, in
accordance with the provisions of U.P.
Intermediate Education Act, 1921 and its
rules and regulations framed thereunder as
also in light of the observations made above,
preferably within three months from the date
of production of a certified copy of this order.

24. The present writ petition is allowed
subject to the observations made above.
----------
(2022)07ILR A1018
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.07.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Revision No. 275 of 2021

State of U.P. ...Revisionist
Versus
Rakesh Kumar Verma ...Opp. Party

Counsel for the Revisionist:
G.A.

Counsel for the Opp. Party:
Gyanendra Kumar, Sunil Kumar Singh

Criminal Law - Criminal Procedure Code,
1973 - Section 321 - Withdrawal from
prosecution - Principles - Court, while
considering the application u/s 321 CrPC,
is required to consider whether the
withdrawal
from
prosecution
would
further cause of justice or not and,
7 All. State of U.P. Vs. Rakesh Kumar Verma
1019
whether it would be in the interest of
justice to allow the withdrawal from
prosecution - application should show that
the Public Prosecutor has applied his
independent mind, on the basis of the
material placed before him, including the
evidence collected by the prosecution
during the course of investigation - It is
not required for the Public Prosecutor to
give in detail reasoning in the application
regarding analysis
of every evidence
available on file - If, the Public Prosecutor
is of considered opinion that success of
the prosecution appears to be weak and,
the withdrawal from prosecution would
further the cause of justice and it would
be in the public interest, it cannot be said
that the Public Prosecutor has not applied
his independent mind (Para 24)

Government took a decision giving permission
to the Public Prosecutor to withdraw from
prosecution
-
Public
Prosecutor
filed
application u/s 321 CrPC in good faith and,
after careful consideration of the material
placed before him & considering the evidence
collected by the prosecuting agency which
appears to be weak and success of the
prosecution is not bright - learned Special
Judge rejected the application on the ground
that the Public Prosecutor did not St. that
how
the
evidence
collected
by
the
investigating agency was of weak quality -
Held present case has political overtone, case
got registered in relation to the political
activity of the accused - nature of offence,
allegedly committed by the accused is of
trivial in nature - Government had taken a
decision to withdraw from prosecution and
had given consent to the Public Prosecutor -
Application filed u/s 321 CrPC by the Public
Prosecutor shows that he applied his
independent mind and considered facts,
material
and
evidence
in
the
case
-
application filed u/s 321 CrPC by the Public
Prosecutor is allowed (Para 23, 25)

Allowed. (E-5)

List of Cases cited:

1. Bansi Lal Vs Chandan Lal & ors. (1976) 1 SCC
421
2. Sheonandan Paswan Vs St. of Bihar & ors.
(1983) 1 SCC 438

3. St. of Punjab Vs U.O.I.ia & ors. (1986) 4 SCC
335

4. S.K. Shukla & ors. Vs St. of U.P. & ors. (2006)
1 SCC 314

5. Vijaykumar Baldev Mishra alias Sharma Vs St.
of Maharashtra (2007) 12 SCC 687

6. Rahul Agarwal Vs Rakesh Jain & anr. (2005)
2 SCC 377

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

1. Heard Mr. Anurag Varma, learned
Additional
Government
Advocate,
on
behalf of revisionist-State, as well as Mr.
Sunil Kumar Singh, learned counsel for
respondent, and gone through the entire
record.

2. This criminal revision under
Section 397(1)/497 CrPC has been filed on
behalf of the State having been aggrieved
by the order dated 10th January, 2020
passed
by
the
Special
Judge,
M.P.
M.L.A./Additional Sessions Judge, Court
No. 5, Pratapgarh in Criminal Case No.2 of
2017, arising out of Crime/FIR No.0356 of
2016, under Section 143, 341 and 186 IPC
lodged at Police Station Raniganj, District
Pratapgarh, rejecting the application filed
by the Public Prosecutor under Section 321
CrPC.

3. The learned trial Court has rejected
the said application on the ground that the
Public Prosecutor filed the application after
the State Government passed an order for
withdrawal from prosecution in the said
case. The Public Prosecutor, in the
application, had not mentioned that what
facts and evidence he had considered to
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
come to conclusion to that effect and, he
had only mentioned that the order passed
by the Government for withdrawing from
prosecution was completely legal and in the
interest of justice and, he agreed with the
decision of the Government having been
satisfied himself and from perusal of the
record.

4. The facts of the case are that on
11.09.2016,
when
Sub-Inspector,
Mr.
Prakash Narain Yadav, In-charge of Police
Station Raniganj, District Pratapgarh along
with a few constables and driver of the jeep
were on duty for maintaining peace in town
Raniganj, Dr. R.K. Verma, M.L.A. from
Vishwanathganj Constituency, Pratapgarh,
along with his supporters, named in the
FIR, and around 150 other supporters were
sitting on National Highway, staging a
protest and, they had blocked the National
Highway. They were raising slogans and,
were not allowing vehicles to ply on the
National Highway. It was said that despite
efforts made by the police officers/officials
to remove the blockage from the National
Highway, the accused, named in the FIR,
and supporters of the M.L.A. did not agree
and,
they
became
aggressive
and,
demanded that higher officials should come
on the site. It was also said that due to
blockage of National Highway there was a
jam on both sides of the Highway for
kilometers as a result thereof passengers
had to face great difficulties, ambulances,
carrying patients, were not allowed to ply.
This resulted in disturbances of public
order. Considering the situation, higher
officials, along with force, came there,
however,
Dr.
R.K.
Verma
and
his
supporters continued to block the National
Highway from 13.10 hours to 19.30 hours
on 11.09.2016. It was further said that Dr.
R.K. Verma and his supporters had
committed offence under Sections 143, 341
and 186 IPC, which should be registered.
On the said complaint, the FIR came to be
registered.

5. In the present case the complainant
is
police
official.
The
police,
after
investigating the offence, filed charge sheet
on which cognizance was taken and the
accused were summoned by the learned
trial Court.

6. It appears that the Government had
taken a decision vide Order No.44 WC/SatNyay-5-2018-337 WC/2017 dated 19th
March,
2018
whereby
the
Public
Prosecutor had been given permission to
withdraw from prosecution.

7. Pursuant to the aforesaid decision
of the State Government, the Public
Prosecutor had moved application dated
06.04.2018 under Section 321 CrPC to
withdraw
from
prosecution.
In
the
application under Section 321 CrPC the
Public Prosecutor had stated that he had
applied his independent mind on the facts,
evidence and record of the case. It was
further stated that after perusing record of
the case in detail, the Public Prosecutor was
in agreement with the decision taken by the
Government to withdraw from prosecution
and, found the decision of the Government
wholly legal and in the interest of justice. It
was further stated that from perusal of the
evidence collected against the accused, the
Public Prosecutor was of the opinion that
evidence was very weak and success of the
prosecution was doubtful and, it would be
appropriate to withdraw from prosecution
and, therefore, the application was filed in
the interest of justice and in public interest.

8. As mentioned above, the learned
Special Judge, vide its impugned order, has
rejected the application under Section 321
7 All. State of U.P. Vs. Rakesh Kumar Verma
1021
CrPC on the ground that the Public
Prosecutor did not state that how the
evidence collected by the investigating
agency was of weak quality. The Public
Prosecutor had stated that he was in
complete agreement with the decision taken
by the Government to withdraw from
prosecution, which would show that the
Public
Prosecutor
had
applied
his
independent mind and, decision to move
the application under Section 321 CrPC
had been taken by him in compliance of the
decision
taken
by
the
Government,
allowing him to move application for
withdrawal from prosecution.

9. On behalf of the revisionist, Mr.
Anurag
Varma,
learned
Additional
Government Advocate, has submitted that
the
question,
which
requires
to
be
considered,
is
whether
the
Public
Prosecutor, while moving the application
under Section 321 CrPC, is required to
mention in detail his analysis and reasoning
for reaching to conclusion that the evidence
collected by the prosecution is weak and
success of the prosecution appears to be
remote and doubtful or it would suffice for
him to say that he has perused the case
diary, material and evidence collected by
the prosecution and, in his view it would be
in the interest of justice and in public
interest to withdraw from prosecution

10. Section 321 CrPC, as amendment
made by the State of Uttar Pradesh, would
read as under:-

"S.
321.
Withdrawal
from
prosecution. The Public Prosecutor or
Assistant Public Prosecutor in charge of a
case may, on the written permission of the
State Government to that effect (which shall
be filed in Court) 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. Thus, an application under Section
321 CrPC can be moved by the Public
Prosecutor in the State of Uttar Pradesh only
on
written
permission
of
the
State
Government to that effect.

12. The scope of Section 321 Cr.P.C.,
ambit of power and manner in which it has
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
to be exercised by the Public Prosecutor
have been dealt with in several decisions by
the Supreme Court. Only a few decisions
rendered by the Supreme Court would be
apt to quote here to throw light on the
scope of Section 321 Cr.P.C. and ambit and
manner of exercise of the power by the
Public Prosecutor under the aforesaid
section.
Ultimate
authority
to
allow
withdrawal from prosecution vests with the
Court and the guiding consideration must
always be interest of administration of
justice when deciding the question whether
prosecution should be allowed to be
withdrawn or not.

13. In Bansi Lal Versus Chandan
Lal and others (1976) 1 SCC 421, the
Supreme Court has held in para-5 which,
on reproduction, reads as under:-

"5...........Therefore when the Additional
Sessions Judge made the impugned order,
there was no material before him to warrant
the conclusion that sufficient evidence would
not be forthcoming to sustain the charges or
that there was any reliable subsequent
information falsifying the prosecution case or
any other circumstance justifying withdrawal
of the case against the respondents.
Consenting to the withdrawal of the case on
the view that the attitude displayed by the
prosecution made it "futile" to refuse
permission does not certainly serve the
administration of justice. If the material
before the Additional Sessions Judge was
considered sufficient to enable him to frame
the charges against the respondents, it is not
possible to say that there was no evidence in
support of the Prosecution case. The
application for stay of the proceeding made
before the committing Magistrate cannot also
be said to falsify the prosecution case. If the
prosecuting agency brings before the court
sufficient material to indicate that the
prosecution was based on false evidence, the
court would be justified in consenting to the
withdrawal of the prosecution, but on the
record of the case, as it is, we do not find any
such justification......."

14. In Balwant Singh and others
Versus State of Bihar (1977) 4 SCC 448,
the Supreme Court, while considering the
role of the Public Prosecutor while moving an
application for withdrawal from prosecution,
has dealt upon the consideration which must
weigh for moving such an application. The
Public Prosecutor must keep in mind the
administration of justice inasmuch as he is
discharging the statutory responsibility and
while discharging the statutory responsibility
the only factor, which should be considered,
is administration of justice and nothing else.
Relevant
portion
of
paragraph-2
is
reproduced hereinbelow:-

"2.
.....................The
statutory
responsibility for deciding upon withdrawal
squarely vests on the public prosecutor. It is
non-negotiable and cannot be bartered away
in favour of those who may be above him on
the
administrative
side.
The
Criminal
Procedure Code is the only matter of the
public prosecutor and he has to guide himself
with reference to Criminal Procedure Code
only. So guided, the consideration which must
weigh with him is, whether the broader cause
of public justice will be advanced or retarded
by the withdrawal or continuance of the
prosecution. As we have already explained,
public justice may be a much wider
conception than the justice in a particular
case. Here, the Public Prosecutor is ordered
to move for withdrawal......."

15. In Sheonandan Paswan Versus
State of Bihar and others (1983) 1 SCC
438, the Supreme Court has held that
before an application is moved under
7 All. State of U.P. Vs. Rakesh Kumar Verma
1023
Section 321 Cr.P.C., the Public Prosecutor
needs to apply his mind to the facts of the
case
independently,
without
being
influenced by outside factors. Relevant
paragraphs, on reproduction, read as
under:-

"85. In our opinion, the object of
Section 321 Cr.P.C. appears to be to
reserve
power
to
the
Executive
Government to withdraw any criminal
case on larger grounds of public policy
such as inexpediency of prosecutions for
reasons of State; broader public interest
like maintenance of law and order;
maintenance
of
public
peace
and
harmony, social, economic and political;
changed social and political situation;
avoidance of destabilization of a stable
government and the like. And such
powers have been, in our opinion, rightly
reserved for the Government; for, who but
the Government is in the know of such
conditions and situations prevailing in a
State or in the country? The Court is not
in a position to know such situations.

134. The statutory responsibility for
deciding upon withdrawal squarely rests
upon the Public Prosecutor. It is nonnegotiable and cannot be bartered away.
The court's duty in dealing with the
application under Section 321 is not to
reappreciate the grounds which led the
Public Prosecutor to request withdrawal
from the prosecution but to consider
whether the Public Prosecutor applied
his mind as a free agent un-influenced by
irrelevant and extraneous or oblique
considerations as the court has a special
duty in this regard inasmuch as it is the
ultimate
repository
of
legislative
confidence in granting or withholding its
consent to withdrawal from prosecution.
The court's duty is to see in furtherance
of justice that the permission is not
sought on grounds extraneous to the
interest of justice."

16. The Supreme Court has also dealt
with in a catena of decisions the manner in
which an application for withdrawal from
prosecution
moved
by
the
Public
Prosecutor needs to be considered by the
Court.

17. In State of Punjab Versus Union
of India and others (1986) 4 SCC 335, the
Supreme Court has held that while granting
permission to the Public Prosecutor for
withdrawal from prosecution, the Court
needs to be satisfied itself that the Public
Prosecutor has properly exercised statutory
function and has not attempted to interfere
with the normal course of justice for
ulterior purposes. The administration of
criminal justice should be the touchstone
on which the application under Section 321
Cr.P.C. needs to be decided. Relevant
portion of paragraph-1, on reproduction,
reads as under:-

"1. ............ The ultimate guiding
consideration while granting a permission
to withdraw from the prosecution 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
withdraw. 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 such
broad ends of public justice may well
include appropriate social, economic and
political purposes."

18. Similar views have been reiterated
in Sheonandan Paswan Versus State of
Bihar and others (1987) 1 SCC 288 by the
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme
Court.
Paragraph-73,
on
reproduction, reads as under:-

"73. Section 321 gives the Public
Prosecutor the power for withdrawal of any
case at any stage before judgment is
pronounced. This presupposes the fact that the
entire evidence may have been adduced in the
case, before the application is made. When an
application under Section 32I Cr.P.C. 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 32I has to assess
the evidence and find out whether the case
would end in acquittal or conviction, would be
to rewrite Section 321 Cr.P.C. 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 Cr.P.C."

19. In S.K. Shukla and others
Versus State of U.P. and others (2006) 1
SCC 314, the Supreme Court has held that
the Public Prosecutor cannot work like a
post box. He needs to act objectively being
an officer of the Court and it is always open
to the Court to reject the prayer if it is not
guided in the interest of administration of
justice. Relevant portion of paragraph-32,
on reproduction, reads as under:-

"32. .....The Public Prosecutor cannot
act like a postbox or act on the dictates of
the State Government. He has to act
objectively as he is also an officer of the
court. At the same time the court is also not
bound by that. The courts are also free to
assess whether a prima face case is made
or not. The court, if satisfied, can also
reject the prayer."

20. In Vijaykumar Baldev Mishra
alias
Sharma
Versus
State
of
Maharashtra (2007) 12 SCC 687 the
Supreme Court has held as under:-

"12. Section 321 of the Criminal
Procedure
Code,
1973
provides
for
withdrawal
from
prosecution
at
the
instance of the public prosecutor or
Assistant public prosecutor. Indisputably
therefor the consent of the Court is
necessary. Application of mind on the part
of the Court, therefore, is necessary in
regard to the grounds for withdrawal from
the prosecution in respect of any one or
more of the offences for which the appellant
is tried. The provisions of TADA could be
attracted only in the event of one or the
other of the four 'things' specified in Nalini
(supra) is found applicable and not
otherwise. The Review Committee made
recommendations upon consideration of all
relevant facts. It came to its opinion upon
considering the materials on record. Its
recommendations were based also upon the
legality of the charges under TADA in the
fact situation obtaining in each case. It
7 All. State of U.P. Vs. Rakesh Kumar Verma
1025
came to the conclusion that in committing
the purported offence, the appellant inter
alia had no intention to strike terror in
people or any section of the people and in
fact the murder has been committed only in
view of group rivalry and because the
parties intended to take revenge, the
provisions of the TADA should not have
been invoked.

13. The Public Prosecutor in terms of
the statutory scheme laid down under the
Code of Criminal Procedure plays an
important role. He is supposed to be an
independent person. While filing such an
application, the public prosecutor also is
required to apply his own mind and the
effect thereof on the society in the event
such permission is granted."

21. In Rahul Agarwal Versus
Rakesh Jain and another (2005) 2 SCC
377, the Supreme Court has held that while
considering an application moved under
Section 321 Cr.P.C., the Court should
consider all relevant circumstances and find
out
whether
the
withdrawal
from
prosecution advances the cause of justice.
The withdrawal can be permitted only
when the case is likely to end in an
acquittal and continuance of the case would
only cause severe harassment to the
accused. Relevant para-10 is extracted
hereunder:-

"10. From these decisions as well as
other decisions on the same question, the
law is very clear that the withdrawal of
prosecution can be allowed only in the
interest of justice. Even if the Government
directs the Public Prosecutor to withdraw
the prosecution and an application is filed
to that effect, the court must consider all
relevant
circumstances
and
find
out
whether the withdrawal of prosecution
would advance the cause of justice. If the
case is likely to end in an acquittal and the
continuance of the case is only causing
severe harassment to the accused, the court
may permit withdrawal of the prosecution.
If the withdrawal of prosecution is likely to
bury the dispute and bring about harmony
between the parties and it would be in the
best interest of justice, the court may allow
the
withdrawal
of
prosecution.
The
discretion under Section 321, Code of
Criminal Procedure is to be carefully
exercised by the court having due regard to
all the relevant facts and shall not be
exercised to stifle the prosecution which is
being done at the instance of the aggrieved
parties or the State for redressing their
grievance. Every crime is an offence
against the society and if the accused
committed an offence, society demands that
he should be punished. Punishing the
person who perpetrated the crime is an
essential requirement for the maintenance
of law and order and peace in the society.
Therefore,
the
withdrawal
of
the
prosecution shall be permitted only when
valid reasons are made out for the same."

22. This Court vide judgment and
order dated 12th December, 2013 passed in
writ petition bearing Writ Petition No. 4683
(M/B) of 2013 ''Ms. Ranjana Agnihotri and
others Versus Union of India' while dealing
the scope, power and ambit under Section
321 Cr.P.C. has held in paras-116 and 117
which, on reproduction, read as under :-

"116. In view of above, the Public
Prosecutor is the final authority to apply
mind and take a decision whether an
application for withdrawal of a criminal
case is to be moved or not. For that, option
is open to him to receive necessary
instructions
or
information
from
the
Government to make up mind on the basis
of material made available. The Public
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
Prosecutor cannot act like post box or at
the dictate of the State Government. He has
to act objectively as he is also an officer of
the court. It is also open for the
appropriate
Government
to
issue
appropriate instruction to him but he has to
act
objectively
with
regard
to
the
withdrawal of cases. But the instruction
sent by the government shall not be binding
and it is the Public Prosecutor who has to
take a decision independently without any
political favour or party pressure or like
concerns. The sole object of the Public
Prosecutor is the interest of administration
of justice. Power conferred on Public
Prosecutor to take independent decision for
the interest of administration of justice is
not negotiable and cannot be bartered
away in favour of those who may be above
him on administrative side. He is stood to
be guided by letter and spirit of Code of
Criminal
Procedure
only
and
not
otherwise. Neither the Public Prosecutor
nor the Magistrate can surrender their
discretion while exercising power at their
end.

117. Similarly, the Court has duty to
protect the administration of criminal
justice against possible abuse or misuse by
the executive by resort of the provisions
contained in Section 321 Cr.P.C. The court
has to record a finding that the application
moved by Public Prosecutor is in the
interest of administration of justice and
there is no abuse or misuse of power by the
Public Prosecutor or the Government. In
case an application is allowed, it must be
recorded by the Court that the application
has been moved in good faith to secure the
ends of justice and not in political or vested
interest. The court has final say in the
matter and the decision should be free and
fair with independent exercise of mind in
the interest of public policy and justice. It
must ensure that the application is not
moved to thwart or stifle the process of law
or suffers from such improprieties or
illegalities as to cause manifest injustice if
consent is given."

23. In the present case, from reading
of contents of the application moved by the
Public Prosecutor, it is evident that the
Public Prosecutor filed application under
Section 321 CrPC in good faith and, after
careful consideration of the material placed
before him. The Public Prosecutor has
stated in the application that he has
considered the evidence collected by the
prosecuting agency which appears to be
weak and success of the prosecution is not
bright. It has been further submitted that
the application has been moved in good
faith, in the interest of justice as well as in
public interest. The present case, in which
the application has been moved, has
political overtone. The case got registered
in relation to the political activity of the
accused. The nature of offence, allegedly
committed by the accused is of trivial in
nature. The prosecution has remained
pending for quite some time before the
Court. In view thereof, the Government had
taken a decision to
withdraw from
prosecution and had given consent to the
Public Prosecutor, after considering the
material, as mentioned above, to move
application.

24. The Court, while considering the
application under Section 321 CrPC, is
required
to
consider
whether
the
withdrawal from prosecution would further
cause of justice or not and, whether it
would be in the interest of justice to allow
the withdrawal from prosecution. The
application should show that the Public
Prosecutor has applied his independent
mind, on the basis of the material placed
before
him,
including
the
evidence
7 All. The State of U.P. Vs. Saheb Singh & Ors.
1027
collected by the prosecution during the
course of investigation. It is not required
for him to give in detail reasoning in the
application regarding analysis of every
evidence available on file. If, he is of
considered opinion that success of the
prosecution appears to be weak and, the
withdrawal from prosecution would further
the cause of justice and it would be in the
public interest, it cannot be said that the
Public Prosecutor has not applied his
independent mind.

25. Considering the law on the subject
as well as the facts and circumstances of
the case, this Court does not agree with the
finding recorded by the trial Court that the
Public Prosecutor had not applied his
independent mind, but he was guided by
the State Government decision to withdraw
from prosecution and, the impugned
finding does not appear to be correct one.
The application dated 06.04.2018 under
Section 321 CrPC filed by the Public
Prosecutor would suggest that the had
applied
his
independent
mind
and
considered facts, material and evidence in
the case. This Court is of the considered
view that the view of the trial Court is not
correct one and, therefore, the impugned
order dated 10.01.2020 is hereby set-aside.
The
revision
stands
allowed.
The
application dated 06.04.2018 filed under
Section 321 CrPC by the Public Prosecutor
is allowed.
----------
(2022)07ILR A1027
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE OM PRAKASH-VII, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Government Appeal No. 2580 of 1985

The State of U.P. ...Appellant
Versus
Saheb Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri A.G.A., Sri Vinay Singh

Counsel for the Respondents:
Sri S.K. Agarwal, Sri Alok Ranjan Mishra, Sri
Keshav Sahai, Sri Narendra Singh Chahar, Sri
G.S. Chaturvedi (Senior Adv.)

Criminal Law - Indian Penal Code.
1860 - Section 302-Accused attacked
informant's brother due to old enmitywitness ran towards the place of incidenceinjured succumbed to death-PW-1, PW-2
and PW-4 proved version of F.I.R.-Pw-5
proved
dying
declaration-day
light
occurrence-
no
material
contradictionscorroborated
by
medical
evidence-non
examination of I.O. will not vitiate the
prosecution
case-accused
constituted
unlawful
assembly
and
attacked
on
deceased
with
common
intention
and
knowledge-prosecution has succeeded to
prove
guilt
beyond
doubt
-impugned
judgment and order of acquittal deserves
interference.

Appeal allowed. (E-9)

List of Cases cited:

1. Yogesh Singh Vs Mahabeer Singh & ors. AIR
2016 SC 5160

2. St. of U.P. Vs Jagdeo & ors. (2003) 1 SCC 456

3. Munigadappa Meenaiah Vs St. of Andhra
Pradesh (2008) 11 SCC 661

4. Brahma Swarup & ors. Vs St. of U.P., 2004 (2)
JIC 827 (All)

5. Hardev Singh & ors. Vs Harbhej Singh & ors.
1996 (4) Crimes 216 (SC)

6. St. of U.P. Vs Naresh & ors. (2011) ACR 370