# State of U.P v. The Court of Spl. Judge M.P./M.L.A./A.S.J. Vi Raebareli And Ors

- **Citation:** (2022) 7 ILRA 816
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Criminal Revision No. 12 of 2021
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-the-court-of-spl-judge-m-p-m-l-a-a-s-j-vi-raebareli-and-ors-48850
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 -Section 321 - Withdrawal from
prosecution - Court is required to consider
whether
withdrawal from prosecution
would further cause of justice or not and
whether it would be in public interest to
allow the withdrawal from prosecution.

Public Prosecutor filed application u/s 321
Cr.P.C. stating that there is no sufficient
evidence available on record to support the
charge & that prosecution case is weak - FIR
got registered because of political rivalry -
complainant himself submitted an application
that he would have no objection, if the
application is allowed - Held - When the
complainant himself is not supporting the
prosecution case, there was no chance of
conviction of the accused - case has been
remained pending since 2007 and continuance
of trial would be nothing but a futile exercise
and Court's precious time would get wasted for
futile exercise, if the application for withdrawal
from prosecution is not allowed (Para 24)

Allowed. (E-5)

List of Cases cited:

## Text

816 INDIAN LAW REPORTS ALLAHABAD SERIES
abducts any person in order that such
person may be murdered or may be so
disposed of as to be put in danger of being
murdered,
shall
be
punished
with
1[imprisonment for life] or rigorous
imprisonment for a term which may extend
to ten years, and shall also be liable to
fine."

37. Thus, upon a thorough marshaling
of the facts of this case and thread bare
scrutiny of the evidence on record, we have
no
hesitation
in
holding
that
the
prosecution has miserably failed to prove
by any cogent evidence that the appellants
after kidnapping the victim had made any
demand of ransom for releasing him or any
ransom was paid to them. Thus, the
prosecution has been unable to establish the
necessary
ingredients
for
convicting
appellants under section 364A I.P.C..
Therefore, the recorded conviction of the
appellants and the sentence awarded to
them under sections 363, 364A & 368
I.P.C. by the Trial Court vide impugned
judgement and order cannot be sustained
which are accordingly liable to be set aside.
The appellants are, thus, liable to be
convicted under section 364 I.P.C., for
which, they are liable to be sentenced to
undergo ten years' rigorous imprisonment
and a fine of Rs. 10,000/- each and in
default of payment of fine, they would
further undergo six months' additional
rigorous imprisonment.

38. The instant appeals are, thus,
partly
allowed.
The
conviction
of
appellants- Pankaj Mohan Srivastava,
Neeraj Mohan Srivastava, Rajit Ram
Verma and Rajesh under Sections 363,
364A and 368 I.P.C. and sentences awarded
therefor
are
hereby
set
aside
and
accordingly they are acquitted of these
charges. The appellants are convicted under
Section 364 I.P.C. and are hereby awarded
sentence of rigorous imprisonment for ten
years with a fine of Rs.10,000/- each and in
default of payment of fine, they would
undergo further six months' additional
rigorous imprisonment.

39. In case, the appellants have
already undergone sentences awarded to
them for the offence under Section 364
I.P.C., they shall be released forthwith,
unless required in any other case.

40. The appellants, after their release,
shall file a personal bond of Rs.50,000/-
and two sureties each in the like amount to
the satisfaction of the learned trial Court in
compliance of Section 437A Cr.P.C within
a period of two months from the date of
their release.

41. Let a copy of this judgment be
placed on records of Criminal Appeal
Nos.2809 of 2007 and 2366 of 2007.

42. Let the lower court record along
with a copy of this judgment be transmitted
forthwith to the concerned trial Court for
information and necessary compliance.
----------
(2022)07ILR A816
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.07.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Revision No. 12 of 2021

State of U.P. ...Revisionist
Versus
The Court of Spl. Judge M.P./M.L.A./A.S.J.
Vi Raebareli And Ors. ...Opposite Party

Counsel for the Revisionist:
7 All. State of U.P. Vs. The Court of Spl. Judge M.P./M.L.A./A.S.J. Vi Raebareli And Ors.
817
G.A.

Counsel for the Opposite Party:
Sudhir Pande

Criminal Law - Criminal Procedure Code,
1973 -Section 321 - Withdrawal from
prosecution - Court is required to consider
whether
withdrawal from prosecution
would further cause of justice or not and
whether it would be in public interest to
allow the withdrawal from prosecution.

Public Prosecutor filed application u/s 321
Cr.P.C. stating that there is no sufficient
evidence available on record to support the
charge & that prosecution case is weak - FIR
got registered because of political rivalry -
complainant himself submitted an application
that he would have no objection, if the
application is allowed - Held - When the
complainant himself is not supporting the
prosecution case, there was no chance of
conviction of the accused - case has been
remained pending since 2007 and continuance
of trial would be nothing but a futile exercise
and Court's precious time would get wasted for
futile exercise, if the application for withdrawal
from prosecution is not allowed (Para 24)

Allowed. (E-5)

List of Cases cited:

1. Bansi Lal Vs Chandan Lal & ors. (1976) 1 SCC
42

2. Balwant Singh & ors. Vs St. of Bihar (1977) 4
SCC 448

3. Sheonandan Paswan Vs St. of Bihar & ors.
(1983) 1 SCC 438

4. Vijaykumar Baldev Mishra @ Sharma Vs St. of
Mah. (2007) 12 SCC 687

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

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

1. Present revision has been filed by
the State under Section 397/401 Cr.P.C.
against the order dated 14.10.2020 passed
by learned Special Judge/M.P./M.L.A./ VIAdditional Sessions Judge, Raebareli on an
application filed by the Public Prosecutor
for
withdrawal
from
prosecution
in
Criminal Case No.573 of 2012: State vs
Mayankeswar Saran Singh and others
arising out of Crime No.158 of 2007 under
Sections 147, 148, 149, 307, 436, 397, 395,
323, 504, 506, 427 IPC and 2/3 U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act, (for short 'Gangsters Act')
Police
Station
Mohanganj,
District
Raebareli.

2. Learned trial Court has rejected the
said application on the ground that charge
has not yet been framed inasmuch as the
accused has not remained present before
the Court. The case has remained pending
since 2007. Application for withdrawal
from prosecution under Section 321 Cr.P.C.
was moved in the year 2012/2019.
However, Public Prosecutor in application
had not stated any fact on the basis of
which it would be evident that withdrawal
from prosecution would be in larger public
interest.
Public
Prosecutor
has
only
mentioned in the application that there is no
sufficient evidence available on record to
support the charge. Prosecution case is
weak and, therefore, in public interest,
permission be granted for withdrawal from
prosecution. It has been observed that on
the basis of present case, provisions of
Section 2/3 of the Gangsters Act were
invoked against the accused Mayankeswar
Saran Singh. District Magistrate gives
permission for invoking the provisions
under Section 2/3 of the Gangsters Act only
where there is sufficient evidence against
the accused for his prosecution. Learned
818 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate therefore, held that stand of the
prosecution itself is contradictory.

3. It has been further observed that
Public Prosecutor has not applied his
judicial mind properly at the time of filing
of the application. Accused, Mayankeswar
Saran Singh was a sitting M.L.A. and State
Minister in the Cabinet of the State
Government. It has been said that despite
him holding a constitutional post, he along
with 20-25 people sprinkled petrol on the
house of the complainant and set it on fire.
Withdrawal from prosecution in such a case
would not be in public interest, and if such
a case is allowed to be withdrawn, wrong
massage would be sent in public and it
would not be in the public interest.

4. The facts of the case are that the
election for U.P. Legislative Assembly
2007, respondent No.2- Mayankeswar
Saran Singh, who was sitting M.L.A. from
Tiloi Constituency in Raebareli was a
candidate of Samajwadi Party and Dinesh
Pratap Singh was the candidate of Bahujan
Samajwadi
Party
in
the
said
State
Assembly
Election.
The
complainant
(respondent No.14) was supporter of
Mr.Dinesh Pratap Singh, candidate of
Bahujan Samajwadi Party. He was earlier a
supporter of the accused, Mayankeswar
Saran Singh.

5. During course of said election for
U.P. Legislature Assembly Election 2007,
an FIR came to be registered on a
complaint of respondent No.14 alleging
that on 03.05.2007 at around 10:00 P.M.,
when the complainant was sitting outside
his house at that time, respondent No.2
along with his 20-25 supporters came from
4 vehicles. They started abusing him.
Accused-Maynkeswar
Saran
Singh
exhorted others to kill the complainant as
he had opposed him in the election. He also
exhorted his supporters to take out petrol
from the vehicles and set the house of the
complainant on fire. On this exhortation,
Ashok Singh, Krishna Kumar Soni, Manoj
Singh, Narsingh, Kunj Bihari Singh, Lallan
Singh and 8-9 persons, who came along
with him took out petrol from their vehicles
and ran towards the complainant. The
complainant went inside his house and
closed the door from inside. Persons came
with accused-Mayankeswar Saran Singh
tried to break open the house, and when
they were not successful, they sprinkled
petrol and set the door of the house on fire.
It was said that that complainant could flee
from the place from another door. On
raising alarm by him, some villagers came
running
towards
the
house
of
the
complainant but the accused terrorized
them by firing and threatened them that if
anyone come near the house of the
complainant, he would loose his life. After
an hour, the accused went back in their
vehicles. It was alleged that wife and
children of the complainant were badly
assaulted. It was further alleged that the
accused were throwing children in the fire.
However, their mother could save them. It
was further alleged that the accused had
also taken away jewellery, which was kept
for marriage of the daughter of the
complainant, and his household items were
set on fire. The accused had destroyed
tractor of the complainant and they had set
the tractor trolley on fire.

6. On the basis of the compliant, FIR
No.31
of
2007
was
registered
on
04.05.2007 against respondent No.2 and
other accused.

7. Police after investigating the
offence
filed
charge-sheet
against
respondent No.2 and other persons on
7 All. State of U.P. Vs. The Court of Spl. Judge M.P./M.L.A./A.S.J. Vi Raebareli And Ors.
819
which
cognizance
was
taken
on
13.07.2009.

8. Public Prosecutor had filed an
application under Section 321 Cr.P.C. for
withdrawal from prosecution after the State
Government
granted
permission
for
withdrawal from prosecution. In the said
application, it was said that Mr.Dinesh
Pratap Singh, who was rival candidate in
the State Assembly Election 2007, was
present at the police station when the FIR
came to be registered on 04.05.2007. It was
further said that medical examination of the
son of the complainant was conducted on
04.05.2007 at 12:50 Hours. However, no
medical examination of any other person
was conducted. It was further said that the
investigating
officer
recorded
the
statements of the family members of the
complainant,
and
there
were
glaring
contradictions in the statements of the
family members and other independent
witnesses. The application further mentions
that on considering the evidence available
in the case diary, case against the accused
appears to be very weak. Complainant's
son, Sajjan Singh did not mention that how
he received three injuries. Son of the
complainant was in security of Dinesh
Pratap Singh. There is no date mentioned in
the approval allegedly granted by District
Magistrate for invoking provisions of the
Gangsters Act against the accused and,
therefore, it was prayed that the application
be allowed and it should be withdrawn
from prosecution.

9. Notice was issued to the
complainant, respondent No.14. Initially, he
opposed the application for withdrawal but
on
06.03.2020,
he
moved
another
application and said that he did not press
his objection agaisnt withdrawal from
prosecution and his objection be rejected
and he would have no objection, if
application under Section 321 Cr.P.C. was
allowed.

10. Heard Mr.Anurag Verma, learned
A.G.A. along with Mr.V.K. Sahi, learned
Additional Advocate General for the State
and Mr.Sudhir Pandey, learned counsel for
opposite party No.14.

11. Section 321 Cr.P.C. as applicable
in the State of U.P. reads as under:-

"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 the 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
820 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

12. The scope of Section 321 Cr.P.C.,
ambit of power and manner in which it has
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
7 All. State of U.P. Vs. The Court of Spl. Judge M.P./M.L.A./A.S.J. Vi Raebareli And Ors.
821
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
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
822 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
7 All. State of U.P. Vs. The Court of Spl. Judge M.P./M.L.A./A.S.J. Vi Raebareli And Ors.
823
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 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
824 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 the application, it appears that Public
Prosecutor had filed the application under
Section 321 Cr.P.C. in good faith after
careful consideration of the material
available on record. The FIR got registered
because
of
political
rivalry.
The
complainant himself has submitted an
application before the learned trial Court
that he would have no objection, if the
application is allowed, and his earlier
objection on application under Section 321
Cr.P.C. for withdrawal from prosecution be
ignored.

24. The Court is required to consider
whether
withdrawal
from
prosecution
would further cause of justice or not and
7 All. Vishal Singh @ Pitarsan @ Vishal Kumar Singh Vs. State of U.P. & Anr.
825
whether it would be in public interest to
allow the withdrawal from prosecution.
When the complainant himself is not
supporting the prosecution case, this Court
is of the view that there is no chance of
conviction of the accused in the case. The
case has been remained pending since 2007
and continuance of trial would be nothing
but a futile exercise and Court's precious
time would get wasted for futile exercise, if
the
application
for
withdrawal
from
prosecution is not allowed.

25. Considering the stand of the
complainant, this Court is of the view that
withdrawal from prosecution would be in
the interest of justice. It would be
appropriate to allow the application for
withdrawal from prosecution. In view
thereof, this Court finds that view taken by
the learned Special Judge does not appear
to be correct view. The revision is allowed.
Impugned order dated 14.10.2020 passed
by learned Special Judge/M.P./M.L.A./ VIAdditional Sessions Judge, Raebareli is
hereby set aside. The application for
withdrawal
from
prosecution
is
also
allowed.
----------
(2022)07ILR A825
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.07.2022

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Criminal Revision No. 614 of 2021

Vishal Singh @ Pitarsan @ Vishal Kumar
Singh ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Kirtikar Pandey
Counsel for the Opposite Parties:
G.A.

Juvenile Justice (Care and Protection of
Children) Act, 2015 - Section 9 & 94 -
Presumption and determination of age -
Juvenile Justice (Care and Protection of
Children) Rules, 2007 - by virtue of S. 9 of
Act of 2015, Court, before whom the
matter is pending & the claim of juvenility
is raised by an accused, then such Court
is competent to make an enquiry, take
such evidence as may be necessary
excluding an affidavit and thereafter
record a finding stating the age of person
as nearly as may be - For making a claim
with regard to juvenility the claimant
must produce some material which may
prima facie satisfy the court that an
inquiry into the claim of juvenility is
necessary - Initial burden has to be
discharged by the person who claims
juvenility - As to what materials would
prima facie satisfy the court cannot be
catalogued - documents mentioned in
Sub-section (2) of Section 94 of JJ Act,
2015, shall be sufficient for prima facie
satisfaction of the Court (Para 33, 51)

Incident occurred on 4.11.2017, a prompt F.I.R.
lodged, revisionist named as accused - chargesheet against accused submitted - Magistrate
took cognizance - matter pending in the court -
revisionist filed an application u/s 9 Juvenile
Justice (Care and Protection of Children) Act,
2015 to be declared a Juvenile on the date of
occurrence i.e. 4.11.2017 - on the ground that
date of birth recorded in the certificatecummark-sheet
issued
by
U.P.
Board
is
17.12.2000, as such, revisionist was aged about
17 years 8 months and 16 days on the date of
occurrence - on the other hand first informant
stated that the Revisionist date of birth recorded
in the mark-sheet, is 9.1.199, as such, on the
date of occurrence revisionist was aged about
18 years 10 months and 3 days - Trial court
held that since it was revisionist who was
claiming juvenility the burden to prove and
establish the same was upon revisionist himself
and revisionist having failed to do so, Court
below rejected the application filed by revisionist
claiming juvenility - Criminal Revision filed