The Allahabad High Court while dismissing an application said that on the application by the public prosecutor to withdraw the criminal case on the basis of government order without mentioning any reason or his opinion, court should not permit to withdraw the prosecution as the same is not permissible in the eyes of law.
A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under Section 482 filed by Dilip Singh.
The 482 CrPC application has been filed to quash the order dated 04.09.2017 passed by the Additional Chief Judicial Magistrate, Basti in Case under Sections 384, 352, 504, 506 IPC arising out of Case at PS Paikoliya, District Basti as well as quash the order dated 31.08.2018 passed in Criminal Revision and prayer made to allow the application under Section 321 CrPC.
The contention of the counsel for the applicant is that while rejecting the application of the State under Section 321 CrPC, the court below had not considered the fact that on the basis of material, no case is made out against him and this fact was ignored by the revisional court and both the impugned orders are absolutely erroneous.
Counsel for the opposite party no 2 has submitted that while filing the application under Section 321 CrPC, State has not mentioned the reason for withdrawing the prosecution. The prosecution can be withdrawn under Section 321 CrPC in public interest as there is no public interest involved in the case.
Therefore, the application under Section 321 CrPC of the public prosecutor was rightly rejected by the court below and revision of the applicant was also rightly rejected.
It is further submitted that the trial is at an advanced stage and the statement of the accused-applicant has been recorded under Section 313 CrPC.
It is also submitted that the applicant is a history-sheeter, having 32 cases against him therefore, State has for mala fide reason, moved an application to withdraw the prosecution through the Government Order dated 06.05.2013. Therefore, the court below has rightly rejected the withdrawal application.
The Court observed that,
Having heard counsel for the parties and the perused the material on record, it appears that FIR was lodged by opposite party no 2 against the applicant under Sections 384, 506 IPC and subsequently after the investigation, police had submitted charge sheet against the applicant under Sections 384, 352, 504, 506 IPC and during the pendency of the trial, State has filed an application under Section 321 CrPC seeking permission of court to withdraw the prosecution against the applicant on the ground that the State has decided to withdraw the prosecution against the applicant through Government Order dated 06.05.2013.
In that application the public prosecutor has not mentioned any reason or public interest for withdrawal of prosecution against the applicant, though it is the duty of public prosecutor as per the judgment of Apex Court in the case of Abdul Wahab K Vs State of Kerala and other (2018) 18 SCC 448.
State has power to withdraw the prosecution under Section 321 CrPC at two stages, one is at before the framing of charge or after the framing of charge.
“The legal position regarding withdrawal of cases is clear that it cannot be withdrawn merely government has issued a Government Order and public prosecutor should also apply his mind by mentioning in his application filed under Section 321 CrPC that he is satisfied that the application has been made under good faith and in the interest of public policy and justice.
Coming back to the case, it is clear from the perusal of the record that the applicant, who is accused in the impugned proceeding is a history-sheeter having 32 cases against him and no reason was assigned in the application filed by the public prosecutor under Section 321 CrPC for withdrawing the prosecution against the applicant. If the prosecution is permitted to withdraw a case against such a person on the basis of unreasonable application then it would definitely be against the public interest as well as against the guidelines laid down by the Apex Court.
Therefore, the Court does not find any illegality in the impugned order,” the Court further observed while dismissing the application.