Apr - High Court of Judicature at Allahabad

454 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.04.2011
BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.
U/S 482/378/407 No. - 3849 of 2008
Dev Sharan Yadav
Versus
State of U.P.
Counsel for the Petitioner:
Sri Balram Yadav
Counsel for the Respondent:
Govt.Advocate
...Petitioner
...Respondent
Code of Criminal Procedure-Section
321-Application for withdrawal of
prosecution-as offence under Section
309 I.P.C.-applicant already deposited
entire amount of embezzlementrejection
by magistrate confining its
consideration on gravity of caseignoring
other factors like growing
age, pendency of criminal case for last
28 years-held-not proper direction for
re-consideration issued.
Held: Para 8
The learned Magistrate seems to have
passed the impugned order in a
slipshod manner without considering
the relevant facts of the case and
guided himself on the basis of gravity
of the crime and held that it was not in
public interest to allow the prayer for
withdrawal from prosecution. The
gravity of the crime cannot be said to
be the sole guiding factor for deciding
the petition under section 321 of the
Code of Criminal Procedure. The
learned Magistrate should have taken
into account other relevant factors
such as the old age of the applicant, his
criminal history, if any, as well as the
fact that he had deposited the entire
amount involved the present case. It
was also a relevant factor that the
F.I.R. is of the year 1982 and since
then more than 28 years have elapsed
but the trial is still pending with no
logical progress. Was it in public
interest to keep the trial pending after
about 28 years specially in a case
where embezzled amount had been
deposited and the Public Prosecutor
wanted withdrawal from the
prosecution. All these facts need to be
given due consideration by the learned
Magistrate while considering the
application filed under section 321 of
the Code of Criminal Procedure. In
view of the fact that the learned
Magistrate has not considered all the
relevant aspects of the matter and
passed the impugned order in a
summary manner, it would be just and
expedient to direct the learned
Magistrate to reconsider the matter.
Case law discussed:
(1980) 3 SCC 435; (1976) 4 SCC 250; 2005
(51) ACC 724 (SC)
(Delivered by Hon'ble Shri Kant Tripathi,J.)
1. Heard learned counsel applicant
and learned AGA for the respondents
and perused the record.
2. Counter and rejoinder affidavits
have been exchanged.
3. With the consent of the learned
counsel for the parties, this application
is being disposed of finally.
4. It appears that the applicant is
an accused in the case crime no. 197 of
1982, under section 409 I.P.C., Police
Station-Inayatnagar, District-Faizabad,
pending in the court of First Judicial
Magistrate, Faizabad. The Assistant
Prosecuting Officer in-charge of the
case moved an application under section
321 of the Code of Criminal Procedure
for withdrawal from the prosecution of