Apr - High Court of Judicature at Allahabad

1 All Dev Sharan Yadav V. State of U.P. 455
the applicant under the instruction dated
21.02.2007 given by the State
Government. Learned Magistrate
considered the application and arrived at
the conclusion that the charge against
the applicant was of serious in nature,
therefore, it was not proper in public
interest to permit withdrawal from
prosecution. Accordingly, the learned
Magistrate rejected the application vide
his order dated 14.12.2007.
5. The learned counsel for the
applicant submitted that the applicant is
an old person aged about 63 years who
has deposited the entire amount
involved in the present case in the
Government treasury. More so he has no
criminal antecedent, therefore, no useful
purpose would be served to try the
applicant, therefore, it was desirable on
the part of the learned Magistrate to
allow the application for withdrawal
from the prosecution. It was next
submitted that the application for
withdrawal from the prosecution could
be moved on the instruction of the State
Government because the Uttar Pradesh
Act No. 18 of 1991 has amended section
321 of the Code of Criminal Procedure
with effect from 16.02.1991 which
provides that the application for
withdrawal from the prosecution can be
moved by the Public Prosecutor or the
Assistant Public Prosecutor in-charge of
the case on the written permission of the
State Government which shall be filed
in the court.
6. Learned counsel for the
applicant further submitted that in view
of the Apex Court verdict in the case of
Rajender Kumar Jain Vs. State (1980)
3 SCC 435, the ultimate discretion to
withdraw from prosecution was of the
Assistant Prosecuting Officer in-charge
of the case and the court's jurisdiction
was merely supervisory in nature,
therefore, what was open to the court
was to see whether the Public
Prosecutor acted with independent mind
in the broader interest of public justice,
therefore, according to that verdict the
court is required to see the broader
interest of public justice, public order
and peace while considering an
application under section 321 of the
Code of Criminal Procedure. It was
further held in that case that the court's
duty 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, 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. In the case of
State of Orissa Vs. Chandrika
Mohapatra and others (1976) 4 SCC
250 , the Apex Court propounded the
principles that the ultimate guiding
consideration must always be the
interest of administration of justice and
that is touch stone on which the
question must be determined. However,
the Apex Court further opined that 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.