Apr - High Court of Judicature at Allahabad

456 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
7. In the case of Rahul Agarwal
Vs. Rakesh Jain and another, 2005
(51) ACC 724 (SC) the Apex Court
reiterated the aforesaid principles and
held:
"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 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".
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.
9. Therefore, the application is
allowed and the impugned order dated
14.12.2007 (Annexure No. 1) is
quashed. The learned Magistrate is
directed to reconsider the matter in the
light of the observations made
hereinbefore and pass appropriate order
afresh in accordance with law.
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