Apr - High Court of Judicature at Allahabad

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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. ---------
1 All Abdul Aziz Ansari V. State of U.P. and another 457 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.03.2011 BEFORE THE HON'BLE F.I.REBELLO, C.J. THE HON'BLE VINEET SARAN, J. Civil Misc. Writ Petition No. 7849 of 2011 Abdul Aziz Ansari ...Petitioner Versus State of U.P. and another ...Respondents Counsel for the Petitioner: Sri Amit Saxena Sri P.N.Saxena Counsel for the respondents Sri Irshad Hussain C.S.C. U.P. Municipalities Act 1916-Section 48 (2) (a) and (b) (vi)(xi)(xiv)-necessity of recording reasons-ceasure of financial and administrative Power of President Nagar Palika Parishad-without considering reply as well as written submission-mere saying no material available-highly shocking-even administrative authority are bound to give reasons-order can not sustain. Held: Para 9 In the present case, what we see is that the entire exercise has been undertaken by the respondent authorities with a predetermined mind, throwing to the winds the entire procedure prescribed in law. This is evident from a plain reading of impugned order as well as the conduct of the respondents while dealing with a serious matter of removal of the petitioner who is a democratically elected President of Nagar Palika Parishad. Neither his reply has been properly considered nor written submissions taken into account, except for a mere mention in the order that nothing material has been stated therein. If this is permitted, then in every case all replies, arguments and submissions can always be brushed aside in a sentence by stating that nothing material has been argued or submitted and thus the reply or submission is rejected. Authorities performing quasi judicial functions are obliged to give reasons for not accepting the replies or submissions of a party. This is to ensure that there is nothing arbitrary in the actions of the authorities and that the authority has looked into the matter after applying his mind. In the present case, the same is totally lacking. This Court strongly deprecates the same. What we also notice is that the conduct of the respondents in the case of the petitioner earlier also has not been very fair as once after the order ceasing the financial and administrative powers of the petitioner as President had been stayed by this Court on 4.2.2010, the same was not restored for more than four months till 23.6.2010, without there even being any stay order from the Apex Court in the Special Leave Petition filed by the respondents, which was ultimately dismissed. (Delivered by Hon'ble F.I.Rebello, C.J.) 1. The petitioner was elected as President of Nagar Palika Parishad, Kairana, Muzaffar Nagar and took charge of the said office on 16.11.2006. The term of office of the petitioner is five years. In the preceding five years term also, the petitioner was elected and functioned as President of Nagar Palika Parishad. On 20.1.2009, a complaint was lodged by the two members of the Nagar Palika Parishad, which related to the business of the Parishad conducted during the term prior to 2006 as well as for the current term. On 27.8.2009, the petitioner was issued a show cause notice by the State Government as to why the petitioner may not be removed from the office of the
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Apr - High Court of Judicature at Allahabad

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