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Ashraf Ali Son Of Munawar Ali vs State Of U.P.

High Court Of Judicature at Allahabad|31 March, 2004


JUDGMENT Poonam Srivastava, J.
1. Heard learned counsel for the parties.
2. The present application under Section 482 Cr.P.C. has been filed to quash the order dated 1.10.1997 passed by the Chief Judicial Magistrate, Jalaun in Case No. 4140 of 1997, under Sections 147, 148, 149, 323, 353, 336, 436, 307, 427 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Jalaun, District Jalaun.
3. The facts of the present case is that the F.I.R was lodged by Nand Lal Dixit, Inspector Incharge, Police Station Jalaun relating to an occurrence, alleged to have taken place on 24.9.1988. The allegation of the F.I.R. was relating to an incident which took place on the date and time of occurrence, specific allegation was that about 500-600 people formed an unlawful assembly and started to cause damage at the police station Jalaun. The unlawful assembly was headed by one Zaheer, a local Neta, Aslam and Ashraf Advocates and one Radhey Shyam Dixit of Lokdal. There were 35 accused named in the F.I.R. The investigation was transferred to C.B.C.I.D. and it has been stated in the affidavit that a charge sheet was filed which is annexed as Annexure-2 to the affidavit. An application was filed by the Public Prosecuting Officer under Section 321 Cr.P.C. on 18.9.1997 alongwith copy of the permission of the State of U.P. vide order No. 121 PIP/7-Nyay-5-97 dated 11.9.1997 as amended up to date. The State Government had permitted the Public Prosecuting Officer after taking all the facts and circumstances in to consideration for withdrawal of the case. The permission was also annexed with the said application which was dismissed by the Chief Judicial Magistrate, Jalaun at Orai vide order dated 1.10.1997 which is sought to be quashed in the present proceedings.
4. The Magistrate while dismissing the application had perused the F.I.R. and also tried to apprise the evidence which was before him alongwith charge sheet and rejected the application after deciding the merits of the case.
5. Despite time having been granted no counter affidavit has been filed by the learned A.G.A. During the course of argument learned counsel for the applicant placed reliance on a number of decisions of the Apex Court in the. case of The Public Prosecutor, High Court of Andhra Pradesh v. Paga Pulla Reddy and Anr., 1977 Cri. L. J. 2013, State of Bihar v. Ram Naresh, A.I.R. 1957 S.C. 389, Baladin and Ors. v. State of Uttar Pradesh, A.I.R. 1958, S.C. 181, Sheo Nandan Paswan v. State of Bihar, A.I.R. 1987, S.C., 877. The Apex Court has ruled that if an application under Section 321 Cr.P.C. is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. The Court's function is to give consent. This section does not obligate the Court to record reasons before consent is given. All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper. In the present case the order challenged will show that the Magistrate has made an assessment of the evidence and there is no whisper on the question as to whether the application given by the Public Prosecutor was wheather in good faith or not. The application has been rejected on extraneous reasons which is not called upon by the Magistrate to decide while deciding the application under Section 321 Cr.P.C. The aforesaid principles has also been followed by the Apex Court in the case of Abdul Karim v. State of Karnataka, A.C.C. 2001 (54), 116. The only discretion given to the Public Prosecutor is that while considering the relevant material the Public Prosecutor should act in good faith and satisfied that withdrawal is in public interest. The Court while granting consent has to ensure that a Public Prosecutor has applied his mind independently and act in good faith. In the instant case no finding has been given on the question which is relevant while deciding the application under Section 321 Cr.P.C. The learned Magistrate has not even looked in to the letter/ permission by the State Government granting permission for withdrawal of the case. A perusal of the impugned order show there is no reference about the aforesaid permission, hence the order suffers from material illegality. The latest decision on the question where the said principles have been followed is the case of N. Natrajan v. B.K. Subba Rao, 2003 (2) S.C.C., 76. The Apex Court has held that the Public Prosecutor has full freedom to function effectively, independently, fearlessly. I have carefully considered the principles laid down by the Supreme Court and gone through the judgment of the Chief Judicial Magistrate and I find that the order challenged in the present application has been passed without following the principles laid down by Supreme Court and deserves to be quashed.
6. The Magistrate has refused withdrawal of the case and considered various other aspects while rejecting the application under Section 321 Cr.P.C. such as injury report and the 35 accused are named in the F.I.R. The court has completely lost sight of the basic principles, as also enunciated by the Supreme Court that withdrawal of prosecution is an executive function and is an exclusive domain of the public prosecutor. In the present case the application under Section 321 Cr.P.C. was not only an exclusive opinion of the prosecutor but also supported by a letter/permission of the State Government. The function of the court while granting permission of withdraw is only of a supervisory nature. I am satisfied after perusal of the record and the order under challenge that the Chief Judicial Magistrate has acted beyond his jurisdiction and adjudicated the case on merits which is beyond the scope of the provision of law.
7. For the reasons discussed above, the present application is allowed and the order dated 1.10.1997 passed by the Chief Judicial Magistrate, Jalaun is quashed. There shall be no order as to costs.
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Ashraf Ali Son Of Munawar Ali vs State Of U.P.


High Court Of Judicature at Allahabad

31 March, 2004
  • P Srivastava