Hon'ble Dinesh Kumar Singh,J.
(Delivered by Hon'ble Dinesh Kumar Singh, J.)
1. The present writ petition has been filed for quashing of the order dated 21st August, 2017 passed by the State Government, Annexure-1 to the petition, whereby the Government has reconsidered its earlier decision dated 16th December, 2016 of withdrawal from prosecution in relation to Case Crime No.639 of 2010, under Sections 420, 465, 467, 468, 471 and 120-B I.P.C., Police Station Hazratganj, District Lucknow. The Government has taken the decision to cancel its earlier order and continue with the prosecution. The petitioner has also challenged the application dated 12th October, 2017 which has been moved by the Public Prosecutor before learned Chief Judicial Magistrate, Lucknow after the decision of the Government dated 21st August, 2017 to not press earlier application filed by the Public Prosecutor for withdrawal from prosecution.
2. As it comes out from the record, one Smt. Meenakshi Singh, an I.R.S., was posted at Lucknow along with her husband Mr. Rajeev Krishna, an I.P.S., who was also posted as Senior Superintendent of Police/Deputy Inspector General of Police, Lucknow in the year 2010, respondent nos. 1 and 2 respectively, gave a hand-written complaint at the Police Station Hazratganj stating therein that some unknown persons had been using letter-pads of eminent persons to write baseless complaints by forging their signatures against her. When the letter-pads came to her and she confronted the eminent persons, whose letter-pads were misused by forging their signatures, they denied any such complaint by them, rather they said that these letters were forged.
3. On the basis of aforesaid complaint, a first information report at Case Crime No.639 of 2010 was registered on 26th August, 2010 at Police Station Hazratganj, District Lucknow. It appears that during the course of investigation, name of accused person came into light and evidence was gathered in respect of his involvement in commission of aforesaid crime. The State Government, however, later on took a decision to withdraw from prosecution and sent its consent to the Public Prosecutor for withdrawal from prosecution vide order dated 16th December, 2016. After receiving the consent of the Government, the Public Prosecutor moved an application dated 19th January, 2017 before the learned Chief Judicial Magistrate, Lucknow for withdrawal from prosecution on the ground that the petitioner was not named in the first information report and there is no sufficient evidence regarding petitioner's involvement in forging the letter-pads and documents alleged to have been forged by using the letter-pads of eminent persons and forging their signatures on the complaint against respondent no. 2. While the application moved for withdrawal from prosecution was pending before the learned Chief Judicial Magistrate, Lucknow for final decision, the Government has re-considered its earlier decision/order dated 16th December, 2016 for withdrawal from prosecution and cancelled the same vide impugned order dated 21st August, 2017. In pursuance thereof, the Public Prosecutor moved the application dated 12th October, 2017 before the learned Chief Judicial Magistrate, Lucknow to not press the earlier application in view of the Order dated 21st August, 2017 passed by the Government.
4 We have heard learned counsel for the petitioner and the learned Additional Government Advocate for the State-respondent.
5 Learned counsel for the petitioner has argued that the earlier decision of the Government was a considered decision, based on the material available before it for withdrawal from prosecution inasmuch as there was no chance of conviction of the petitioner on the basis of evidence and material available. The subsequent decision does not show that any fresh material was available before the Government to re-consider its earlier decision of withdrawal from prosecution and without disclosing fresh material the impugned decision is bad in law and has been taken in an arbitrary manner which is unjust, improper and unreasonable. Since it affects the valuable rights of the petitioner inasmuch as the petitioner has to face the prosecution where the chance of conviction is very remote, the impugned decision appears to be guided by extraneous consideration and, therefore, is liable to be set-aside.
6. Section 321 Criminal Procedure Code, 1973 (hereinafter referred to as ''Cr.P.C.') provides for withdrawal from prosecution. It deals with power of Public Prosecutor or Assistant Public Prosecutor to withdraw criminal case. Section 321 Cr.P.C. is extracted hereinbelow:-
"321. withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal;
1. If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
2. if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences;
Provided that where such offence--
1. was against any law relating to a matter to which the executive power of the Union extends, or
2. was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
3. involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
4. was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.
7. Vide U.P. Act 18 of 1991, through a State Amendment with effect from 16th February, 1991 the words "in-charge of a case may" have been further supplemented by the words "on the written permission of the State Government to that effect (which shall be filed in Court)." Thus, by State Amendment, it has been made obligatory for the Public Prosecutor or Assistant Public Prosecutor of the Government to withdraw a criminal case only after written permission of the State Government and the permission so obtained from the State Government necessarily be filed in the Court.
8. The scope of Section 321 Cr.P.C., ambit of power and manner in which it has to be exercised by the Public Prosecutor have been dealt with in several decisions by the Supreme Court. Only a few decisions rendered by the Supreme Court would be apt to quote here to throw light on the scope of Section 321 Cr.P.C. and ambit and manner of exercise of the power by the Public Prosecutor under the aforesaid section. Ultimate authority to allow withdrawal from prosecution vests with the Court and the guiding consideration must always be interest of administration of justice when deciding the question whether prosecution should be allowed to be withdrawn or not.
9. In Bansi Lal Versus Chandan Lal and others (1976) 1 SCC 421, the Supreme Court has held in para-5 which, on reproduction, reads as under:-
"5...........Therefore when the Additional Sessions Judge made the impugned order, there was no material before him to warrant the conclusion that sufficient evidence would not be forthcoming to sustain the charges or that there was any reliable subsequent information falsifying the prosecution case or any other circumstance justifying withdrawal of the case against the respondents. Consenting to the withdrawal of the case on the view that the attitude displayed by the prosecution made it "futile" to refuse permission does not certainly serve the administration of justice. If the material before the Additional Sessions Judge was considered sufficient to enable him to frame the charges against the respondents, it is not possible to say that there was no evidence in support of the Prosecution case. The application for stay of the proceeding made before the committing Magistrate cannot also be said to falsify the prosecution case. If the prosecuting agency brings before the court sufficient material to indicate that the prosecution was based on false evidence, the court would be justified in consenting to the withdrawal of the prosecution, but on the record of the case, as it is, we do not find any such justification......."
10. In Balwant Singh and others Versus State of Bihar (1977) 4 SCC 448, the Supreme Court, while considering the role of the Public Prosecutor while moving an application for withdrawal from prosecution, has dealt upon the consideration which must weigh for moving such an application. The Public Prosecutor must keep in mind the administration of justice inasmuch as he is discharging the statutory responsibility and while discharging the statutory responsibility the only factor, which should be considered, is administration of justice and nothing else. Relevant portion of paragraph-2 is reproduced hereinbelow:-
"2. .....................The statutory responsibility for deciding upon withdrawal squarely vests on the public prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only matter of the public prosecutor and he has to guide himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. As we have already explained, public justice may be a much wider conception than the justice in a particular case. Here, the Public Prosecutor is ordered to move for withdrawal......."
11. In Sheonandan Paswan Versus State of Bihar and others (1983) 1 SCC 438, the Supreme Court has held that before an application is moved under Section 321 Cr.P.C., the Public Prosecutor needs to apply his mind to the facts of the case independently, without being influenced by outside factors. Relevant paragraphs, on reproduction, read as under:-
"85. In our opinion, the object of Section 321 Cr.P.C. appears to be to reserve power to the Executive Government to withdraw any criminal case on larger grounds of public policy such as inexpediency of prosecutions for reasons of State; broader public interest like maintenance of law and order; maintenance of public peace and harmony, social, economic and political; changed social and political situation; avoidance of destabilization of a stable government and the like. And such powers have been, in our opinion, rightly reserved for the Government; for, who but the Government is in the know of such conditions and situations prevailing in a State or in the country? The Court is not in a position to know such situations."
134. The statutory responsibility for deciding upon withdrawal squarely rests upon the Public Prosecutor. It is non-negotiable and cannot be bartered away. The court's duty in dealing with the application under Section 321 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 un-influenced by irrelevant and extraneous or oblique considerations as the court has a special duty in this regard inasmuch as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from prosecution. The court's duty is to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice."
12. The Supreme Court has also dealt with in a catena of decisions the manner in which an application for withdrawal from prosecution moved by the Public Prosecutor needs to be considered by the Court.
13. In State of Punjab Versus Union of India and others (1986) 4 SCC 335, the Supreme Court has held that while granting permission to the Public Prosecutor for withdrawal from prosecution, the Court needs to be satisfied itself that the Public Prosecutor has properly exercised statutory function and has not attempted to interfere with the normal course of justice for ulterior purposes. The administration of criminal justice should be the touchstone on which the application under Section 321 Cr.P.C. needs to be decided. Relevant portion of paragraph-1, on reproduction, reads as under:-
"1. ............ The ultimate guiding consideration while granting a permission to withdraw from the prosecution must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to withdraw. The Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice, and such broad ends of public justice may well include appropriate social, economic and political purposes."
14. Similar views have been reiterated in Sheonandan Paswan Versus State of Bihar and others (1987) 1 SCC 288 by the Supreme Court. Paragraph-73, on reproduction, reads as under:-
"73. Section 321 gives the Public Prosecutor the power for withdrawal of any case at any stage before judgment is pronounced. This presupposes the fact that the entire evidence may have been adduced in the case, before the application is made. When an application under Section 32I 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. To contend that the court when it exercises its limited power of giving consent under Section 32I has to assess the evidence and find out whether the case would end in acquittal or conviction, would be to rewrite Section 321 Cr.P.C. and would be to concede to the court a power which the scheme of Section 321 does not contemplate. The acquittal or discharge order under Section 321 are not the same as the normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion of the evidence in the case of acquittal or absence of prima facie case or groundlessness in the case of discharge. All that the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering these facets of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. In this case, on a reading of the application for withdrawal, the order of consent and the other attendant circumstances, I have no hesitation to hold that the application for withdrawal and the order giving consent were proper and strictly within the confines of Section 321 Cr.P.C."
15. In S.K. Shukla and others Versus State of U.P. and others (2006) 1 SCC 314, the Supreme Court has held that the Public Prosecutor cannot work like a post box. He needs to act objectively being an officer of the Court and it is always open to the Court to reject the prayer if it is not guided in the interest of administration of justice. Relevant portion of paragraph-32, on reproduction, reads as under:-
"32. .....The Public Prosecutor cannot act like a postbox or act on the dictates of the State Government. He has to act objectively as he is also an officer of the court. At the same time the court is also not bound by that. The courts are also free to assess whether a prima face case is made or not. The court, if satisfied, can also reject the prayer."
16. In Vijaykumar Baldev Mishra alias Sharma Versus State of Maharashtra (2007) 12 SCC 687 the Supreme Court has held as under:-
"12. Section 321 of the Criminal Procedure Code, 1973 provides for withdrawal from prosecution at the instance of the public prosecutor or Assistant public prosecutor. Indisputably therefor the consent of the Court is necessary. Application of mind on the part of the Court, therefore, is necessary in regard to the grounds for withdrawal from the prosecution in respect of any one or more of the offences for which the appellant is tried. The provisions of TADA could be attracted only in the event of one or the other of the four 'things' specified in Nalini (supra) is found applicable and not otherwise. The Review Committee made recommendations upon consideration of all relevant facts. It came to its opinion upon considering the materials on record. Its recommendations were based also upon the legality of the charges under TADA in the fact situation obtaining in each case. It came to the conclusion that in committing the purported offence, the appellant inter alia had no intention to strike terror in people or any section of the people and in fact the murder has been committed only in view of group rivalry and because the parties intended to take revenge, the provisions of the TADA should not have been invoked.
13. The Public Prosecutor in terms of the statutory scheme laid down under the Code of Criminal Procedure plays an important role. He is supposed to be an independent person. While filing such an application, the public prosecutor also is required to apply his own mind and the effect thereof on the society in the event such permission is granted."
17. In Rahul Agarwal Versus Rakesh Jain and another (2005) 2 SCC 377, the Supreme Court has held that while considering an application moved under Section 321 Cr.P.C., the Court should consider all relevant circumstances and find out whether the withdrawal from prosecution advances the cause of justice. The withdrawal can be permitted only when the case is likely to end in an acquittal and continuance of the case would only cause severe harassment to the accused. Relevant para-10 is extracted hereunder:-
"10. 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. If the withdrawal of 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. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."
18. This Court vide judgment and order dated 12th December, 2013 passed in writ petition bearing Writ Petition No. 4683 (M/B) of 2013 ''Ms. Ranjana Agnihotri and others Versus Union of India' while dealing the scope, power and ambit under Section 321 Cr.P.C. has held in paras-116 and 117 which, on reproduction, read as under:-
"116. In view of above, the Public Prosecutor is the final authority to apply mind and take a decision whether an application for withdrawal of a criminal case is to be moved or not. For that, option is open to him to receive necessary instructions or information from the Government to make up mind on the basis of material made available. The Public Prosecutor cannot act like post box or at the dictate of the State Government. He has to act objectively as he is also an officer of the court. It is also open for the appropriate Government to issue appropriate instruction to him but he has to act objectively with regard to the withdrawal of cases. But the instruction sent by the government shall not be binding and it is the Public Prosecutor who has to take a decision independently without any political favour or party pressure or like concerns. The sole object of the Public Prosecutor is the interest of administration of justice. Power conferred on Public Prosecutor to take independent decision for the interest of administration of justice is not negotiable and cannot be bartered away in favour of those who may be above him on administrative side. He is stood to be guided by letter and spirit of Code of Criminal Procedure only and not otherwise. Neither the Public Prosecutor nor the Magistrate can surrender their discretion while exercising power at their end.
117. Similarly, the Court has duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort of the provisions contained in Section 321 Cr.P.C. The court has to record a finding that the application moved by Public Prosecutor is in the interest of administration of justice and there is no abuse or misuse of power by the Public Prosecutor or the Government. In case an application is allowed, it must be recorded by the Court that the application has been moved in good faith to secure the ends of justice and not in political or vested interest. The court has final say in the matter and the decision should be free and fair with independent exercise of mind in the interest of public policy and justice. It must ensure that the application is not moved to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given."
19. In the present case, the State Government vide its earlier order dated 16th December, 2016 decided to grant permission to withdraw from the case only on the ground that the petitioner was not named in the F.I.R. The culpability of an accused, when he is not named in the F.I.R., can be ascertained during investigation, inquiry and trial. In our considered view, at the threshold, the prosecution should not be sculled only on the ground that the accused was not named in the F.I.R. The State Government needs to exercise the power conferred under Section 321 Cr.P.C., keeping in mind the administration of criminal justice. The State Government does not possess unbridled power to be exercised in a whimsical or arbitrary manner or for extraneous consideration while taking a decision with respect to grant of permission under Section 321 Cr.P.C. for withdrawal from prosecution. Therefore, the State, if on the material placed before it, reconsiders its earlier decision, it, in no manner, infringes any right of an accused, who is facing the prosecution in a case.
20. This Court in Ram Narain Yadav Versus State of U.P. and others (Criminal Misc. Writ Petition No. 10816 of 2015) has held that the Government is not at all free to exercise its authority power under Section 321 Cr.P.C. in whimsical or arbitrary manner or for extraneous consideration. Apart from just and valid reason, there is no bar for the Government to re-consider its earlier decision if the application for withdrawal from prosecution is still pending for consideration before the learned Court below.
21. In this case, while the application moved on the basis of earlier decision was pending for consideration, the Government has re-considered its earlier decision taken on 16th December, 2016 and cancelled the same vide the impugned order dated 21st August, 2017. This Court does not find any wrong in exercise of power by the Government to cancel its earlier decision of withdrawal from prosecution. Moreover, the accused has no role assigned under Section 321 Cr.P.C. The decision for withdrawal from prosecution has to be taken only by the Public Prosecutor or Assistant Public Prosecutor, as the case may be, on a written permission by the State Government. If an application is pending for withdrawal from prosecution and the State Government decides to withdraw its permission, we do not find that this gives a cause of action to the accused to impugn such a decision of the State Government. An application for withdrawal of prosecution can be withdrawn if the State Government on reconsideration of material comes to the conclusion that the permission earlier granted to the Public Prosecutor needs to be withdrawn.
22. We do not see that if the State Government reconsiders its decision of granting permission to withdraw from prosecution while the application is pending, it violates any fundamental or legal right of the accused to approach this Court, invoking its writ jurisdiction to impugn such a decision of the State Government.The writ petition is, thus, misconceived and, therefore, dismissed.
Order Date :- 29 March, 2018 MVS Chauhan/-