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Allahabad High Court allows withdrawal of prosecution against UP MLA Prem Narayan Pandey

The Allahabad High Court has allowed the Public Prosecutor’s application for the withdrawal of prosecution against UP BJP MLA Prem Narayan Pandey.

A single-judge bench of Justice Rajesh Singh Chauhan passed this order while hearing an application under Section 482 filed by Prem Narayan Pandey.

By means of the application/petition filed under Section 482 CrPC, the applicant has prayed for the following reliefs:-

“(i) to quash the impugned judgment and order dated 04.11.2020, passed by the learned Additional Session Judge, Special Judge (MP/MLA), Gonda, arising out of Case under Section 60/72 of Excise Act, Police Station Tarabganj, District Gonda.

(ii) to allow the application filed by the Public Prosecutor under Section 321 CrPC bearing Application No 26Ka.

(iii) to quash the entire criminal proceedings of Crl Case No 100 of 2019; State vs Prem Narayan Pandey, arising out of Case under Section 60/72 of Excise Act, Police Station Tarabganj, District Gonda pending in the Court of learned Addl. Chief Judicial Magistrate, Special Judge MP/MLA, Gonda.”

The counsel for the applicant has drawn attention of the Court towards the order dated 04.02.2023 passed by the trial court rejecting the discharge application of the petitioner which was filed pursuant to the order dated 01.12.2022.

The counsel for the applicant stated that a letter dated 14.11.2019 has been preferred from the office of the District Magistrate, Gonda to the Joint Director, Prosecution, Gonda referring a letter dated 01.11.2019 for withdrawal of the prosecution against the applicant.

Pursuant thereof an application under Section 321 CrPC was filed on 23.11.2019 before the trial court concerned by the Assistant Public Prosecutor (Criminal).

The counsel for the applicant further stated the trial court refused to allow the application filed under Section 321 CrPC only on the ground that no documentary material has been put forth demonstrating that such withdrawal is in the interest of public justice.

The counsel for the applicant also stated that Section 321 CrPC clothes the Public Prosecutor to withdraw from prosecution of any person accused of an offence, both when no evidence was taken or even if entire evidence has been taken. The outer limit for the exercise of this power at any time before the judgment is pronounced. The caveat for moving the application under Section 321 CrPC is the Public Prosecutor has to make out some ground which would advance or further the cause of public justice. If the Public Prosecutor shows that he may not be able to produce sufficient evidence to sustain the charge, an application for withdrawal from prosecution may be legitimately made by him, as held in the case of Sheonandan Paswan vs State of Bihar (1987) 1 SCC 288.

The counsel for the applicant said the nature of the case which is sought to be withdrawn would not affect the society at large, thus, such withdrawal would not be against the public justice.

The counsel for the applicant also submitted that though after framing of the charge, the evidence of the witnesses of fact by prosecution has been examined but the application for withdrawal can be allowed at any stage before pronouncement of judgment, thus, even at this stage there is no prohibition for allowing the application under Section 321 CrPC.

The counsel for the applicant stated that due to Covid-19 Pandemic, he could not challenge the order dated 04.11.2020 immediately after passing the said order.

Per contra, Additional Government Advocates, Alok Saran and Rajesh Kumar Singh, have submitted that pursuant to the directions being issued by the Court the applicant filed the discharge application and the same has been rejected by the trial court.

The Court noted on being confronted the Additional Government Advocates as to whether the impugned order dated 04.11.2020 has been passed within the four corners of law as settled by the Apex Court, the Additional Government Advocates, however, have fairly submitted that the trial court has erred in passing the impugned order by indicating that the prosecution could not file any document/ material to convince the court to withdraw the prosecution against the applicant. They have further submitted that as per the settled law even after framing of the charges the application for withdrawal of the prosecution can be allowed at that stage, therefore, any appropriate order may be passed.

Having heard counsel for the parties and having perused the material available on record, I am of the considered opinion that if the Public Prosecutor is able to show that he may not be able to produce sufficient evidence sustaining the charges, an application for withdrawal from the prosecution may be legitimately filed by him, the Court observed.

The Court said the Apex Court in catena of cases, some of them have been referred by the counsel for the applicant, held that the Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice which may include the social, economic and political purpose. The ultimate guiding consideration while granting the permission to withdraw from a prosecution must always be the interest of administration of justice. The trial court may not examine the purpose for what the application for withdrawal of the prosecution has been filed inasmuch as the withdrawal from a prosecution is an executive function of the Public Prosecutor. The discretion to withdraw from the prosecution is solely that of the Public Prosecutor and so he cannot surrender that discretion to someone else. Admittedly, the Public Prosecutor is an Officer of the Court and therefore, responsible to the Court. The Court performs a supervisory function and has a special duty in granting its consent to the withdrawal. The Court’s duty is not to reappreciate the grounds which led the Public Prosecutor to request the withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent.

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.

“Considering the settled legal position on the subject by the Apex Court and the facts and circumstances of the case, I find that the order dated 04.11.2020 suffers from apparent illegality and perversity so the same is liable to be set aside. Further, I find that it would be a futile exercise if the matter is remanded back to the trial court to pass appropriate order when the application filed under Section 321 CrPC fulfills all the required conditions,” the Court observed while allowing the petition.

“The order dated 04.11.2020 passed by the Additional Session Judge, Special Judge (MP/MLA), Gonda in Crl Case No 100 of 2019; State vs Prem Narayan Pandey, arising out of Case Crime No109 of 2003, under Section 60/72 of Excise Act, Police Station- Tarabganj, District-Gonda is hereby set aside and the application filed by the Public Prosecutor under Section 321 Cr.P.C for withdrawal from the prosecution is hereby allowed,” the Court ordered.

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