The main legal point established in the judgment is that the accused must have locus standi to move an application for withdrawal of a criminal case, and the conduct of the Prosecuting Officer in endorsing such an application must be fair.

Raj Mani Chauhan, J.

Heard learned counsel for the petitioner and learned A.G.A for the State as well as perused the documents available on record.

2. This petition under Section 482 of Code of Criminal Procedure (hereinafter referred to as Code) has been filed by the petitioner for quashing the order dated 04.08.2010 passed by the learned Chief Judicial Magistrate, Balrampur in Criminal Case No.3168 of 2008 (Crime No. 29 of 2000), State Vs Tabarakullah, under Section 3/7 Essential Commodities Act, Police Station Pachperwa, District Balrampur, whereby the learned Chief Judicial Magistrate has rejected the application moved by the accused for permission to withdraw the criminal case pending against him.

3. From a perusal of the record, it appears that the accused Tabarakullah moved an application on 28.07.2008 for permission to withdraw the criminal case pending against him on the ground that the government in view of the unnecessary harassment of fair price shop licensee and other traders involving them under Section 3/7 E.C. Act had taken a decision to withdraw the cases pending against them under Section 3/7 E.C. Act. Consequently, the government issued Government Order No. CM 566/ lkekU; 5-2001-358 WC/2001TC dated 24.12.2001 to this effect. Therefore, in view of the Government Order dated 24.12.2001 the court may permit the prosecution to withdraw the criminal case pending against him. On the application of the accused, Prosecuting Officer, Sri Ram Lakhan In-charge of the case, made an endorsement that it will be justified to pass an order in view of the government order and he has no objection in the government policy in permitting the court for withdrawal the criminal case. Learned Chief Judicial Magistrate after hearing the parties rejected the application observing that the charges levelled against the accused was that he had sold food grains in black market which were meant to the poor persons, keeping in view the nature of offence, it will not be proper to permit the accused for withdrawal of the criminal case pending against him.

4. The submission of learned counsel for the petitioner is that the Government had taken policy decision to withdraw the pending criminal cases under Section 3/7 E.C.Act. Consequently, government on 24.12.2001 issued a Government Order to this effect. Accused had moved an application in view of the government order for permission to withdraw the criminal case. The Prosecuting Officer had no objection to withdraw the criminal case pending against the accused. The court has no power to examine the ground on which the government has taken a decision to withdraw the criminal case. Although the power of the court to permit the withdrawal of criminal case is discretionary but in the given facts and circumstances, the learned Chief Judicial Magistrate had not option except to accord his permission to withdraw the criminal case. The impugned order passed by the learned Chief Judicial Magistrate rejecting the application of the accused for withdrawal of the case is illegal and is liable to be quashed.

5. Learned counsel for the petitioner in support of his argument has placed reliance on the cases of Ayyub Vs State of U.P. reported in 2002 Supreme Court Cases (Cri) 673, Rajendra Kumar Jain Vs State through Special Police Establishment and others reported 1980, Supreme Court Cases (Cri) 757 and Girish Chand Gupta @ Ram Babu Vs State of U.P. and another reported in 2002 (Suppl) ACC 180.

6. Sri Rajendra Kumar Dwivedi, learned A.G.A. opposed the petition and argued that Section 321 of the Code provides as and when 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. As per provision under Section 321 of the Code, it is only Public Prosecutor or Assistant Public Prosecutor in charge of a case can move an application for withdrawal of the criminal case