Hon’ble Devi Prasad Singh, J.—

BACK-DROP

A number of offences were committed between the period 2000 and 2009, including under various provisions of The Explosive Substances Act 1908, The Prevention of Terrorism Act 2002, The Unlawful Activities (Prevention) Act 1967, The Official Secrets Act 1923, offences under Chapter VI of the Indian Penal Code 1860 and The Criminal Law Amendment Act in various districts viz. Varanasi, Gorakhpur, Bijnor, Lucknow, Kanpur Nagar, Rampur and Barabanki. The crimes, thus committed, included bomb-blasts at different places at different times in various districts. Consequent to commission of crimes, first information reports (F.I.Rs.) were registered. On investigation, incriminating material was collected against certain accused whereupon charge-sheets have been filed in various Courts. In some cases, trial has commenced, whereas in some cases accused are absconding.

In pursuance of instructions issued by the State Government, the Public Prosecutors, Incharge of those cases, moved applications for withdrawal from the prosecution of the accused in the said cases.

2. The petitioners preferred Writ Petition No. 4683 (MB-PIL) of 2013, thereby challenging vires of Section 321 of the Code of Criminal Procedure 1973 (for short ‘Cr.P.C.’) as well as the instructions issued by the State Government to the Public Prosecutors for withdrawal from the prosecution. The petitioners seek direction to ensure trial of the cases to be concluded in accordance with Law.

Division Bench of this Court, after providing opportunity of hearing to learned Additional Advocate General of the State as well as counsel for the Union of India and going through the affidavits/pleadings furnished by the parties, formulated four questions, and by order dated 07.6.2013 requested the Hon’ble Chief Justice of the High Court to constitute a Larger Bench. The questions, thus framed by the Division Bench, are as under:

(i) Whether the State Government can issue Government Order for withdrawal of cases without there being any request by the public prosecutor in charge of the case?

(ii) Whether the prosecution can be withdrawn without assigning any reason as to why the prosecution was sought to be withdrawn and is therefore unconstitutional and violative of Article 14 of the Constitution of India?

(iii) Whether the prosecution of offence relating to Central Act be withdrawn without taking permission from the Central Government?

(iv) Whether the State Government after giving sanction for prosecution, review its own order by issuing orders for withdrawal of the cases?”

3. Hon’ble Chief Justice by order dated 15.7.2013 has referred the matter to the present larger Bench to decide the questions formulated by Division Bench (supra). In consequence thereof, we have heard the learned counsel representing the parties.

4. From a perusal of the referral order of the Division Bench, it appears that inspite of order passed by the Court, the State did not place on record the copy of the instruction issued by it to different Prosecuting Officers of the respective Courts for withdrawal of cases. To ascertain the factual matrix, we directed the State Government to place the entire material on record including the instruction issued by the Government and the copy of applications moved by the respective presenting officers.

5. Mr. H.S. Jain, learned counsel appearing on behalf of the petitioner as well as Mr. Anoop George Chaudhary, learned Senior Counsel representing the State of U.P and Mr. K.C. Kaushik, learned Additional Solicitor General of India alongwith other counsel have addressed the Court with lengthy argument. Mr. Chaudhary, learned Senior Counsel further while addressing the Court elaborately pressed to consider the scheme of Section 321 CrPC. He submits that for proper answer to the question referred to the Larger Bench, it shall be appropriate that whole of the scheme and material relating to grant of permission to withdraw criminal prosec