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2017 Supreme(All) 2693
IN THE HIGH COURT OF ALLAHABAD
V.K. SHUKLA, MANOJ MISRA, BHARAT BHUSHAN, JJ.
IN RE : WITHDRAWAL OF CRIMINAL CASES BY STATE GOVERNMENT - Appellant
Vs.
STATE OF U.P. - Respondent
Criminal Writ Public Interest Litigation No. 16507 of 2015
Decided On : 20-02-2017
Advocate Appeared:
For the Respondent: G.A.
The exercise of power under Section 321 Cr.P.C. should not be whimsical or arbitrary and should be based on just, valid, and judicially tenable reasons. The decision for withdrawal of cases communicated to the Public Prosecutor is open to judicial review under Article 226 of the Constitution of India. The State Government is also required to scrutinize criminal cases pending in subordinate courts for withdrawal, irrespective of any request from the accused or others.
Headnote:
withdrawal - exercise of power under Section 321 Cr.P.C. - 321 - The judgment discusses the exercise of power under Section 321 of the Code of Criminal Procedure (Cr.P.C.) and the considerations for withdrawal of criminal cases by the State Government. It highlights the role of the Public Prosecutor, the requirement for written permission from the State Government, and the judicial review of the decision for withdrawal. The judgment emphasizes the need for the exercise of power to be just, valid, and judicially tenable, and the obligation of the State Government to scrutinize criminal cases pending in subordinate courts for withdrawal, irrespective of any request from the accused or others.
Fact of the Case:
Ram Narayan Yadav, facing trial based on a police report, sought withdrawal of the case under Section 321 Cr.P.C. The Court took serious note of the manner in which power under Section 321 Cr.P.C. was sought to be exercised and made a detailed order asking for affidavits. The Division Bench dismissed the petition as withdrawn, but raised important references regarding the exercise of power under Section 321 Cr.P.C.
Finding of the Court:
The Court found that the exercise of power under Section 321 Cr.P.C. should not be whimsical or arbitrary and should be based on just, valid, and judicially tenable reasons. It also held that the decision for withdrawal of cases communicated to the Public Prosecutor is open to judicial review under Article 226 of the Constitution of India. The State Government is also required to scrutinize criminal cases pending in subordinate courts for withdrawal, irrespective of any request from the accused or others.
Issues: 1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations just valid and judicially tenable? 2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India? 3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr.P.C. irrespective of fact that accused or anyone else has approached the government for this purpose or not?
Ratio Decidendi: The exercise of power under Section 321 Cr.P.C. should not be whimsical or arbitrary and should be based on just, valid, and judicially tenable reasons. The decision for withdrawal of cases communicated to the Public Prosecutor is open to judicial review under Article 226 of the Constitution of India. The State Government is required to scrutinize criminal cases pending in subordinate courts for withdrawal, irrespective of any request from the accused or others.
Final Decision: The Court answered the references by emphasizing that the exercise of power under Section 321 Cr.P.C. should not be whimsical or arbitrary and should be based on just, valid, and judicially tenable reasons. It also held that the decision for withdrawal of cases communicated to the Public Prosecutor is open to judicial review under Article 226 of the Constitution of India. The State Government is also required to scrutinize criminal cases pending in subordinate courts for withdrawal, irrespective of any request from the accused or others.
V.K. Shukla, J.
One Ram Narayan Yadav who was facing trial on the basis of a police report under Section 173 (2) of the Code of Criminal Procedure (in short Cr.P.C.), moved an application to the Chief Minister directly, whereupon, Sri Shambhu Nath, Special Secretary to the Chief Minister made a note directing the concerned department to take appropriate action. Thereafter Special Secretary (Home) sent a letter to the District Magistrate requiring his opinion and the matter was examined by the Assistant Public Prosecutor, who gave an opinion stating that police after due investigation has submitted charge sheet based on evidence; charges are serious; and there are good chances of conviction of accused, therefore, the case should not be withdrawn. This opinion of Assistant Public Prosecutor has been concurred by Senior Public Prosecutor and on the same line the Superintendent of Police as well as District Magistrate gave their opinion against withdrawal of criminal case. Thereafter, it appears, a committee consisting of Shri R.M. Srivastava, the then Principal Secretary (Home) and Shri S.K. Pandey, the then Principal Secretary Law and Legal Remembrancer, put up a note stating that chances of success in the case were doubtful, therefore, it should be withdrawn.
2. In Criminal Misc. Writ Petition No. 10816 of 2015 filed by Ram Narayan Yadav before this Court the Court took serious note of the manner in which power under Section 321 Cr.P.C. was sought to be exercised. Accordingly a detailed order was passed by the Court asking for an affidavit of the Principal Secretary Law and Legal Remembrancer as well as Special Secretary Law Government of U.P. Lucknow. It is also reflected from the record that before the Bench seized of the matter Ram Narayan Yadav through his counsel made a request that as the Magistrate has already heard the matter and reserved the order he may be permitted to withdraw the petition. The Division Bench seized of the matter though dismissed the petition as withdrawn by observing that it was the privilege of the petitioner to prosecute his petition or not but after noticing the fact that petitioner Ram Narayan Yadav had political access and was running an educational institution in connection with which he had been found to have indulged in offences in which after collecting credible evidences charge sheet had been submitted and trial was pending proceeded to make the following reference :
"1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations just valid and judicially tenable?
2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India?
3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr.P.C. irrespective of fact that accused or anyone else has approached the government for this purpose or not?"
3. On the reference being made the matter has been placed before us under the orders passed by Hon'ble the Chief Justice.
4. Sri Imran Ullah learned Additional Advocate General submitted before us that as far as provision of Section 321 Cr.P.C. is concerned same is self contained wherein at the end of day it is the Court that has to take a final call. Accordingly once the State Government has taken a resolve to withdraw the prosecution then the said opinion of the State has to be examined by the Prosecuting Officer independently and thereafter the ultimate authority to decide as to whether the application in the facts of the ca
