The withdrawal of prosecution under Section 321 of the Cr.P.C. must be in the interest of public policy and justice, and the court must ensure that the executive function of the public prosecutor has not been improperly exercised.

JUDGMENT :

1. Heard learned counsel for the applicants and learned AGA for the State.

2. The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash the order dated 22.05.2023 passed by ADJ/Special Judge (D.A.A.), Court No.13, Agra as well as the entire proceedings of Case Crime No.211 of 2011 (S.S.T. No.75 of 2013), under Sections 147, 148, 149, 435, 427, 395, 397, 506 IPC, Police Station Etmadpur, District Agra, pending in the court of ADJ/Special Judge (D.A.A.), Court No.13, Agra.

3. Brief facts of the case, as per the pleadings are that on 08.05.2011 at about 07:30 am, the hundreds of people including women, who were armed with deadly weapons, made an attack upon the camp office of Vijay Construction Company Pvt. Ltd., after pouring the kerosene oil, set it on fire and in huge quantity of steel plates and others shattering plates were taken away, had also broken the light, welding machine and when the workers of the company tried to protect the same, the accused persons also committed the tussle with them, they hardly saved their lives from the accused persons and some of them were identified and their names were mentioned in the F.I.R..

4. It is submitted by the learned counsel for the applicants that the applicants are innocent and have been falsely implicated in the present case. Further submission is that the F.I.R. was lodged against the applicants and others on 08.05.2011 at about 11:15 am regarding the alleged occurrence dated 08.05.2011 at about 07:50 am at the place of Bridge Channel Yamuna Express Way, Agra situated at a distance of nine kilometers from the police station. Further submission is that a false and fabricated F.I.R. has been lodged by the complainant against the applicants and others co-accused. Further submission is that applicants had nothing to do with the said incident. Further submission is that neither the applicants went to the place of complainant nor committed tussle with the complainant and others. The name of the applicants were falsely disclosed in the F.I.R. Further submission is that the similar allegations were made against the co-accused persons in another cases, in which government had taken the decision to withdraw the cases and on the basis of the same, the court below passed the orders in favour of the applicants. As such, the impugned order is liable to be set aside.

5. On the other hand, learned AGA has opposed the prayer but did not dispute the aforesaid facts.

6. In the case of State of Kerala Vs. K Ajith and others (2021) 6 SCR 774, the relevant paragraph nos. 14 to 23 are quoted as under:-

14. The powers under Section 321 of the CrPC have been interpreted by this Court on a number of occasions. In State of Bihar vs Ram Naresh Pandey & Anr, AIR 1957 SC 389, a three-judge Bench of this Court analysed Section 494 of the earlier Code of Criminal Procedure 1898 (similar to Section 321 of the CrPC). Justice B. Jagannadhadas observed that in granting consent to withdraw a prosecution, the court exercises a judicial function. However, in doing so, the court need not determine the matter judicially. The court only needs to be satisfied that "the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes". This Court also observed that the Magistrate's power under Section 494 was to prevent abuse of power of the executive. Addressing the question of whether insufficiency of evidence is a ground for withdrawal of prosecution, the Court held that:-

"9. […] we find it difficult to appreciate why the opinion arrived at by both the trial court and the Sessions Court that the view taken of that material by the Public Prosecutor viz. that it was meagre evidence on which no conviction could be asked for, should be said to be so improper that the consent of the Court under Section 494 of the Code of Criminal Procedure has to be withh