"Public Prosecutor Has Applied His Mind Independently": Allahabad HC Allows Withdrawal Of Case Against UP Minister
The Allahabad High Court has allowed the withdrawal of a criminal case against the Uttar Pradesh Minister Dr. Sanjay Kumar Nishad.
A Criminal Revision was preferred by the State against the order of the Additional Civil Judge by which the application filed by the Special Public Prosecutor under Section 321 of the Criminal Procedure Code (CrPC) for withdrawal of prosecution of the Minister was rejected.
A Single Bench of Justice Raj Beer Singh said, “… it is apparent that for withdrawal of prosecution, consent of the Court is necessary. While submitting such an application, the Public Prosecutor is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the material on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large.”
The Bench added that the Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice but the Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution.
Government Advocate A.K. Sand appeared for the State/revisionist while Advocate Vineet Pandey appeared for the Minister/applicant.
In this case, the applicant i.e., Minister was an accused under Section 174 of Railways Act. The report of this case was lodged in 2015 alleging that the accused Dr. Sanjay Kumar Nishad, Chairman of Nishad Ekta Parishad, along with a number of persons belonging to Nishad community, laid a demonstration at railway track due to which railway traffic was hampered between Maghar-Sahjanwa. During pendency of the said case, the State decided to withdraw the prosecution and the leave of the Court for withdrawal of the prosecution was granted. Thereafter, an application under Section 321 of the Cr. P. C. was moved by the Special Public Prosecutor for withdrawal of the prosecution, which was rejected by the Trial Court vide an order in 2023. Hence, the State was before the High Court.
The High Court in view of the above facts observed, “The mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons. In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature.”
The Court further noted that the Public Prosecutor has applied his mind independently and exercised his discretion in accordance with law and it is well settled that the Public Prosecutor, in-charge of the case, may withdraw from a prosecution not merely on the ground of paucity of evidence but also in order to further brought on so public justice.
“The Court, while considering such matters, is not to re-appreciate the grounds which laid the Public Prosecutor to request for withdrawal from prosecution but to consider whether the Public Prosecutor has applied his mind in a free and impartial manner. Considering the settled position of law and the facts of the present case, it appears that the impugned order dated 29.9.2023 suffers from patent illegality and perversity and thus, the same is not sustainable”, also noted the Court.
The Court, therefore, concluded that it would be futile exercise to remand back the matter and pass an order afresh when the application under Section 321 of CrPC fulfils all the required conditions.
Accordingly, the High Court allowed the revision and set aside the impugned order.
Cause Title- State of U.P. v. Dr. Sanjay Kumar Nishad (Neutral Citation: 2023:AHC:225678)
