C482/1317/2021 of MONU Vs STATE OFUTTARAKHAND

2024:UHC:8027tractor trolley were also taken into custody. After investigation, the charge-sheet was filed on 28.11.2018 and on 23.07.2019, the cognizance was taken by the Judicial Magistrate, Roorkee Haridwar and the applicant has been summoned. 5. It is also contended that in the meantime, the applicant approached to the State Government with the allegation that the prosecution against him is absolutely false and fictitious and is result of petty villagers’ politics and request for withdrawal of the proceedings. Thereafter, the State Government, by Government order dated 10.06.2020, decided to withdraw the prosecution against the present applicant. Thereafter, the District Magistrate Haridwar, pursuant to the Government order dated 10.06.2020 issued letter on 18.06.2020, whereby the Joint Director, Haridwar, was directed to take appropriate action for withdrawal of the prosecution. 6. Pursuant to the instruction issued by the District Magistrate by letter dated 18.06.2020, the Director prosecution sent the letter to the Prosecuting Officer of the concerned Court, and, thereafter, the ADGC moved an application under Section 321 Cr.P.C, by giving details of the incident in the Court of Ist Additional District and Sessions Judge, Roorkee Haridwar and prayed for withdrawal of the prosecution in the light of the letter dated 18.06.2020 and the decision taken by the Government by letter order 10.06.2020. 7. The aforesaid application moved by the ADGC under Section 321 Cr.P.C. was rejected by the First Additional District and Sessions Judge, Roorkee District Haridwar by order dated 26.09.2020 on the ground that the concerned prosecution officer (ADGC) has not given any reasoning/ground in the application tojustify whytheprosecution istobe

withdrawn. 8. The learned Court also observed that the ADGC has not applied its independent mind and opinion and by giving reference of the Government Order dated 10.06.2020 without any material he moved the application. 9. It is submitted by learned counsel for the applicant that the entire material was placed by the ADGC before the learned District and Sessions Judge and also submits that even otherwise if there was no any reasoning in the application moved under Section 321 Cr.P.C., the Magistrate should apply its mind before passing an order on an application moved by the prosecution under Section 321 Cr.P.C. and the application was rejected in very casual manner by observing that the prosecution officer has not stated the ground for withdrawal of the prosecution. 10. This Court, on 26.09.2024, directed to the State Counsel to get instruction in the matter and to produce the original record in reference to the Government Order dated 10.06.2020, whereby the Government has decided to withdraw the proceeding. 11. Today, Mr. V.S. Pal, learned AGA, has placed before this Court the original record and I perused the same. On perusal of the record, it is revealed that one Mr. Desraj Karanwal, the then Member of Legislative Assembly of Jhabrera Constituency, Haridwar, wrote letter on 15.09.2019 for withdrawal of the proceeding, which the present applicant is facing. One more similar request was made by one Mr. Brijesh Singh, the MLA of Deoband Constituency, District Saharanpur, Uttar Pradesh. The record further reveals that one more letter has also been written by person, namely, Pradeep Choudhary, who is also political person.On these letters,a note wasputup by the under Secretary to the Law Department. However, the Law Department clearly opined that this is not fit case, which should be withdrawn. 12. It appears that despite the opinion, as given by the Law department that it is not fit case to be withdrawn in public interest, the Government took decision for withdrawal of the proceedings. Not only this, even on the earlier occasion, the District Magistrate, Haridwar and the SSP were also of the view that the withdrawal of the proceedings is not in public interest. Despite this, by ignoring the opinion of the District Magistrate and the SSP including the Law Department, the Government had decided to withdraw the proceedings. 13. The Hon’ble Apex Court, in the Case of S.K. Shukla and others versus State of U.P. and others, (2006) 1 SCC 314, dealt with an issue with regard to the withdrawal of the cases under Section 321 of the Code of Criminal Procedure and held that the Public Prosecutor cannot act like postbox or act on the dictates of the State Government. It is also held that the Court is not bound by the opinion of the Public Prosecutor and is also free to assess whether prima facie case is made out or not. In this case, the Hon’ble Apex Court also took note of the earlier precedent, i.e., in the cases of Sheonandan Paswan versus State of Bihar, 1983 (1) SCC 438, Rajender Kumar Jain versus State 1980 (3) SCC 435, R.M. Tewari versus State (NCT of Delhi) 1996 (2) SCC 610 and Ayyub . versus State of U.P. (2002) 3 SCC 510In these cases, it has been laid down that the Public Prosecutor has to shoulder greater responsibility for withdrawal of cases under Section 321 of the Cr.P.C. 14. Thus, in view of the law, as laid down by the Hon’ble Apex Court, it is very clear thatthe Public Prosecutor cannotact like

2024:UHC:8027a postbox or act on the dictates of the State Government. He has to act objectively as he is also an officer of the Court. At the same time, the Court is also not bound by that. The Courts are also free to assess whether case prima facieis made out or not? And the Court, if satisfied, can also reject the prayer. 15. I have gone through with the order passed by the I[st] Additional District Judge, Roorkee, dated 26.09.2020 as well as the decision taken by the Government, and after perusing the original record, I am also of the view that the present case is not case which should be withdrawn in public interest.

16. I do not find any public interest and it appears that only on the instance of some political persons, the Government, without application of mind, by ignoring the opinion of the Law Department, the District Magistrate and the SSP, has taken decision for withdrawal of the proceedings, which appears to be wholly unjust and improper. 17. Mr. Navneet Kaushik who appears for the applicant, submits that the Government is not bound by the opinion given by the District Administration as well as the Law Department and the State Government is free to apply its independent mind. I am fully agree with the submission, as advanced by the learned counsel for the applicant, but what I observed, after perusing the original record that the Government, while withdrawing the proceeding, has not applied its independent mind and merely on the basis of the letters, issued by some political persons, the Government took decision. Even otherwise, while taking decision by the Government for withdrawal of the proceeding, the authorities should give due regard to the opinion given bytheDistrict

Administration. 18. Mr. V.S. Pal, learned AGA, also submits that the present case is not case which should be withdrawn. Thus, I do not find any merit in the present C482 application and the same is accordingly dismissed. (Rakesh Thapliyal, J.) 01.10.2024 R.Bisht