Gurukul Kangari Vishwavidhyalaya and Another vs State of Uttaranchal and Others

Hon''ble Rajesh Tandon, J.—Heard Sri Arvind Vashisth, counsel for the applicants, A.G.A. for the respondent no. 1 and Sri Vipul Sharma, counsel for the respondent no. 2 to 8. By the present criminal application, the applicants have sought following relief:

It is, therefore, Most Respectfully prayed that this Hon''ble Court may be pleased to allow this application and order dated 15.12.2003 passed by the Judicial Magistrate, Haridwar, Government order dated 30-10-03 in Case No. 18 of 2003 State Vs. Omvesh and others (Annexure 3) be set aside.

It is further prayed that the operation and effect of the order dated 15.12.2003 passed by the Judicial Magistrate Haridwar in case No. 18 of 2003 State Vs. Omvesh and others (Annexure 3) be stayed during the pendency of the present application before this Hon''ble court.

Briefly stated, applicant no. 1 lodged a FIR at Police Station Kankhal District Haridwar in connection with the offence committed on 09.11.2001 in the premises of Gurukul Kangri Vishwavidyalaya Haridwar wherein opposite parties no. 2 to 8 formed an unlawful assembly and tried to disrupt the proceedings of the meeting and mounted assault upon the employees of the Gurukul Kangri Vishwavidyalaya, which were present in the meeting. The report was registered as Case Crime No. 127 of 2001 under sections 147, 148, 323, 307 I.P.C. Matter was investigated and charge-sheet was submitted u/s 147, 148, 149, 323, 307 of the Indian Penal Code.

The Magistrate took cognizance upon the charge-sheet but before committal could have taken place, the Assistant Prosecuting Officer moved application u/s 321 of the Code of Criminal Procedure accompanied by a Government Order dated 30.10.2003 whereby the Government chose to withdraw prosecution against the accused persons on the ground that the accused persons are respectable persons and one of them is minister and another is wife of Central Minister. The said application was allowed vide order dated 15.12.2003.

Counsel for the applicants has submitted that the decision of withdrawal of prosecution against the opposite parties no. 2 to 8 was taken without considering that it was in the public interest.

Section 321 of the Code of Criminal Procedure provides as under:

Withdrawal from prosecution.- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,--

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquittal in respect of such offence or offences;

Provided that where such offence-

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of or damage to, any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

A perusal of the aforesaid Section 321 of the Code of Criminal Procedure shows that both prosecution as well as the court have to satisfy themselves regarding the ingredients of Section 321 of the Code of Criminal Procedure and further they are under obligation to examine the grounds on which the withdrawal has been sought.

A perusal of the aforesaid provision shows that the Court must be satisfied about the permission granted for withdrawal and the same has to be granted with the consent of the court.

In M.N. Sankarayarayanan Nair Vs. P.V. Balakrishnan and Others, , it has been observed as under:-

A reading of Sec. 494 would show that it is the Public Prosecutor who is in charge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal or even before the Judgment is pronounced. The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission. Though the section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.

A perusal of the order passed by the Presiding Officer shows as under:

From the aforesaid observations, it is evident that the prosecution as well as the Court both have applied their mind while passing the order u/s 321 of the Code of Criminal Procedure for withdrawal of the prosecution.

In view of the above, no interference u/s 482 of the Code of Criminal Procedure can be made out as the jurisdiction has been rightly exercised by the trial Court. Consequently, present application filed u/s 482 of the Code of Criminal Procedure is dismissed.