Yashpal Ghai And Others vs State Of Uttarakhand & Another

R.C. Khulbe, J

Heard learned counsel for the parties.

This criminal miscellaneous application under Section 482 of Cr.PC has been filed for quashing the order dated 06.06.2017 passed by the Judicial

Magistrate, Rudrapur, District Udham Singh Nagar along with the entire proceedings of Criminal Case No.4402 of 2011 (New No.1358 of 2013),

“State Vs. Yashpal Ghai & othersâ€, under Sections 147, 341, 332, 353, 504, 506, 436, 511 IPC and Section 7 of Criminal Law Amendment Act

pending before Judicial Magistrate 2nd, Rudrapur, District-Udham Singh Nagar.

Factual matrix of the case is that as per the information given by the S.H.O.-Shri M.S. Negi an FIR was lodged on 27.02.2010, under Sections 147,

341, 332, 353, 504, 506, 436, 511 IPC and Section 7 of Criminal Law Amendment Act pending at Police Station-Rudrapur, District Udham Singh

Nagar. After investigation the charge sheet was submitted. Accordingly, cognizance was taken on 20.12.2011. After submission of the charge sheet

an application under Section 321 Cr.P.C. was moved by the APO on behalf of the State for withdrawing the case.

After hearing the APO, the concerned Magistrate rejected the application on 06.06.2017. Aggrieved by it, the present criminal misc. application

under Section 482 Cr.P.C. has been filed.

From the perusal of the impugned order dated 06.06.2017, it is clear that the learned Magistrate rejected the application solely on the ground that

the said application was not moved by DGC while the application was moved by APO and the APO has no right to move the application.

Section 321 of the Cr.P.C is reproduced as under:-

Withdrawal from prosecutionâ€"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 acquitted 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 hag hot 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.

From the perusal of Section 321 Cr.P.C., it is clear that the legislature has empowered the Public Prosecutor or Assistant Public Prosecutor in-

charge of a case, has a right to move an application before the Court for withdrawal of the prosecution case on behalf of the State Government, which

shows that the Public Prosecutor or Assistant Public Prosecutor, as the case may be, are entitled to move an application before the concerned Court

for withdrawal of the prosecution case as per instructions given by the State.

In the present matter, the said application was moved by the APO who was authorized to move the same. The Magistrate had no right to reject the

said application merely on the sole ground that the said application should have been moved by the DGC.

Since, the Public Prosecutor or the Assistant Public Prosecutor are entitled to move an application under Section 321 Cr.P.C., in these

circumstances the present criminal misc. application filed under Section 482 Cr.P.C. is liable to be allowed at this stage.

In view of the above observation, the present criminal misc. application filed under Section 482 Cr.P.C. is allowed and the order dated 06.06.2017

passed by the learned Judicial Magistrate, Rudrapur, District Udham Singh Nagar in Criminal Case No.4402 of 2011 (New No.1358 of 2013),

“State Vs. Yashpal Ghai & othersâ€, under Sections 147, 341, 332, 353, 504, 506, 436, 511 IPC and Section 7 of Criminal Law Amendment Act

pending before Judicial Magistrate 2nd, Rudrapur, District-Udham Singh Nagar is hereby set aside.

The matter is remanded back to the concerned Court with a direction to decide the application filed under Section 321 Cr.P.C. by the APO on

merit, preferably, within a period of one month from the date of receipt of a copy of this order.

In the meantime, process issued against the applicants by the concerned Court will be kept in abeyance.

Pending applications, if any, also stand disposed of.