Allowed

Santosh Tripathi v. State of U.P.

Allahabad HC11 Aug 2023A482/18370/2023

Case brief

AI extract

What is this about?

This application under Section 482 Cr.P.C. challenged the rejection of a prosecution withdrawal request. The court held that the State Government's decision to withdraw in public interest was valid, no High Court leave was mandatory in this specific context, and allowed the withdrawal.

What did the court decide?

Impugned order rejecting withdrawal of prosecution is quashed; application dated 11.10.2019 under Section 321 Cr.P.C. is allowed.

Santosh Tripathi Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:163996 Reserved on :- 31.05.2023 Delivered on : - 11.08.2023

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Court No. - 65

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Case :- APPLICATION U/S 482 No. - 18370 of 2023

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Applicant :- Santosh Tripathi Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Vikram Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Sanjay Vikram Singh, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application under Section 482 Cr.P.C. has been filed challenging the order dated 18.08.2022 passed by Additional Chief Judicial Magistrate-III, Jaunpur, in Case No. 3366 of 2011 (State Vs. Ajay Pandey) arising out of Case Crime No. 1424 of 2010, under Sections 143, 341, 506 IPC and Section 6 United Provinces Special Power Act, Police Station-Kotwali, District-Jaunpur, whereby the application under Section 321 Cr.P.C. filed by the proseuction has been rejected as well as the order dated 06.12.2022 passed by Additional District Judge-III, Jaunpur, in Criminal Revision No. 201 of 2022 (Case No. 3466 of 2011) (State Vs. Ajay Pandey and Others), whereby aforementioned criminal revision arising out of the order dated 06.12.2022 has also been dismissed.

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Record shows that in respect of an incident, which is alleged to have occurred on 27.08.2022, a prompt FIR dated 27.08.2022 was lodged by first informant CI-18OP, Manoj Kumar Shukla and was registered as Case Crime No. 1424 of 2010, under Sections 143, 341, 506 IPC and Section 6 United Provinces Special Power Act, Police Station-Kotwali, District-Jaunpur. In the aforesaid FIR, 13 persons namely - (1). Ajay

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Pandey, (2) Ishwardev Singh, (3) Dr. Harendra Singh, (4) Santosh Tripathi, (5) Rakesh Srivastava, (6) Prabhakar Tiwari, (7) Vinay Kumar Maurya, (8) Arvind Vishwakarma, (9) Ramprit Singh, (10) Sunil Seth, (11) Rahul Singh, (12) Ramji Jaisawal and (13) Alok Mishra have been nominated as named accused, whereas various other unknown persons have also been arraigned as accused.

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The gravamen of the allegations made in the FIR is that named accused are guilty of burning the effigy of Mr. P. Chidambaram, the then Union Home Minister.

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Subsequent to the aforesaid FIR, Investigating Officer proceeded with the statutory investigation of concerned case crime number in terms of Chpater-XII Cr.P.C. On the basis of the material collected by the Investigating Officer during the course of investigation, he opined to submit the police report (charge sheet) as contemplated under Section 173(2) Cr.P.C. Accordingly, Investigating Officer submitted the police report (charge sheet) dated 15.12.2010, whereby 14 persons namely - (1). Ajay Pandey, (2) Ishwardev Singh, (3) Dr. Harendra Singh, (4) Santosh Tripathi, (5) Rakesh Srivastava, (6) Prabhakar Tiwari, (7) Vinay Kumar Maurya, (8) Arvind Vishwakarma, (9) Ramprit Singh, (10) Sunil Seth, (11) Ramji Jaisawal (12) Alok Mishra, (13) Rahul Singh and (14) Bhashkar Mishra have been charge sheeted under Sections 143, 341, 506 IPC and Section 6 of United Provinces Special Power Act.

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After submission of aforementioned charge sheet, cognizance was taken upon same by court concerned, vide Cognizance Taking Order dated 02.04.20211. As a result, Criminal Case No. 3466 of 2011 (State Vs. Ajay), under Sections 143, 341, 506 IPC and Section 6 United Provinces Special Power Act came to be registered in the court of Additional Chief Judicial Magistrate-III, Jaunpur.

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During the pendency of above mentioned criminal case, the State Government took a decision to withdraw the prosecution of charge

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sheeted accused. Accordingly, the Senior Public Prosecutor, Prayagraj filed an application dated 11.10.2019 before the Special Judge, MP/MLA, District-Allahabad seeking withdrawal of the prosecution of the accused. The said application is on record as Annexure-7 to the affidavit filed in support of the application.

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Aforesaid application filed by the Senior Public Prosecutor came to be rejected by the Additional Chief Judicial Magistrate-III, Jaunpur, vide order dated 18.08.2022. Perusal of the order dated 18.08.2022 will go to shows that the concerned Magistrate has observed that in view of the law laid down by the Apex Court in State of Kerala Vs. K. Ajeet (2021) SCC OnLine SC 510, wherein it has been observed that the "Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw the prosecution". the public prosecutor was under a mandatory obligation to record his independent opinion. However, in the application dated 11.10.20219 under Section 321 Cr.P.C. filed by the Senior Public Prosecutor, it has been only stated that the State Government has taken a decision to withdraw the prosecution of the accused. No other ground has been taken in the said application for withdrawal of the prosecution. The allegations made against the accused can be considered only after the evidence has been led. Concerned Magistrate has further referred to the order of the Supreme Court in Ashwini Kumar Upadhyay Vs. Union of India, WP(Civil) No. 699 of 2016, wherein it has been observed that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without leave of the High Court". The Assistant Public Prosecutor has himself submitted an application dated 18.08.2022 for compliance of the directions contained in aforementioned judgment of the Supreme Court. However, on behalf of the accused reference was made to the judgment of the Supreme Court in Shiv Nandan Paswan Vs. State of Bihar, AIR 1987 SC 877 as well as the judgment of the High Court in Fazal Ul Rahman and Others Vs. State of U.P. (2016) 95 ACC 202 . However, the said

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judgments were not considered by court below primarily on the ground that they do not relate to MP/MLA. On the above conspectus, concerned Magistrate rejected the application dated 11.10.2019 filed by the prosecution seeking withdrawal of the prosecution of applicant/charge sheeted accused.

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Feeling aggrieved by the order dated 18.08.2022, the State filed a revision before the Sessions Judge, Jaunpur which was registered as Criminal Revision No. 201 of 2022 (State Vs. Ajay Pandey and Others). Aforesaid criminal revision was dismissed by the Additional Sessions Judge-III, Jaunpur vide order dated 06.12.2022. The revisional court concurred with the view taken by the Magistrate. However, the revisional court recorded it's own independent findings with regard to the legality of the withdrawal of prosecution of accused by means of the application dated 11.10.2019.

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Perusal of order dated 06.12.2022 passed by the revisional court will go to show that the revisional court relied extensively upon the judgment of the Supreme Court in Ashwini Kumar Upadhyay Vs. Union of India, WP(Civil) No. 699 of 2016, which has been reiterated in State of Kerala Vs. K. Ajith (2021) SCC OnLine SC 510 . Revisional court further held that upon the submission of police report dated 15.12.2010, cognizance was taken upon same. However, there is nothing on record to show that the written consent was obtained by State Government from the High Court for withdrawal of the prosecution of charge sheeted accused. As such, no illegality has been committed by the concerned Magistrate in passing the order dated 18.08.2022 as there is nothing on record to show that the opinion of the High Court has been obtained in the concerned matter.

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Thus feeling aggrieved by the above orders dated 18.08.2022 and 06.12.2022, applicant, who is a charge sheeted accused in aforementioned criminal case, has filed the present application under Section 482 Cr.P.C.

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Learned counsel for applicant contends that from the perusal of the allegations made in the FIR giving rise to the aforementioned criminal proceedings, it is apparent that applicant is not guilty of committing a serious or a heinous crime. Considering the nature of the allegations made in the FIR, the decision taken by the State Government to withdraw the prosecution cannot be said to be perverse or extenuated by mala-fides. He has then invited the attention of Court to the application dated 11.10.2019 filed before court below, wherein it has been categorically stated that the State Government has taken a decision to withdraw the prosecution and upon perusal of record, the prosecution needs to be withdrawn in public interest as well as in the interest of justice. The concerned Magistrate as well as the revisional court have failed to consider aforesaid aspect of the matter and have, therefore, returned a perverse finding that except for the fact that the State Government has taken a decision to withdraw the prosecution, no independent opinion has been formed by the Public Prosecutor. Both the courts have referred to the judgments of the Supreme Court without considering it's applicablity to the present case inasmuch as no provision exists to obtain the permission of the High Court for withdrawal of prosecution against present or former MP/MLA. Both the Courts below have not dealt with the issue as to whether that there is any mala-fide or not in the decision taken by the State Government to withdraw the prosecution of the accused or the same is unwarranted in the facts and circumstances of the case on account of the nature and gravity of offence.

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He, therefore, submits that the impugned orders are liable to be set aside and the application dated 11.10.2019 filed by the prosecution is liable to be allowed.

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Per contra, the learned A.G.A. does not oppose the present application. He submits that once the State Government has itself taken a decision to withdraw the prosecution, therefore, there does not exist any

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legal basis to oppose the present application.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, this Court finds that the primary issue which is required to be dealt with in present application is;- What are the parameters for exercise of jurisdiction under Section 321 Cr.P.C. As a logical corollary, this Court will also have to consider as to whether, the impugned orders are in conformity with the said parameters or not.

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The issue involved in this application is no longer res-integra and has been dealt with by the Apex Court as well as this Court. The chronology of the same is as under:-

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(i). M.N. Sankarayarayaranan Nair Vs. P.V. Balakrishanan and Others (1972) 1 SCC 318,

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(ii). Bansi Lal V. Chandan Lal and Others (1976) 1 SCC 421,

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(iii). Subhash Chander Vs. State (Chandigarh Admistration) and Others (1980) 2 SCC 155,

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(iv). Rajender Kumar Jain Vs. State through Special Police Establishment and Others (1980) 3 SCC 435,

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(v). Sheonandan Paswan Vs. State of Bihar and Others (1987) 1 SCC 288,

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(vi). Abdul Karim and Others Vs. State of Karnataka and Others (2000) 8 SCC 710,

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(vii). Rahul Agarwal Vs. Rakesh Jain and Another (2005) 2 SCC 377,

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(viii). S.K. Shukla and Others Vs. State of U.P. and Others (2006) 1 SCC 314,

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(ix). Bairam Muralidhar Vs. State of Andhra Pradesh (2014)

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10 SCC 380,

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(x). V.L.S. Finance Limited Vs. S.P. Gupta and Another (2016) 3 SCC 736,

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(xi). Abdul Wahab K. Vs. State of Kerala and Others (2018) 18 SCC 448,

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(xii). Ashwini Kumar Upadhyay Vs. Union of India and Another, 2021 SCC OnLine SC 629,

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(xiii). State of Kerala Vs. K. Ajith and Others, 2021 SCC OnLine SC 510,

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(xiv). Swami Chinmayanand Saraswati Vs. State of U.P. and Another, 2022 SCC OnLine All 670,

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(xv). State of West Bengal and Others Vs. Dipak Mishra, 2021 SCC OnLine SC 3147,

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(xvi). Ms. Ranjana Agnihotri and Others Vs. Union of India and Others, 2013 (11) ADJ 22 (FB)(LB),

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(xvii). Yogesh Agrawal Vs. State of U.P. and Others, 2015 (10) ADJ 472 (DB),

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(xviii). Ram Narayan Yadav Vs. State of U.P. and Others, 2017 (3) ADJ 194 (FB).

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The Apex Court in the case of State of Kerala Vs. K. Ajit, 2021 SCC OnLine 510 has held as under:-

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"The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:

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(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;

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(ii) The public prosecutor may withdraw from a prosecution not merely

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on the ground of paucity of evidence but also to further the broad ends of public justice;

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(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

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(iv) While 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;

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(v) 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. Before deciding whether to grant its consent the court must be satisfied that:

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(a) The 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;

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(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

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(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

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(d) The grant of consent sub-serves the administration of justice; and

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(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;

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(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and

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(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent."

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The decision taken by the State Government to withdraw the prosecution of the charge sheeted accused has thus to be examined in the light of the parameters laid down by the Apex Court as noted hereinabove. Prima-facie the withdrawal of the the prosecution of the applicant and other charge sheeted accused has been negated by court below primarily on the ground that in view of the order passed by Apex Court in Ashwini

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Kumar Upadhyay Vs. Union of India and Another, 2021 SCC OnLine SC 629 , no leave of the High Court has been obtained nor the Public Prosecutor has formed his own independent opinion to withdraw the prosecution of the charge sheeted accused including applicant.

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The order passed by the Apex Court in Ashwini Kumar Upadhyay (Supra) is not a general mandamus,whereby Courts have been directed to obtain the leave of the High Court before granting permission for withdrawal of prosecution of former/sitting MP/MLA. This is on the ground that Court in the order in Ashwini Kumar Upadhyay's case has itself observed that the leave of the High Court be obtained in the suo-moto writ petitions registered pursuant to the order dated 16.09.2020 passed by the Apex Court. No writ petition is pending against the petitioner or any other charge sheeted accused before this Court. This is on the ground that no finding in the light of above has been recorded by both the courts below.

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The Court further finds that withdrawal application was filed by Senior Public Prosecutor before court below seeking withdrawal of prosecution of the charge sheeted accused. In this application, it was specifically mentioned that in view of the decision taken by the State Govenment to withdraw the prosecution, the withdrawal of prosecution of charge sheeted accused is both in the interest of justice as well as in public interest. The opinion of the Senior Public Prosecutor is thus clearly embedded in the withdrawal application by reason of their recital contained therein and in the phrases referred to above. There is nothing on record to show that the withdrawal of prosecution of the charge sheeted accused/applicant is in respect of a grievous or henious offence or the same is extenuated by mala-fide. Today when the Courts are drowned with torrents of litigation the decision taken by the State Government cannot be said to be such act which throttles the cause of justice. Considering the nature of the offence as well as the pressure upon Courts

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on account of rising number of cases, the decision taken by the State Government in the facts and circumstances of the case cannot be said to be illegal, unjust or arbitrary.

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In view of above, the present application succeeds and is liable to be allowed.

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22. It is accordingly allowed .

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The impugned order dated 18.08.2022 passed by Additional Chief Judicial Magistrate-III, Jaunpur, in Case No. 3366 of 2011 (State Vs. Ajay Pandey) arising out of Case Crime No. 1424 of 2010, under Sections 143, 341, 506 IPC and Section 6 United Provinces Special Power Act, Police Station-Kotwali, District-Jaunpur as well as the order dated 06.12.2022 passed by Additional District Judge-III, Jaunpur, in Criminal Revision No. 201 of 2022 (State Vs. Ajay Pandey and Others) are hereby quashed. In view of above, the application dated 11.10.2019 under Section 321 Cr.P.C. filed by the Senior Public Prosecutor, Prayagraj seeking withdrawal of prosecution of charge sheeted accused shall stand allowed .

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Order Date :- 11.08.2023 Vinay

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

Santosh Tripathi v. State of U.P.

Case brief

What is this about?

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Santosh Tripathi v. State of U.P.

Case brief

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