This judgment dismisses a criminal application seeking withdrawal of prosecution. The High Court upheld the lower courts' orders rejecting the Prosecutor’s request to withdraw charges, citing insufficient grounds and the nature of complaints against a public official.
Application lacking merit was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2821 OF 2005
Kumar @ Tukaram s/o Masaji Ghansawant
...APPLICANT
VERSUS
1. The State of Maharashtra, (Through P.S.Jintoor, Dist.Parbhani).
2. Ramrao s/o Kishanrao Pawar, Aged 45 years, Occu: Service, r/o.Municipal Council, Jintur, District Parbhani.
...RESPONDENTS
...
Mr.S.B.Talekar, Adv., for the applicant.
Mr.N.B.Patil, APP for R.1.
Mr.S.P.Sonpawale, Adv., for R.2.
...
CORAM: K.U.CHANDIWAL, J.
DATE:17/1/2011
***
PER COURT :
1.Heard finally. Declining withdrawal
from prosecution of RCC No.141/2002, by learned
Judicial Magistrate, First Class, at Jintur,
confirmed by learned second Ad hoc Additional
Sessions Judge, Parbhani, on 20th August, 2005,
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is questioned.
2.Mr.S.B.Talekar, learned Counsel for the
accused/applicant submits, the learned Judicial
Magistrate, First Class, was wrong in declining
withdrawal of prosecution, there was no material
to proceed ahead. The withdrawal was under
proper permission of the Government. Such
powers, in terms of Section 321 of Cr.P.C.,
indeed, vest in the Government and the learned
Judge has made a mistake in making observation of
sufficiencyofevidenceagainstthe
accused/applicants herein, it was not germane at
the stage of learned Public Prosecutor making
application.
3.Learned Counsel for the original
complainant (respondent no.2) opposed present
move informing that the complainant was an
officer duly employed in the Municipal Council,
Jintur, and he was discharging his duties. He
was man-handled, threatened and his camera was
snatched.
4.Learned Counsel for the applicant has
placed reliance to the judgments of the Apex
Court reported in (2002) 3 SCC 510 (Ayyub Vs.
State of U.P.) and (2007) 12 SCC 687 (Vijaykumar
Baldev Mishra alias Shrma Vs. State of
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Maharashtra). in In the former case, the learned
District Judge did not approve of withdrawal of
charges of TADA. The Apex Court, on evaluation
of the papers found, there was no material to
prosecute and change in the policy of the
Government made it necessary to allow withdrawal
specifically for the charges in terms of Section
15 of TADA Act. Other prosecution was not
permitted to be withdrawn.
In the latter case of Vijaykumar, identical
situation emerged.
The Apex Court, in both the matters informed,
the Public Prosecutor, while filing application
for withdrawal of prosecution must also apply
mind and assess its effect on the society.
5.Now, turning to present case again, I
find that the application moved by the learned
Prosecutor was dt. 18.2.2004, while the approval
granted by the learned District Magistrate,
Parbhani, was dt.26.10.2004. It is explicit,
without there being any authority in the learned
A.P.P. he had gumption to make an application
seeking withdrawal from prosecution. The ground
assigned by the learned A.P.P. are far from
acceptance and, rightly, the learned Judge has
dealt with it. Learned District Judge did not
commit any mistake in confirming the order dt.
23.2.2005, rejecting withdrawal.
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6.The point of sanction that has been
coined by Mr. S.B.Talekar, has its ramifications
at other floor, however, since complainant was
man-handled, assaulted, which was not the
authority vested in the elected Municipal
Councillor. The prosecution could not be termed
to be in breach of Section 302 of Maharashtra
Municipal Councils, Nagar Panchayats and
Industrial Township Act, 1965. The applicability
of Section 321 of Cr.P.C. was rightly and, in
tune with record, considered by both the Courts,
in declining withdrawal of permission.
Application lacks merit, dismissed. The
observationsaboutconductofthe
accused/applicant are prima facie in nature.
(K.U.CHANDIWAL) JUDGE
...
agp/2821-05crapl
2 issues framed by the court
Whether the High Court should allow withdrawal of prosecution despite the learned Judicial Magistrate declining it under Section 321 of Cr.P.C.
Whether the complaint alleging man-handling of a Municipal Councillor affects the discretion to grant withdrawal of prosecution.
Colour shows how this judgement treated each authority
Ayyub Vs. State of U.P.Referred¶23
(2002) 3 SCC 510 (Ayyub Vs. State of U.P.) · Who else cites this
Vijaykumar Baldev Mishra alias Shrma Vs. State of MaharashtraReferred¶23
(2007) 12 SCC 687 (Vijaykumar Baldev Mishra alias Shrma Vs. State of Maharashtra) · Who else cites this
2 provisions across 2 enactments
Kumar @ Tukaram
The State of Maharashtra
Ramrao s/o Kishanrao Pawar
K.U.CHANDIWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court