The Allahabad High Court has allowed the state government’s application to withdraw the ongoing criminal case against Nishad Party National President and Cabinet Minister Dr. Sanjay Kumar Nishad for blocking the railway track in Gorakhpur.
A Single Bench of Justice Raj Beer Singh passed this order while hearing a petition filed by the State of UP.
The Criminal Revision has been preferred on behalf of the State of UP against the order dated 29.9.2023 passed by the Additional Civil Judge (Senior Division)/Additional CJM, Gorakhpur in Criminal Case under Section174 of Railways Act, 1989, Police Station-RPF Post, district Gorakhpur, whereby the application filed by the Special Public Prosecutor under Section 321 CrPC for withdrawal of prosecution of respondent Dr Sanjay Kumar Nishad, has been rejected.
Application under Section 482 CrPC has been filed on behalf of applicant Dr Sanjay Kumar Nishad against the same aforementioned order dated 29.9.2023 passed in the aforesaid case.
The Court noted that,
Perusal of record shows that the respondent in Criminal Revision (applicant in Application under Section 482 Cr. P. C) is an accused in the aforesaid case under Section 174 of Railways Act. The report of this case was lodged on 8.6.2015 alleging that on 7.6.2015 accused Dr Sanjay Kumar Nishad, Chairman of Nishad Ekta Parishad, along with a number of persons belonging to Nishad community, laid a demonstration at railway track due to which railway traffic was hampered between Maghar-Sahjanwa.
It appears that during pendency of the said case, the State of UP decided to withdraw the prosecution and the leave of the Court for withdrawal of the prosecution was granted vide order dated 2.8.2023. Thereafter an application under Section 321 CrPC was moved by the Special Public Prosecutor for withdrawal of the prosecution, which has been rejected by the trial Court vide impugned order dated 29.9.2023.
Government Advocate submitted that the impugned order is against the facts and law and thus, is liable to be set aside.
It was submitted that the said application under Section 321 CrPC has been rejected by the trial Court on the ground that the case is pending at the stage of final hearing and that no order regarding leave of High Court to withdraw the prosecution, as laid down in the case of Ashwani Kumar Upadhyay Versus Union of India Writ Petition (Civil), decided on 10.8.2021, has been produced.
It was submitted that the trial Court below failed to peruse the record that the Court has already granted leave for withdrawal of prosecution vide order dated 21.3.2023 and in fact, the copy of the said order was filed along with the application under Section 321 CrPC.
Government Advocate submitted that in view of these facts the observation of the trial Court that in terms of law laid down by the Apex Court in the case of Ashwani Kumar Upadhyay Versus Union of India (supra), no leave has been granted by the High Court is wholly false and without any basis.
Further, it is a well settled position that the prosecution can be withdrawn at any stage during pendency of the case. Thus, application under Section 321 CrPC cannot be rejected merely on the basis that the case is pending at the stage of final hearing. Referring to these facts it was submitted that the impugned order is against facts and law and thus, liable to be set aside.
Counsel for the applicant in application under Section 482 CrPC, has also concurred with the abovestated contentions and submitted that the impugned order is against the facts and law and thus, is liable to be set aside.
The Court held that for withdrawal of prosecution, consent of the Court is necessary. While submitting such an application, the Public Prosecutor is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the material on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. The Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice but the Public Prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution. 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. 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.
Keeping in view the aforesaid position of law, in the case it may be observed that the impugned case was registered under Section 174 of Railway Act and it was alleged that on 7.6.2015 the respondent-accused Dr Sanjay Kumar Nishad along with a number of persons belonging to Nishad community made a demonstration at the railway track, due to which, railway traffic was hampered between Maghar-Sahjanwa.
The Court observed that,
It appears that the application moved by public prosecutor for withdrawal of the case was rejected by the trial Court mainly on the ground that in view of the law laid down by the Apex Court in the case of Ashwani Kumar Upadhyay Versus Union of India (supra), no prosecution against the sitting or former MP/ MLA shall be withdrawn without leave of the High Court and that no such leave of High Court was obtained in this matter.
It has been shown that the High Court has granted leave to the State to withdraw the impugned prosecution by order dated 21.3.2023.
It appears from the application of withdrawal filed by the public prosecutor that the said order of the High Court was filed along with application filed by the Public Prosecutor under Section 321 CrPC and thus, the observation of the trial Court appears incorrect.
“Considering the nature of accusations and the facts of the matter, a case for withdrawal of the impugned prosecution was made out. It is also apparent from the facts of the matter that the Public Prosecutor has applied his mind independently and exercised his discretion in accordance with law. It is well settled that the Public Prosecutor, incharge of the case, may withdraw from a prosecution not merely on the ground of paucity of evidence but also in order to further bring on public justice. The Court, while considering such matters, is not to re-appreciate the grounds which laid the Public Prosecutor to request for withdrawal from prosecution but to consider whether the Public Prosecutor has applied his mind in a free and impartial manner.
Considering the settled position of law and the facts of the case, it appears that the order dated 29.9.2023 suffers from patent illegality and perversity and thus, the same is not sustainable. The Court is of the considered view that it would be futile exercise to remand back the matter and to pass an order afresh, when the application under Section 321 CrPC fulfills all the required conditions”, the Court further observed.
“Thus, the order dated 29.09.2023, passed by the Additional Civil Judge (Senior Division)/Additional CJM, Gorakhpur in Criminal Case under Section 174 of Railways Act, 1989, Police Station-RPF Post, district-Gorakhpur, is hereby set aside and the application filed by the Public Prosecutor under Section 321 Cr.P.C for withdrawal of the prosecution of accused Dr Sanjay Kumar Nishad, is hereby allowed. The prosecution of accused Dr Sanjay Kumar Nishad in the aforesaid case stands withdrawn accordingly.
In view of aforesaid, Criminal Revision and Application under Section 482 CrPC are hereby allowed”, the Court ordered.
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