IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Writ Petition No. 610 of 2008 (D/B) Raj Kumar S/o Shri Ram Kumar R/o Ward No. 10, Sugar Mill Colony, B azpur, District Udham Singh Nagar. ...…………. Petitioner Versus 1. State of Uttarakhand Through its Home Secretary, Secretariat Dehradun, Dehradun. 2. District Magistrate, Rudrapur, District Udham Singh Nagar. 3. District Government Counsel District and Session Court, Rudrapur, District Udham Singh Nagar. 4. Additional Secretary Home, Government of Uttarakhand, Secretariat Dehradun, District Dehradun. 5. Amar Pandey 6. Jagdish Pandey Respondent No. 5 & 6 are sons of Virender Pandey R/o Sugar Mill Bazpur, District Udham Singh Nagar. ...…………. Respondents Mr. Rakesh Thapliyal, Advocate, present for the writ petitioner. Mr. Nandan Arya, Asstt. Government Advocate, present for respondents No. 1, 2, 3 and 4. Mr. Chandra Shekhar, Advocate assisted by Mr. Sachin Panwar, Advocate, present for respondents No. 5 and 6. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. 2 Hon. Prafulla C. Pant, J (Oral) By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari, quashing the order dated 10.07.2008, passed by the State Government of Uttarakhand (respondent No. 1), and also the application dated 22.07.2008, moved by District Government Counsel (Criminal) / respondent No. 3, under Section 321 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), before the Sessions Judge, Udham Singh Nagar, seeking to withdraw the prosecution against the accused in Sessions Trial No. 149 of 2006 (Crime No. 1309 of 2006), relating to offences punishable under Section 147, 148, 149, 302 of I.P.C., and one punishable under Section 3(1)(X) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, police station Bazpur, District Udham Singh Nagar. 2) The Apex court, vide its order dated 29th of January 2010, passed in Special Leave to Appeal (Crl) No. 443 of 2007, directed this court to decide this writ petition preferably within two months of communication of the order. 3) Heard learned counsel for the parties and perused the affidavits, counter affidavits and rejoinder affidavit filed by the parties. 3 4) Brief facts of the case are that on 07.04.2006, a murder is said to have been committed of one Murti Devi (mother of the complainant), within the limits of police station Bazpur, District Udham Singh Nagar. A first information report was lodged by the complainant (present petitioner before this court) on the same day (07.04.2006) against five persons, namely Arvind Pandey, Amar Pandey, Jagdish Pandey, Kishan Pandey and Jai Prakash, which was registered as Crime No. 1309 of 2006, relating to offences punishable under Section 147, 148, 149, 302 of I.P.C., and one punishable under Section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On the very day, one of the five accused Amar Pandey was said to have been arrested by the police. Also, dead body of deceased (Murti Devi) was taken into possession and sent for postmortem examination, on that very day and on autopsy, it was found that she has died of shock and hemorrhage as a result of ante mortem firearm injuries. It is pleaded on behalf of the writ petitioner / complainant that as many as 24 witnesses were examined by the Investigating Officer, and during investigation another accused Jagdish Pandey was also arrested on 6th of June 2006. On 21st of June 2006, charge sheet was filed by local police, against Amar Pandey and Jagdish Pandey before the court concerned at Udham Singh Nagar. The rest 4 three accused were absconding and investigation in respect of them was still pending. 5) The Magistrate, who received the charge sheet against two accused Amar Panday and Jagdish Pandey, filed by local police, committed the case to the court of Sessions on 13th of July 2006, which was registered as Sessions Trial No. 149 of 2006. Meanwhile, the accused moved an application before the State Government for CBI investigation. On the request of the State Government, the Central Government notified Central Bureau of Investigation (for short CBI) as investigating agency on 13th of July 2006, where after a first information report was registered by CBI on 24.07.2006. (But, by 13.07.2006 case initiated on report of local police, had already been committed). The accused challenged their trial before the Sessions Judge, Udham Singh Nagar, on the charge sheet filed by the regular police, by filing a petition under Section 482 of Cr.P.C., before this court which was dismissed by this court on 19.12.2006. It appears that there after during trial P.W. 1 Raj Kumar, P.W. 2 Mukund Shukla and P.W. 3 Dr. B.K. Joshi were examined, and other accused namely Arvind Pandey, Kishan Pandey and Jai Prakash were also summoned under Section 319 of Cr.P.C. by the trial court vide its order dated 17th of January 2009. Meanwhile, CBI after completion of investigation submitted final report on 20th of February 2008, before CBI Court at Dehradun. About four 5 months thereafter, vide impugned Government Order No. 985 / XX(3)-10 / Mu. Va. / 2008, dated 10th of July 2008, the State Government sent a letter to the District Magistrate, Udham Singh Nagar, for getting steps taken up through the Prosecuting Officer to withdraw the prosecution under Section 321 of Cr.P.C. On the basis of said order, respondent No. 3 / District Government Counsel (Criminal) [for short D.G.C. (Crl.)], moved an application dated 22.07.2008 before the trial court, seeking permission to withdraw the case. Said application and the order dated 10th of July 2008, passed by the State Government are challenged in this court, in this writ petition. 6) The petitioner has challenged the aforesaid order dated 10th of July 2008, passed by the State Government, and the application moved by D.G.C. (Crl.) in pursuance thereof, stating that one of the accused Arvind Pandey is Member of Legislative Assembly of the State. It is also pleaded that there is no proper application of mind either on the part of the State Government before issuing the impugned Government Order, or on the part of the D.G.C. (Crl.) before moving the application. It is also pointed out that the accused, namely Arvind Pandey and Amar Pandey have a long criminal history, which is shown in Annexure –4 with the petition. 6 7) In support of the aforesaid plead on behalf of the petitioner reference is made to the cases of S.K. Shukla and others Vs. State of U.P. and others (2006) 1 Supreme Court Cases 314, and Sheonandan Paswan Vs. State of Bihar (1983) 1 Supreme Court Cases 438, in which the Apex court has reiterated its view on the point of withdrawal of prosecution, as under: “The settled law laid down by the Supreme Court has been that the withdrawal from the prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from the prosecution is his. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so. However, Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government, since a Public Prosecutor cannot conduct a case 7 absolutely on his own, or contrary to the instruction of his client, namely, the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is appointed by the Government for conducting in court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with the instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition. In the latter event the Public Prosecutor will have to return the brief and perhaps to resign, for, it is the Government, not the Public Prosecutor, who is in the know of larger interest of the State.” 8) On the other hand, on behalf of the respondents, an objection has been raised that the present writ petition is premature one, as no order has been passed by the trial court on the application moved by D.G.C. (Crl.), after the impugned order dated 10th of July 2008, was issued by the State Government. It is 8 also submitted on behalf of the respondents that since CBI, after investigation, has found that no offence is made out against any of the accused in view of the statements of the three security guards recorded by the CBI, there is no illegality on the part of the State Government in taking a decision that the charge sheet filed by the local police be withdrawn, after final report has been submitted by the CBI. 9) On perusal of the papers on record, we find that there is another angle in this case, note of which is also required to be taken. Vide order dated 19th of March 2009, passed by the Apex court in Criminal Misc. Petition No. 3513 of 2009 (arisen out of Special Leave to Appeal (Crl) No. 443 of 2007), further proceedings of the Sessions Trial No. 149 of 2006, State Vs. Amar Pandey and others, pending before Sessions Judge, Udham Singh Nagar, are stayed. In view of said order it appears that further proceedings before the trial court are lying stayed. 10) Having heard learned counsel for the parties at length, and after going through the papers on record and considering the settled principle of law laid down by the Apex court, we are of the view that the complainant / writ petitioner can be heard by the trial court before the application based on Government Order dated 10th of July 2008, moved by D.G.C.(Crl.) is allowed or rejected. Needless to say that the trial court is not 9 bound to allow the application moved by D.G.C.(Crl.) merely on the basis of the written order received from the State Government. The trial court has to apply its mind to see whether it is a fit case for withdrawing the prosecution, or not. All the pleas, including that one of the accused, a sitting Member of Legislative Assembly, and that two of the accused have long criminal history can also be looked into by the trial court, before passing final orders on the application moved by the D.G.C.(Crl.). It is not desirable on the part of this Court to express its view on these matters when the trial court is yet to pass the orders on the application in question. 11) Therefore, this writ petition is disposed of with the direction that the trial court shall hear the complainant (present writ petitioner) before passing orders on application dated 22.07.2008, based on the order dated 10th of July 2008, issued by the State Government, provided the stay order is vacated by the Apex court. (Stay Vacation Application No. 4249 of 2009 also stands disposed of). (Nirmal Yadav, J.) (Prafulla C. Pant, J.) Dt. August 16, 2010. H. Negi 10 11