1 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, 2 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 sufficiency of evidence against the 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 3 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 Other prosecution was not permitted to be withdrawn.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. 4 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 observations about conduct of the accused/applicant are prima facie in nature. (K.U.CHANDIWAL) JUDGE ... agp/2821-05crapl