RAKESH PANDEY Vs. STATE OF C.G.

JUDGEMENT

(1.) The present petition has been filed by the petitioner/applicant against the order dtd. 20/1/2020 passed by the learned Additional Sessions Judge Khairagarh, District Rajnandgaon in Criminal Revision No.03/2019 whereby the learned revisional Court has dismissed the revision filed by the petitioner and affirmed the order dtd. 20/2/2019 passed by the learned trial Court in Criminal Case No.215/2017.

(2.) Brief facts of the case are that, the petitioner is accused in Crime No.130/17 pending before the learned Additional Chief Judicial Magistrate, Khairagarh, District Rajnandgaon for the offence under Sec. 341, 353, 332, 147, 148 and 186 of the IPC. The charge sheet was filed against the petitioner and four other co-accused persons before the learned trial Court and the petitioner is facing trial of the case. During pendency of the trial, by the Department of Home, Govt. of C.G., an order was passed on 17/9/2018 directing the concerned District Magistrate for withdrawal of the prosecution against the petitioner and pursuant to the direction issued by the Department of Home, an application under Sec. 321 of the Cr.P.C. was filed by the prosecution before the learned trial Court for withdrawal of the prosecution and after hearing the parties the learned trial Court has rejected the application filed by the prosecution under Sec. 321 of the Cr.P.C. holding that the application for withdrawal of the prosecution has been filed in resolution passed by the cabinet, but there is no recommendation for withdrawal of the prosecution from the Superintendent of Police and there is no reason mentioned in the application for withdrawal of the prosecution. Further, it would not be in the public interest to give permission for withdrawal of the prosecution of the case against the petitioner and has dismissed the application on 20/2/2019. The said order dtd. 20/2/2019 was challenged by the petitioner by filing criminal revision before the learned Additional Sessions Judge, Khairagarh, District Rajnandgaon ( C.G.) which has also been dismissed vide order dtd. 20/1/2020 by affirming the order passed by the learned trial Court. The order dtd. 20/1/2020 passed by the learned Additional Sessions Judge, Khairagarh, District Rajnandgaon is under challenge in the present petition.

(3.) Learned counsel for the petitioner/applicant would submit that when the cabinet has taken a decision to withdraw the prosecution against the petitioner and in furtherance thereof the prosecution has filed an application for withdrawal from prosecution under Sec. 321 of the Cr.P.C., the learned trial Court ought to have allowed the application. There is no requirement for filing application that it should be recommended by the Superintendent of Police and from the plain language of Sec. 321 of the Cr.P.C. the right to file the application under Sec. 321 of the Cr.P.C. for withdrawal from prosecution was given to Public Prosecutor or Assistant Public Prosecutor, In-charge of the case and pray for withdrawal from prosecution with the consent of the court. He would also submit that the District Magistrate was also of the opinion that in the public interest it would deem fit to withdraw from prosecution and directed the Public Prosecutor for same vide its order dated 15-10- 2018 which reflects from the order passed by the learned trial Court itself. He would further submit that the Forest Officer after considering the case, held that the seized wooden logs was the petitioner's property which was taken out from the land of his ownership and it was not the Government property. Therefore, it prima facie established that the present petitioner has falsely been implicated in the offence, for which cabinet has also taken a decision for withdrawal of the prosecution and necessary instructions have been issued to the Public Prosecutor by the learned District Magistrate for the same. The learned trial Court as well as the learned revisional Court have not exercised its jurisdiction in accordance with law and have rejected the application which is liable to be interfered with and the impugned orders may be set aside and the prosecution may be directed to withdraw from the prosecution.