KHUSHAL SINGH PIPALIA Vs. STATE OF U P

JUDGEMENT

(1.) THIS is criminal appeal against the judgment dated 31.5.1985 passed by the then Additional Sessions Judge, Nainital in Sessions Trial no. 229 of 1983. All these six appellants were convicted and sentenced to undergo rigorous imprisonment for one year under Section 147 IPC; to undergo rigorous imprisonment for five years under Section 449 IPC and to undergo rigorous imprisonment for five years and to pay a fine of Rs.

(2.) ,000/ - each under Section 304 part -I read with Section 149 IPC. The substantive sentences were directed to run concurrently. 2. Brief facts are as follows: On 23.7.1983 at about 11:00 AM all these appellants, who were students of Government Polytechnic Institute, Nainital alongwith seven or eight other students manhandled and assaulted the Lab Instructor Mahipal Singh by entering into the lab and caused him injuries by lathies, clubs and stones. Later on, Mahipal Singh succumbed to his injuries. All these appellants were charge -sheeted for commission of the offence and were ultimately convicted and sentenced as aforesaid.

(3.) ON 28.9.2002 learned Government Advocate sought permission to withdraw from the prosecution against all the six appellants by filing an affidavit of Additional Secretary, Ministry of Home, State of Uttaranchal, Sri M.K. Joshi with annexed Government order dated 15.3.2002 regarding the decision taken in that regard. The G.O. dated 15.3.2002 as well as the averment of the affidavit reveal that the decision had been taken keeping in view the attending circumstances of the case on the reference for withdrawal from the prosecution initiated by the District Magistrate, Nainital. Learned G.A. argued that provision of Section 321 of the Code of Criminal Procedure, 1973 (for short 'Code') enables the public prosecutor to make an application for withdrawal from prosecution and that the judgment of the public prosecutor cannot be lightly interfered with unless and until it is shown that the decision is not bonafide and the same is motivated by some extraneous consideration. Learned G.A. is admittedly the incharge of the appeal and is entitled to submit the application under Section 321 of the 'Code' for getting the consent of the court for withdrawal from prosecution. Section 321 of the 'Code' reads as under: