DARA NISHAD Vs. STATE OF U P

JUDGEMENT

(1.) This revision has been filed assailing the validity of the impugned order dated 19.12.2013 passed by Judicial Magistrate, IIIrd, Gorakhpur, in Case No. 32 of 2007 (State v. Dara Nishad) arising out of Case Crime No. 377-A of 2004, under section 147, 148, 149, 307, 323, 426, 504, 506, I.P.C., P.S. Barhalganj, district Gorakhpur whereby the application of the Public Prosecutor seeking the withdrawal of the prosecution was rejected by the Court. Heard Sri Gaurav Kakkar, learned Counsel for the revisionist as well as learned A.G.A. The entire record has been perused including the impugned order.

(2.) The contention of the learned Counsel is that to withdraw the prosecution of a case is primarily the discretion of State and it was exercised in favour of the accused. The Court below should not have put a spanner in the exercise of withdrawal which was initiated by the Additional Public Prosecutor. The submission is that the Court below has encroached upon the discretionary right of the State authorities which makes the impugned order bad in the eyes of law.

(3.) I have perused the impugned order and relevant record in the light of the submissions made at the bar. It appears that with regard to the aforesaid case, which the accused-revisionist was facing, a letter of communication was sent to the District Magistrate whereby he was conveyed the decision of the Government to withdraw the prosecution against the accused. The District Magistrate was instructed to take steps for the same purpose. It transpires that in compliance of the aforesaid direction sent by the Principal Secretary of Government of U.P. the Additional Public Prosecutor moved the application before the Judicial Magistrate and sought his consent to allow the withdrawal of the case which was pending against the accused revisionist. From the perusal of the impugned order, it further transpires that this application of Additional Public Prosecutor did not find favour with the Court who vide its order dated 19.12.2013 rejected the application and withheld its consent.