MANMOHANSINGH KARAMSINGH OBERAI Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the common order passed by the 21st Judicial Magistrate First Class, and Jt. Civil Judge (J.D.), Aurangabad below Exh.19 and 22 in S.C.C.No.7494 of 2004, the original accused No.2 has preferred this Criminal Writ Petition.

(2.) Brief facts, giving rise to the present writ petition, are as follows : - On 24.8.2005 the Maharashtra State Assembly Election Programme was declared and Code of Conduct was also announced during the period on 24.8.2004 and onwards. The actual election process was to be commenced from 15.9.2004 to 28.9.2004. Even on 15.9.2004 respondent No.2 by exercising powers under Section 37(1) and 37(3) of The Bombay Police Act, 1951 issued the order of prohibition as mentioned in clause A to F. Furthermore, on 10.9.2004 order under section 144 of Code of Criminal Procedure also came to be passed by respondent No.2. On 20.9.2004 when the election date was scheduled for filling of the nomination forms some political leaders came in the office of the Election Officer for submission of their nominations. At that time, followers of those political leaders gave slogans in the office of the Election Officer though aforesaid order under section 37 (1) and 37 (3) of Bombay Police Act, 1951 as mentioned in Class A to F and order under Section 144 of the Code of Criminal Procedure were in force. On the basis of the complaint lodged by the Tahsildar, Sillod Crime No.131/2004 for the offence punishable under section 143, 188 of the Indian Penal Code and Section 135 of the Bombay Police Act came to be registered at Police Station City, Aurangabad. After due investigation, police submitted charge sheet.

(3.) The learned Special Assistant Public Prosecutor, thereafter, filed an application Exh.19 under section 321 of the Code of Criminal Procedure for withdrawal of the prosecution. It has contended in the said application that the Special Assistant Public Prosecutor is withdrawing the said case in compliance with the orders of the Police Commissioner, Aurangabad and Assistant Director and Public Prosecutor, Aurangabad. Since the learned Judge of the Trial Court has observed that there is no application of mind independently for withdrawal of the prosecution, the Special Assistant Public Prosecutor again submitted an application at Exh.22, however, the learned Judge of the Trial Court by its impugned order dated 28.6.2011 passed below Exh.19 and 22 rejected the application. Hence, this writ petition.