UP Excise Act Case: Allahabad High Court Allows Application For 'Withdrawal From Prosecution' Against UP BJP MLA PN Pandey

The Allahabad High Court has allowed an application of the Public Prosecutor for 'Withdrawal From Prosecution' (as provided under Section 321 CrPC) against UP BJP MLA Prem Narayan Pandey in connection with a case registered against him under the UP Excise Act.

With this, the Court set aside the judgment and order passed by the Additional Session Judge, Special Judge (M.P./M.L.A.), Gonda (in November 2020) rejecting the plea of the public prosecutor.

It may be noted that while rejecting the application, the Court concerned had noted that no documentary material had been put forth demonstrating that such withdrawal (from prosecution) was in the interest of public justice.

#JustIN | The #AllahabadHighCourt has allowed plea for 'Withdrawal From Prosecution' against UP BJP MLA Prem Narayan Pandey (@premnarayanmla) in connection with a case under the UP Excise Act. pic.twitter.com/TLqfZwqPCh

— Live Law (@LiveLawIndia) February 17, 2023

Noting that the order of November 2020 suffers from apparent illegality and perversity, the bench of Justice Rajesh Singh Chauhan set it aside and allowed the application filed by the PP under Section 321 CrPC.

"The learned trial court may not examine the purpose for what the application for withdrawal of the prosecution has been filed inasmuch as the withdrawal from prosecution is an executive function of the Public Prosecutor. The discretion to withdraw from the prosecution is solely that of the Public Prosecutor and so he cannot surrender that discretion to someone else," the Court observed in its operative part of the order.

The case in brief

The case against MLA Pandey is that in the year 2003, he was found in possession of liquor in contravention of Sections 60 and 72 of the UP Excise Act. Thereafter, criminal proceedings were initiated against him before the court concerned.

Now, in November 2019, an application under Section 321 Cr.P.C. was filed before the trial court concerned by the Assistant Public Prosecutor (Criminal). After the same was rejected, Paney moved the High Court seeking various prayers including quashing of entire criminal proceedings, allowing the PP's application, etc.

Before the Court, Pandey's counsel argued that the nature of the case which is sought to be withdrawn would not affect the society at large, thus, such withdrawal would not be against public justice.

Relying upon the Apex Court's rulings, it was also submitted that the Public Prosecutor may withdraw from prosecution not merely on the ground of paucity of evidence but on other relevant ground as well as in order to further the broad ends of public justice, public order and peace.

On the other hand, the Additional Government Advocates also submitted that the trial court has erred in passing the impugned order by indicating that the prosecution could not file any document/ material to convince the court to withdraw the prosecution against the present applicant.

Significantly, the Court was also apprised of the fact that the trial court earlier this month rejected the discharge application of the petitioner which was filed pursuant to the order of the HC.

Against this backdrop, taking into account the pleadings of both parties, the Court noted that if the Public Prosecutor is able to show that he may not be able to produce sufficient evidence sustaining the charges, an application for withdrawal from the prosecution may be legitimately filed by him.

Further, stressing that the ultimate guiding consideration while granting permission to withdraw from prosecution must always be the interest of the administration of justice. The Court also referred to Supreme Court's ruling in the case of State of Kerala vs. K. Ajith and others LL 2021 SC 328.

"The court performs a supervisory function and has a special duty in granting its consent to the withdrawal. The courts duty is not to reappreciate the grounds which led the Public Prosecutor to request the withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution," the Court further observed as it found faults with the trial court's order and set it aside.

Appearances

Counsels for petitioner: Rajendra Prasad Mishra, along with Pradeep Kumar Shukla,

Counsels for the state: Additional Government Advocates Alok Saran and Rajesh Kumar Singh

Case title - Prem Narayan Pandey vs. State Of U.P. Thru. Prin. Secy. Home Lko. And Another [APPLICATION U/S 482 No. - 666 of 2023]

Case citation: 2023 LiveLaw (AB) 65

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