SHRI KANT TRIPATHI,J. - (1.) Heard learned counsel applicant and learned AGA for the respondents and perused the record.
(2.) COUNTER and rejoinder affidavits have been exchanged. With the consent of the learned counsel for the parties, this application is being disposed of finally. It appears that the applicant is an accused in the case crime no. 197 of 1982, under section 409 I.P.C., Police Station-Inayatnagar, District-Faizabad, pending in the court of First Judicial Magistrate, Faizabad. The Assistant Prosecuting Officer in-charge of the case moved an application under section 321 of the Code of Criminal Procedure for withdrawal from the prosecution of the applicant under the instruction dated 21.02.2007 given by the State Government. Learned Magistrate considered the application and arrived at the conclusion that the charge against the applicant was of serious in nature, therefore, it was not proper in public interest to permit withdrawal from prosecution. Accordingly, the learned Magistrate rejected the application vide his order dated 14.12.2007.
(3.) THE learned counsel for the applicant submitted that the applicant is an old person aged about 63 years who has deposited the entire amount involved in the present case in the Government treasury. More so he has no criminal antecedent, therefore, no useful purpose would be served to try the applicant, therefore, it was desirable on the part of the learned Magistrate to allow the application for withdrawal from the prosecution. It was next submitted that the application for withdrawal from the prosecution could be moved on the instruction of the State Government because the Uttar Pradesh Act No. 18 of 1991 has amended section 321 of the Code of Criminal Procedure with effect from 16.02.1991 which provides that the application for withdrawal from the prosecution can be moved by the Public Prosecutor or the Assistant Public Prosecutor in-charge of the case on the written permission of the State Government which shall be filed in the court.;