- (1.) S. S. Kulshrestha, J. Heard Sri O. P. Singh learned Counsel for the applicant and learned A. G. A.
(2.) THIS application under Section 482 of the Code of Criminal Procedure which is hereinafter called as the Code) has been brought for quashing the prosecution of the applicant alleged to be involved in the offence under Section 3/7 Essential Commodities Act (which is hereinafter called as the Act), crime case No. 78/1992, State v. Girish Chand Gupta, Police Station Bhadohi, District Varanasi. It is said that Sri Balbhadra Upadhyay, Supply Inspector, Bhadohi, Varanasi lodged a report at the police station on 6-1- 1992 alleging the commission of offence by the accused applicant under Section 3/7 of the Act which was registered at Crime Case No. 7/1992. After investigation charge sheet has been submitted by the police against the accused applicant and trial commenced. After recording the statement of the witnesses the date has fixed for the statement of the accused under Section 313 of the Code. Thereafter, pursuant to the directions given by this Court in criminal Revision No. 27696/2000, Girish Chandra Gupta v. State of U. P. , the case was reopened for affording opportunity to the accused applicant to cross-examine the prosecution witnesses. In the meantime State Government had taken decision for withdrawing all pending cases lying in the criminal Courts arising out of the Act. In that regard orders/circular letters were also issued. On the premises of Government order, the Public Professor moved an application before the Special Judge (E. C. Act), Varanasi for the withdrawal of the prosecution against the accused applicant. That application was rejected on 26-2-2002. Feeling aggrieved from the aforesaid order the present application has been brought. In order to facilitate the disposal of the application it shall be useful to refer the Government order No. 2574/29-7- 2001-M-11/94 dated 12-11-2001, which reads as under: "in continuation of the Government Order No. 6655/29- 7-2000 M- 11/94 dated 19-12-2000, the Government had taken decision that the new cases under the Act shall not be registered against the businessmen/traders and also the cases arising out of that Act pending of any stage in the Subordinate Courts shall be withdrawn. " The accused applicant has filed the copy of the Government Order (Annexure-5) which is with regard to the making of forwarding endorsement on the G. O. No. 2574/29-7-2001 M-11/94 dated 30-10-2001 to the Commissioner (Food and Civil Supplies), District and also to other district authorities. Both the papers have been filed by the accused applicant with a view to show that the policy decision which was taken by the Government for the withdrawal of the cases arising out of the Act, had been communicated to all the District Magistrates and all concerned. It was on the basis of such Government order application (Annexure-6) was moved by the Addl. Public Professor for according consent on the withdrawal of the cases. This application was rejected by the Special Judge (E. C. Act), Varanasi with the observations that 'looking to the facts and circumstances and the nature of the case it would not be proper to permit the withdrawal of the case. ' It is said that the learned Magistrate was under obligation to have accorded consent for the withdrawal of the case particularly when the policy decision has been taken by the Government.
(3.) IN this regard Section 321 of the Code, relevant to the extent may be extracted herein under: "321. Withdrawal from prosecution.-The Public Professor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from he prosecution of any person either generally or in respect of any one or more of the offences of which he is tried; and upon such withdrawal; (a) If it is made before charge has been framed, the accused shall be discharged in respect of such offence or offences: (b) If it is made a charge has been framed, or when under this Court no charge is required, he shall be acquitted in respect of such offence or offences: Again in the decision in State of Bihar v. Naresh Pandey, AIR 1957 SC 389: (1957 Cr. LJ 567) the Supreme Court has considered the rights of the Public Prosecutor in preferring application to withdraw from prosecution and has observed as follows: "his discretion in such matter has necessarily to be exercised with reference to such material as is by then available and if is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary at as higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this relating to inquires and (sic) by Court. ";