V.K. Shukla, J. - (1.) One Ram Narayan Yadav who was facing trial on the basis of a police report under Section 173 (2) of the Code of Criminal Procedure (in short Cr.P.C.), moved an application to the Chief Minister directly, whereupon, Sri Shambhu Nath, Special Secretary to the Chief Minister made a note directing the concerned department to take appropriate action. Thereafter Special Secretary (Home) sent a letter to the District Magistrate requiring his opinion and the matter was examined by the Assistant Public Prosecutor, who gave an opinion stating that police after due investigation has submitted charge sheet based on evidence; charges are serious; and there are good chances of conviction of accused, therefore, the case should not be withdrawn. This opinion of Assistant Public Prosecutor has been concurred by Senior Public Prosecutor and on the same line the Superintendent of Police as well as District Magistrate gave their opinion against withdrawal of criminal case. Thereafter, it appears, a committee consisting of Shri R.M. Srivastava, the then Principal Secretary (Home) and Shri S.K. Pandey, the then Principal Secretary Law and Legal Remembrancer, put up a note stating that chances of success in the case were doubtful, therefore, it should be withdrawn.
(2.) In Criminal Misc. Writ Petition No. 10816 of 2015 filed by Ram Narayan Yadav before this Court the Court took serious note of the manner in which power under Section 321 Cr.P.C. was sought to be exercised. Accordingly a detailed order was passed by the Court asking for an affidavit of the Principal Secretary Law and Legal Remembrancer as well as Special Secretary Law Government of U.P. Lucknow. It is also reflected from the record that before the Bench seized of the matter Ram Narayan Yadav through his counsel made a request that as the Magistrate has already heard the matter and reserved the order he may be permitted to withdraw the petition. The Division Bench seized of the matter though dismissed the petition as withdrawn by observing that it was the privilege of the petitioner to prosecute his petition or not but after noticing the fact that petitioner Ram Narayan Yadav had political access and was running an educational institution in connection with which he had been found to have indulged in offences in which after collecting credible evidences charge sheet had been submitted and trial was pending proceeded to make the following reference: "1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations just valid and judicially tenable? 2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India? 3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr.P.C. irrespective of fact that accused or anyone else has approached the government for this purpose or not?"
(3.) On the reference being made the matter has been placed before us under the orders passed by Hon'ble the Chief Justice.;