M.K.Mittal - (1.) -This revision has been filed for quashing the order dated 14.3.2008 passed by Additional Sessions Judge, F.T.C. No. 2, in Sessions Trial No. 119/99, State of U. P. v. Jai Prakash Yadav and others, whereby he allowed the application No. 149 kha and rejected the application Nos. 92kha and 97kha filed by the prosecutor. The applications No. 92 kha and 97 kha were filed for withdrawal of the case under Section 321, Cr. P.C. and the application No. 149kha was filed with the request that these two applications be dismissed as not pressed.
(2.) THE brief facts of the case are that a first information report was lodged by Dr. Brij Bhan Yadav against the present revisionists on 4th August, 1997, alleging that in the night of 3/4 August, 1997 his niece Smt. Rekha Yadav who was married with accused Vinod Kumar Yadav was killed by the accused persons as dowry demand could not be fulfilled. In the matter after investigation charge-sheet has been submitted under Sections 304B and 498A, I.P.C. and 3/4, D. P. Act and charges have also been framed against the accused persons. An application No. 92kha was filed on 8.11.2005 by Sri Atul Kumar Sharma, Additional District Government Counsel (Criminal), for withdrawal of the case. An objection was filed by the complainant to the effect that no grounds for withdrawal were disclosed and the application was liable to be dismissed. Thereafter another application No. 97kha was filed by Sri Atul Kumar Sharma, on 6th December, 2005 and in that application reasons were given for withdrawal. Objection was filed by the complainant on 16.1.2006. Thereafter the application No. 149kha was filed on 6.9.2007 praying that the earlier two applications be dismissed as not pressed. This application No. 149 kha was filed by Sri Dinesh Nath Pandey, Additional District Government Counsel (Criminal). The learned Judge allowed the application No. 149 kha and dismissed the two earlier applications on merit by the impugned order. Feeling aggrieved, this revision has been filed. According to the revisionists the applications for withdrawal were filed on the basis of the order of the State Government to withdraw the prosecution against the revisionists. But the application No. 149kha was filed as there was change in the Government. The application under Section 321, Cr. P.C. was filed by the public prosecutor after application of his mind and he had also given reasons and there was no occasion to file a subsequent application No. 149kha which was not legal. The earlier applications were filed by Sri Atul Kumar Sharma and Sri Dinesh Nath Pandey was not posted in the Court of Additional Sessions Judge (F.T.C. Court No. 1) where the application No. 149kha was filed and he was not competent to move the application. The objection against the withdrawal made by the complainant was not permissible under the law. The prosecution can be withdrawn not only on the basis of the public interest but also on the basis of the deficiency of evidence. In the instant case the evidence is not sufficient to bring home the guilt of the accused, particularly under Section 304B, I.P.C. which is the main offence of the case. There was no external injury on any part of the body of the deceased and at the time of examination of viscera, no poison was found. It is for the prosecution, in a dowry death case, to show that the death of the woman was caused in some unnatural circumstances and that she was harassed soon before her death. According to the revisionists the application No. 149kha filed not to press the earlier withdrawal applications, was liable to be rejected and the earlier applications were liable to be allowed, but the learned trial court has erred in passing the impugned order which is liable to be set aside.
(3.) ALTHOUGH the revisionists have not impleaded the complainant but the complainant appeared and has filed counter-affidavit in the case. He has been allowed to contest. In the counter-affidavit it has been alleged that the accused persons committed brutal murder of Smt. Rekha Yadav within one and half years of the marriage due to non-fulfilment of demand of dowry. The investigating agency was in collusion with the accused persons and even the doctors who conducted the post-mortem examination were not fair as in the viscera report there is note to the effect that the entire stomach, the piece of intestine, piece of liver, pancreas, one kidney and spleen should have been sent as a whole but only small pieces of the tissues were sent which was objectionable. On this basis the complainant has contended that the accused had from the very beginning tried to tilt the case. ALTHOUGH, the State Government had directed the District Magistrate to withdraw the prosecution case but there was no ground for it and the learned Additional District Government Counsel (Criminal), moved the application on 8.11.2005 (92 kha) to withdraw the prosecution without any ground. Learned Additional District Government Counsel (Criminal), moved another application No. 97kha to withdraw the prosecution case. The perusal of this second application shows that it was moved in collusion with the accused persons without examining the facts. There was nothing in the public interest for withdrawal of the prosecution case. Sri Atul Kumar Sharma who had earlier moved the applications for withdrawal of the case, died on 31.8.2007. These applications were pending since long and the Sessions Judge transferred the sessions trial on 21.8.2007 to the Court of Additional Sessions Judge F.T.C. No. 1 and on 6.9.2007, learned Additional District Government Counsel (Criminal) who was working in that Court was absent and, therefore, Sri Dinesh Nath Pandey was looking after the Court work of the Court of Additional Sessions Judge F.T.C. No. 1, Gyanpur Bhadohi and he made endorsement on the earlier applications for withdrawal of the case, not to press them and also moved an application to that effect. Thereafter the case was again transferred to the Court of Additional Sessions Judge F.T.C. No. 2 and the learned Judge after considering the applications has passed impugned order which does not suffer from any illegality and needs no interference. In the Government order for withdrawing the prosecution no ground was mentioned. According to the complainant the revisionist No. 1 was then District President of Samajwadi Party and the revisionist No. 2 was the District President of Yuvjan Sabha Samajwadi Party and were having good relations with the former ruling party. The charges were framed in the case on 6.2.2005 but the accused have throughout been delaying the hearing of the trial. Learned counsel for the revisionists has contended that the earlier applications for withdrawal of the case were given by Sri Atul Kumar Sharma but the application, not pressing those applications, was given by another Additional District Government Counsel (Criminal) namely Sri Dinesh Nath Pandey and he was not competent to give the application and the application filed by him should have been rejected. He has also referred to Section 321 of the Code of Criminal Procedure which provides that the application for withdrawal can be filed by Public Prosecutor or Assistant Public Prosecutor 'incharge of the case'. The learned counsel for the revisionists has contended that in the old Cr. P.C. of the year 1898 the words 'incharge of the case' were not there and they have been introduced in the present Criminal Procedure Code. But the learned counsel for the complainant and the learned A.G.A. have submitted that the earlier two applications were filed by Sri Atul Kumar Sharma but he died on 31.8.2007 and when the application was filed by Sri Dinesh Nath Pandey in the Court of the Additional Sessions Judge F.T.C. No. 1 on 6.9.2007, he was looking after the work of that Court and was incharge of work on behalf of public prosecutor and, therefore, he was competent to file the application 149kha as he was incharge of the case on that date. Subsequently this case was transferred to the Court of Additional Sessions Judge F.T.C. No. 2 and that Court has decided the application. The learned Judge in the impugned order has discussed this aspect of the case and has recorded a finding that Sri Dinesh Nath Pandey was incharge of the case when he filed the application. This finding has been correctly recorded by the learned Judge and the contention of the learned counsel for the revisionists that Sri Dinesh Nath Pandey was not competent to file the application is not tenable and cannot be accepted.;