- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the respondents.
(2.) THIS application has been filed under Article 226 of the Constitution of India for quashing the entire criminal proceeding of G. Case No. 940 of 2006 (T.R. No.1 of 2006) including the order dated 17.7.2006 passed by Sri Santosh Kumar, Judicial Magistrate, 1st Class, Hazaribagh whereby application filed by the Assistant Public Prosecutor under Section 321 of the Code of Criminal Procedure was dismissed on account of its non -prosecution. Learned counsel appearing for the petitioner submits that Forest Range Officer, Hazaribagh filed a prosecution -report alleging therein that petitioner alongwith his labourers indulged themselves in extracting stone from an area outside leasehold area granted to the petitioner and thereby committed offence under Section 33 of the Indian Forest Act but the entire allegation is false and, as a matter of fact, prosecution report was lodged entirely on mistaken facts and, in fact, stone was quarried from leasehold area, bearing plot no. 773 at Village Bhabanbey, lease of which granted by the competent authority to. the petitioner is still in subsistence and when the matter was brought to the Forest Officials, a Committee consisting of three persons was constituted by Conservator of Forest, who enquired into the matter and came to finding that the petitioners never indulged themselves in illegal mining as the area from where stone was allegedly extracted was well within the leasehold area of the petitioner and therefore, Divisional Forest Officer, Hazaribagh made recommendation for withdrawal of the case and accordingly, Assistant Public Prosecutor filed an application for withdrawal of the case under Section 321 of the Code of Criminal Procedure and when the matter was taken up for hearing, the case was adjourned to another date to enable Assistant Public Prosecutor to file the letter whereby Divisional Forest Officer had made recommendation for withdrawal of the case. But on the date fixed, an application filed under Section 321 of the Code of Criminal Procedure was dismissed due to its non -prosecution and, therefore, if that order dismissing the application is allowed to be continued a great prejudice would be caused. Hence, the impugned order is fit to be set aside.
(3.) HAVING heard learned counsel appearing for the parties, I may say that under the scheme of the Code prosecution of an offender is primarily the responsibility of the executive and the withdrawal from the prosecution is an executive function of the public prosecutor and, therefore, Government may suggest to the public prosecutor that he may withdraw from the prosecution and the discretion to withdraw from the prosecution is that of the public prosecutor and none -else and that the public prosecutor may withdraw from the prosecution not merely on the ground of the paucity of evidence but on other relevant grounds as well in furtherance of the ends of justice, public order and peace. Here in the instant appeal as it appears from the submission that Divisional Forest Officer instructed Assistant Public Prosecutor to withdraw from prosecution when it appeared to him from the report of enquiry committed that petitioner has wrongly been prosecuted and on that basis application under Section 321 of the Code of Criminal Procedure seems to have been filed and, therefore, if the order dismissing the said application is allowed to be continued, there would be injustice to the petitioner.;