Bal Kumar Patel @ Raj Kumar vs. State Of U.P.

2025 INSC 1378
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No (s). 5196 OF 2025
(Arising out of SLP(Crl) No.6421 of 2025)
BAL KUMAR PATEL
@ RAJ KUMAR …APPELLANT(S)
Versus
STATE OF U.P …RESPONDENT(S)

WITH
CRIMINAL APPEAL No. 5197 OF 2025
@ SLP (Crl) No. 13168 of 2025
WITH
CRIMINAL APPEAL No. 5198 OF 2025
@ SLP (Crl) No. 13090 of 2025
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.12.03
18:33:17 IST
Reason:
Crl. Appeal @ SLP (Crl.) No. 6421 of 2025 Page 1 of 13

WITH
CRIMINAL APPEAL No. 5199 OF 2025
@ SLP (Crl) No. 13144 of 2025
WITH
CRIMINAL APPEAL No. 5200 OF 2025
@ SLP (Crl) No. 13142 of 2025
WITH
CRIMINAL APPEAL No. 5201 OF 2025
@ SLP (Crl) No. 13161 of 2025
J U D G M E N T
SANJAY KAROL J,
Leave Granted.
2. The appellant seeks leave to appeals under Article 136 of
the Constitution of India to challenge the following judgments
and orders whereby the High Court of Judicature at Allahabad
has declined to exercise its jurisdiction under Section 482 Code
1
of Criminal Procedure, 1973 /528 Bharatiya Nagarik Suraksha
2
Sanhita, 2023 and quash the criminal proceeding against him,
Hereinafter referred to as ‘CrPC’
1
2 Hereinafter referred to as “BNSS”
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on the common ground that the permission as required under
law, to withdraw prosecution against sitting/former Members of
Parliament or Members of Legislative Assembly, has not been
sought by the State from the High Court as mandated by
3
Ashwini Kumar Upadhyay v. Union of India .

3. Since the question involved in these appeals is a question
of law, it may suffice to note by way of background facts that
the appellant was the holder of an arms license issued by the
3 2021(20) SCC 599
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competent authority of the State, but the common FIR from
which all these proceedings arise came to be filed against him
th
on 12 June 2007, with the allegation that in holding the arms
license, he had acted against the provisions of the Arms Act
1959. It is also required to be noted as a matter of subsequent
development that the District Magistrate, Raebareli had vide
th
order dated 11 July 2012 restored the Arms license which
th
originally stood cancelled by order dated 24 December 2009
passed in Case No.35/2012/113/26/09 under Section 17(3)(b) of
the Arms Act.
4. The FIR was processed as per law and the chargesheet
th
was filed on 25 July 2007. The Chief Judicial Magistrate,
Raebareli took cognizance of the chargesheet vide order dated
10th August 2007. By Government Order bearing particulars
No.1264/WC/Seven-Nyay-5-2014-842-WC/2012, the Special
Secretary Government of Uttar Pradesh wrote to the District
th
Magistrate Raebareli on 6 August 2014 stating that the
Government had decided to withdraw Case Crime No.654,655
and 656 of 2007 against the Appellant, in public interest and
also in the interest of justice. The same is extracted below:
“No.1264/WC/Seven-Nyay-5-2014-842 WC/2012
From,
J.P. Sigh II
Special Secretary
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Government of Uttar Pradesh.
To,
District Magistrate
Raebareli.
Law Section-5 (Criminal)Lucknow, dated 06th August,
2014
Subject: Regarding withdrawal of prosecution in Case
Crime No. 654/2007, 655/2007, 656/2007 u/s 25, 27,
30 of Arms Act, P.S. Raebareli, District- Raibareli,
titled as State Vs. Bal Kumar @ Raj Kumar Pate etc.
Sir,
In reference to your above subject Letter
No.1490/Nyay. Saha. Pratham/12, dated 26.10.2012, I
have been directed to say that after due consideration
on the facts of cases, Reports/ Letters available on
record, the Government has decided to withdraw the
aforesaid cases in public interest as well as in the
interest of justice.
2. I have also been directed to say that his Excellency
Governor is pleased to grant permission to file
application for withdrawal of aforesaid cases in the
Court through Public Prosecutor.
3. Kindly ensure the required proceedings accordingly
and kindly also inform the Government with action
taken.
Regards,
Sd/-
(J.P. Singh II)
Special Secretary
OFFICE OF DISTRICT MAGISTRATE, RAEBARELI
No.748/J.A. PrathamVad Wapasi/2014,dated 12th
August, 2014
Copy to: Senior Prosecution Officer, Raebareli with this
intent that by conducting the further proceedings in the
present case as per the directions of Government,
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kindly send the information of proceedings,
immediately to this office.
Sd/ -
ADM (Administration)”
Pursuant to the said G.O., the learned Public Prosecutor filed an
application under Section 321 CrPC before the Trial Court on
th
27 August 2014 for withdrawal of the cases. The application
reads as under:
“COURT OF CHIEF JUDICIAL MAGISTRATE,
RAEBARELI
COURT NO.9
Case No.3072/2007
State Vs. Bal Kumar @ Raj Kumar
Crime No.656/07
U/s 25, 27, 30 of Arms Act, P.S. Kotwali Nagar
Date: 27.08.2014
APPLICATION U/S 321 OF CR.P.C .
Sir,
Today, the aforesaid case is listed for evidence.
According to the Government Letter No.1264 WC/
Nyay-5-2014-842 WC/2012(Photocopy enclosed), the
Government has decided to withdraw the aforesaid case
in public interest and in the interest of justice, and His
Excellency Governor has directed me to file the
application for withdrawal of case.
Therefore, you are prayed that by conducting hearing
on the aforesaid Government Order, kindly pass order
for withdrawal of aforesaid case in the public interest as
well as in the interest of justice.
Regards,
Sd/- illegible
Date: 27.08.2014”
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th
The Trial Court vide order dated 8 October 2021
observed that the State had not sought permission of the High
Court in accordance with Ashwini Kumar Upadhyay (supra)
and as such permission to withdraw could not be granted. In
order to grant the State ample opportunity to do so, a thirty days
time period was given to seek the requisite permission and it
was observed that should the same not be filed in the aforesaid
time, the prosecution will be conducted as per law.
5. The State, as the record reveals, did not seek permission.
The appellant, however, did file application(s) under Section
482 CrPC/528 BNSS as referred to supra, seeking quashing.
Such application (s) was rejected and the matter now stands
before us.
6. The law in this regard is well settled. In State of Kerala
4
v. K. Ajith DY Chandrachud J. (as he then was) formulated the
following principles for exercise of the power under Section
321 CrPC:
“25. The principles which emerge from the decisions of
this Court on the withdrawal of a prosecution under
Section 321CrPC can now be formulated:
25.1. Section 321 entrusts the decision to withdraw
from a prosecution to the Public Prosecutor but the
consent of the court is required for a withdrawal of the
prosecution.
4 (2021) 17 SCC 318
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25.2. The Public Prosecutor may withdraw from a
prosecution not merely on the ground of paucity of
evidence but also to further the broad ends of public
justice.
25.3. The Public Prosecutor must formulate an
independent opinion before seeking the consent of the
court to withdraw from the prosecution.
25.4. While the mere fact that the initiative has come
from the Government will not vitiate an application for
withdrawal, the court must make an effort to elicit the
reasons for withdrawal so as to ensure that the Public
Prosecutor was satisfied that the withdrawal of the
prosecution is necessary for good and relevant reasons.
25.5. In deciding whether to grant its consent to a
withdrawal, the court exercises a judicial function but it
has been described to be supervisory in nature. Before
deciding whether to grant its consent the court must be
satisfied that:
( a ) The function of the Public Prosecutor has not been
improperly exercised or that it is not an attempt to
interfere with the normal course of justice for
illegitimate reasons or purposes;
( b ) The application has been made in good faith, in the
interest of public policy and justice, and not to thwart
or stifle the process of law;
( c ) The application does not suffer from such
improprieties or illegalities as would cause manifest
injustice if consent were to be given;
( d ) The grant of consent subserves the administration of
justice; and
( e ) The permission has not been sought with an ulterior
purpose unconnected with the vindication of the law
which the Public Prosecutor is duty-bound to maintain.
25.6. While determining whether the withdrawal of the
prosecution subserves the administration of justice, the
court would be justified in scrutinising the nature and
gravity of the offence and its impact upon public life
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especially where matters involving public funds and the
discharge of a public trust are implicated.
25.7. In a situation where both the trial Judge and the
Revisional Court have concurred in granting or refusing
consent, this Court while exercising its jurisdiction
under Article 136 of the Constitution would exercise
caution before disturbing concurrent findings. The
Court may in exercise of the well-settled principles
attached to the exercise of this jurisdiction, interfere in
a case where there has been a failure of the trial Judge
or of the High Court to apply the correct principles in
deciding whether to grant or withhold consent.
..
67. The test which has been laid down in the decisions
of this Court commencing with Ram Naresh
Pandey [ State of Bihar v. Ram Naresh Pandey , 1957
SCC OnLine SC 22 : AIR 1957 SC 389] in 1957,
spanning decisions over the last 65 years is consistent.
The true function of the court when an application
under Section 321 is filed is to ensure that the executive
function of the Public Prosecutor has not been
improperly exercised or that it is not an attempt to
interfere with the normal course of justice for
illegitimate reasons or purposes. The court will grant its
consent if it is satisfied that it subserves the
administration of justice and the purpose of seeking it is
not extraneous to the vindication of the law. It is the
broad ends of public justice that must guide the
decision. The Public Prosecutor is duty-bound to act
independently and ensure that they have applied their
minds to the essential purpose which governs the
exercise of the powers. Whether the Public Prosecutor
has acted in good faith is not in itself dispositive of the
issue as to whether consent should be given. This is
clear from the judgment in Sheonandan
Paswan [ Sheonandan Paswan v. State of Bihar , (1987)
1 SCC 288 : 1987 SCC (Cri) 82]. In para 73 of the
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judgment, V. Khalid, J. has specifically observed that
the court must scrutinise “whether the application is
made in good faith, in the interest of public policy and
justice and not to thwart or stifle the process of law”.
Good faith is one and not the only consideration. The
court must also scrutinise whether an application
suffers from such improprieties or illegalities as to
cause manifest injustice if consent is given.”
[emphasis supplied]
7. Carrying forward this stipulation in Ajith (supra) a bench
of 3 Judges in Ashwini Kumar Upadhyay (supra), held as
under:
“8. In view of the law laid down by this Court, we
deem it appropriate to direct that no prosecution against
a sitting or former MP/MLA shall be withdrawn
without the leave of the High Court in the respective
suo motu writ petitions registered in pursuance of our
order dated 16-9-2020 [ Ashwini Kumar
Upadhyay v. Union of India , (2021) 20 SCC 613] . The
High Courts are requested to examine the withdrawals,
whether pending or disposed of since 16-9-2020
[ Ashwini Kumar Upadhyay v. Union of India , (2021) 20
SCC 613] , in light of guidelines laid down by this
Court.”
[emphasis supplied]
8. Regarding the duty of the Court, the Court as far back as
5
1957 in State of Bihar v. Ram Naresh Pandey , speaking in
5 1957 SCC OnLine SC 22
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the context of Section 494 of the old Code whose counterpart is
Section 321 CrPC referred supra observed as under:
“…The section is an enabling one and vests in the
Public Prosecutor the discretion to apply to the Court
for its consent to withdraw from the prosecution of any
person. The consent, if granted, has to be followed up
by his discharge or acquittal, as the case may be. The
section gives no indication as to the grounds on which
the Public Prosecutor may make the application, or the
considerations on which the Court is to grant its
consent... The function of the Court, therefore, in
granting its consent may well be taken to be a judicial
function. It follows that in granting the consent the
Court must exercise a judicial discretion. But it does
not follow that the discretion is to be exercised only
with reference to material gathered by the judicial
method. Otherwise the apparently wide language of
Section 494 of the Code of Criminal Procedure would
become considerably narrowed down in its application.
In understanding and applying the section, two main
features thereof have to be kept in mind. The initiative
is that of the Public Prosecutor and what the Court has
to do is only to give its consent and not to
determine any matter judicially . As the Privy Council
has pointed out in Faqir Singh v. Emperor [AIR 1938
Privy Council 266, 269] “It (Section 494 of the Code of
Criminal Procedure) gives a general executive
discretion (to the Public Prosecutor) to withdraw from
the prosecution subject to the consent of the Court,
which may be determined on many possible grounds”.
The judicial function, therefore, implicit in the exercise
of the judicial discretion for granting the consent would
normally mean that the Court has to satisfy itself that
the executive function of the Public Prosecutor has not
been improperly exercised, or that it is not an attempt to
interfere with the normal course of justice for
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illegitimate reasons or purposes. In this context it is
right to remember that the Public Prosecutor (though an
executive officer as stated by the Privy Council
in Faqir Singh v. Emperor [AIR 1938 Privy Council
266, 269] ) is, in a larger sense, also an officer of the
Court and that he is bound to assist the Court
with his fairly-considered view and the Court is entitled
to have the benefit of the fair exercise
of his function…”
[emphasis supplied]
9. The Court in Ram Naresh (supra) spoke in the context of
a Trial Court and the duty that is cast upon it when an
application for withdrawal is made by the Public Prosecutor,
after the latter has made an independent assessment of the
justifiability of such an application. Undoubtedly this is the duty
of the Trial Court when applications for withdrawal from
prosecution is made in regular course before the Court, however,
we are of the considered view that the duty described above, of
the applications of judicial mind, applies in letter and spirit to
the High Court as well, when considering applications for
permission in cases concerning MPs or MLAs, which can only
be filed before it in terms of the law referred to supra . The
Public Prosecutor who has a duty to assist the Court ‘with a
fairly considered view’ on the case, in his application and in the
interest of justice should disclose all reasons that weighed with
them to put forward this application to the Court. This is in
furtherance of the well recognised principle that reasons are the
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soul of a judicial as well as administrative function. In view of
Ashwini Kumar Upadhyay (supra) this application disclosing
the reasons for withdrawal of prosecution given by the Public
Prosecutor as also the records of the case should be before the
High Court which would exercise its judicial mind and give a
reasoned order, granting or denying such permission.
10. As is obvious, this permission is missing in the present
case. The impugned judgment therefore cannot be faulted with.
The High Court has rightly dismissed the petition for quashing.
The Appeals are dismissed. We clarify that we have not
expressed any view on the merits of the case and any and all
contentions available to the appellant are left open for him to
take at the appropriate stage be it discharge or trial.
Pending application(s) if any, shall stand disposed of.
…..……..…………..…………………… J.
(SANJAY KAROL)
…….…………….…………….…………………. J.
(NONGMEIKAPAM KOTISWAR SINGH)
New Delhi
December 03, 2025
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