Allahabad High Court Upholds Rejection Of State's Plea To Withdraw Rape Case Against Swami Chinmayanand, Slams UP Govt

The Allahabad High Court today upheld the order of the Chief Judicial Magistrate, Shahjahanpur declining to accord permission to an application of the state, forwarded by the Prosecuting Officer under section 321 Cr.P.C. seeking withdrawal of a rape case against former Union minister Chinmayanand Saraswati.The bench of Justice Rahul Chaturvedi also slammed the Uttar Pradesh Government for its decision to withdraw a case against Saraswati as it remarked that the District Magistrate, Shahjahanpur had failed to spell out even a single good reason for the withdrawal of the prosecution against the accused.Stressing that there has to be a cogent and tangible reason, which must be spelled out in such an application filed under section 321 CrPC [seeking withdrawal of prosecution], the Court also took to task the Senior Public Prosecutor as it noted that he had simply bowed down on the toes of his executive/political majesty. "The Senior Prosecuting Officer has not even mentioned on which material he has applied his own independent mind and has drawn the conclusion that the withdrawal of the prosecution would meet end of justice or in the interest of public at large. Mere mentioning of the phrase 'स्वतंत्र मस्तिष्क' (independent mind) casts serious doubt as to whether the concerned Senior Prosecution Officer is an officer of the court or an agent to the executive," the Court remarked.The case in brief Swami Chinmayanand Saraswati had moved the Court challenging the order of the Chief Judicial Magistrate, Shahjahanpur declining to accord permission to an application filed under Section 321 of the CrPC by the state government seeking withdrawal of rape case against him.For context, Section 321 of the Cr.P.C. enables the Public Prosecutor or the Assistant Public Prosecutor to withdraw from the prosecution of any person either generally or in respect of anyone for more of the offences for which he is tried. For this issue, the consent of the Court is necessary and imperative.As per the allegations leveled by the complainant/victim in this case, Saraswati established a physical relationship with her perforce, administering some intoxicants in her food and thereafter brutally ravishing her. Allegedly, Swami also took obscene audio-visual videos and porn photographs and during this process, she was impregnated twice and for the first time at Bareilly and for the second time at Lucknow, she was got aborted. Not only this, when she was pregnant, she was assaulted mercilessly by the applicant's goons.The Investigating officer of the case filed a charge sheet against Swami under sections 376 and 506 IPC and the Magistrate concerned took cognizance of the same in December 2011. Thereafter, Swami challenged the charge sheet as well the summoning order whereupon the HC in Decemebr 2012 stayed the proceedings of the case and issued notice to the victim. This interim order lasted upto 2018, when Swami moved another application to withdraw the aforesaid 482 application and sought vacation of the interim order of 2012. Accordingly, the said application was entertained and his 482 application was rejected as 'not pressed' and the interim order was vacated.Interestingly, as soon as the said 482 application was rejected as not pressed on February 16, 2018, an Under Secretary of the Government of Uttar Pradesh wrote a letter to the District Magistrate, Shahjahanpur whereby directing the Public Prosecutor to withdraw the prosecution against the applicant.Pursuant to this, the Senior Public Prosecutor, Shahjahanpur on March 12, 2018 gave an application in the court of the Chief Judicial Magistrate, Shahjahanpur seeking withdrawl from the prosecution, however, the same was rejected.Court's observations At the outset, the Court observed the application submitted by the Senior Public Prosecutor, Shahjahanpur before the concerned court and noted that the the statement of the prosecutor that he had applied his mind was simply a farce hoax and mirage to cover up the mandatory requirement of the law that the public prosecutor shall apply his judicial mind while filing this application under section 321 Cr.P.C. Perusing the application, the Court remarked that it was the biggest misfortune, anomaly, ridiculousness and absurdity on the part of Senior Prosecution Officer, Shahjahanpur, dancing to the tune of the State Government, to have conveniently rushed to the court concerned within three days from receipt of the letter of the District Magistrate, Shahjahanpur and submitting the application on 12.03.2018 itself."The Senior Prosecuting Officer has not even mentioned on which material he has applied his own independent mind and has drawn the conclusion that the withdrawal of the (29) prosecution would meet end of justice or in the interest of the public at large," the Court observed.The Court also stressed that a Public Prosecutor is not supposed to dance to the tune of the State Government nor he is supposed to act as a post office or act under...

Allahabad High Court Upholds Rejection Of State's Plea To Withdraw Rape Case Against Swami Chinmayanand, Slams UP Govt

Sparsh Upadhyay

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