Code of Criminal Procedure, 1973:
s. 321 – Withdrawal of prosecution – Prosecution u/ss. 195A and 506 IPC – Application by Public Prosecutor for withdrawal of the same – Allowed by Chief Judicial Magistrate – Revision Petition – High Court dismissed the petition on the ground that the petitioners being third party had no locus to file the same – On appeal, held: Chief Judicial Magistrate passed the order not within the parameters of s. 321 – Petitioners could not have been treated as strangers, and the petition was of serious nature – High Court should have applied its mind with regard to the correctness of the order – Matter remitted to Chief Judicial Magistrate to consider the withdrawal application in accordance with law.
s. 321 – Withdrawal of prosecution – Limit of – Public Prosecutor has authority to withdraw the prosecution – Such power can be exercised at any time before the judgment is pronounced.
Public Prosecutor:
Role of Public Prosecutor – Held: Public Prosecutor is expected to act with responsibility – They are not supposed to be totally guided by the instructions of Government – They are required to assist the Court.
Allowing the appeal, the Court
HELD: 1. Section 321 Cr.P.C. confers authority on the Public Prosecutor to withdraw from the prosecution of any person accused of an offence, both when no evidence is taken and even if the entire evidence has been taken. The outer limit for exercising the said power is guided by the expression “at any time before the judgment is pronounced”. [Para 7][161-C; 162A-B]
2. In the present case, the Chief Judicial Magistrate has dwelt upon the merits and expressed an opinion that the case is not likely to end in conviction. It is clearly manifest that the Public Prosecutor had not applied his mind but had only placed the Government notification on record. The High Court has unsuited the petitioners on the ground that they are third parties who are unconnected with the case. They had filed revisions and the High Court has been conferred power to entertain the revisions and rectify the errors which are apparent or totally uncalled for. This is the power of superintendence of the High Court. Thus viewed, the petitioners could not have been treated as strangers, for they had brought it to the notice of the High Court and hence, it should have applied its mind with regard to the correctness of the order. The revision petitions filed before the High Court were not frivolous ones. They were of serious nature. It is a case where the Public Prosecutor had acted like a post office and the Chief Judicial Magistrate has passed an order not within the parameters of Section 321 CrPC. He should have applied the real test stipulated under Section 321 CrPC and the precedents. [Para 12][164-G-H; 165-A-D]
3. There are frivolous litigations but that does not mean that there are no innocent sufferers who eagerly wait for justice to be done. That apart, certain criminal offences destroy the social fabric. Every citizen gets involved in a way to respond to it; and that is why the power is conferred on the Public Prosecutor and the real duty is cast on him/her. He/she has to act with responsibility. He/she is not to be totally guided by the instructions of the Government but is required to assist the Court; and the Court is duty bound to see the precedents and pass appropriate orders. [Para 13][165-D-E]
4. The order of the High Court and that of the Chief Judicial Magistrate are set aside and the matter is remitted to the file of the Chief Judicial Magistrate to reconsider the application in accordance with law. [Para 14][165-F]
Sheo Nandan Paswan v. State of Bihar AIR 1987 SC
877 : [1987] 1 SCR 702 – followed.
Bansi Lal v. Chandan Lal (1976) 1 SCC 421; Balwant Singh v. State of Bihar (1977) 4 SCC 448 : [1978] 1 SCR 635; Subhash Chander v. State (Chandigarh Admn.) (1980) 2 SCC 155 : [1980] 2 SCR 44; Rajender Kumar Jain v. State (1980) 3 SCC 435 : [1980] 3 SCR 982; State of Bihar v. Ram Naresh Pandey AIR 1957 SC 389 : [1957] SCR 279; Rahul Agarwal v. Rakesh Jain (2005) 2 SCC 377 : [2005] 1 SCR 521; Bairam Muralidhar v. State of A.P (2014) 10 SCC 380 : [2014]
8 SCR 328; V.L.S. Finance Limited v. S.P. Gupta and another (2016) 3 SCC 736 : [2016] 1 SCR 623 – relied on.
Peoples Union for Civil Liberties (Delhi) v. Central Bureau of Investigation and others 1997 Cr.L.J 3242; Rajender Kumar Jain v. State of Bihar AIR 1980 SC 1510 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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