SREEKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are the accused in a case pending before the Judicial First Class Magistrate III, Thiruvananthapuram. They are being prosecuted in the case for the offence punishable under Section 332 r/w Section 34 of the Indian Penal Code. Petitioners are employees in the Accountant's General Office, Thiruvananthapuram. When an agitation by some employees was going on in that office, it is alleged, the petitioners restrained a Peon, the de facto complainant, voluntarily caused hurt to him and prevented him from discharging his duties as a public servant. The crime registered over such occurrence led to indictment of the accused for the offence stated, and the case now awaits trial. The Assistant Public Prosecutor in-charge of the case moved an application under Section 321 of the Code of Criminal Procedure, for short, 'the Code', for withdrawal of the case. Annexure I is the copy of that petition. Request made for withdrawal was later not pressed by the Assistant Public Prosecutor, who made an endorsement to that effect in the petition. The learned Magistrate thereupon dismissed Annexure I petition vide Annexure II order. Challenge in the above petition is against Annexure II order invoking the inherent jurisdiction of this court under Section 482 of the Code.

(2.) Learned counsel for the petitioners would submit that Annexure I application was filed on 11-11-2009 and it was pending consideration before the court for nearly two years. Notice was also ordered to the de facto complainant. Pending inquiry on the withdrawal from prosecution applied, for the sole reason there was a change of Government, without any application of mind, according to the counsel, the Assistant Public Prosecutor endorsed non pressing of that petition. The only reason stated for non pressing of the petition for withdrawal was that the Government has withdrawn the consent. That, at any rate, could not be considered as a justifiable and acceptable ground to hold that the Assistant Public Prosecutor has applied his mind in not pressing the application for withdrawal. Non pressing of the petition moved for withdrawal from prosecution is tainted with mala fides and it is illegal and unsustainable, is the submission of the learned counsel. Countering the challenge raised, the learned Director General of Prosecution submitted that after application for withdrawal was moved objection was raised thereto by the de facto complainant, and on a reconsideration of the entire matter the Government found that the previous consent given for withdrawal was not proper. The Assistant Public Prosecutor, having regard to that circumstance and applying his mind to the facts and circumstances involved in the case, reported to the court that the petition for withdrawal is not pressed. Withdrawal from prosecution under Section 321 of the Code rests with the Assistant Public Prosecutor in-charge of the case, subject to the consent of the court. Till the request for withdrawal is decided by the court, nothing prevents or interdicts the Assistant Public Prosecutor in not pressing that request, is the submission of the learned Director General of Prosecution.

(3.) If we go by Section 321 of the Code dealing with withdrawal from prosecution there cannot be any doubt that the authority or empowerment to seek withdrawal of the case rests with the Public Prosecutor or Assistant Public Prosecutor in-charge of a case, and he can do so at any point of time before judgment is pronounced. Though such empowerment for withdrawal is conferred on the Public Prosecutor or Assistant Public Prosecutor, withdrawal can be effected only with the consent of the court after it has exercised its seizin over the case and it is pending consideration. Government, no doubt, as the master of litigation can suggest for withdrawal having regard to various circumstances involved in the case. Whatever suggestion be given by the Government for withdrawal, the Public Prosecutor or Assistant Public Prosecutor, as the case may be, has to apply his mind and then take a decision whether withdrawal from prosecution has to be applied of. In "Abdul Karim and others v. State of Karnataka and others", 2000 8 SCC 710the apex court has held in unequivocal terms that the Public Prosecutor himself has to independently apply his mind to the relevant material and reach his own satisfaction regarding the need for withdrawal from prosecution in good faith disregarding any decision or direction of the Government. So, previously, an application was moved as directed by the Government and, later, on withdrawal of the consent from the Government, the Assistant Public Prosecutor endorsing that reason moved for non pressing of that application, has little significance in judging whether there is any impropriety on the part of the Assistant Public Prosecutor in moving for non pressing of the withdrawal application. So long as he is empowered to move an application for withdrawal of the case, then, till that matter is finally decided by the court, it should be taken that he has competency not to press that application for withdrawal. The accused cannot contend that once the application is moved by the Assistant Public Prosecutor for withdrawal till a decision is taken thereof by the court he has no authority or empowerment not to press that application.