Public Prosecutor when asking for withdrawal of prosecution U/s 321 of CrPC to act independently with application of mind #indianlaws

The Supreme Court, in this case has held that while filing an application u/s 321 of CrPC, the Public Prosecutor is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. He is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective. 

The issues that came up for consideration before the Supreme Court was as to (i) whether the Assistant Public Prosecutor is entitled under law to file an application for withdrawal of the application for withdrawal of the application preferred under Section 321 of the Code of Criminal Procedure (Cr.P.C.) and not to press an application for withdrawal, (ii) whether the Magistrate is disabled in law or lacks jurisdiction to allow the prosecution from preferring the application for withdrawal, (iii) whether the accused has any say at that stage of the proceeding and (iv) whether in the obtaining factual matrix this Court should decline to deal with the order passed by the learned Magistrate in exercise of jurisdiction under Article 136 of the Constitution of India.

Section 321 of the Cr.P.C. provides for withdrawal from prosecution which enables the Public Prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced. The application for withdrawal though has to get the consent of the court and if the court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. It clothes the Public Prosecutor to withdraw from the prosecution of any person, accused of an offence, both, when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is ‘at any time before the judgment is pronounced’. The judicial function 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 illegitimate reasons or purposes.

The Public Prosecutor in terms of the statutory scheme laid down under the Cr.P.C. plays an important role. He is supposed to be an independent person. While filing such an application, the Public Prosecutor also is required to apply his own mind and the effect thereof on the society in the event such permission is granted. The Public Prosecutor is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. He is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective.

In the impugned order, it was observed that no doubt the withdrawal from prosecution is an executive and non-judicial act but there is a wide discretion with the court, which ought to be exercised judicially on well-established principles, i.e., the court has to be satisfied that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the course of justice for illegitimate purposes. It is within these parameters, the judicial discretion is to be exercised. Thereafter, it was opined that it is the duty of the Public Prosecutor to apply his mind as a free agent uninfluenced by irrelevant or extraneous instructions. The High Court had ruled that the Public Prosecutor has shirked the bounden responsibility by abruptly applying withdrawing the application under Section 321 Cr.P.C. after a few days, particularly when in the application under Section 321 Cr.P.C., Public Prosecutor had asserted in no uncertain terms that a commercial transaction in between the parties was sought to be given a criminal colour and there was no likelihood of conviction on the basis of charge-sheet filed for the offence of criminal misappropriation, etc.

In the case at hand, the learned Magistrate was directed by the High Court to consider the application filed by the Assistant Public Prosecutor seeking withdrawal of the application earlier preferred under Section 321 Cr.P.C. High Court was held to be incorrect in directing the accused persons to file an application Section 91 Cr.P.C.

When an application of withdrawal from the prosecution under Section 321 Cr.P.C. is filed by the Public Prosecutor, he has the sole responsibility and the law casts an obligation that he should be satisfied on the basis of materials on record keeping in view certain legal parameters.

The Public Prosecutor having been satisfied, as the application would show, had filed the application. The said application was not taken up for hearing. The learned Magistrate had not passed any order granting consent for withdrawal, as he could not have without hearing the Assistant Public Prosecutor. At this juncture, the authority decided that the Assistant Public Prosecutor should withdraw the application and not press the same. After such a decision had been taken, as the application would show, the Assistant Public Prosecutor re-appreciated the facts, applied his mind to the totality of facts and filed the application for not pressing the application preferred earlier under Section 321 Cr.P.C. The filing of application not to press the application could not be compared with any kind of review of an order passed by the court. The filing of the application for seeking withdrawal from prosecution and application not to press the application earlier filed are both within the domain of Public Prosecutor. He has to be satisfied.

In the present case, the Public Prosecutor had not moved the application under Section 321 Cr.P.C. but only filed. He could have orally prayed before the court that he did not intend to press the application. The court could not have compelled him to assist it for obtaining consent. The court has a role when the Public Prosecutor moves the application seeking the consent for withdrawing from the prosecution. At that stage, the court is required to see whether there has been independent application of mind by the Public Prosecutor and whether other ingredients are satisfied to grant the consent. Prior to the application being taken up being moved by the Public Prosecutor, the court has no role. If the Public Prosecutor intends to withdraw or not press the application, he is entitled to do so. The court cannot say that the Public Prosecutor has no legal authority to file the application for not pressing the earlier application. Further, the accused persons cannot be allowed to contest such an application. If anyone is aggrieved in such a situation, it is the victim, for the case instituted against the accused persons on his FIR is sought to be withdrawn. The accused persons have no role and, therefore, the High Court could not have quashed the orders permitting the prosecution to withdraw the application and granting such liberty to the accused persons. The principle stating that the Public Prosecutor should apply his mind and take an independent decision about filing an application under Section 321 Cr.P.C. cannot be faulted but stretching the said principle to say that he is to convince the court that he has filed an application for not pressing the earlier application would not be appropriate.

 [M/s V.L.S. Finance Ltd. vs. S.P. Gupta and Anr.]

(SC, 05.02.2016) – Criminal Appeal No. 99 of 2016