IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 66 of 2001()
1. VINODAN
... Petitioner
Vs
1. THE S.I. OF POLICE
... Respondent
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/09/2008
O R D E R
THOMAS P. JOSEPH, J.
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CRL.R.P.No. 66 of 2001
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Dated this the 22nd day of September, 2008
O R D E R
The 3rd respondent was charge sheeted by the Payyoli Police in
Cr. No.251/1998 for offence punishable under Sections 143,147, 148
and 324 read with Section 149 of the Indian Penal Code. The Assistant
Public Prosecutor appearing for the state filed a petition under Section
321 of the Code of Criminal Procedure seeking permission to withdraw
from the prosecution. The learned Magistrate as per the impugned
order allowed the petition. The defacto complainant is aggrieved and
preferred this revision petition.
2. At the time of hearing there is no representation for the
revision petitioner or the third respondent. I heard public prosecutor
appearing for the respondents 1 and 2 since the order under challenge
appeared to be prima facie not sustainable.
3. It is true that Section 321 of the Code of Criminal
procedure permitted the Assistant Public Prosecutor to withdraw from
the prosecution with the consent of the court. But, it is not sufficient
that the law officer concerned simply states that he has been directed
by the State Government to withdraw from the prosecution. He has to
CRL.R.P.No. 66 / 2001
2
make out some ground which would show that the prosecution is
sought to be withdrawn since, inter alia, the prosecution may not be
able to produce sufficient evidence to sustain the charge or that the
prosecution does not appear to be well found or that there are
circumstances which clearly show that the object of administration of
justice would not be advanced or furthered by going on with the
prosecution. The law officer himself should be satisfied that the
withdrawal of the case is in the public interest. In the case on hand, the
Assistant Public Prosecutor has merely stated that ” considering the
nature of the offence involved in this case, it is just and proper to
withdraw this case.” and that he has considered all the facts and
circumstances of the case involved and after considering the same he is
of the view that it is a fit case to be withdrawn. The order under
challenge does not show that the learned Magistrate also has applied
mind in the matter and instead, merely observed that “after perusing the
report, I am satisfied that the learned Assistant Public Prosecutor has
applied her mind judiciously in order to withdraw the case. ” The
statements in the report submitted by the Assistant Public Prosecutor
CRL.R.P.No. 66 / 2001
3
are quite insufficient to withdraw from the prosecution. The court
below therefore was not justified in allowing the Assistant Public
Prosecutor to withdraw from the case. The order is liable to be set
aside.
Resultantly this revision petition succeeds. The order under
challenge is set aside and the case is remitted to the court below to be
disposed of, as provided under law.
THOMAS P. JOSEPH, JUDGE
scm