Public Prosecutor Cannot Just Act As Per Instructions Of Govt, Must Apply Mind Before Withdrawing Case: Kerala High Court

As per the complaint filed by the Sub Inspector of Payyanoor Police Station, she went to a house in connection with a case. When she went there, only the petitioner was there. When she enquired the petitioner about his brother, against whom the investigation was, the petitioner threatened and abused her. He pushed her out of the house and threatened to burn her. He was alleged to have used criminal force with the intent of outraging her modestly. The petitioner is further alleged to have said that police cannot do anything against her as he was a local political leader. He was booked under Sections 353 (assault/ criminal force against public servant to deter him from his duty), 354 (assault/ criminal force to woman with the intent of outraging her modesty) and 506 (criminal intimidation) of Indian Penal Code.

The case was tried before the Magistrate Court and the prosecution side had completed their evidence. At this stage, the Public Prosecutor submitted an application under Section 321 of Cr.P.C to withdraw from the prosecution. The Magistrate denied the application after considering the nature of the case. The accused challenged this order before the High Court. The victim opposed the petition and submitted that the Assistant Public prosecutor had failed to discharge his duty as provided under Section 321 of Cr.P.C.

The Court agreed to the contention of the victim that external factors influenced the Government in taking a decision to withdraw the prosecution. The Court observed that the Assistant Public Prosecutor failed to discharge his duties as he did not apply his mind to the materials before him while applying for withdrawal of the case but simply followed the directions of the Government.

The Court noted that the case concerns with outraging the modesty of a Woman Police officer who was discharging her official duty. The Court dismissed the petition stating that the withdrawal of the prosecution would not serve public interest.

“The materials placed before the Court would reveal that the withdrawal of the prosecution would not serve public interest rather it would go against the public interest.”

Procedure To Withdraw The Prosecution Under Section 321 Cr.P.C

The High Court said that the Public Prosecutor while making an application for withdrawal under Section 321 of Cr.P.C. should make a statement that he had in good faith and is satisfied after considering all relevant materials that the withdrawal from prosecution is in public interest and it will not stifle or thwart the process of law or cause injustice. He should set out briefly and concisely mention the materials he had considered in the application or in an affidavit annexed to the application or with the Court's permission in a sealed envelope.

The Prosecution Can Be Withdrawn Only With The Permission of the Court

Once the Public Prosecutor has made the application, the court shall consider those materials and give a informed consent or decline consent. A withdrawal can be made only if the court consents to it. The Court at this stage only decide on the application and should not determine any matter judicially. The court has to see if the withdrawal will interfere with affect imparting justice.

“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.”

Counsel for the Petitioners: Adv. Sunny Mathew

Counsel for the Respondents: Advocates Neema Jacob, Shahna Karthikeyan

Case No: Crl.R.P. 1195 of 2012

Case Title: Muhammed Ashraf K. A. v The Sub Inspector of Police and Others

Citation: 2024 LiveLaw (Ker) 686