[S. 321 CrPC] Public Prosecutor Entitled To Take Independent Decision On Whether Prosecution Should Be Withdrawn Or Not: Andhra Pradesh High Court

The Andhra Pradesh High Court has passed orders iterating that although a public prosecutor is entitled to move an application under Section 321 of CrPC for withdrawal of prosecution, an independent decision must be made as to whether the prosecution of an accused is to be withdrawn or not.

The interim order was passed by a Division Bench of Chief Justice Dhiraj Singh Thakur and Justice R. Raghunandan Rao in a plea challenging a G.O issued by the State of Andhra Pradesh thereby withdrawing the prosecution of cases against hundreds of accused involved in the protests that had broken out pursuant to the issuance of Gazette changing the name of Konsaseema District in May 2022.

The aggravated mob is alleged to have also attacked police persons and set fire to the house of a Minister.

In December 2023, the State of Andhra Pradesh issued the aforesaid G.O. directing the Director General of Police, Andhra Pradesh to instruct the Public Prosecutor/Assistant Public Prosecutor (PP/APP) concerned to file a petition under Section 321 of the CrPC for withdrawal of prosecution against the accused.

Dr. B.R. Ambedkar Jilla Sadhana Sammiti (petitioner) has filed the public interest litigation challenging the GO.

It was contended that the power to withdraw prosecution lies exclusively with the public prosecutors and that Government interference is neither envisaged nor warranted. It was contended that the issuance of the GO sought to influence the independence of the prosecution in deciding whether a case was fit for withdrawal or not.

The State on the other hand contended that merely because a directory G.O. was issued, does not vitiate the power exercisable by the Public Prosecutor to withdraw under Section 321 CrPC.

“Be that as it may, as an interim measure, we direct that while the Public Prosecutor is vested with the power to move an application under Section 321 Cr.P.C., yet, notwithstanding the fact that the G.O. has been issued, the principles laid down by the Apex Court and reproduced hereinabove would be followed and the Public Prosecutor would be entitled to take an independent decision as to whether the prosecution has to be withdrawn or not," it held.

The matter is posted for 14. 02.2024.

WP (PIL) 24 of 2024

Counsel for petitioner: Jada Sravan Kumar

Counsel for State” GP for Home.

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