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2009 (6) TMI 34 - HC - Income TaxWithdrawal of Prosecution proceedings Magistrate dismissed the withdrawal petition HC refused to agree with a view expressed by the learned counsel for the petitioner because here it is not an error committed by the Magistrate but the Magistrate totally not dealt with the petition by exercising his discretion in the way contemplated as per law and as per the cited judgement. Once there is total non-exercise of discretion on the proper line by the Magistrate and that resulted in the dismissal of the petition it is not for the revisional Court to consider for the first time the prayer in the petition and pass orders either by dismissing the petition or allowing the same. Matter remanded to decide the petition afresh in view of Apex Court s Decision.
Issues Involved:
1. Legality of the Magistrate's order dismissing the Public Prosecutor's petition under Section 321 of Cr.P.C. 2. Requirement of Central Government permission for withdrawal of prosecution by a Public Prosecutor appointed by the Central Government. 3. Locus standi of other accused to object to the withdrawal of prosecution against A1 to A3. Detailed Analysis: 1. Legality of the Magistrate's order dismissing the Public Prosecutor's petition under Section 321 of Cr.P.C.: The Income Tax Department filed a complaint against the accused for offenses under various sections of the Indian Penal Code and the Income Tax Act, 1961. The Public Prosecutor filed a petition under Section 321 of Cr.P.C. read with Section 279(2) of the Income Tax Act, 1961, seeking consent to withdraw the prosecution against A1 to A3. The Magistrate dismissed the petition, stating that IPC offenses under Sections 120B and 420 were still on record for prosecution and no permission had been granted by the Central Government to withdraw the entire case, including the IPC offenses. The High Court found that the Magistrate misdirected himself by assuming that the Public Prosecutor needed to obtain and produce permission from the Central Government. The High Court emphasized that the Public Prosecutor appointed by the Central Government does not need such permission, and the Magistrate failed to apply the correct provisions of law. 2. Requirement of Central Government permission for withdrawal of prosecution by a Public Prosecutor appointed by the Central Government: Section 321 of Cr.P.C. allows the Public Prosecutor to withdraw from prosecution with the consent of the Court. The High Court clarified that there is a distinction between Public Prosecutors appointed by the Central Government and those who are not. In this case, the Senior Public Prosecutor was appointed by the Central Government, and therefore, the question of obtaining permission from the Central Government did not arise. The High Court cited the Supreme Court's decision in Sheo Nandan Paswan v. State of Bihar, which outlined the legal position under Section 321 of Cr.P.C. The Supreme Court stated that the discretion to withdraw from prosecution lies with the Public Prosecutor, and the Court's role is supervisory, ensuring that the Public Prosecutor's decision is not influenced by irrelevant or extraneous considerations. 3. Locus standi of other accused to object to the withdrawal of prosecution against A1 to A3: The High Court noted that the other accused had no locus standi to object to the withdrawal of prosecution against A1 to A3. The Magistrate should not have given much weight to the objections raised by the other accused. The High Court reiterated that the Magistrate's duty was to assess whether the Public Prosecutor's request for withdrawal was genuine and not influenced by extraneous considerations. Conclusion: The High Court found that the Magistrate had not applied his mind properly and had misdirected himself in dismissing the petition. The High Court set aside the Magistrate's order and remitted the matter back to the Magistrate for disposal as per law, specifically following the guidelines laid down by the Supreme Court. The Magistrate was directed to dispose of the case within three weeks from the date of receipt of the High Court's order. The criminal revision case was ordered accordingly.
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