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TMI Blog2019 (9) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... arry same connotations so the effect. In the present case, the order passed by the Learned Magistrate is based on misconception of law and ex facie illegal considering the scope of Sections 169 and 321 of Cr.P.C. Sections 169 and 321 of Cr.P.C. cannot be substituted for each other. They can be invoked in different circumstances and the Court s power after invocation of these two sections are not the same and therefore, it is a fit case to be entertained under writ jurisdiction. It is the application under Section 169 of Cr. P.C. The Learned Judge has also treated the application under Section 169 and therefore, he did not mention a word about giving consent for withdrawal of the accused from the prosecution. Therefore, it is not a mentioning of mere wrong section but it is the application specifically under Section 169 of Cr. P.C. Later the Investigating officer has filed the affidavit and has stated that he did not want to release the accused and therefore, he did not want to move such application under Section 169 of Cr. P.C. The roznama discloses that Investigating officer was not present when this application was moved by the prosecutor. The Learned Judge has accepted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is writ petition is filed challenging the said order. 4. Learned Prosecutor has submitted that the investigating agency never gave consent to move an Application for release of the accused because the huge quantity of tablet Tramadol, i.e., nearly 2 to 2.44 lakhs tablets of various brands were recovered and seized from respondent No. 1. Further, the investigation revealed that respondents were not having proper valid licence to possess or manufacture these tablets. She submitted that the Learned Special Prosecutor without considering the fact that test report confirming the positive for Tramadol NDPS substance, inadvertently filed the closure application on that day under Section 169 of Cr. P.C. and to move such application, consultation of complainant-investigation officer Mr. Manoj Choudhary was required. She has submitted that Investigating Officer Manoj Choudhary has specifically refused to give consent for filing application under Section 169 of Cr. P.C. 5. Per contra, the Learned Counsel for the respondents supported the order passed by the Learned Trial Court Judge mainly on the ground that CA report was negative in respect of contrabands seized by the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal, - (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences : Provided that where such offence - (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. In the present case, it is unambiguous that the application is made under Section 169 of Cr. P.C. The section itself is quoted by the prosecutor and it is mentioned that since the evidence against the accused is inadequate to adjudge their prosecution, it is respectively prayed that they be released from custody. In Section 169 of Cr. P.C. the discretion to make such application is left to officer in-charge of the police station and he may release the accused on his executing a bond with or without surety and may direct to appear if and when so required. 12. Under Section 321(a) if before charge such withdrawal is made, then the accused shall be discharged in respect of the offence. Under Section 321(b) if it is made after the charge, then it shall be acquittal. Under Section 169 of Cr. P.C. accused is released. Thus, the terms used are to be understood with appropriate meaning, they do not carry same connotations so the effect. 13. While comparing two sections, i.e., Sections 169 and 321 of Cr.P.C., it is necessary to take into account one more section, i.e., Section 319 of Cr. P.C. Under Section 319 of Cr. P.C., the Court if on perusal of the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at later stage and may file the chargesheet thereafter. The arguments of Mr. Ponda further cannot be accepted also in view of Section 321(a) and (b) wherein the stage of moving the application and the result of which if allowed is mentioned. 16. On the point of powers of this Court under Article 227 of the Constitution of India, Mr. Ponda has submitted that this Court has limited jurisdiction and the Court cannot enjoy the powers of the Appellate Court especially in dealing with the facts of the matter. 17. In the case of Nagendra Nath Bora Anr. (supra), the constitutional Bench has held that if the error of law is apparent on the face of record, then the statutory powers can be exercised but not each and every error of law and fact can be corrected by superior Court. It also held that it is essential that error should be something more than a mere error of law, that it must be one which is manifest on the face of record. The principles laid down in Nagendra Nath Bora are binding on the Court, however, in the present case, the error of law is gross and obvious deviation from the use of powers and the procedure under Section 169 of Cr.P.C. by the prosecutor. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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