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TMI Blog1979 (11) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ar under Section 380, I.P.C. During the pendency of the criminal case, the Assistant Public Prosecutor applied for withdrawal from prosecution under Section 321, Cr.P.C. on the ground that on fresh investigation by a senior officer the alleged search and seizure were discovered to be a frame-up by the concerned police officer in order to pressurise the accused Hussan Lal to withdraw a certain civil litigation. On the court requiring a fuller application the Assistant Public Prosecutor made a fresh and more detailed petition for withdrawal which was eventually granted by the trial court, despite the petitioner's remonstrance that the withdrawal was prompted he political influence wielded by Hussan Lal leading to instructions from high quarters to the Assistant Public Prosecutor to withdraw from the case concerning that accused. It was alleged that in carrying out the instructions the Assistant Public Prosecutor did not apply an independent mind. The court nevertheless accepted the request of the Assistant Public Prosecutor and directed acquittal of Hussan Lal, while continuing the case against the remaining two accused. The order was unsuccessfully assailed in revision before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court. We repeat for emphasis. To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is lawlessness. The even course of criminal justice cannot be thwarted by the Executive, however high the accused, however sure Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration. Justicing, under our constitutional order, belongs to the judges. Among the very few exceptions to this uninterrupted flow of the court process is Section 494, Cr.P.C. Even here, the Public Prosecutor-not any executive authority-is entrusted by the Code with a limited power to withdraw from a prosecution, with the court's consent whereupon the case comes to a close. What the law has ignited, the law alone shall extinguish. 5. Although skeletal, the conditions for such withdrawal are implicit in the provision, besides the general principles which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District Magistrate or other executive authority. Finally, the consent of the court is imperative. The law was explained by this Court in M.N. Sankaranarayana. Nair v. P.V. Bala Krishna and Ors. 1972CriLJ301 A reading of Section 494 would show that it is the public prosecutor who is in-charge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal or even before the judgment is pronounced. The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission. Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive. 10. In the present case, it appears that when the court commenced proceedings, the accused Hussan Lal complained to higher police officers that the concerned Assistant Sub-Inspector had initiated the case merely for the purpose of putting pressure on him to compromise a suit against a close relative. The allegations were enquired into by a senior officer and the District Magistrate, on the basis of the material coming to light, directed disciplinary action against the Assistant Sub-Inspector and instructed the Assistant Public Prosecutor to withdraw from the case against. Hussan Lal We find no evidence to support the allegations of political influence. At the same time, it is necessary to point out that the District Magistrate acted illegally in directing the Assistant Public Prosecutor to withdraw. It has been alleged that the second investigation of the case on the executive side, which led to the discovery that the earlier investigation was motivated, was vitiated by the omission to question the first informant. That was a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s position of the Public Prosecutor or of the impropriety of his intrusion into the Public Prosecutor's discretion by making an order of withdrawal. Similar mistakes are becoming commoner at various levels and that is why we have had to make the position of law perfectly clear. We emphasise that the rule of law warns off the executive authorities from the justicing process in the matter of withdrawal of cases. Since we are satisfied that the Public Prosecutor did not yield to the directive of the District Magistrate but made an independent study of informing himself of the materials placed before the court and then sought permission to withdraw from the prosecution, we decline to reverse the order passed by the courts below. 14. The trial court was satisfied that the Assistant Public Prosecutor had not exercised the power of withdrawal for any illegitimate purpose and the High Court endorsed that conclusion. We are not disposed to interfere with the order of the High Court. 15. One obvious grievance of the petitioner deserves to be remedied. He is interested in getting back his stolen goods. The accused claims no property in the goods. In the event of the complainant iden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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