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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELALTE JURISDICTION  

CRIMINAL APPEAL NO. 1047 of 2018  (Arising out of S.L.P. (Criminal) No. 10703 of 2013)  

Abdul Wahab K.          … Appellant(s)  

VERSUS  

State of Kerala and Others              … Respondent(s)   

J U D G M E N T  

Dipak Misra, CJI  

The 4th respondent faced a criminal proceeding for offences  

punishable under Sections 195A and 506 of Indian Penal Code. During  

the pendency of the criminal case, a petition was filed by the Public  

Prosecutor to withdraw from the prosecution. The learned Chief Judicial  

Magistrate vide order dated 04.01.2012 allowed the application and  

permitted the Public Prosecutor to withdraw from the prosecution.   

2. The said order was assailed by the appellant herein, in Criminal  

Revision Petition Nos.2020 and 2021 of 2012. It was contended before  

the High Court that the learned Chief Judicial Magistrate totally ignoring  

the controversy involved in the case has passed the impugned order and

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that apart, he has not remained alive to the exercise of jurisdiction under  

Section 321 of the Code of Criminal Procedure (for short, „the CrPC‟).  

The Court referred to the decisions in Sheo Nandan Paswan v. State of  

Bihar1, Peoples Union for Civil Liberties (Delhi) v. Central Bureau of  

Investigation and others 2 , State of Kerala v. Vijayakumar 3  and  

Rajender Kumar Jain v. State of Bihar4 and came to hold that the  

consent to withdraw from the prosecution would jeopardize the public  

interest and public policy.  The Division Bench further opined that a  

criminal proceeding is not a proceeding for vindication of a private  

grievance but it is a proceeding initiated for the purpose of punishment  

to the offender in the interest of the society. The objective being  

maintenance of stability and orderliness in the society, private interest  

will not come into picture.  The punishment of the offender in the interest  

of the society is one of the objects behind the penal statute enacted for  

the larger good of the society.  After so holding, the High Court held that  

the consent of the court is a pivotal factor under Section 321 CrPC. It  

indicates that the entire process is the result of a complaint and variety  

of considerations such as gravity of the crime, the effect of withdrawal  

from prosecution and the public confidence in the entire system.  The  

                                                      1  AIR 1987 SC 877  

2  1997 Cr.L.J 3242  

3  Crl.R.P. No. 3543 of 2008  

4  AIR 1980 SC 1510

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public interest and the public policy are dominant features as the  

objectivity displayed by the prosecution in making such application has  

serious impact on the society.  Though the nature of the offence cannot  

be a valid ground for rejecting the application for withdrawal from  

prosecution, yet it is the duty of the court to appreciate all the grounds  

which prompted the prosecution to seek withdrawal from the case.  A  

holistic approach is required rather than adherence to a particular  

reason. The application for withdrawal expresses the independent mind  

of the Public Prosecutor. The broad perspective is that public justice  

underlines the entire philosophy contemplated under Section 321 CrPC.  

The action of the Public Prosecutor in applying the mind is not only to  

expose its just nature but there must also be reasonableness, as the  

prosecutor has to keep in mind the interest of the society against which  

the wrong is alleged to have been committed.   

3. After observing as aforesaid, the Division Bench of the High Court  

dealt with the principles stated in Sheo Nandan Paswan (supra) in  

detail, addressed to the grievance put forth in the FIR, the charges made  

against the accused persons and came to hold:-  

“In the above case neither an offence under Section 195  nor an offence under Section 506 IPC is made out. If the  material on record upon which the prosecution was based  reveals that no purpose would served even if the trial  commenced in the right direction, such prosecution could  be allowed to withdraw provided no other ulterior motive

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is pointed out. As a matter of fact, in the process of  administration of criminal justice it is said; withdrawing  from prosecution can also be treated as to sub serve  administration of justice. The decision of the prosecutor  not to prosecutre the offenders or not to proceed further  with the prosecution already launched, is a decision after  thorough examination of material leading to such  responsible decision. The court has to see whether  application is made in good faith in the interest of public  policy and justice while doing the exercise it has to see it  would lead to manifestation of injustice by granting such  consent. Once court concludes that the application is  properly made and there is independent consideration of  the matter by the public prosecutor and he has acted in  good faith in exercising discretion vested on him, the  court should allow from such withdrawal.”     

And again:-  

“Neither complainant nor charge sheet witness has any  locus standi in the exercise of discretion of the Public  Prosecutor to withdraw from the prosecution.  If a citizen  who has some concern deeper than that of a busybody,  the door of the court will be kept ajar from him. He cannot  be turned away at the gates. If the issue raised by him is  justifiable, may still remain to be considered. However if it  is merely a question to be gone into and examined in  criminal case, registered against accused persons, it is for  them and they alone to raise such questions and  challenge the proceedings initiated against them at the  appropriate time before the proper forum and not for third  parties under the grab of public interest litigant.  A person  who is acting bonafide and having sufficient interest in the  proceedings alone can initiate Public Interest Litigation  and that the Court must not allow its process to be  abused for oblique consideration. Criminal law should not  be allowed to be used as a weapon of vendetta between  private individuals.”  

Disposing of the revision petitions, the High Court further  

proceeded to state:-

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“The petitioners are not de facto complainants, they are  only third parties. In both the petitions, petitioners have  nothing to do with the complaint, as the complaint is not a  private complaint. When de facto ocomplainant is not  questioning, how a third party can question and what is  their interest in not forthcoming. From reading of the  entire material as stated above, it is crystal clear that  there was justification on the part of the court below in  permitting the prosecutor to withdraw from the  prosecution and so far as the revision petitioners, they are  totally strangers to the litigation and have no locus standi  to question the same.”     

4. Being of this view, the High Court dismissed the petitions.  

5. We have heard Mr. Raghneth Basant, learned counsel for the  

appellant, Mr. C.K. Sasi, learned counsel for the respondent Nos. 1 to 3  

and Mr. Radha Shyam Jena, learned counsel for the respondent No. 4.   

6. To appreciate the controversy, it is necessary to advert to the  

order passed by the learned Chief Judicial Magistrate.  He has referred  

to the application filed by the Deputy Director of Prosecution wherefrom  

it is manifest that the Government had no objection in withdrawing the  

case and the decision of the Government has been filed along with the  

application.  The trial court has observed that it has gone through the  

petition and is satisfied that the grounds stated therein are sufficient for  

giving consent to withdraw the case.  He has further opined on analyzing  

materials that there is no possibility of success in the criminal case and,  

therefore, the withdrawal from prosecution is necessary for the better  

advancement of public justice.  

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7. Section 321 of the CrPC reads as follows:-  

“321. Withdrawal from prosecution. The Public  Prosecutor or Assistant Public Prosecutor in charge of a  case may, with the consent of the Court, at any 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 hag hot been appointed by the Central  Government, he shall not, unless he has been permitted  by the Central Government to do so, move the Court for  its consent to withdraw from the prosecution and the  Court shall, before according consent, direct the  Prosecutor to produce before it the permission granted by  the Central Government to withdraw from the  prosecution.”   

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The said provision confers authority on the Public Prosecutor to  

withdraw from the prosecution of any person accused of an offence,  

both when no evidence is taken and even if the entire evidence has  

been taken. The outer limit for exercising the said power is guided by the  

expression “at any time before the judgment is pronounced”.   

8. The Constitution Bench in Sheo Nandan Paswan (supra), after  

referring to Bansi Lal v. Chandan Lal5, Balwant Singh v. State of  

Bihar6, Subhash Chander v. State (Chandigarh Admn.)7, Rajender  

Kumar Jain v. State8 and the principles stated in State of Bihar v. Ram  

Naresh Pandey9, came to hold thus:-  

“99. All the above decisions have followed the reasoning  of Ram Naresh Pandey case and the principles settled in  that decision were not doubted.  

100. It is in the light of these decisions that the case on  hand has to be considered. I find that the application for  withdrawal by the Public Prosecutor has been made in  good faith after careful consideration of the materials  placed before him and the order of consent given by the  Magistrate was also after due consideration of various  details, as indicated above. It would be improper for this  Court, keeping in view the scheme of Section 321, to  embark upon a detailed enquiry into the facts and  evidence of the case or to direct retrial for that would be  destructive of the object and intent of the section.”  

                                                      5  (1976) 1 SCC 421  

6  (1977) 4 SCC 448  

7  (1980) 2 SCC 155  

8  (1980) 3 SCC 435  

9  AIR 1957 SC 389

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9. In Rahul Agarwal v. Rakesh Jain10, the Court while dealing with  

the application under Section 321 CrPC, referred to certain decisions  

where the earlier decision of the Constitution Bench in Sheonandan  

Paswan (supra) has been referred and held:-  

“10. From these decisions as well as other decisions on  the same question, the law is very clear that the  withdrawal of prosecution can be allowed only in the  interest of justice. Even if the Government directs the  Public Prosecutor to withdraw the prosecution and an  application is filed to that effect, the court must consider  all relevant circumstances and find out whether the  withdrawal of prosecution would advance the cause of  justice. If the case is likely to end in an acquittal and the  continuance of the case is only causing severe  harassment to the accused, the court may permit  withdrawal of the prosecution. If the withdrawal of  prosecution is likely to bury the dispute and bring about  harmony between the parties and it would be in the best  interest of justice, the court may allow the withdrawal of  prosecution. The discretion under Section 321 of the  Code of Criminal Procedure is to be carefully exercised  by the court having due regard to all the relevant facts  and shall not be exercised to stifle the prosecution which  is being done at the instance of the aggrieved parties or  the State for redressing their grievance. Every crime is an  offence against the society and if the accused committed  an offence, society demands that he should be punished.  Punishing the person who perpetrated the crime is an  essential requirement for the maintenance of law and  order and peace in the society. Therefore, the withdrawal  of the prosecution shall be permitted only when valid  reasons are made out for the same.”  

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(2005) 2 SCC 377

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10.  In Bairam Muralidhar v. State of A.P11, while appreciating the  

said provision, it has been laid down that:-   

“18. … it is the obligation of the Public Prosecutor to state  what material he has considered. It has to be set out in  brief. The court as has been held in Abdul Karim case, is  required to give an informed consent. It is obligatory on  the part of the court to satisfy itself that from the material  it can reasonably be held that the withdrawal of the  prosecution would serve the public interest. It is not within  the domain of the court to weigh the material. However, it  is necessary on the part of the court to see whether the  grant of consent would thwart or stifle the course of law or  cause manifest injustice. A court while giving consent  under Section 321 of the Code is required to exercise its  judicial discretion, and judicial discretion, as settled in law,  is not to be exercised in a mechanical manner. The court  cannot give such consent on a mere asking. It is expected  of the court to consider the material on record to see that  the application had been filed in good faith and it is in the  interest of public interest and justice. Another aspect the  court is obliged to see is whether such withdrawal would  advance the cause of justice. It requires exercise of  careful and concerned discretion because certain crimes  are against the State and the society as a collective  demands justice to be done. That maintains the law and  order situation in the society. The Public Prosecutor  cannot act like the post office on behalf of the State  Government. He is required to act in good faith, peruse  the materials on record and form an independent opinion  that the withdrawal of the case would really subserve the  public interest at large. An order of the Government on  the Public Prosecutor in this regard is not binding. He  cannot remain oblivious to his lawful obligations under the  Code. He is required to constantly remember his duty to  the court as well as his duty to the collective.”    

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(2014) 10 SCC 380

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From the aforesaid authorities, it is clear as crystal that the Public  

Prosecutor or an Assistant Public Prosecutor, as the case may be, has  

an important role under the statutory scheme and is expected to act as  

an independent person. He/she has to apply his/her own mind and  

consider the effect of withdrawal on the society in the event such  

permission is granted.   

11. In V.L.S. Finance Limited v. S.P. Gupta and another12, a two-

Judge Bench, after analyzing the law in detail, has ruled :-  

“42. We have enumerated the principles pertaining to the  jurisdiction of the Court while dealing with an application  preferred under Section 321 CrPC and also highlighted  the role of the Public Prosecutor who is required to act in  good faith, peruse the materials on record and form an  independent opinion that the withdrawal from the  prosecution would really subserve the public interest at  large. The authorities referred to hereinabove clearly spell  out that the Public Prosecutor is not supposed to act as a  post office and he is expected to remember his duty to the  Court as well as his duty to the collective.”    

12. In the case at hand, as is evincible, the learned Chief Judicial  

Magistrate has dwelt upon the merits and expressed an opinion that the  

case is not likely to end in conviction. It is clearly manifest that the Public  

Prosecutor had not applied his mind but had only placed the  

Government notification on record. The High Court has unsuited the  

petitioners on the ground that they are third parties who are  

unconnected with the case. They had filed revisions and the High Court  

                                                      12

(2016) 3 SCC 736

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has been conferred power to entertain the revisions and rectify the  

errors which are apparent or totally uncalled for.  This is the power of  

superintendence of the High Court.  Thus viewed, the petitioners could  

not have been treated as strangers, for they had brought it to the notice  

of the High Court and hence, it should have applied its mind with regard  

to the correctness of the order.  It may be said with certitude that the  

revision petitions filed before the High Court were not frivolous ones.   

They were of serious nature. It is a case where the Public Prosecutor  

had acted like a post office and the learned Chief Judicial Magistrate has  

passed an order not within the parameters of Section 321 CrPC.  He  

should have applied the real test stipulated under Section 321 CrPC and  

the decisions of this Court but that has not been done.    

13. We are compelled to recapitulate that there are frivolous litigations  

but that does not mean that there are no innocent sufferers who eagerly  

wait for justice to be done.  That apart, certain criminal offences destroy  

the social fabric.  Every citizen gets involved in a way to respond to it;  

and that is why the power is conferred on the Public Prosecutor and the  

real duty is cast on him/her. He/she has to act with responsibility. He/she  

is not to be totally guided by the instructions of the Government but is   

required to assist the Court; and the Court is duty bound to see the  

precedents and pass appropriate orders.

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14. In the case at hand, as the aforestated exercise has not been  

done, we are compelled to set aside the order passed by the High Court  

and that of the learned Chief Judicial Magistrate and remit the matter to  

the file of the Chief Judicial Magistrate to reconsider the application in  

accordance with law and we so direct.  

15. The appeal is, accordingly, allowed.   

      ………………………….CJI.           (Dipak Misra)                    ….……………….………..J.                               (Dr. D.Y. Chandrachud)  New Delhi;     September 13, 2018