1. The petitioner is an M.L.A of the Muslim League Party. He is a partner of the ruling coalition front in Kerala. He is arrayed as the first accused along with five other accused in a Sessions Case pending in the Sessions Court, Manjeri. It is a case based on police report. That case was committed to the Sessions Court by the Judicial Magistrate of the Second Class, Nilambur, and was made over to the Assistant Sessions Court, Manjeri for trial. After framing the charge for the offenses under Ss. 294, 454, 426, 395 and 109 of the I.P.C, and after recording the plea of the accused, the learned Assistant Sessions Judge posted the case for evidence to 7-6-1982 and the subsequent days. On the first day of posting for evidence, the Public Prosecutor filed a petition seeking permission of the Court to withdraw the case. The Assistant Sessions Judge, by his order dated 22-6-1982, refused to accord his consent to the aforesaid prayer. Hence, the petitioner challenges the said order in this revision. The prosecution case, in brief, is this: The petitioner, besides his political activities, had a saw mill at Nilambur. One Dr. Kharim, a Homeopathic Medical Practitioner, (hereinafter referred as the informant) is residing in the vicinity of that saw mill. He is an amateur photographer. When Forest Officers visited the petitioner's saw mill by about 11 A.M on 15-1-1981, the informant went there with his camera to take some photographs. The petitioner expressed his resentment against this conduct but the photographer persisted in taking the photos. Then the petitioner lifted up his loin-cloth and told him to take a photograph of that also. Without hesitation, the informant clicked his camera, took a picture of that scene also and then returned to his house. This was followed by five persons including two sons of the petitioner rushing to the residence of the informant. They assaulted the informant and snatched away his Yashika camera and escaped from the house with the booty. The informant went to the local police station and filed a complaint which led to the filing of the charge-sheet against the petitioner and the other five persons.
2. The learned Assistant Sessions Judge refused to give consent for the withdrawal of the prosecution mainly for two reasons: (1) The grounds set out by the Public Prosecutor in his petition in support of his opinion that “proceeding with the case would result only in wastage of time, energy and expenses” are totally unsustainable, and (2) the application for withdrawal of the prosecution was not made in the exercise of his own judgment, but under the influence of some external authority. The learned Judge concluded as follows: “in the present case, I have no reason to believe that the Prosecutor was satisfied that he should withdraw from the prosecution for good and relevant reasons other than political reasons”.
3. Learned counsel for the petitioner contended that it is not the function of the court to see whether the opinion of the Public Prosecutor is correct or not and it was unnecessary for the Assistant Sessions Judge to go behind the request of the Public Prosecutor or to find that he had received instructions from elsewhere in the matter. It was further contended that even if the Public Prosecutor got instructions from the District Collector, that aspect is alien to the scope of consideration. All that the court is concerned with, while granting or refusing to grant consent for the request of the Public Prosecutor, is to see whether the executive power of the Public Prosecutor was exercised when he felt the need to withdraw the prosecution, contended the petitioner. According to the learned counsel for the petitioner, the fact that the Public Prosecutor was informed by the Government to withdraw from prosecution or the fact that be was given instructions by the District Collector in that regard, need not necessarily vitiate his decision even if those factors would probably have a persuasive effect on him.
4. The power and the procedure for withdrawal from the prosecution are contained in S. 321 of the Code of Criminal Procedure. The material portion of that section reads: “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:………” Two important features which loom large in the body of the said provision are (1) a discretion is given to the Public Prosecutor to withdraw from the prosecution; and (2) such withdrawal can be allowed only with the consent of the Court. If the exercise of the Public Prosecutor's discretion is tainted with mala fides, or if it is influenced by improper considerations, or if it is otherwise vitiated, the Court has the power to refuse consent for the withdrawal. For that purpose Parliament has imposed a check that the withdrawal can be made only with the consent of the Court. No doubt that the Public Prosecutor has to exercise the wide discretion conferred on him by the section in furtherance of justice and not to scuttle it. If the court is satisfied that the request of the Public Prosecutor to withdraw from the prosecution would not serve the purpose of administration of justice, and that the permission sought is with any ulterior purpose unconnected with the vindication of law, the court is not supposed to act mechanically by giving its imprimatur to the aforesaid request of the Public Prosecutor. Continuation of the prosecution till if reaches its normal end should be the rule and withdrawal of any person from prosecution prematurely is only an exception and resorted to very sparingly. The Public Prosecutor must bear in mind, among various factors, that the confidence of the public in the efficacy of the administration of justice is not shaken by abuse of the discretion cast on the Public Prosecutor by virtue of S. 321 of the Code of Criminal Procedure.
5. A Full Bench of this Court in Dy. Acctt. General v. State (A.I.R 1970 Ker. 158 (F.B)) (1969 KLT. 669) considered the scope of S. 494 of the Code of Criminal Procedure, 1898 which corresponds to S. 321 of the Code. The Full Bench pointed out the difficulty to formulate any general principle for determining the grounds on which a Public Prosecutor can seek withdrawal and the grounds on which the court can grant or withhold consent. However, their Lordships laid down the following general test:
“……The Court gives its consent in the exercise of its judicial discretion and before granting consent, it must be satisfied that the grounds stated for the withdrawal are proper grounds, grounds which, if, true, would make the withdrawal a furtherance of, rather than an hindrance to, the object of the law……”
6. The check imposed by S. 321 of the Code on the discretion of the Public Prosecutor is that be can withdraw the prosecution only with the consent of the Court. Subject only to that rider, the Public Prosecutor is the authority to decide in what circumstances, and on which facts and in which case he an apply to the Court for withdrawal of the accused from prosecution. The provision does not impose any restriction on him because, the discretion is conferred on a very responsible officer of the Court. The office of the Public Prosecutor is the creation of the Statute. Though his appointment is made by the Government, the Public Prosecutor is not an officer who has to abide by any instruction given by the Government, but he has to stand for public justice. Only such persons as the District Magistrate recommends to be fit for appointment as Public Prosecutors can be appointed by the Government. The District Magistrate cannot make his recommendation arbitrarily. From among the advocates who have been in practice for not less than seven years, the District Magistrate has to prepare a panel of those names who, in the opinion of the District Magistrate, are fit to be so appointed. Further, before preparing the panel, the District Magistrate has to consult the Sessions Judge, who knows the right person to be appointed for the courts. No other authority is as conversant in this task as the Sessions Judge concerned is. Thus, after a filtering process, the selection is made by the District Magistrate of the person fit to be appointed as the Public Prosecutor and the Government's choice can be made only from those names mentioned in the said panel. When once appointed, the Public Prosecutor does not represent the police, nor the executive His role, principally, is to assist the Court in the administration of justice. His office is not subject to control or supervision by any department of the Government. A special feature of the administration of justice in the field of criminal law in India is that the accused in a Sessions Case is given a privilege, i.e, the case against him can be prosecuted in the Sessions Court only by the Public Prosecutor. There is no exception to this. Any private counsel engaged by the injured, or any advocate briefed by the relatives of the deceased, however influential they may be, is not entitled to conduct the prosecution. This system is the acknowledgment of the special status and position which the office of the Public Prosecutor is expected to hold in our legal system. When the Parliament conferred the wide discretion envisaged in S. 321 of the Code on a Public Prosecutor, a special confidence has been reposed in his high office that the discretion would not be exercised unfairly or for defeating the object of administration of criminal justice. The Court's power to grant or refuse to grant consent is intended to be a safeguard against the abuse of the aforesaid discretion.
7. In Balwanth Singh v. State of Bihar ((1977) 4 SCC 448 : AIR 1977 SC 2265) a Bench of three Judges of the Supreme Court emphasised the independent role of the Public Prosecutor. It was held that the sole consideration which should guide the Public Prosecutor while exercising the statutory responsibility is the larger factor of the administration of justice. Neither political favour nor party pressure or the like shall guide him. In Subash Chander v. State ((1980) 2 SCC 155 : AIR 1980 SC 423) the Supreme Court once again emphasised the independence of the Public Prosecutor as follows: “Any authority who coerces or orders or pressurises a functionary like the Public Prosecutor, in the exclusive province of his discretionary powers, violates the rule of law, and any Public Prosecutor who bends before such command betrays the authority of his office”. In Rajender Kumar v. State ((1980) 3 SCC 435 : AIR 1980 SC 1510) the Supreme Court enumerated eight different facts gathered from precedents while considering the scope of S. 321 of the Code. One of them is that “the Public Prosecutor is an officer of the Court and responsible to the Court”. The last of them refers to the court's duty. It is not the Court's duty to re-appreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution, but to consider whether the Public Prosecutor applied his mind as a free agent uninfluenced by irrelevant and extraneous considerations. It is stressed that “the court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent for withdrawal from prosecution.” The learned counsel for the petitioner referred to the decision reported in Sheonandan Paswan v. State of Bihar ((1983) 1 SCC 438), in which three Judges wrote separate judgments and the majority confirmed the order by which consent was accorded by the Court for withdrawal from prosecution. Later the counsel informed that the said decision has since been reviewed by the Supreme Court and the case is posted for final arguments. So, I do not wish to quote the observations contained in the said decision.
8. The various decisions cited above highlight two important aspects. One is the special and independent role which a Public Prosecutor has to play, especially in the exercise of discretion under S. 321 of the Code. The second aspect is the special duty of the Court, being the ultimate repository of the legislative confidence.
9. As pointed out earlier, the learned Sessions Judge, in this case, refused to accord sanction for withdrawal of the accused from prosecution mainly on two grounds which I have adverted to earlier. I do not find any reason to take a different view in this revision. The Public Prosecutor filed the petition for withdrawal from prosecution only on 7-6-1982. That prayer was based only on the ground that there is no reasonable probability of the case ending in conviction. The learned Assistant Sessions Judge repelled the said ground. Though what is relevant is the conclusion of the Public Prosecutor and not of the Court, it is open to the Court to examine the records in order to find whether the Public Prosecutor's view on that score is so unreasonable that no such inference could ever have been made. I have gone through the records including the case diary notes. At this stage I only say that the Public Prosecutor's view that there is no chance of the prosecution ending in conviction has no justification whatsoever. The ground set out in the application filed by the Public Prosecutor would show that he has strained very much to ferret out some discrepancies or some variances from the case records for filing such an application. I strongly feel that the Public Prosecutor would not have bona fide believed that the only possible finale of the case is one of acquittal and hence the remaining part of the trial would only be an exercise in futility. Before the charge-sheet was laid, the practice followed by the police is to place all the records to the Public Prosecutor for his approval of the draft charge-sheet. The Public Prosecutor has no case that the said practice was not followed in this case. If it was followed, it has to be noted that the Public Prosecutor never felt at that stage that there is no chance for conviction on the materials available. Then there was a second stage when the Public Prosecutor had a liberty to inform the Court about the paucity of evidence, i.e before the Sessions Courts framed charge against the accused. Under S. 226 of the Code the Public Prosecutor shall open the prosecution case “by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.” Under S. 227 of the Code the Sessions Judge is empowered to discharge the accused if he considers that there is no sufficient ground for proceeding against the accused. S. 228 of the Code says that the Judge can frame the charge if he is “of the opinion that there is ground for presuming that the accused has committed an offence”. In this case, the charge was framed by the Court on 16-2-1982. There is nothing on record to show that the Public Prosecutor addressed an argument at that stage that it is a futile exercise on account of paucity of evidence. If he did not address any such argument at that stage, it is strange that the Public Prosecutor changed his stand volte-face at a later stage. Ext. P1 is a material from which a legitimate and reasonable inference can be drawn that the Public Prosecutor was made to do it by extraneous pressure. It cannot be forgotten, in this context, that the petitioner is an M.L.A of the ruling coalition front in Kerala. Ext. P1 is a letter signed by the Special Secretary to the Government to the District Collector, Malappuram. It refers to a letter from the Superintendent of Police, Malappuram dated 2-3-1982. (It must be remembered that the Court framed the charge as early as 16-2-1982). It is seen from Ext. P1 that pursuant to the letter of the Superintendent of Police, the Government has given “necessary instructions” to the Public Prosecutor concerned for withdrawal from the prosecution. It is possible to understand in the light of the above materials that the District Collector might have given “necessary instructions” to the Public Prosecutor concerned for withdrawal from prosecution. The learned Assistant Sessions Judge was therefore right in concluding that the Public Prosecutor has no good and relevant reasons to withdraw this case and that political influence has been exerted on him to adopt this course. The Assistant Sessions Judge has rightly refused to grant consent.
10. In this context it is apposite to quote the following observations of the Supreme Court in Subash Chander's case (cited supra): “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”. In the light of the above discussion, the order impugned does not call for interference. The revision is accordingly dismissed. As the case has become already very old, I direct the Assistant Sessions Judge, Manjeri to post the case for evidence as early as possible and dispose of the case without furrier delay.
11. Dismissed.