He is no Stranger.

The Hon’ble Supreme Court in the matter of Abdul Wahab K. v. State of Kerala and Others on 13.09.2018 pronounced that even if a petitioner in a criminal revision petition is neither an aggrieved party nor a party to the proceedings on the file, still he cannot be treated as a stranger to the case as he is the one who brings the matter into the notice of the Court. (Para 12)

The Section 321 of Cr.P.C 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. As per the Section 321 of Cr.P.C:

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 hag 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.

The Hon’ble Apex Court with respect to a Public Prosecutor’s/Assistant Public Prosecutor’s power to withdraw from the prosecution of any accused person as per the provisions of Section 321 Cr.P.C expressed that a Public Prosecutor or an Assistant Public Prosecutor, as the case maybe, 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. (Para 10)

In addition to this, The Hon’ble Court while emphasizing on the role of a Public Prosecutor opined that certain 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. (Para 13)

Copy of Judgement: Judgement 13-Sep-2018

-Tushar Kaushik

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