P. Vandyalingam and Others vs Chokkalingam and Others

N. Arumugham, J.—These four revisions arise out of the orders of the learned Assistant Sessions Judge, Tenkasi and Judicial Magistrate,

Tenkasi, in S.C. Nos. 174, 175, 182 of 1993 dated 16.8.1993; 13.8.1993; 23.8.1933 and P.R.C. No. 43 of 1993 dated 26.7.1993

respectively, permitting the Public Prosecutor to withdraw from the prosecution u/s 321 of the Code of Criminal Procedure. Petitioners challenge

the same on the ground of illegality and impropriety.

Though the complainant in all the above cases is State by Inspector of Police, Alangulam Police Station in 4 different crime numbers and the

accused are different persons, who were facing trial for different offences under the penal law, since a common question of law is very much

involved in all the above cases, as consented to by the Bar for the respective parties, all the four cases, were heard together and disposed of by

this common order.

The substratum of the prosecution cases, which are almost identical is that following the assassination of former Prime Minister of India Thiru.

Rajiv Gandhi, at about 8 a.m. on 22.5.1991, the accused in all the four cases were alleged to have formed themselves into an unlawful assembly

with deadly weapons in the various places of occurrence situated in Tirunelveli town within the jurisdiction of Alargigular Police Station with the

common object of committing the offences, caused damages to various properties and attacked and thereby faced die charges under Sections

147, 148, 427, 436, 506.11 read with 149 of the Indian Penal Code following the complaints given and investigated by the Police and filing final

reports against them all. After taking cognizance of the offences by the Judicial Magistrate concerned, serving the copies of the records relied on

by the prosecution to the accused u/s 207 of the Code, finding that the said cases were exclusively trouble by a Court of Session, three cases

alone were committed to the file of the learned Assistant Sessions Judge, Tenkasi and the fourth one was pending for committal on the file of the

Judicial Magistrate, as above referred.

At that stage, following a Government Order Rt. No. 1981 (Public L and 0) dated 14.6.1993 the Additional Public Prosecutor, Tenkasi has

filed a memo into the Court praying for permission to withdraw the above cases. The memo runs as follows:

Since the above case was politically motivated and could not be successfully prosecuted the Government of Tamil Nadu has decided to withdraw

the case. The Secretary to the Government Public (Law and Order Do) Department has issued an order to that effect in G.O. Rt. No. 1921 dated

14.6.1993.

Under the circumstance I pray that your honour may be pleased to permit me to withdraw the above case and render Justice.

Consequent to the filing of the above memo, learned Assistant Sessions Judge, Tenkasi and Judicial Magistrate on various dates found therein have

passed the following order:

The Public Prosecutor having requested permission to withdraw from the prosecution of the S.C. No. 174/93 Chockalingar and 16 others in

respect of offences under Sections 147, 148, 506(2), 427, 436 read with 149 Indian Penal Code, and having satisfied this Court that there are

sufficient grounds for granting permission, is hereby permitted to withdraw from the prosecution as aforesaid of the accused who are discharged

u/s 321(a) of the Code of Criminal Procedure.

Almost a similar order was passed by the Judicial Magistrate, Tenkasi, in the, case pending committal on his file. It appears the Additional Public

Prosecutor in the Courts below have filed the above referred memo with the recommendations of the Investigating Officer following the G.O.

above mentioned and the Court after having satisfied as permitted to withdraw the above cases and thereby discharged all the accused since no

charge had been framed against all the accused as provided by law. The aggrieved complainants in all the above four cases, whose properties

were damaged heavily by the accused, challenging the very propriety and legality of the orders of withdrawal passed by the Courts below u/s 321

of the Code of Criminal Procedure, have come forward with these revisions.

I have heard the Bar for the respective parties as well as the learned Government Advocate on behalf of the State, who is one of the

Respondents in all the above revisions. It was the very endeavor of Mr. V. Gopinath, learned Senior Counsel, who appears for and on behalf of

the revision, Petitioners that though the Public Prosecutor incharge of the prosecution is the person only empowered to withdraw the prosecution

u/s 321 of the Code, of course, with the consent of the Court, the settled Judicial norm is that only by applying his mind pertaining to the grounds

or the records, he should seek for withdrawal, which is made as a vital and necessary ingredient, has not at all been adhered to in these cases

before the Court below and both the Public Prosecutor in-charge of the case as well as the Court below have mechanically adopted a procedure

in passing the impugned order and that therefore, the same have become vitiated. This is perhaps the only main attack dwelt by him during the

whole of his argument and in support of this contention he has relied upon several case law. Controverting the said contention, both Mr. Krishnan,

learned Senior Counsel appearing on behalf of the accused/Respondents and the learned Government Advocate for the State submitted that

before filing die memo seeking permission to withdraw from the prosecution, it was the exercise done by the learned Additional Public Prosecutor,

who has gone through the entire case records following the G.O. and recommendations given by the Government and the investigating agency, and

with the consent by the Court, the impugned orders came into existence u/s 321 of the Code and that therefore, it impliedly reveals that the settled

norm has been fully followed and that there was no error or impropriety in the impugned orders. To substantiate the above contention, reliance was

placed upon some case law also and thus the grounds propagated in the revisions were resisted.

In the context of the above rival position and circumstances, the only question that falls for consideration is whether the impugned orders passed

by the Courts below in all the cases as above referred have become vitiated for the reason of non-application of mind by the Additional Public

Prosecutor and if so, any illegality or impropriety is made available in these cases?

Before proceeding further to consider the above point, it is relevant to advert to Section 21 of the Code of Criminal Procedure, which runs as

follows:

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, 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 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 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.

The latter part of the above section with die proviso is not relevant for the purpose of die instant case save the earlier part of the Section with sub

Clauses (a) and (b). A casual reading of the above Section of law clinches that the Public Prosecutor or the Assistant Public Prosecutor incharge

of a case alone is empowered to withdraw the prosecution at any time before judgment is pronounced and that the withdrawal can be granted by

the Court only after consenting for the same. The consequence of granting the permission to withdraw may result in discharge of the accused or the

acquittal depending upon the stages of the cases concerned before the Court. The statute does not recognize any other person to withdraw the

prosecution from a Court of law. It could follow therefore that a case pending before a court of law can be withdrawn at any stage of the case

before pronouncement of judgment by the Public Prosecutor or the Assistant Public Prosecutor for the satisfaction arrived at by him, however,

with the consent of the Court.

It is pertinent at this stage to, advert to the gist of the settled principles of law by the Courts of Law of this country, in the following case law: In

Maulana Basha v. State (1992 L.W. (Cri.). 499), a learned single judge of this Court while dealing with the scope of Section 321 of the Code has

observed the following:

The impugned order of the Magistrate consenting for withdrawal of prosecution, on facts, cannot be upheld. This revision has to be allowed. The

legal position is certain, that though the reasons for withdrawal could be any, it should be clear that the withdrawal was ultimately to promote the

ends of justice. Since consent for withdrawal can follow, only after the court satisfies itself, that the withdrawal was in the interest of justice,

apparently the order passed by the Court should be a speaking order, so that the Court of Revision would be in a position to find out whether

permission u/s 321 Code of Criminal Procedure had been properly given. When a prosecution before a Criminal Court and a departmental

proceeding can separately exist, to my mind, the consent to withdraw from the prosecution cannot be granted merely on that score. The pendency

of a departmental enquiry will not be a sufficient ground for consenting to withdraw the pending prosecution.

The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else and so he cannot surrender that discretion to

someone else. Of course, the Government may suggest to the Public Prosecutor, that he may withdraw from the prosecution, but none can compel

him to do so. The relevant grounds for withdrawal will include"" to further the broad ends of public justice, public order and peace"". The Public

Prosecutor is an Officer of Court and therefore responsible to it. It shall be the duty of the Court to apprise itself of the reasons which prompted

the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so

has the Public Prosecutor, its Minister of Justice. Both have a duty to protect the administration of Criminal Justice against possible abuse or

misuse by the Executive by resort to the provisions of Section 321, Code of Criminal Procedure The independence of the judiciary requires that

once the case has travelled to the Court, the Court and its Officers alone must have control over the case and decided what is to be done in each

case.

In Balwant Singh and Others Vs. State of Bihar, the Supreme Court has held as follows:

The sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is the larger factor of the administration of

justice not political favors nor party pressures nor like concerns; of course, the interests of public justice being the paramount consideration they

may transcend and overflow the legal justice of the particular litigation. The Code of Criminal Procedure is the only master of the Public Prosecutor

and he has to guide himself with reference to Code of Criminal Procedure only. So guided, the consideration which must weigh with him is,

whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. Where in an

ordinary criminal case, the Public Prosecutor is ordered by the District Magistrate to move for withdrawal and the Public Prosecutor obeys and

not acts, and no public policy bearing on the administration of justice is involved the Court will refuse to accord permission.

It may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to him to consider whether the

prosecution should be withdrawn or not. He cannot command where he can only commend.

In Rajender Kumar Jain and Others Vs. State Through Special Police Establishment and Others, Supreme Court has laid down the scope of

Section 321, Code of Criminal Procedure to be followed in the following words:

It shall be the duty of the Public Prosecutor to inform the court and it shall be the duty of the court to apprise itself of the reasons which prompt the

public prosecutor'' to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has

the Public Prosecutor, its ''Minister of Justice''. Both have a duty to protect the administration of criminal justice against possible abuse or misuse

by the Executive by resort to the provisions of Section 321, Code of Criminal Procedure.

As elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an

atmosphere of goodwill or for the purpose of not disturbing a calm which has defended it decides not to prosecute the offenders involved or not

proceed further with prosecutions already launched. In such matters, who but the Government can and should decide, in the first instance, whether

it should be baneful or beneficial to launch or continue prosecutions.

If the policy-makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public

policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the court to say that the initiative came

from the Government and therefore the public prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over

words. If ill-informed out well meaning bureaucrats choose to use expressions like ''the public prosecutor is directed'' or ''the public prosecutor is

instructed"" the court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the round that the Public

Prosecutor did not act as an agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the

prestige of the Public Prosecutor but a wider question of policy. The Court, in such a situation is to make an effort to elicit the reasons for

withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant

reasons.

The bureaucrat too should be careful not to use peremptory language ""when addressing the Public Prosecutor since it may give rise to an

impression that he is coercing the Public Prosecutor to move in the matter.

The courts when moved for permission for withdrawal from prosecutions must be vigilant and inform themselves fully before granting consent.

While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the

Government and hereafter apprise the cause of action relevant to the question of withdrawal from the cases, but under no circumstances should he

allow himself to become anyone''s stooge

In Bansi Lal Vs. Chandan Lal and Others, ; Supreme Court has held as follows:

Permission to withdraw from the prosecution should not be granted for the mere asking out the Court must be satisfied on the materials placed

before it that the grant of permission would serve the administration of justice.

When the prosecution has reached the stage of framing charges in the Sessions Court and no occasion for the defense to make out a case has

arisen and there is no material before the Court justifying withdrawal of the case against some accused, the order granting permission is wrong in

law. Consenting to the withdrawal of the case on the view that the attitude displayed by the prosecution made it futile to refuse permission does not

certainly serve the administration of justice.

In Sheonandan Paswan Vs. State of Bihar and Others, the Supreme Court has held the law in the following words:

Though withdrawal from prosecution is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion

is neither absolute nor unbelievable but it is subject to the Court''s supervisory function. In fact being an executive function it would be subject to a

judicial review on certain limited grounds like any other executive action, the authority with whom the discretion is vested ''must genuinely address

itself to the matter before it, must not act under the dictates of any other body, must not do what it has been forbidden to do, must act in good

faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes

client to the latter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.

Section 321 enables the Public Prosecutor or Assistant Public Prosecutor in charge of a case to withdraw from the prosecution with the consent of

the Court. Before an application is made u/s 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being

subject to any outside influence. But it cannot be said that a public prosecutor''s action will be illegal if he receives any communication or instruction

from the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government.

Central or State appointed for conducting in court any prosecution or other proceedings on behalf of the Government concerned. So there is the

relationship of counsel and client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without instructions of the

Government. A Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client-, namely the

Government. Section 321 does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an

application under that section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the

contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government.

A bare perusal of Section 321 shows that it does not describe any ground nor does it put any embargo or fetter on the power of the Public

Prosecutor to withdraw from prosecuting a particular criminal case pending in any Court. All that it requires is that he can do so only with the

consent of the court when the case is pending. The function of the court in this respect is a limited one and intended only to prevent the abuse. The

function of"" the Court in according its consent for withdrawal is, however, a judicial function. It, therefore, become necessary for the court before

whom the application for withdrawal is filed by the Public Prosecutor to apply its mind so that the appellate Court may examine and he is satisfied

that the Court has not accorded its consent as a mater of course but has applied its mind to the grounds taken in the application for withdrawal by

Public Prosecutor.

In the said case, another view held by the Supreme Court in this regard, is the following:

An application for withdrawal from the prosecution can be made of various grounds and it is not confined to political offences. Therefore it cannot

be said that the grounds, mentioned in the application for withdrawal, namely (1) implication of the accused persons as a result of political and

personal vendetta, (ii) inexpediency of the prosecution for the reasons of state and public policy and (iii) adverse effects that the continuance of the

prosecution will bring on public interest in the light of the changed situation, are irrelevant. The Penal Code or the Code of Criminal Procedure

does not make any distinction between political offences and offences other than political ones. Even if it is accepted that political offences, the fact

remains that Section 321, Code of Criminal Procedure is not confined only to political offences or social offences, but it applies to all kinds of

offences and the application for withdrawal can be made by the public prosecutor on various grounds. The only safeguard that should be kept in

mind by the Public Prosecutor is that it should not be for an improper or oblique or ulterior consideration, and the guiding consideration should be

that of vindication of public justice.

The object of Section 321 appears to be to reserve power to the Executive Government to withdraw any criminal case on larger grounds of public

policy, much as inexpediency of prosecutions for reasons of State; broader public interest like maintenance of law and order; maintenance of

public peace and harmony, social, economic and political, change social and political situation; avoidance of destabilization of a stable government

and the like. And such powers have been rightly reserved for the Government, for, who but the Government is in the know of such conditions and

situations prevailing in a State or in the country. The Court is not in a position to know such situations.

The Public Prosecutor may withdraw from the prosecution not only on the ground of paucity of evidence but on other relevant grounds as well in

order to further broad aims of justice, public order and peace. Broad aims of public justice will certainly include appropriate social economic and

political purposes. Therefore it cannot be said that withdrawal from prosecution can be permitted only in political offences and not in Common

Law offences.

The withdrawal from the prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from the prosecution is

his the Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can complied to do so not

merely inadequate of evidence, but other relevant grounds such as to further the broad ends of public justice, economic and political, public order

and peace are valid grounds for withdrawal. The exercise of the power to accord or withdraw consent by the Court is discretionary. Of course, it

has to exercise the discretion judicially. The exercise of the power of the court is judicial to the extent that the court, in according or refusing

consent, has to see (i) whether the grounds of withdrawal are valid; and (ii) whether the application is bona fide or is collusive. It may be

remembered that the order passed by court u/s 321, either according or refusing to accord consent is not appealable. A mere perusal of the

impugned order of the Special Judge granting permission to withdraw from the prosecution of accused persons in the case in question shows that

he has applied his mind to the relevant law.

Further the decision of the Public Prosecutor to withdraw from the case on the grounds given by him in his application for withdrawal cannot be

said to be actuated by improper or oblique motive. He bonafide thought that in the changed circumstances of the case it would be inexpedient to

proceed with the case and it would be sheer wastage of public money and time to drag on with the case if the chances for convictions are few and

far between. In the circumstances instead of serving the public cause of justice it will be to the detriment of public interest.

In Badrudeen, P.S.N. v. Selvam Raj Kennel ( 1987 L.W.(Cri.) 365), a learned single judge of this Court had the occasion to observe the

followings:

It is settled law that the public Prosecutor in charge of the case has to apply his mind to the reasons justifying the withdrawal of the prosecution and

satisfy himself that the withdrawal is necessary in the interest of the administration of justice. This responsibility of the public Prosecutor cannot be

abdicated in favour of any one else. Though as a counsel for the State it would be open to him to receive information from the State to apprise him

of the circumstances calling for a withdrawal, the final decision however would be the decision of the Public Prosecutor himself. Case law on the

subject has made it clear that the reasons for withdrawal could be many, but it should he clear that the withdrawal is ultimately to promote the ends

of justice.

It is also settled law that when the court is called upon go give permission to the Public Prosecutor to withdraw from the prosecution the court has

also to satisfy itself that the withdrawal is in the interest of justice. The Order passed by the Court, should be a speaking order so that a court of

revision would be in a position to find out whether permission u/s 321, Code of Criminal Procedure has been properly given.

It is also relevant at this stage to note the observation made by the Supreme Court in State of Orissa Vs. Chandrika Mohapatra and Others,

which runs as follows:

The Principles that should be kept in mind by the court when giving consent to the prosecution u/s 494 Code of Criminal Procedure 1973, for

withdrawing the prosecution against the accused, are that the prosecution is not able to produce sufficient evidence to sustain the charge, or that

the prosecution does not appear to be well founded, or that there are other circumstances which clearly show that the object of administration of

justice would not be advanced or furthered by going on with the prosecution. It is not sufficient for the prosecution merely to say that it is not

expedient to proceed with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the

touchstone on which the question must be determined. No hard and fast rule can be laid down nor can any categories of cases be defined in which

consent should be granted or refused. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in

order to promote the ends of justice, because, the objective or every judicial process must be the attainment of justice.

Where, therefore the Magistrate granted permission for withdrawal, because the prosecution averred that the evidence collected during

investigation was not sufficient to sustain the charge against the accused and after satisfying himself, by perusing the case diary, that the averment of

the prosecution was justified. The High Court was in error in setting aside the order of the Magistrate. In the instant case, the High Court also erred

in observing that the Magistrate had not perused the case diary, and that the Magistrate had accorded consent for withdrawal of the prosecution

by accepting the prosecution case that it was inexpedient to proceed with the case.

Where, in the connected case, the Magistrate gave his consent for withdrawal on the ground that it was administratively considered by the State

inexpedient to proceed with the case, though it was not a valid ground, no useful purpose would be served in compelling the prosecution to

proceed with the case, because, both cases arose out of the same incident and the evidence in regard to both was admittedly the same.

Where the application made by the Prosecution for withdrawal showed that the clash in which certain persons were injured arose out of rivalry

between two trade unions, but that since the date of the incident, calm and peace prevailed in the industrial undertaking, the Trial Court would be

justified in granting consent for the withdrawal of the prosecution and the High Court would be in error in setting aside that order In the present

case, the State felt that it would not be conducive to the interests of justice to continue the prosecution, since the prosecution or conviction of the

accused would rouse the feeling of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the undertaking.

Ultimately, every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic

cause of the crime would be better served by not proceeding with the prosecution, the State would be at liberty to withdraw from the prosecution.

It is thus seen the legal ratio on this aspect of payer to withdraw from the prosecution and the circumstances under which the Court can

consent for withdrawal of the prosecution as spelt out in Section 321 of the Code of Criminal Procedure, been held out clearly and elaborately

very by the Supreme Court as well as the High Courts and the law in this regard is well settled by now. Whatever the nature of offence may be,

however grave or serious it may be, if for the reasons found out by the State or the Government, who is supposed to be in the position of a client,

it is noticed that it can give instructions to the Public Prosecutor or the Assistant Public Prosecutor only to withdraw either for promoting peace and

harmony or socio-economic backgrounds or on the ground that the prosecution could not be successfully carried out or on the ground of

inexpediency To formulate the concept of withdrawing the prosecution, it is enough for identifying any one of the above grounds by the persons

referred to above and if that exercise is completed, the public Prosecutor or the Assistant Public Prosecutor incharge of the prosecution alone is

empowered to withdraw from the prosecution, however, with the consent of the court. But, before seeking permission, it is well settled that he

must apply his mind independently and that whatever be the prompting or guidance or instructions given to him, it is incumbent on his part to apply

his mind before seeking the withdrawal of the prosecution. Yet, another power has been given to the court to give consent for withdrawal of such

cases.

It is also noticed that the application of mind by the Public Prosecutor or by a person incharge of the prosecution has become necessary to

arrive at the satisfaction before withdrawing a case and for which he has to get the consent of the Court before which the case is pending. Thus, it

is seen that there are two checks provided by the Statute to be exercised before withdrawal of any persecution; one by the public prosecutor or

the Assistant Public Prosecutor and another by the Court. To say that the functions of the Public Prosecutor or any person in charge of a

prosecution is an administrative one and cannot at all be a judicial one but to give consent by a court for the withdrawal of a prosecution case by

the Public Prosecutor, Court is not expected to go into the merits of the case but the functions of the Court to look the demand by the public

prosecutor to withdraw the case is provided within the ambit of Section 321 of the Code, though it was the second check provided by the statute,

in that sense, imperative one. These two functions are primordial exercises to be done and completed with independent sanctity before withdrawal

of a prosecution. It is also made clear by now while identifying or searching for the compliance, of the above conditions, each and every fact of the

case cannot be looked into on merits but to certain extent, however, it an be looked into for the purpose of identifying the application of mind by

the Public Prosecutor or the court while according the sanction as was held by the Apex Court that the relevant grounds for withdrawal is inclusive

of furthering the broad ends of public justice, public order and peace. This ingredient has been emphasized by the Courts repeatedly for the very

reasoning that the Public Prosecutor is always deemed to the Officer of the Court expected to render all assistance to the Court in rendering

justice. It is therefore, under the circumstances, it shall be the duty of the court to apprise itself of the reasons which prompted the Public

Prosecutor to withdraw from the prosecution if this second limb of Section 321 of the Code is to be complied with full err performed. It is also

worthwhile to note that the Court before consenting to the withdrawal has onerous responsibility and imperative stake in the administration of

justice, so also, the Public Prosecutor and thus, both have a duty to further the ends of justice. It is made clear thus that though the function of the

Public Prosecutor is an administrative one, the said two checks have been provided by the wisdom of the statute in order to avoid the abuse and

misuse by the executive susceptibilities.

What is important at this juncture is to ascertain the proper test or the yardstick to be applied in gauging whether the Public Prosecutor has

applied his mind before withdrawing from a prosecution, the yardstick which is to be necessarily used in prompting the very functioning of the

Public Prosecutor before withdrawing from a case has not so far been spelt out and laid down but however, it is not uncommon that the decision of

the Public Prosecutor before withdrawing from a case has not so for been spelt out and laid down but however, it is not uncommon that the

decision of the Public Prosecutor following his instructions to withdraw form a prosecution on any one of the grounds above referred to, is being

assailed and challenged in the higher forum of the courts. None the less the High Court or the higher forums of the Judiciary while performing its

legal exercise under such circumstances may have every difficulty in Identifying the very application of mind by the Public Prosecutor or the court

whenever on such occasions it was noted that the permission to withdraw was found in the generic terms or by using mere mono syllable. If for any

good grounds the said user of the short words or vague generic terms was found, then proper legal exercise cannot be made in such cases. It was

that one and only reason, perhaps, it was stated that the cases records have to be perused and the courts have to see whether the Public

Prosecutor has mechanically acted on the direction of the execution or somebody else or independently applied has mind to his discretion and

pleaded for withdrawal. In order to avoid the above melody it was the concept of law in this regard has been spelt by saying that thought the

reasons for withdrawal could be many, it should be made clear that the withdrawal was ultimately to promote the ends of justice and since consent

for withdrawal can follow only after the court consented that the withdrawal was in the interests of justice. Apparently, the order passed by the

court should be a speaking order so that the court of revision would be in a position to find out whether permission u/s 321, Code of Criminal

Procedure had been properly given.

Importing the above underlying principal inherent u/s 321 of the Code as seen from the legal ratios enunciated in the above case law, I would

like to add my preference also with the observations made by the learned single judges of this Court following the principles of law postulated by

the Apex Court, that in order to identify the compliance of the legal mandate and to avoid the further speculations, orders for withdrawal at both

end must be a speaking one, which alone amounts to a fool proof system of legal exercise. Keeping in view the above and applying the same to the

facts of the instant cases, it is noticed that the four cases were accepted by the court of law for the legal exercise for the offences punishable under

Sections 147, 148, 506 (ii) 427, 436 I.P.C. read with 149, I.P.C. on the basis of the investigation by the Respondent police. Three cases amongst

them had been committed to sessions and the last one was yet to be commuted. It was at this stage by issuing G.O. Rt. No. 1921 Public (Law and

Order - Do) Department dated 14.6.1993, the proposal to take all arrangements to withdraw the prosecution in all the above cases though the

Government machineries had been mooted for the vary reasoning that the above cases were initiated out of political motivation and could not be

successfully prosecuted and that therefore the government had decided to withdraw the same. Following this, having got the consent from the

Inspector of Police, The Public Prosecutor in charge of the above cases has filed memo on behalf of the prosecution seeking the permission to

withdraw the same. In the memo filed on 13.8.1993 it is seen that the words ""Politically motivated and could not be successfully prosecuted"" were

stated to be the main rounds harped upon by the Public Prosecutor. It is worthwhile to note that the learned Assistant Sessions Judge on the same

day, after having gone though the memo filed above referred, has stated that on having been satisfied that there are sufficient grounds for granting

permission and has permitted to withdraw from the prosecution and accordingly, the accused had been discharged u/s 321(a) of the Code of

Criminal Procedure.

The Bar for the respective parties are unanimous in not disputing the tactual aspects of the case as evident from the records with regard to the

grounds identified for withdrawal from the prosecution very much involved in these cases as ""Politically motivated and could not be successfully

prosecuted"". My endeavor is not to go into the correctness and verification of the said grounds relied upon for the grant of relief asked, by the

court. As per the legal principle initiated above, one cannot dispute that the above two words adopted by the Additional Public Prosecutor

incharge and accepted by the court, are a non-speaking one, cannot at all be given a wider interpretation than its literary meaning/From the above

phraseology, it is made clear that it is not known that the Public Prosecutor in charge of the prosecution had applied his mind independently in

furtherance of his discretionary power to withdraw the prosecution case or not. The words adopted in the G.O. above referred has merely been

followed and employed by the Public Prosecutor and beyond that no more application of mind is seen to be identified anywhere in the case

records. The Bar is also not in a position to emphasize more materials or particulars than the above one. If the settled law is that two checks have,

been provided by the wisdom of the Statute u/s 321 of the Code, in the absence of a speaking order, I am constrained to hold that the mere

adaptation of the two generic terms given by the government and simply followed by the Additional Public Prosecutor and the Assistant Public

Prosecutor without any material to show their application of mind, is clearly within the teeth of the legal ratio enunciated above and it is made clear

that the withdrawal of the prosecution with the consent of the courts below in all the four cases were not proper and not in accordance with the

settled principles of law, resulting in the interference of this Court in setting aside the impugned orders passed by the courts below in all the four

cases.

A strenuous venture was made by the learned Senior Counsel Mr. Krishnan on behalf of the Respondents that even assuming that the two

generic terms had been adopted by the Public Prosecutor as given by the government in the G.O., it impliedly means that he has applied his mind in

full and arrived at an independent conclusion to withdraw the prosecution cases, which is very difficult to be digested and there it can not be

sustained. What has been provided by the settled law is expected to be fulfilled by the Public Prosecutor in charge of a prosecution in implementing

the check, as well as the check made imperative on the part of the court before granting permission to withdraw and while the same has not been

done, whatever be the terms used, which provides any materials, the said view cannot be countenanced for no meaning at all in the absence of any

reason. Therefore, I am totally unable to countenance the said view of the learned Senior Counsel. On the other hand, Mr. Gopinath, learned

Senior Counsel appearing on behalf of the revision Petitioners laid every stress on the basis of the legal ratios enunciated by the courts in all the

above cited case law and on the basis of which, he would submit that it was manifest that the impugned orders are, benefit of that legal order

exercise and that therefore the same are proved to be interfered with by allowing these revisions. For all the aforesaid reasoning and for my

detailed discussion given above, I am fully constrained to endorse my view with the submissions of the learned Senior Counsel for the revision

Petitioners as the courts below have followed mechanically the directions given by the Government and certainly not exercised their judicial duty in

rendering justice to the parties.

In the result, for all the reasoning given above, the revisions succeed and stand allowed. Accordingly, the impugned orders passed by the

learned Assistant Sessions Judge, Tenkasi and Judicial Magistrate, Tenkasi are set aside and the respective cases are directed to be restored to

the file of the courts below for the purposes of trial and disposal in accordance with law.