Sunita Devi And Another vs State Of H.P. & Another

Rakesh Kainthla, J

The petitioners have filed the present petition for quashing of the order dated 06.09.2025, passed by learned Chief Judicial Magistrate, Bilaspur, H.P. (learned Trial Court) vide which an application filed by learned Assistant Public Prosecutor (APP) seeking withdrawal from the prosecution was dismissed. (The parties shall hereinafter be referred to in the same manner as they are arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present petition are that the police filed a charge sheet before the learned trial Court against the accused for the commission of offences punishable under section 323, 353, 342, 504 and 506 read with Section 34 of Indian Penal Code (IPC), asserting that the informant Om Prakash was posted as a Process server in the office of Senior Civil Judge, Bilaspur. H.P. He was discharging his duties at the village Barmana on 18.09.2021 at about 5:30 p.m.. He was to serve notices/summons upon the accused, Mathala Kranthi Kumar, in a Civil Suit titled Sushil Kumar versus Dharti Minerals Pvt. Ltd. He told the accused Kranthi Kumar about the summons, but he refused to receive the summons. The accused Sunita Devi pushed the informant inside the house and detained him in the house. The accused threatened and insulted the informant. He was released only with the assistance of the police. Hence, a charge sheet was filed before the Court to take action against the accused as per the law.

Subsequently, the matter was compromised between the parties and an application seeking withdrawal was filed before the learned Trial Court. The learned Trial Court dismissed the application.

Being aggrieved by the order passed by the learned Trial Court, the petitioners/accused have filed the present petition asserting that the learned Trial Court exceeded its jurisdiction by refusing the withdrawal. The jurisdiction is vested with the Public Prosecutor and not with the Court to decide the reason for the withdrawal. The learned Trial Court made premature observations on the merits of the case. The relationship between the parties and the nature of the offence were ignored. The continuation of the prosecution is causing harm to petitioner No.2; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

I have heard M/s Munish Kumar and Yuyutsu Singh Thakur, learned counsel for the petitioners and Mr Jitender K. Sharma, learned Additional Advocate General, for respondent No.1/State.

Mr Munish Kumar,learned counsel for the petitioner, submitted that the learned Trial Court erred in refusing permission to the learned Public Prosecutor to withdraw from the prosecution. The learned Public Prosecutor applied his mind, concluded that continuation of the proceedings would disrupt peace and harmony in the society, and decided to withdraw from the prosecution. Learned Trial Court cannot sit in appeal over the decision of the learned Public Prosecutor. Hence, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. He relied upon the following judgments in support of his submissions:

Ø Akanksha Arora vs. Tanay Maben 2024 INSC 96;

Ø George Alexander @ Prince vs. State of Karala 2025: KER:43501; and

Ø Swami Chinmayanand vs Saraswati vs. State of U.P. & Anr. Special Leave to Appeal (Crl.) No. (s) 10004/2022.

Mr Jitender Sharma learned Additional Advocate General for respondent No. 1/State submitted that an appropriate order be passed.

I have given considerable thought to the submissions made by learned counsel for the petitioner at the bar and have gone through the records carefully.

The application for withdrawal from prosecution was filed by the learned Public Prosecutor. It was laid down by the Patna High Court in Md. Shahnawaj and others vs. State of Bihar & others 2019 STPL 10115 Patna, that the withdrawal is between the prosecution and the Court, and the accused have no locus standi to challenge the order of refusing the withdrawal. It was observed: -

"27. The present revision application has been filed by the petitioners, who are accused in S.T. No. 1061 of 2008, arising out of Araria P.S. Case No. 71 of 2004, but so far, withdrawal is concerned, it is a matter between the prosecution and the court, and as such, petitioners have no locus standi to challenge the dismissal of the order of withdrawal petition.

Further, the police has no absolute or unfettered discretion as to whether to prosecute an accused or not to prosecute him; rather, the Magistrate is given power to control the discretion of the police.

Learned counsel for the informant has also cited a decision reported in AIR 1987 SC 877 in the case of Sheo Nandan Paswan vs. State of Bihar to show that Apex Court has already held that cases under Section 321 Cr.P.C. can be withdrawn if it is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law and the court after considering the above facts has to see whether application suffers from such improprieties or illegality as to cause manifest injustice, if consent is given. But in the present case, there is no interest of public policy involved, other than there are sufficient materials against the petitioners, and as such, the court has rightly rejected the petition for withdrawal.

I find force in the above contention, and moreover, as I have discussed above, the petitioners, accused persons, have no locus standi to challenge the order rejecting the withdrawal petition; as such, the revision application preferred by the petitioners is not sustainable in the eyes of the law."

The Madras High Court also took a similar view in G.S.R. Krishnamurthy, Indira and G. Adiseshagiri Rao vs. Income Tax Officer, Shri A.K.V. Vignani; 2009 STPL 11921 Madras and held that the accused have no locus standi to object by saying that the Court should not grant consent or withhold it. It was observed: -

"5. The contention of the learned Counsel for the other accused, in my opinion, should not have weighed much in the mind of the Magistrate, as at this stage, the other accused persons had no locus standi to object by stating that the Court should not grant consent to the Public Prosecutor for withdrawing it."

Kerala High Court also took a similar view in Binoy and Ors. vs. State of Kerala and Ors. (20.06.2024 - KERHC): MANU/KE/2295/2024 and observed:

"9. In the instant case, after the trial court dismissed the application filed by the Assistant Public Prosecutor, the State did not challenge the said order. Failure to challenge the order refusing consent to withdraw is indicative of the fact that the State and the Prosecutor are not interested in withdrawing from the prosecution any further and have accepted the order of refusal of consent. When the State has backtracked on its decision to withdraw from the prosecution, it is not open for the accused to challenge the order refusing to grant consent to withdraw from the prosecution. On that score, this petition under Section 482 Cr.P.C. is not even maintainable."

It was held in V.L.S. Finance Ltd. v. S.P. Gupta, (2016) 3 SCC 736: 2016 SCC OnLine SC 118 that the accused has no right in the application filed for the withdrawal from the prosecution. It was observed at page 760:

"54. In the present case, as the facts would graphically show, the Public Prosecutor had not moved the application under Section 321 CrPC but only filed it. He could have orally prayed before the court that he did not intend to press the application. We are inclined to think that the court could not have compelled him to assist it for obtaining consent. The court has a role when the Public Prosecutor moves the application seeking consent for withdrawing from the prosecution. At that stage, the court is required to see whether there has been an independent application of mind by the Public Prosecutor and whether other ingredients are satisfied to grant the consent. Prior to the application being taken up or being moved by the Public Prosecutor, the court has no role. If the Public Prosecutor intends to withdraw or not press the application, he is entitled to do so. The court cannot say that the Public Prosecutor has no legal authority to file the application for not pressing the earlier application. It needs no special emphasis to state that the accused persons cannot be allowed to contest such an application. We fail to fathom how the accused persons can contest the application and also file documents and take recourse to Section 91 CrPC. The kind of liberty granted to the accused persons is absolutely not in consonance with the Code of Criminal Procedure. If anyone is aggrieved in such a situation, it is the victim, for the case instituted against the accused persons on his FIR is sought to be withdrawn. The accused persons have no role and, therefore, the High Court could not have quashed the orders permitting the prosecution to withdraw the application and granting such liberty to the accused persons.....(Emphasis supplied)

Reliance was placed upon Alexandre George (supra), wherein it was held that a revision would be maintainable. It is difficult to follow this judgment as it runs contrary to the judgment in Binoy (supra) and V.L.S. Finance (supra). Hence, the judgment of Akanksha Arora (supra) that the High Court can convert the petition under Section 482 of CrPC to a revision does not apply to the present case.

In Swami Chinmayanand (supra), the considerations applicable to withdrawal of the cases were considered, which do not arise because this Court is not concerned with the merits of the order.

Therefore, the petitioners do not have a locus-standi to challenge the order passed by the learned Trial Court, refusing the withdrawal by the learned public prosecutor.

In view of the above, the present petition is dismissed as not maintainable.

The present petition stands disposed of in the aforesaid terms, so also the pending applications, if any.

The observations made herein before shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case.