Committing Magistrate Lacks Jurisdiction To Consider Application For Withdrawal From Prosecution U/S 321 CrPC: Kerala High Court

Justice C.S. Dias observed that the Magistrate ought to have directed such application to the Sessions Court.

“once it appears to the Magistrate that the offence is exclusively triable by the Court of Session, then other than for considering matters relating to bail and remand as provided under clauses (a) to (d) of the said provision, the Magistrate has no implicit power to entertain any other matter, including an application under Section 321.”

The factual matrix was that five hundred identifiable persons owing allegiance to a political party conducted an unauthorized march and when police tried to intervene, they turned violent and attacked the police and caused damage to public property. Case was registered and final report was filed against forty four persons under Sections 143 (punishment for member of unlawful assembly), 147 (rioting), 148 (punishment for rioting), 149 (rioting with deadly weapons), 307 (attempt to murder), 323 (punishment for voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapons), 332 (voluntarily causing hurt to deter public servant from duty), 333 (voluntarily causing grievous hurt to deter public servant from duty), 114 (abetting offence) and 115 (abetment of offence punishable with death or life imprisonment) of the Indian Penal Code, 1860 and under the Prevention of Damage to Public Property Act, 1984.

The Committing Magistrate committed the case against twenty-seven accused persons to the Sessions Court and the committal proceedings against the seventeen accused were pending. The Assistant Public Prosecutor filed an application to withdraw from prosecution and the government stated that it had no objection as chances of a successful prosecution were bleak. The application was dismissed by the Judicial First-Class Magistrate-III, Thiruvananthapuram and aggrieved by the dismissal, the state government approached the High Court.

The Court examined Sections 209 and 321 of CrPC. section 209 pertains to the power of the Magistrate to commit case to the Sessions Court when the offence was triable only by the Sessions Court. Section 321 provides that the Public Prosecutor or Assistant Public Prosecutor may file an application for withdrawal from prosecution with the consent of the Court.

On analysing the provisions, the Court held that as per Section 209, the Magistrate has no other option than to commit the case to the Sessions Court if the offences were exclusively triable by the Sessions Court. It noted that Section 321 warrants power to the Public Prosecutor or Assistant Public Prosecutor to move an application for withdrawal from prosecution. It observed that the issue was to consider whether a Committing Magistrate can consider such an application moved by a Public Prosecutor or Assistant Public Prosecutor under Section 321.

“the learned Magistrate, after being convinced that the offences are exclusively triable by the Court of Session, committed the case against accused to the Court of Session. Thereafter, the learned Magistrate had no jurisdiction to entertain the application filed under Section 321. The procedure adopted and the order passed by the learned Magistrate are wrong and erroneous. The course available to the Magistrate was to direct the APP to file the application before the Court of Session.”

The Court observed that Section 321 does not provide implicit power to the Committing Magistrate to consider applications for withdrawal from prosecution.

Accordingly, the Court allowed the revision petition and set aside the order of the Magistrate dismissing the application for withdrawal from prosecution. It granted liberty to the Assistant Public Prosecutor to move the application for withdrawal from prosecution before the Sessions Court.

“The Assistant Public Prosecutor would be at liberty to move an application under Section 321 of the Code before the Court of Session, if so advised.”

Counsel for the respondents: Senior Public Prosecutor Pushapalatha M K

Citation: 2023 LiveLaw (Ker) 653

Case title: State of Kerala v N R Shaji

Case number: CRL.REV.PET NO. 342 OF 2011

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