Answering a reference made to it in the year 1990, a full bench of Patna High Court has held that Public Prosecutor in charge of a case is only entitled to move a court for its permission for withdrawal from prosecution of an accused from an offence or any offences.
FIR in this murder case was filed in the year 1970. The case was committed to Sessions Court in the year 1974. In between new Code of Criminal Procedure (1973) came into force. One Ram Khelawan Singh, Additional Public Prosecutor, was conducting the case and various prosecution witnesses were examined.
In the year 1978, Ram Dayal Prasad, Public Prosecutor, Patna filed an application under Section 321 of the Code of Criminal Procedure, 1973 to withdraw prosecution. The Additional Public Prosecutor and the informant objected to the withdrawal. The Court rejected the plea to withdraw the case. The High Court, while dismissing revision petition against this order, granted liberty to Public Prosecutor or the Additional Public Prosecutor, to file an application again, if by exercising independent judgment, he is convinced that interests of public justice demand that the State should withdraw from the prosecution. This time, the Sessions Court allowed the fresh application filed by the public prosecutor, to withdraw from prosecution.
The revision petition was filed against this order in the year 1981. Initially single bench heard the matter and referred the issue to division bench which again referred the matter to full bench in the year 1990.
The question referred before the Full bench was whether the Public Prosecutor for the purpose of Section 321 CrPC (withdrawal of prosecution) includes the Assistant Public Prosecutor or Additional Public Prosecutor in charge of the case.
Referring to relevant provisions of the Code, the bench comprising Justice Rakesh Kumar, Justice Aditya Kumar Trivedi and Justice Sudhir Singh, observed that Public Prosecutor in charge of a case is only entitled to move a court for its permission for withdrawal from prosecution of an accused from an offence or any offences.
It said: "In a case pending before the court of Sessions the Public Prosecutor in charge of a case, whether he is an Additional Public Prosecutor is only entitled to approach the court for withdrawal from prosecution. In view of the proposition that Public Prosecutor in charge of a case is only entitled to file a petition for withdrawal from prosecution under Section 321 of the New Code, the order impugned i.e. order dated 03.06.1980 passed by Shri L.P.N. Shah Deo, learned Additional Sessions Judge IV, Patna in Sessions Trial No. 72 of 1974 arising out of Mokamah P.S. Case No. 22 (9) 70 may not be termed as valid order since before the court below petition under Section 321 of the New Code was filed by a Public Prosecutor who was not in charge nor conducting the case before the court below. The case was being conducted by Sri Ram Khelawan Singh, learned Additional Public Prosecutor whereas petition under Section 321 was filed by Shri Ram Dayal Prasad, learned Public Prosecutor, Patna. Till the date of passing of the impugned order Shri Ram Khelawan Singh, learned Additional Public Prosecutor was in charge of the case and as such learned trial judge was not required to take notice of the petition filed by the Public Prosecutor, Patna who was not in charge of the case."
The bench then allowed the revision petition setting aside the Sessions court order dated 03.06.1980. Now the Trial of this Murder Case of 1970 would continue after an interruption of four decades!