Office of a Public Prosecutor is not a Post Office, he should apply his mind and take independent decision on withdrawal of Prosecution; SC

Office of a Public Prosecutor is not a Post Office, he should apply his mind and take independent decision on withdrawal of Prosecution; SC

The Supreme Court of India observed that Public Prosecutor is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective. Public Prosecutor in terms of the statutory scheme laid down under the CrPC plays an important role. He is supposed to be an independent person. While filing an application for withdrawal of Prosecution, the Public Prosecutor also is required to apply his own mind and the effect thereof on the society in the event such permission is granted.

Can an application made under section 321 of Code of Criminal Procedure, to withdraw the prosecution, be withdrawn? This was the question before the Apex Court bench comprising of Justices Dipak Misra and N.V. Ramana, in M/s V.L.S. Finance Ltd vs. S.P. Gupta which it answered in the affirmative. The Bench also said that the accused cannot be allowed to contest such an application to withdraw the application to withdraw prosecution and the Court need not be convinced by the Public Prosecutor while withdrawing earlier applications.

Context

The appellants before the Apex Court were aggrieved by the order passed by the High Court by which it had set aside the order granting withdrawal of the application under Section 321 CrPC. and directing the trial court to decide the application for withdrawal afresh after taking into consideration the documents filed by the informant along with the application filed under Section 91 CrPC.  Consequent to this remittal, the Magistrate declined the permission to withdraw the application.

Public Prosecutors can withdraw the application for withdrawal of prosecution

Regarding the main issue in this appeal, the Court observed “The court has a role when the Public Prosecutor moves the application seeking the consent for withdrawing from the prosecution. At that stage, the court is required to see whether there has been 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 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.”

Commenting on the present case, the Court further said “the Public Prosecutor had not moved the application under Section 321 CrPC but only filed. He could have orally prayed before the court that he did not intend to press the application. We are inclined to think, the court could not have compelled him to assist it for obtaining consent.”

Public Prosecutor not a post office

The Court also observed that Public Prosecutor is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective. Public Prosecutor in terms of the statutory scheme laid down under the CrPC plays an important role. He is supposed to be an independent person. While filing such an application, the Public Prosecutor also is required to apply his own mind and the effect thereof on the society in the event such permission is granted.

No need to convince the court for not pressing the application

The Bench further held “The principle stating that the Public Prosecutor should apply his mind and take an independent decision about filing an application under Section 321 CrPC cannot be faulted but stretching the said principle to say that he is to convince the court that he has filed an application for not pressing the earlier application would not be appropriate.”

Withdrawal of application is not a review

The Court also observed that the filing of application not to press the application cannot be compared with any kind of review of an order passed by the court and question of review can arise when an order has been passed by a court.  In this case there was no order by the court.

Accused cannot be allowed to contest an application to withdraw application for withdrawal of prosecution

Setting aside the order of High Court, the accused persons cannot be allowed to contest such an application. The Bench remarked “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.”

Legal process cannot be allowed to be abused

In this case, the FIR was lodged in the year 2000. The accused filed various kind of applications and assailed it to superior court though in vain. The Court observed thus “Such kind of litigations clearly show that there are certain people who possess adamantine attitude to procrastinate the proceeding in a court of law on the base that each order is assailable and each step is challengeable before the superior courts. It is not to be understood that a litigant is not entitled in law to challenge the orders, but the legal process cannot be allowed to be abused.”

Read the Judgment here.