The Supreme Court, with regard to withdrawal of prosecution under Section 321 Cr.PC reiterated the law laid by the Court and held that the public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large.
The Court was considering an application filed by the Public Prosecutor based on the instruction given by erstwhile State of Andhra Pradesh to withdraw prosecution initiated against a Sub-Inspector of the Police Station who alleged to have demanded bribe. Pursuant to demand of bribe, FIR under Sections 7 & 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 was registered and trap was laid and eventually charge-sheet was filed against the accused officer before the competent Court. The accused Officer represented to the State for withdrawal of the case against him on the ground that he was being considered for Accelerated Promotion from Sub-Inspector of Police for his contribution in the anti extremist work and also in view of the fact that his services were recognized by way of awarding Police Katina Seva Pathakam in 2005 and his name was also recommended for Prestigious Indian Police Medal for Gallantry for the year 2003 etc. The State considered the request favorably and issued a Government order to that effect. In the Application filed by the Public Prosecutor, a copy of the Government Order was annexed wherein it was mentioned that on due examination, the Government having found good work of the accused in the anti-extremist field and other meritorious service, his case be placed before the Administrative Tribunal for disciplinary proceedings after withdrawal of the prosecution pending in the court of Special Judge.
The Competent court as well as the High Court rejected the prayer for withdrawal. Against the concurrent dismissal, the accused officer approached the Supreme Court by way of a Special Leave Petition under 136 of the Constitution of India. The Supreme Court Bench headed by Justice Dipak Misra along with Justice Pinaki Chandra Ghose after reiterating the law laid in Constitution Bench decision in Sheo Nandan Paswan’s case dismissed the SLP, and held as follows;
“18. The central question is whether the public prosecutor has really applied his mind to all the relevant materials on record and satisfied himself that the withdrawal from the prosecution would subserve the cause of public interest or not. Be it stated, it is the obligation of the public prosecutor to state what material he has considered. It has to be set out in brief. The Court as has been held in Abdul Karim’s case, is required to give an informed consent. It is obligatory on the part of the Court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the Court to weigh the material. However, it is necessary on the part of the Court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A Court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The Court cannot give such consent on a mere asking. It is expected of the Court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the Court is obliged to see whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the Court as well as his duty to the collective. In the case at hand, as the application filed by the public prosecutor would show that he had mechanically stated about the conditions-precedent. It cannot be construed that he has really perused the materials and applied his independent mind solely because he has so stated. The application must indicate perusal of the materials by stating what are the materials he has perused, may be in brief, and whether such withdrawal of the prosecution would serve public interest and how he has formed his independent opinion. As we perceive, the learned public prosecutor has been totally guided by the order of the Government and really not applied his mind to the facts of the case. The learned trial Judge as well as the High Court has observed that it is a case under the Prevention of Corruption Act. They have taken note of the fact that the State Government had already granted sanction. It is also noticeable that the Anti Corruption Bureau has found there was no justification of withdrawal of the prosecution”.
Read the Judgment here