The important question that came up for consideration was whether the Public Prosecutor who was not in charge of the case was competent to file a request for withdrawal from the prosecution under Section 321 Cr.P.C.

2. Out of the eleven accused arrayed in C.C.No.22/95 pending before the Additional Sessions Court (Fast Track-I), Manjeri, nine were facing the trial for offences under Sections 143, 147, 148, 341, 323, 326 and 307 read with Section 149 IPC. Two of the accused were not available for trial and the case against them was splited. Twelve witnesses were examined as PWs 1 to 12 and the case stood posted for questioning the accused under Section 313 Cr.P.C. At that stage the Public Prosecutor who was not in charge of the case filed a request for withdrawal from the prosecution. The court below rejected the above request saying that it was a belated one. The nine accused who were facing the trial filed Crl.R.P.No.1309/2002 and the State filed Crl.R.P.No.1517/2002 challenging the above order.

3. Heard the learned counsel for the revision petitioners in Crl.R.P.1309/02. viz.. the accused. one of the defacto complainant (the injured who was impleaded as per order in Crl.M.P.7595/02) and also the learned Public Prosecutor.

4.The learned Public Prosecutor argued that the Government as per Order No.79984/L3/96 Home (L) Department dated 19.9.2001 had informed the Public Prosecutor that they had no objection in withdrawing the prosecution against the accused with leave of the court and on receipt of the above intimation, the Public Prosecutor, after going through the records and after satisfying himself that it was necessary to withdraw from the prosecution on Public interest and in good faith submitted the request on 8.10.2002 before the court below praying for leave to withdraw from the prosecution. It was further submitted that the above request was turned down solely on the ground that it was a belated one and the approach made by the court below in rejecting the request was wrong and hence the above order was liable to be set aside. The learned counsel appearing for the defacto complainant submitted that the Public Prosecutor who was not in charge of the case was incompetent to file such a request for withdrawal from prosecution and the court below ought have rejected the request on that ground. In fact the ground stated by the court below for rejecting the request of the Public prosecutor to withdraw from prosecution was unsustainable as Section 321 of the Code of Criminal Procedure (for short to be referred as “Code” hereafter) would permit to withdraw the case at any stage of the case before the judgment was pronounced. Hence, the ground mentioned in the order that the request of the Public Prosecutor was belated one was not a sufficient ground for refusing the withdrawal from prosecution. Yet the question whether the Public Prosecutor who was not in charge of the case, can file a request under Section 321 of the Code has to be considered.

5. Section 321 Cr.P.C. reads:

"Withdrawal from prosecution - The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court. At any time before the judgment is pronounce, withdrawn from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal-. . . . . ."

The above section would clearly state that the right to seek leave of the court to withdraw from the prosecution was on the Public Prosecutor or the Additional Public Prosecutor in charge of the case. This Court obtained the report form the concerned Sessions Judge before whom the case was tried and the Sessions Judge reported that the case was conducted by the Additional Public Prosecutor Sri.Josy Jacob and the request under Section 321 Cr.P.C. was filed by the Public Prosecutor Sri.V.Abdurahiman. Thus it was clear that the request had been made by the Public Prosecutor who was not in charge of the ca