Only the Public Prosecutor or the Assistant Public Prosecutor in charge of the case, with the consent of the Court, could apply for withdrawal from prosecution under S. 321, Cr.P.C.

These revisions are directed against the orders passed by the Judicial Magistrate of First Class, Punalur, on S.T. Case Nos. 38/1987 and 48/1987, dismissing the applications filed u/S. 321, Cr.P.C. by the Assistant Public Prosecutor in charge of those cases. The Magistrate held :

".... complainant has not filed any petition to withdraw the complaint. This is purely a complaint filed by the Food Inspector and APP was authorised to conduct the case only. So it cannot be said that APP is in charge of the case. The locus standi of APP is only that of a counsel who appears for his client. Without the consent of the client, APP cannot file a petition stating that he is withdrawing from Prosecution. The petition filed by APP cannot stand in the eye of the law.

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It is for the complainant to decide whether to withdraw the complaint. He has not done so. Hence I find that this petition by APP is only to be rejected, since he has no locus standi."

It was also observed that the reasons given for withdrawal from prosecution were unsatisfactory.

2. Petitioners were accused 2 to 4 in the above cases which were laid by the Food Inspector of Punalur Municipality for offences u/Ss. 2(ia) (a)(m), 7(1), S. 16(1) read with R. 5 of Appendix-A of the Prevention of Food Adulteration Act and the rules. Reportedly, Honey Vinegar was manufactured at the Malankara Food Products which is the 4th accused, who sold it to the 1st accused from whom the Food Inspector purchased a sample for analysis and it was found adulterated. Accused 2 and 3 were respectively the Managing Director and the Production Manager of the above undertaking. Malankara Food Products belongs to Vimala Mahila Samajam which is a charitable society.

3. The defence that accused 2 to 4 projected before the court below was that they did not sell Vinegar but a soft drink by name Honeygar which is a by-product of honey. They denied having committed any offence.

4. The complainant and witnesses were examined and before the defence evidence was to begin, the Assistant Public Prosecutor in charge of the cases, filed applications purporting to be u/S. 321, Cr.P.C. for withdrawal from prosecution which as stated already, were dismissed by the impugned orders.

5. Counsel confined his submission mainly to the legality of the impugned orders and submitted that the Magistrate was not justified to dismiss the applications. Reasons for the dismissal, it was submitted, are untenable.

6. As stated already, the complaint was laid by the Food Inspector, Punalur Municipality and A.P.P. was in charge of the prosecution. U/S. 25, Cr.P.C. the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. U/S. 301(1), Cr.P.C. the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. Under sub-sec. (2) of S. 301, if in any such case any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case, shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. It is the A.P.P. who has to conduct the prosecution and he is not subservient to anyone including the complainant in the discharge of his functions.

7. The question that falls for decision in these cases is in a short compass and that is whether the application u/S. 321, Cr.P.C. has to come from the Assistant Public Prosecutor or the complainant. The court below has taken the view that such application has to be filed only by the complainant and not by the Assistant Public Prosecutor who, it was observed, has no locus standi