Point of Law: Sections 209 of Code of Criminal Procedure read as commitment of case to Court of Session when offence is triable exclusively by it.

ORDER :

Does the Court of the Committing Magistrate have the jurisdiction to entertain an application to grant consent to withdraw from the prosecution?

2. The State of Kerala has filed the revision petition questioning the correctness of Annexure A-3 order passed by the Court of the Judicial First Class Magistrate-III, Thiruvananthapuram, dismissing the application filed by the Assistant Public Prosecutor under Section 321 of the Code of Criminal Procedure,1973 (‘Code’,forshort).

Relevant factual matrix:

3. The prosecution case is that, on 15.07.2003, 500 identifiable persons owing allegiance to a political party conducted an unauthorised march in Thiruvananthapuram. When the Police attempted to foil their attempt, the agitators turned violent and attacked the police, causing hurt to them and damaging public property. The Museum Police registered Crime No.214/2003 and, after investigation, laid Annexure-A1 final report against 44 accused alleging them to have committed the offences under Sections 143, 147, 148, 149, 307, 323, 324, 332, 333, 114 and 115 of the Indian Penal Code, 1860, and Section 3(2)(e) of the Prevention of Damage to Public Property Act, 1984.

4. The learned Magistrate, by order dated 26.08.2009, committed the case against 27 accused namely accused Nos.1 to 4, 7, 9, 11, 14, 15, 17, 21 to 25, 27, 31 to 39, 43 and 44 to the Court of Session. Nonetheless, the committal proceeding against the remaining 17 accused ? respondents 1 to 17 ? is pending as C.P.No.39/2009.

5. At the above stage, the Assistant Public Prosecutor (‘APP’, for short) filed Annexure A-2 application, seeking consent to withdraw from the prosecution because the Government had stated no objection in withdrawing the prosecution and the prospects of a successful prosecution was bleak.

6. The learned Magistrate dismissed the application by the impugned Annexure-A3 order. Annexure-A3 order is illegal, improper and irregular. Hence, the revision petition.

7. Heard; Smt. Pushpalatha M.K., the learned Senior Public Prosecutor appearing for the revision petitioner – State.

8. Based on the prosecution case, the Police had laid Annexure A-1 final report before the learned Magistrate, who committed the case against 27 accused to the Court of Session and the case against the remaining 17 accused, i.e., the respondents, is pending committal.

9. At this juncture, the APP filed Annexure A-3 application to withdraw from the prosecution. Not only did the learned Magistrate entertain the application, but he also dismissed the same by the impugned order.

10. The provisions that are germane for dealing with the proposition on hand are Sections 209 and 321 of the Code of Criminal Procedure, which read as follows:

“S.209. Commitment of case to Court of Session when offence is triable exclusively by it.-

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall—

(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.”

S.321. 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 pronounced, withdraw 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 —

(a) if it is made