IMPORTANT POINT
The decision to withdraw from prosecution must continue throughout the proceedings, and the court must be satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons.

ORDER :

Three accused who face indictment for obstructing the official duty of policemen felt relieved when the Assistant Public Prosecutor filed an application to withdraw the prosecution. However, their relief was short lived as the Court refused to grant sanction. Petitioners are those three accused who have approached this Court under Section 482 Cr.P.C challenging the order refusing to grant consent for withdrawal.

2. Petitioners are the accused in C.C.No.537/2018 on the files of the Judicial First Class Magistrate Court-I, Punalur, alleging commission of offences punishable under Sections 323, 353, and 332 r/w Section 34 of the Indian Penal Code, 1860 apart from Section 117(e) of the Kerala Police Act, 2011. While the case was pending before the trial court, the Assistant Public Prosecutor sought permission to withdraw the prosecution as contemplated under Section 321 of Cr.P.C. By the impugned order in C.M.P.No.459/2021, the learned Magistrate dismissed the said application. The prosecution did not challenge the said order but the three accused have challenged the said order.

3. The prosecution alleges that on 29.08.2017, the accused obstructed the official duty of CW1 to CW3, who were policemen on duty, by catching hold of CW1's uniform and fisting him on his back. The accused also pushed down CW2, and thereby committed the offences alleged.

4. I have heard Sri. Biju Antony Aloor, the learned counsel for petitioners, and Sri. Ashi M.C., the learned Public Prosecutor.

5. Section 321 Cr.P.C., which provides for a premature termination of a criminal proceeding stipulates that the Public Prosecutor or the Assistant Public Prosecutor as the case may be, can withdraw from the prosecution of any person. In doing so, the consent of the Court is necessary. A reading of the said provision indicates two main ingredients for withdrawing from the prosecution: (i) that the application must be moved by the prosecutor, and (ii) that the consent of the court must be obtained. In the instant case, though the application was filed before the trial court by the prosecutor, the court refused to grant consent for specific reasons mentioned in the impugned order.

6. In the decision in State of Kerala v. K. Ajith and Others (AIR 2021 SC 3954), the Supreme Court had culled out the broad principles that govern the grant or refusal of consent to terminate a prosecution. It was observed as follows:

“23. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under S.321 of the CrPC can now be formulated:

(i) S.321 entrusts the decision to withdraw from a prosecution to the Public Prosecutor but the consent of the Court is required for a withdrawal of the prosecution;

(ii) The Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The Public Prosecutor must formulate an independent opinion before seeking the consent of the Court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:

(a) The function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law

(c) The application does not suffer from such improprieties or illegalities as wo