IMPORTANT POINT
Withdrawal of prosecution under Section 321 CrPC is justified when the offence is trivial, the accused show reformation, and public interest is served.

JUDGMENT :

(K. Babu, J.)

This revision is at the instance of the State. The challenge in this revision is to the order dated 20.12.2008 passed by the Judicial First Class Magistrate Kattakkada in C.M.P.No.6259/2008 in C.C.No.663/2004.

2. The prosecution case in the Calender case is as follows: On 23.07.2004 at 1.15 pm, the accused, four in numbers, who were students of a local college, in furtherance of their common intention, committed criminal trespass by entering into the compound of the Treasury office at Kattakkada and destroying the window glasses of the Treasury building by pelting stone, causing a loss of Rs.250/-to the Government. They are alleged to have committed the offences punishable under Section 447 r/w Section 34 of the Indian Penal Code, 1860 and Section 3(2)(c) of the PDPP Act, 1984.

3. On the appearance of the accused, the court below posted the case for framing charges. The Assistant Public Prosecutor filed an application under Section 321 of the Cr.P.C. seeking withdrawal of the prosecution case.

4. The learned Magistrate dismissed the application, holding that the learned Assistant Public Prosecutor had not applied his mind and that he had filed the petition only in obedience to the orders of the government.

5. I have heard the learned Public Prosecutor.

6. The learned Public Prosecutor submitted that on the relevant date, the students were leading a procession in protest of the death of one student, Rajani, who committed suicide, for the reason that she was denied bank loan for higher education. The local people obstructed the procession. A scuffle occurred at the scene of occurrence. Some pelted stones towards the Treasury building, which resulted in a minor damage to the window of the building.

7. It is submitted that there is a lack of evidence to conclude that the accused had committed the offences. The mensrea of the accused in the commission of the offence is also doubtful. The learned Public Prosecutor submitted that the procession contained a large number of students, who were prevented by the local people. A commotion occurred when the students tried to enter the Treasury building. Some persons assembled there pelted stones. The students who led the procession are the accused in the crime. It is further submitted that the accused had no criminal antecedents. Long back, they completed their studies and settled to in their lives. It is also submitted that the students had a genuine cause for raising the protest.

8. The learned Assistant Public Prosecutor pleaded in the petition that he had applied his mind judiciously, and independently arrived at a conclusion that the withdrawal of the prosecution was in ‘the public interest’.

9. The relevant statutory provision is Section 321 of Cr.P.C, which reads thus:

“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 before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence—

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has