Accused may challenge dismissal of withdrawal applications as they are directly affected, requiring courts to provide substantiation in their decisions.

ORDER :

(KAUSER EDAPPAGATH, J.)

Can an accused challenge the order refusing to give consent to withdraw from prosecution against him under Section 360 of BNSS , 2023 ( Section 321 of Cr. P.C.)? – This is the common issue that arises for consideration in the above criminal revision petitions.

2. Crl.R. P.No.268 of 2017 pertains to S.C.No.684 of 2013 on the files of the Additional Assistant Sessions Court, Thalassery. The petitioners therein are the accused Nos 1 to 5 and 7 to 9. The offences alleged against them are punishable under Sections 143, 147, 148, 452, 427, 332, 152 r/w Section 149 of IPC, Sections 3 and 5 of Explosive Substances Act, Section 25(1A) of Arms Act, Sections 3(1) r/w 7 of PDPP Act and Section 38 r/w Section 52 of Kerala Police Act. The petitioners appeared before the trial court and were released on bail. Thereafter, the Public Prosecutor filed an application as CMP No.1203/2015 under Section 321 of Cr.P.C . seeking withdrawal from prosecution. The learned Additional Assistant Sessions Judge dismissed the application as per the order dated 28.07.2015. Crl.R. P.No.268 of 2017 has been filed challenging the said order.

3. Crl. R.P.No.23 of 2017 pertains to C.C. No. 689 of 2009 on the files of the Judicial First-Class Magistrate Court, Thiruvalla. The petitioner therein is the sole accused. The offences alleged against him are punishable under Sections 466 and 468 of IPC. The petitioner appeared before the trial Court and was released on bail. Thereafter, the Assistant Public Prosecutor filed an application as Crl.M.P.No.7326 of 2016 under Section 321 of Cr.P.C . ( Section 360 of BNSS ) seeking withdrawal from prosecution. The learned Magistrate dismissed the application, as per the order dated 07.12.2016. Crl. R.P.No.23 of 2017 has been filed challenging the said order.

4. When the above revision petitions came up for hearing, this Court expressed doubt as to the maintainability of the revision petitions filed by the accused against the order dismissing the applications filed by the Public Prosecutor/Assistant Public Prosecutor for withdrawal from prosecution under Section 321 of Cr.P.C ( Section 360 of BNSS ). Hence, the learned counsel for the revision petitioners and the learned Public Prosecutor were requested to address arguments on the maintainability of the revision petitions. They addressed the arguments on the question of maintainability as well as on the merits of the cases.

5. The learned counsel appearing for the revision petitioners in Crl.R.P.No.268 of 2017, Sri.R.Surendran, submitted that the accused, being the real affected party of the order dismissing the application for withdrawal from prosecution, is entitled to maintain a revision petition, even though the State has not challenged the said order. Reliance was placed on the decision of the Supreme Court in Abdul Wahab K. v. State of Kerala and Others ( AIR 2018 SC 4265 ), wherein it was held the even a third party or stranger can challenge an order passed under Section 321 of Cr.P.C in revision before the High Court in appropriate case.

6. The learned counsel appearing for the revision petitioner in Crl. R.P.No.23 of 2017, Sri. Millu Dandapani submitted that the revisional power vested with the High Court under Section 397 r/w Section 401 of Cr.P.C is supervisory in nature to examine the legality, correctness, or propriety of any finding, sentence or order of a subordinate court, and it can exercise the said power suo motu, even without a formal petition by any of the parties to the proceedings. In those circumstances, when a manifest illegality