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2012 Supreme(Mad) 930
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. NAGAMUTHU
P. Ponnaiyan
Versus
State by Sub Inspector of Police
Crl.O.P.No.4430 of 2012
Decided On : 22-02-2012
For the Petitioner:S. Doraisamy, Advocate.
For the Respondent:C. Iyyapparaj, Government Advocate, [Criminal Side].
The decision emphasizes that under Section 321 of Cr.P.C., only the prosecutor in-charge of the case has the authority to decide on the withdrawal of a case and must provide sufficient grounds and express satisfaction for withdrawal.
Headnote:
Withdrawal of Prosecution - Criminal Procedure Code - The court held that the Inspector of Police does not have the authority to file a petition or memo seeking to withdraw prosecution under Section 321 of the Code of Criminal Procedure. Only the Assistant Public Prosecutor or the Public Prosecutor, in-charge of the case, can decide whether to withdraw the case. The court emphasized that the prosecutor must provide sufficient grounds and express satisfaction for withdrawing the prosecution, and only then will the court consider and pass appropriate orders under Section 321.
Fact of the Case:
The petitioner, accused in a criminal case, sought a direction for the Chief Judicial Magistrate to pass an order on a memo submitted by the Inspector of Police seeking to withdraw the case.
Finding of the Court:
The court dismissed the original petition, stating that the Inspector of Police does not have the authority to file a petition seeking to withdraw prosecution. It emphasized that only the prosecutor in-charge of the case can decide on withdrawal, provided sufficient grounds and satisfaction are expressed.
Issues: Authority to withdraw prosecution under Section 321 of Cr.P.C.
Ratio Decidendi: Only the prosecutor in-charge of the case can decide whether to withdraw the case under Section 321 of Cr.P.C., and must provide sufficient grounds and express satisfaction for withdrawal.
Final Decision: The original petition seeking a direction for the Chief Judicial Magistrate to pass an order on the memo filed by the Inspector of Police was dismissed.
1. The petitioner is the accused in C.C.No.133 of 2007 on the file of the learned Chief Judicial Magistrate, Erode. The Inspector of Police, Chitode Police Station, submitted a report to the learned Chief Judicial Magistrate on 22.01.2002 seeking to withdraw the said case. So far, the learned Chief Judicial Magistrate has not passed any order on the same. With that grievance, the petitioner has come up with this original petition seeking a direction to learned Chief Judicial Magistrate, Erode to pass order on the said memo.
2. In my considered opinion, such direction cannot be given for more than one reason. First of all, the Inspector of Police has got no authorisation under Section 321 of Cr.P.C. either to file a petition or a memo seeking to withdraw any prosecution. Under Section 321 of Code of Criminal Procedure, it is for the Assistant Public Prosecutor or the Public Prosecutor, who is in-charge of the case to decide whether to withdraw the case or not. In such event, he is acting as a quasi judicial authority. Apart from that, it is not for mere asking by the prosecutor in-charge of the case to permit him to withdraw the case, the court will permit withdrawal. Sufficient grounds are to be raised by the prosecutor in-charge of the case and he has to express his satisfaction as to why he has decided to withdraw the prosecution. If all these requirements are satisfied, then the Court will consider and pass appropriate order under Section 321 of Code of Criminal Procedure. Therefore, what is required under law is that an appropriate petition giving the above details including satisfaction of the prosecutor in-charge of the case is to be filed. The court cannot pass any order on the memo filed by the Inspector of Police, Chitode Police Station. Therefore, the relief sought for in the petition cannot be granted and the original petition deserves only to be dismissed.
3. In the result, the original petition is dismissed, however, the dismissal of the petition will not be an impediment for the prosecutor in-charge of the case to take a decision as to whether to withdraw the prosecution by making necessary petition under Section 321 of Cr.P.C. or not.
