The court clarified that the requirement for High Court permission to withdraw cases under Section 321 Cr.P.C. applies only to cases involving MPs/MLAs, not to ordinary citizens.

ORDER

Petitioners are accused nos.1,2,6,7,8,10 and 12 in C.C.No.1040/2021 of the Additional Chief Judicial Magistrate Court, Ernakulam (Special Court for the Trial of Criminal cases against sitting and former MPs/MLAs of the State). They are aggrieved by Annexure-A3 order of the learned Magistrate, which refused sanction to withdraw the above case in terms of Section 321 of the Code of Criminal Procedure , only for the reason that necessary permission from the High Court, as enjoined by an interim order of the Hon’ble Supreme Court in Aswini Kumar Upadhyay v. Union of India and Another dated

10.08.2021 has not been obtained.

2. Essential facts:-

The allegation is that, the accused persons assembled in front of the office of the Lakshadweep Administration on 10.06.2021, at about 12 O’clock, without keeping social distance, thus violating the provisions of the Kerala Epidemic Disease Ordinance 2021 (for short, ‘KEDO’), and committing offence under Section 269 of Penal Code and also under Section 4(2)(e),r/w Section 5 of the KEDO.

3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. Perused the records.

4. Learned counsel for the petitioner would bring to the notice of this Court a Government Order dated 24.11.2022 empowering the District Police Chief to take steps for withdrawing the criminal cases, which are not of a serious nature and which are enumerated in the table attached to that order in accordance with law and the directions of the Hon’ble Supreme Court in State of Kerala v. K. Ajith and Others [2021 SCC OnLine SC 510]. It is accordingly that the Public Prosecutor filed application under Section 321 Cr.P.C. to withdraw from the prosecution in the above C.C, upon being satisfied that none of the guidelines in K.Ajith (Supra) has been violated. Therefore, refusal of sanction by the learned Magistrate, only on the premise that permission from the High Court for withdrawing the case has not been obtained, is not legal and proper. The learned counsel would hasten to add that the obvious purpose of the interim order dated 10.08.2021 (Annexure A4) is to prevent misuse of the powers under Section 321 for extraneous and political considerations, which is not the case herein.

5. Per Contra, the learned Public Prosecutor would submit that the interim order produced at Annexure-A4 mandates permission of the High Court (in charge of suo motu Writ Petitions against MPs and MLAs) in order to withdraw cases, wherein sitting or former MPs/MLAs are parties. The same having been not obtained admittedly, no error or illegality can be fastened to Annexure-A3 order. According to the learned Senior Public Prosecutor, Annexure-A3 order does not require any interference, whatsoever.

6. This Court will first address the context in which the Hon’ble Supreme Court directed obtainment of prior leave of the High Court to withdraw cases against a sitting or former MP/MLA. The interim order is produced at Annexure-A4. One among the issues dealt with in the interim order is the misuse of the prosecutor’s power to withdraw cases under Section 321 Cr.P.C. The following paragraph of the interim order is quite relevant and is extracted here below:

“Learned amicus has drawn out attention to various instances across the country, wherein various State Governments have resorted to withdrawal of numerous criminal cases pending against M.P/M.L.A by utilising the power vested under Section 321 Cr.P.C. It merits mentioning that the power under Section 321 Cr.P.C. is a responsibility which is to be utilized in public interest, and cannot be used for extraneous and political consideration. This power is required to be utilized with utmost good faith to serve the larger public interest.”

7. It could thus be seen that, the vice which was sought to be prevented by virtue of the interim order is the misuse of powers under Section 321 Cr.P.C by the State Governments to withdraw criminal cases pending against MPs and MLAs for extraneous and