The Prosecutor must exercise discretion in withdrawal from prosecution honestly and in public interest, free from political influence.

1 This revision petition is directed against the order passed by the learned Magistrate refusing to give the necessary consent for withdrawal from prosecution under S.321 CrPC.

2 The prosecution alleged that the accused persons - six in number, including the petitioner, the 5th accused are guilty of the offences punishable under S.143, 147, 148, 149, 447 and 427 IPC. They were allegedly members of an unlawful assembly who in prosecution of their common object had trespassed into the residential compound of the defacto complainant and had committed mischief by throwing stones and causing damage on the glass windows of the house of the defacto complainant. Investigation was conducted and charge sheet was filed by the police. Cognizance was taken by the learned Magistrate. The learned Magistrate thereafter proceeded to frame charge against the accused also. The case was remaining at the stage of recording evidence when the application under S.321 CrPC was filed by the learned Prosecutor.

3 To avoid unnecessary repetition I extract below the relevant portion of the petition for withdrawal filed by the Prosecutor under S.321 CrPC.
"As a result of the timely interference of the local people, a peaceful atmosphere is prevailing. It is understood that the above said case was instituted due to personal vengeance. Moreover, three and half years have been completed now.
Government have given direction to verify the scope of withdrawing the above case from the prosecution. I have gone through the case diary and all connected available documents and I come to the conclusion that the circumstances prevailing at the time of the institution of this case and the investigation thereof it appears that the case has been instituted on the ground of personal and political vengeance.
In the said circumstances and in the interest of administration of justice, I have applied my mind and satisfied that this in a fit case to withdraw from the prosecution.
Hence I most humbly request that permission may be granted to withdraw the above said case from the prosecution under S.321 CrPC." (emphasis supplied)  

4 On coming to know of the proposal for withdrawal, the defacto complainant entered appearance and raised objections against the withdrawal. According to the defacto complainant, the Prosecutor had not applied his mind properly to the relevant facts. Interest of public justice were not prompting the Prosecutor and loyalty to the political masters in Government was prompting the Prosecutor to improperly exercise his discretion under S.321 CrPC, it was contended. The learned Magistrate thereupon proceeded to pass the impugned order refusing to grant the consent.

5 The learned counsel for the petitioner contended that the learned Magistrate did not alertly exercise the nature, quality and contours of the jurisdiction of the learned Magistrate while considering the question of consent under S.321 CrPC. The learned counsel for the petitioner submits that grievance of the defacto complainant - that he is not satisfied, or is not amenable to withdrawal under S.321, could not have been reckoned as a relevant ground by the learned Magistrate. In not according the requisite consent under S.321 CrPC on the basis of the objections raised by the defacto complainant that is he not satisfied, the learned Magistrate had totally misdirected himself in law, it is submitted.

6 I have considered all the relevant inputs. On the question of law, there can be no doubt. In the decision reported in Prakash Babu v. State of Kerala ( 2004 (2) KLT 908 ), the law on the point has been dealt with in detail by me. There can be no doubt that withdrawal is an executive function to be performed by the Prosecutor and the court cannot sit in appeal over that executive decision by the Prosecutor. But the Prosecutor must exercise his duty in accordance with settled principles. He has to discharge that function honestly, properly, in good faith and bearing the interest of public justice in mind.