IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.01.2010

CORAM

THE HONOURABLE MR. JUSTICE S.NAGAMUTHU

Crl. R.C.No.954 of 2007

K.Viswanathan

S/o.Karuppuswamy

.... Petitioner/Defacto Complainant

Vs.

1.State by

The Inspector of Police,

Annur Police Station,

Avinashi Taluk,

Coimbatore District.

2.R.Balakrishnan

S/o.Rangasamy Naidu

3.P.Bangaru Naidu,

S/o.Palanisamy Naidu

... Respondents/Complainant/Accused

Memorandum of Grounds of Criminal Revision Petition filed

under Sections 397 r/w 401 of Cr.P.C. praying to call for the

entire records in C.C.No.257 of 2005 on the file of the learned

District Munsif cum Judicial Magistrate, Avinashi and set aside the

order dated 12.09.2006 passed in C.C.No.257 of 2005.

For petitioner :Mr.S.Sathia Chandran

For respondent (s):Mr.N.R.Elango, APP for R1

Mr.K.Kalyanasundaram for RR2 and 3

ORDER

The petitioner is the de facto complainant in C.C.No.257 of

2005 on the file of the learned District Munsif-cum-Judicial

Magistrate, Avinashi, Coimbatore District. The 1^st respondent is

the complainant and the respondents 2 and 3 are the accused in the

said case. The respondents 2 and 3 were facing prosecution for

offences under Sections 341, 294(b), 506(i) and 153(A) of IPC.

2. When the case was pending trial, the learned Assistant

Public Prosecutor, who was in charge of the case, filed a petition

under Section 321 of the Code of Criminal Procedure, 1973

(hereinafter referred to as "the Code") before the learned

Magistrate seeking permission to withdraw the said case as per the

orders of the Superintendent of Police, Coimbatore in Ref.

https://hcservices.ecourts.gov.in/hcservices/

No.631/SB/Memo/06 dated 13.06.2006 pursuant to G.O. Ms.No.431

Public (Law and Order.H) Department, dated 27.05.2006. The

pleadings contained in the said petition are as follows:-

"The prosecution prayed that this Hon'ble

Court kindly permit the prosecution to withdraw

the above case as per proceedings of the

Superintendent of Police , Coimbatore District

in Ref. No.631/SB/Memo/06 dated 13.06.2006"

3. Based on the above said petition, the learned Magistrate

by order dated 12.09.2006 granted permission for withdrawal of the

prosecution. Challenging the same, the de facto complainant is now

before this Court with this revision.

4. I have heard the learned counsel appearing for the

revision petitioner, the learned Additional Public Prosecutor

appearing for the 1^st respondent and the learned counsel appearing

for the respondents 2 and 3. I have also perused the records

carefully.

5. At the outset, I have to state that this case is a

classic example as to how the scope of Section 321 of the Code has

been misunderstood by both the learned Assistant Public Prosecutor,

who was in charge of the case – who filed the memo seeking

permission to withdraw the prosecution and the learned Magistrate,

who passed the impugned order. Needless to say that the Hon'ble

Supreme Court as well as this Court have been consistantly holding

that the Assistant Public Prosecutor in charge of the case is not

subordinate to the Police Officer to act on the instructions or

directions of such Police Officers. While making a petition seeking

permission for withdrawal of the prosecution under Section 321 of

the Code, the Assistant Public Prosecutor is acting as a Quasi

Judicial Authority and he has to judiciously analyze as to whether

there are grounds for such withdrawal. But, in the case on hand,

as I have already extracted, from the pleadings contained in the

petition filed by the Assistant Public Prosecutor, it is crystal

clear that the Assistant Public Prosecutor has filed the petition

only on the basis of the directions issued by the Superintendent of

Police, Coimbatore District without any details in support of the

petition. Thus, he has exposed himself as though he is acting as

an officer subordinate to the Superin