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Whether accused has role to play in hearing of application b

Whether accused has role to play in hearing of application by prosecution for withdrawal of prosecution?

We need not advert to the widdth of liberty granted to
the accused persons by the writ court. The heart of the matter
is whether the approach by the learned single Judge in
passing the impugned order is legally correct. There can be
no cavil over the proposition that when an application of
withdrawal from the prosecution under Section 321 Cr.P.C.
is filed by the Public Prosecutor, he has the sole responsibility
and the law casts an obligation that he should be satisfied
on the basis of materials on record keeping in view certain
legal parameters. The Public Prosecutor having been
satisfied, as the application would show, had filed the application.
The said application was not taken up for hearing.
The learned Magistrate had not passed any order granting
consent for withdrawal, as he could not have without hear-

ing the Assistant Public Prosecutor. At this juncture, the
authority decided regard being had to the fact situation that
the Assistant Public Prosecutor should withdraw the application
and not press the same. After such a decision had
been taken, as the application would show, the Assistant
Public Prosecutor has re-appreciated the facts, applied his
mind to the totality of facts and filed the application for not
pressing the application preferred earlier under Section 321
Cr.P.C. The filing of application not to press the application
cannot be compared with any kind of review of an order
passed by the court. Question of review can arise when an
order has been passed by a court. Section 362 Cr.P.C. bars
the Court from altering or reviewing when it has signed the
judgment or final order disposing of a case except to correct
a clerical or arithmetical error. The said provision cannot
remotely be attracted. The filing of the application for
seeking withdrawal from prosecution and application not to
press the application earlier filed are both within the
domain of Public Prosecutor. He has to be satisfied. He has
to definitely act independently and as has been held by the
Constitution Bench in Sheonandan Paswan (supra), for he

is not a post office. In the present case, as the facts would
graphically show, the Public Prosecutor had not moved the
application under Section 321 Cr.P.C. but only filed. He
could have orally prayed before the court that he did not intend
to press the application. We are inclined to think, the
court could not have compelled him to assist it for obtaining
consent. The court has a role when the Public Prosecutor
moves the application seeking the consent for withdrawing
from the prosecution. At that stage, the court is required to
see whether there has been independent application of mind
by the Public Prosecutor and whether other ingredients are
satisfied to grant the consent. Prior to the application being
taken up being moved by the Public Prosecutor, the court
has no role. If the Public Prosecutor intends to withdraw or
not press the application, he is entitled to do so. The court
cannot say that the Public Prosecutor has no legal authority
to file the application for not pressing the earlier application.
It needs no special emphasis to state that the accused
persons cannot be allowed to contest such an application.
We fail to fathom, how the accused persons can contest the
application and also file documents and take recourse to

Section 91 Cr.P.C. The kind of liberty granted to the accused
persons is absolutely not in consonance with the
Code of Criminal Procedure. If anyone is aggrieved in such
a situation, it is the victim, for the case instituted against
the accused persons on his FIR is sought to be withdrawn.
The accused persons have no role and, therefore, the High
Court could not have quashed the orders permitting the
prosecution to withdraw the application and granting such
liberty to the accused persons. The principle stating that
the Public Prosecutor should apply his mind and take an independent
decision about filing an application under Section
321 Cr.P.C. cannot be faulted but stretching the said
principle to say that he is to convince the court that he has
filed an application for not pressing the earlier application
would not be appropriate. We are disposed to think so as
the learned Magistrate had not dealt with the earlier application.
Therefore, the impugned order dated 30.07.2015
passed by the High Court is set aside. As the impugned order
is set aside, consequentially the order passed by the
learned Magistrate on 22.09.2015 has to pave the path of
extinction and we so direct. The learned Magistrate is di-

rected to proceed with the cases in accordance with law.
(@ CRIMINAL M.P. NO. 16992 OF 2015)
M/s V.L.S. FINANCE LTD. ... Appellant(s)
S.P. GUPTA AND ANR. … Respondent(s)
Dated:February 05, 2016
Citation: 2016 ALLMR(CRI)1300 SC


 2 Replies

adv.bharat @ PUNE (Lawyer)     03 June 2016

Thanks for imp judgement sharing.

BHRIGU DATTA 9475352677 (PRIVATE PRACTICE)     03 June 2016

thank for sharing judgement

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