ABDUL WAHAB K.versusSTATE OF KERALA AND OTHERS

                        [2018] 11 S.C.R. 155                             155


                        ABDUL WAHAB K.                                   A
                                  v.
               STATE OF KERALA AND OTHERS
                 (Criminal Appeal No. 1047 of 2018)
                       SEPTEMBER 13, 2018                                B
 [DIPAK MISRA, CJI, AND DR. D.Y. CHANDRACHUD, J.]
      Code of Criminal Procedure, 1973:
       s. 321 – Withdrawal of prosecution – Prosecution u/ss. 195A
and 506 IPC – Application by Public Prosecutor for withdrawal of         C
the same – Allowed by Chief Judicial Magistrate – Revision Petition
– High Court dismissed the petition on the ground that the petitioners
being third party had no locus to file the same – On appeal, held:
Chief Judicial Magistrate passed the order not within the parameters
of s. 321 – Petitioners could not have been treated as strangers,
                                                                         D
and the petition was of serious nature – High Court should have
applied its mind with regard to the correctness of the order – Matter
remitted to Chief Judicial Magistrate to consider the withdrawal
application in accordance with law.
      s. 321 – Withdrawal of prosecution – Limit of – Public
Prosecutor has authority to withdraw the prosecution – Such power        E
can be exercised at any time before the judgment is pronounced.
      Public Prosecutor:
       Role of Public Prosecutor – Held: Public Prosecutor is
expected to act with responsibility – They are not supposed to be        F
totally guided by the instructions of Government – They are required
to assist the Court.
      Allowing the appeal, the Court
      HELD: 1. Section 321 Cr.P.C. confers authority on the Public
Prosecutor to withdraw from the prosecution of any person                G
accused of an offence, both when no evidence is taken and even
if the entire evidence has been taken. The outer limit for
exercising the said power is guided by the expression “at any
time before the judgment is pronounced”. [Para 7][161-C; 162-
A-B]
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                              155
156            SUPREME COURT REPORTS                       [2018] 11 S.C.R.


A            2. In the present case, the Chief Judicial Magistrate has
      dwelt upon the merits and expressed an opinion that the case is
      not likely to end in conviction. It is clearly manifest that the Public
      Prosecutor had not applied his mind but had only placed the
      Government notification on record. The High Court has unsuited
      the petitioners on the ground that they are third parties who are
B
      unconnected with the case. They had filed revisions and the High
      Court has been conferred power to entertain the revisions and
      rectify the errors which are apparent or totally uncalled for. This
      is the power of superintendence of the High Court. Thus viewed,
      the petitioners could not have been treated as strangers, for they
C     had brought it to the notice of the High Court and hence, it should
      have applied its mind with regard to the correctness of the order.
      The revision petitions filed before the High Court were not
      frivolous ones. They were of serious nature. It is a case where
      the Public Prosecutor had acted like a post office and the Chief
      Judicial Magistrate has passed an order not within the parameters
D
      of Section 321 CrPC. He should have applied the real test
      stipulated under Section 321 CrPC and the precedents. [Para
      12][164-G-H; 165-A-D]
             3. There are frivolous litigations but that does not mean
      that there are no innocent sufferers who eagerly wait for justice
E     to be done. That apart, certain criminal offences destroy the
      social fabric. Every citizen gets involved in a way to respond to
      it; and that is why the power is conferred on the Public Prosecutor
      and the real duty is cast on him/her. He/she has to act with
      responsibility. He/she is not to be totally guided by the
F     instructions of the Government but is required to assist the
      Court; and the Court is duty bound to see the precedents and
      pass appropriate orders. [Para 13][165-D-E]
           4. The order of the High Court and that of the Chief Judicial
      Magistrate are set aside and the matter is remitted to the file of
G     the Chief Judicial Magistrate to reconsider the application in
      accordance with law. [Para 14][165-F]
            Sheo Nandan Paswan v. State of Bihar AIR 1987 SC
            877 : [1987] 1 SCR 702 – followed.

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           ABDUL WAHAB K. v. STATE OF KERALA                           157


      Bansi Lal v. Chandan Lal (1976) 1 SCC 421; Balwant               A
      Singh v. State of Bihar (1977) 4 SCC 448 : [1978] 1
       SCR 635; Subhash Chander v. State (Chandigarh
      Admn.) (1980) 2 SCC 155 : [1980] 2 SCR 44; Rajender
      Kumar Jain v. State (1980) 3 SCC 435 : [1980] 3 SCR
      982; State of Bihar v. Ram Naresh Pandey AIR 1957
                                                                       B
      SC 389 : [1957] SCR 279; Rahul Agarwal v. Rakesh
      Jain (2005) 2 SCC 377 : [2005] 1 SCR 521; Bairam
      Muralidhar v. State of A.P (2014) 10 SCC 380 : [2014]
      8 SCR 328; V.L.S. Finance Limited v. S.P. Gupta and
      another (2016) 3 SCC 736 : [2016] 1 SCR 623 – relied
      on.                                                              C
      Peoples Union for Civil Liberties (Delhi) v. Central
      Bureau of Investigation and others 1997 Cr.L.J 3242;
      Rajender Kumar Jain v. State of Bihar AIR 1980 SC
      1510 – referred to.
                       Case Law Reference                              D

      [1987] 1 SCR 702                 followed       Para 2
      1997 Cr.L.J 3242                 referred to     Para 2
      AIR 1980 SC 1510                 referred to     Para 2
                                                                       E
      (1976) 1 SCC 421                 relied on      Para 8
      [1978] 1 SCR 635                 relied on      Para 8
      [1980] 2 SCR 44                  relied on       Para 8
      [1980] 3 SCR 982                 relied on      Para 8
                                                                       F
      [1957] SCR 279                   relied on       Para 8
      [2005] 1 SCR 521                 relied on      Para 9
      [2014] 8 SCR 328                 relied on      Para 10
      [2016] 1 SCR 623                 relied on      Para 11
                                                                       G
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal no.
1047 of 2018.
      From the Judgment and Order dated 01.07.2013 of the High Court
of Kerala at Ernakulam in Criminal Revision No. 2021 of 2012.
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158             SUPREME COURT REPORTS                         [2018] 11 S.C.R.


A            Raghenth Basant, Mithun Verghis, Ms. Namita Wali, Senthil
      Jagadeesan, C. K. Sasi, Ms. Nayantara Roy, Mushtaq Salim, Usman
      Ghani Khan, Dev Prakash, Radha Shyam Jena, Advs. for the appearing
      parties.
             The Judgment of the Court was delivered by
B           DIPAK MISRA, CJI 1. The 4th respondent faced a criminal
      proceeding for offences punishable under Sections 195A and 506 of
      Indian Penal Code. During the pendency of the criminal case, a petition
      was filed by the Public Prosecutor to withdraw from the prosecution.
      The learned Chief Judicial Magistrate vide order dated 04.01.2012
C     allowed the application and permitted the Public Prosecutor to withdraw
      from the prosecution.
             2. The said order was assailed by the appellant herein, in Criminal
      Revision Petition Nos.2020 and 2021 of 2012. It was contended before
      the High Court that the learned Chief Judicial Magistrate totally ignoring
D     the controversy involved in the case has passed the impugned order and
      that apart, he has not remained alive to the exercise of jurisdiction under
      Section 321 of the Code of Criminal Procedure (for short, ‘the CrPC’).
      The Court referred to the decisions in Sheo Nandan Paswan v. State
      of Bihar1, Peoples Union for Civil Liberties (Delhi) v. Central Bureau
      of Investigation and others2, State of Kerala v. Vijayakumar3 and
E     Rajender Kumar Jain v. State of Bihar4 and came to hold that the
      consent to withdraw from the prosecution would jeopardize the public
      interest and public policy. The Division Bench further opined that a
      criminal proceeding is not a proceeding for vindication of a private
      grievance but it is a proceeding initiated for the purpose of punishment
F     to the offender in the interest of the society. The objective being
      maintenance of stability and orderliness in the society, private interest
      will not come into picture. The punishment of the offender in the interest
      of the society is one of the objects behind the penal statute enacted for
      the larger good of the society. After so holding, the High Court held that
      the consent of the court is a pivotal factor under Section 321 CrPC. It
G     indicates that the entire process is the result of a complaint and variety
      of considerations such as gravity of the crime, the effect of withdrawal
      1
        AIR 1987 SC 877
      2
        1997 Cr.L.J 3242
      3
        Crl.R.P. No. 3543 of 2008
      4
        AIR 1980 SC 1510
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            ABDUL WAHAB K. v. STATE OF KERALA                                    159
                   [DIPAK MISRA, CJI]

from prosecution and the public confidence in the entire system. The             A
public interest and the public policy are dominant features as the objectivity
displayed by the prosecution in making such application has serious impact
on the society. Though the nature of the offence cannot be a valid
ground for rejecting the application for withdrawal from prosecution, yet
it is the duty of the court to appreciate all the grounds which prompted
                                                                                 B
the prosecution to seek withdrawal from the case. A holistic approach
is required rather than adherence to a particular reason. The application
for withdrawal expresses the independent mind of the Public Prosecutor.
The broad perspective is that public justice underlines the entire philosophy
contemplated under Section 321 CrPC. The action of the Public
Prosecutor in applying the mind is not only to expose its just nature but        C
there must also be reasonableness, as the prosecutor has to keep in
mind the interest of the society against which the wrong is alleged to
have been committed.
       3. After observing as aforesaid, the Division Bench of the High
Court dealt with the principles stated in Sheo Nandan Paswan (supra)             D
in detail, addressed to the grievance put forth in the FIR, the charges
made against the accused persons and came to hold:-
       “In the above case neither an offence under Section 195 nor an
       offence under Section 506 IPC is made out. If the material on
       record upon which the prosecution was based reveals that no               E
       purpose would served even if the trial commenced in the right
       direction, such prosecution could be allowed to withdraw provided
       no other ulterior motive is pointed out. As a matter of fact, in the
       process of administration of criminal justice it is said; withdrawing
       from prosecution can also be treated as to sub serve administration
       of justice. The decision of the prosecutor not to prosecutre the          F
       offenders or not to proceed further with the prosecution already
       launched, is a decision after thorough examination of material
       leading to such responsible decision. The court has to see whether
       application is made in good faith in the interest of public policy
       and justice while doing the exercise it has to see it would lead to       G
       manifestation of injustice by granting such consent. Once court
       concludes that the application is properly made and there is
       independent consideration of the matter by the public prosecutor
       and he has acted in good faith in exercising discretion vested on
       him, the court should allow from such withdrawal.”
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160            SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     And again:-
            “Neither complainant nor charge sheet witness has any locus standi
            in the exercise of discretion of the Public Prosecutor to withdraw
            from the prosecution. If a citizen who has some concern deeper
            than that of a busybody, the door of the court will be kept ajar
B           from him. He cannot be turned away at the gates. If the issue
            raised by him is justifiable, may still remain to be considered.
            However if it is merely a question to be gone into and examined in
            criminal case, registered against accused persons, it is for them
            and they alone to raise such questions and challenge the
            proceedings initiated against them at the appropriate time before
C           the proper forum and not for third parties under the grab of public
            interest litigant. A person who is acting bonafide and having
            sufficient interest in the proceedings alone can initiate Public
            Interest Litigation and that the Court must not allow its process to
            be abused for oblique consideration. Criminal law should not be
D           allowed to be used as a weapon of vendetta between private
            individuals.”
             Disposing of the revision petitions, the High Court further
      proceeded to state:-
            “The petitioners are not de facto complainants, they are only third
E           parties. In both the petitions, petitioners have nothing to do with
            the complaint, as the complaint is not a private complaint. When
            de facto ocomplainant is not questioning, how a third party can
            question and what is their interest in not forthcoming. From reading
            of the entire material as stated above, it is crystal clear that there
F           was justification on the part of the court below in permitting the
            prosecutor to withdraw from the prosecution and so far as the
            revision petitioners, they are totally strangers to the litigation and
            have no locus standi to question the same.”
            4. Being of this view, the High Court dismissed the petitions.
G           5. We have heard Mr. Raghneth Basant, learned counsel for the
      appellant, Mr. C.K. Sasi, learned counsel for the respondent Nos. 1 to 3
      and Mr. Radha Shyam Jena, learned counsel for the respondent No. 4.
            6. To appreciate the controversy, it is necessary to advert to the
      order passed by the learned Chief Judicial Magistrate. He has referred
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            ABDUL WAHAB K. v. STATE OF KERALA                                  161
                   [DIPAK MISRA, CJI]

to the application filed by the Deputy Director of Prosecution wherefrom       A
it is manifest that the Government had no objection in withdrawing the
case and the decision of the Government has been filed along with the
application. The trial court has observed that it has gone through the
petition and is satisfied that the grounds stated therein are sufficient for
giving consent to withdraw the case. He has further opined on analyzing
                                                                               B
materials that there is no possibility of success in the criminal case and,
therefore, the withdrawal from prosecution is necessary for the better
advancement of public justice.
      7. Section 321 of the CrPC reads as follows:-
      “321. Withdrawal from prosecution. The Public Prosecutor or              C
      Assistant Public Prosecutor in charge of a case may, with the
      consent of the Court, at any time before the judgment is pronounced,
      withdraw from the prosecution of any person either generally or
      in respect of any one or more of the offences for which he is
      tried; and, upon such withdrawal,-
                                                                               D
      (a) if it is made before a charge has been framed, the accused
      shall be discharged in respect of such offence or offences;
      (b) if it is made after a charge has been framed, or when under
      this Code no charge is required, he shall be acquitted in respect of
      such offence or offences: Provided that where such offence-              E
      (i) was against any law relating to a matter to which the executive
      power of the Union extends, or
      (ii) was investigated by the Delhi Special Police Establishment
      under the Delhi Special Police Establishment Act, 1946 (25 of
      1946 ), or                                                               F
      (iii) involved the misappropriation or destruction of, or damage to,
      any property belonging to the Central Government, or
      (iv) was committed by a person in the service of the Central
      Government while acting or purporting to act in the discharge of
      his official duty, and the Prosecutor in charge of the case hag hot      G
      been appointed by the Central Government, he shall not, unless
      he has been permitted by the Central Government to do so, move
      the Court for its consent to withdraw from the prosecution and
      the Court shall, before according consent, direct the Prosecutor
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162             SUPREME COURT REPORTS                        [2018] 11 S.C.R.


A           to produce before it the permission granted by the Central
            Government to withdraw from the prosecution.”
            The said provision confers authority on the Public Prosecutor to
      withdraw from the prosecution of any person accused of an offence,
      both when no evidence is taken and even if the entire evidence has been
B     taken. The outer limit for exercising the said power is guided by the
      expression “at any time before the judgment is pronounced”.
             8. The Constitution Bench in Sheo Nandan Paswan (supra), after
      referring to Bansi Lal v. Chandan Lal 5, Balwant Singh v. State of
      Bihar6, Subhash Chander v. State (Chandigarh Admn.)7, Rajender
C     Kumar Jain v. State8 and the principles stated in State of Bihar v.
      Ram Naresh Pandey9, came to hold thus:-
            “99. All the above decisions have followed the reasoning of Ram
            Naresh Pandey case and the principles settled in that decision
            were not doubted.
D           100. It is in the light of these decisions that the case on hand has
            to be considered. I find that the application for withdrawal by the
            Public Prosecutor has been made in good faith after careful
            consideration of the materials placed before him and the order of
            consent given by the Magistrate was also after due consideration
E           of various details, as indicated above. It would be improper for
            this Court, keeping in view the scheme of Section 321, to embark
            upon a detailed enquiry into the facts and evidence of the case or
            to direct retrial for that would be destructive of the object and
            intent of the section.”

F            9. In Rahul Agarwal v. Rakesh Jain10, the Court while dealing
      with the application under Section 321 CrPC, referred to certain decisions
      where the earlier decision of the Constitution Bench in Sheonandan
      Paswan (supra) has been referred and held:-
            “10. From these decisions as well as other decisions on the same
            question, the law is very clear that the withdrawal of prosecution
G
      5
        (1976) 1 SCC 421
      6
        (1977) 4 SCC 448
      7
        (1980) 2 SCC 155
      8
        (1980) 3 SCC 435
      9
        AIR 1957 SC 389
      10
H        (2005) 2 SCC 377
              ABDUL WAHAB K. v. STATE OF KERALA                                   163
                     [DIPAK MISRA, CJI]

         can be allowed only in the interest of justice. Even if the              A
         Government directs the Public Prosecutor to withdraw the
         prosecution and an application is filed to that effect, the court
         must consider all relevant circumstances and find out whether
         the withdrawal of prosecution would advance the cause of justice.
         If the case is likely to end in an acquittal and the continuance of
                                                                                  B
         the case is only causing severe harassment to the accused, the
         court may permit withdrawal of the prosecution. If the withdrawal
         of prosecution is likely to bury the dispute and bring about harmony
         between the parties and it would be in the best interest of justice,
         the court may allow the withdrawal of prosecution. The discretion
         under Section 321 of the Code of Criminal Procedure is to be             C
         carefully exercised by the court having due regard to all the
         relevant facts and shall not be exercised to stifle the prosecution
         which is being done at the instance of the aggrieved parties or the
         State for redressing their grievance. Every crime is an offence
         against the society and if the accused committed an offence, society
                                                                                  D
         demands that he should be punished. Punishing the person who
         perpetrated the crime is an essential requirement for the
         maintenance of law and order and peace in the society. Therefore,
         the withdrawal of the prosecution shall be permitted only when
         valid reasons are made out for the same.”
       10. In Bairam Muralidhar v. State of A.P11, while appreciating             E
the said provision, it has been laid down that:-
         “18. … it is the obligation of the Public Prosecutor to state what
         material he has considered. It has to be set out in brief. The court
         as has been held in Abdul Karim case, is required to give an
         informed consent. It is obligatory on the part of the court to satisfy   F
         itself that from the material it can reasonably be held that the
         withdrawal of the prosecution would serve the public interest. It
         is not within the domain of the court to weigh the material.
         However, it is necessary on the part of the court to see whether
         the grant of consent would thwart or stifle the course of law or         G
         cause manifest injustice. A court while giving consent under Section
         321 of the Code is required to exercise its judicial discretion, and
         judicial discretion, as settled in law, is not to be exercised in a
         mechanical manner. The court cannot give such consent on a
11
     (2014) 10 SCC 380
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164               SUPREME COURT REPORTS                            [2018] 11 S.C.R.


A              mere asking. It is expected of the court to consider the material
               on record to see that the application had been filed in good faith
               and it is in the interest of public interest and justice. Another aspect
               the court is obliged to see is whether such withdrawal would
               advance the cause of justice. It requires exercise of careful and
               concerned discretion because certain crimes are against the State
B
               and the society as a collective demands justice to be done. That
               maintains the law and order situation in the society. The Public
               Prosecutor cannot act like the post office on behalf of the State
               Government. He is required to act in good faith, peruse the
               materials on record and form an independent opinion that the
C              withdrawal of the case would really subserve the public interest
               at large. An order of the Government on the Public Prosecutor in
               this regard is not binding. He cannot remain oblivious to his lawful
               obligations under the Code. He is required to constantly remember
               his duty to the court as well as his duty to the collective.”
D           From the aforesaid authorities, it is clear as crystal that the Public
      Prosecutor or an Assistant Public Prosecutor, as the case may be, has
      an important role under the statutory scheme and is expected to act as
      an independent person. He/she has to apply his/her own mind and
      consider the effect of withdrawal on the society in the event such
      permission is granted.
E
            11. In V.L.S. Finance Limited v. S.P. Gupta and another12, a
      two-Judge Bench, after analyzing the law in detail, has ruled :-
               “42. We have enumerated the principles pertaining to the
               jurisdiction of the Court while dealing with an application preferred
F              under Section 321 CrPC and also highlighted the role of the Public
               Prosecutor who is required to act in good faith, peruse the materials
               on record and form an independent opinion that the withdrawal
               from the prosecution would really subserve the public interest at
               large. The authorities referred to hereinabove clearly spell out
               that the Public Prosecutor is not supposed to act as a post office
G              and he is expected to remember his duty to the Court as well as
               his duty to the collective.”
           12. In the case at hand, as is evincible, the learned Chief Judicial
      Magistrate has dwelt upon the merits and expressed an opinion that the
      12
           (2016) 3 SCC 736
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            ABDUL WAHAB K. v. STATE OF KERALA                                    165
                   [DIPAK MISRA, CJI]

case is not likely to end in conviction. It is clearly manifest that the         A
Public Prosecutor had not applied his mind but had only placed the
Government notification on record. The High Court has unsuited the
petitioners on the ground that they are third parties who are unconnected
with the case. They had filed revisions and the High Court has been
conferred power to entertain the revisions and rectify the errors which
                                                                                 B
are apparent or totally uncalled for. This is the power of superintendence
of the High Court. Thus viewed, the petitioners could not have been
treated as strangers, for they had brought it to the notice of the High
Court and hence, it should have applied its mind with regard to the
correctness of the order. It may be said with certitude that the revision
petitions filed before the High Court were not frivolous ones. They              C
were of serious nature. It is a case where the Public Prosecutor had
acted like a post office and the learned Chief Judicial Magistrate has
passed an order not within the parameters of Section 321 CrPC. He
should have applied the real test stipulated under Section 321 CrPC and
the decisions of this Court but that has not been done.
                                                                                 D
        13. We are compelled to recapitulate that there are frivolous
litigations but that does not mean that there are no innocent sufferers
who eagerly wait for justice to be done. That apart, certain criminal
offences destroy the social fabric. Every citizen gets involved in a way
to respond to it; and that is why the power is conferred on the Public
Prosecutor and the real duty is cast on him/her. He/she has to act with          E
responsibility. He/she is not to be totally guided by the instructions of the
Government but is required to assist the Court; and the Court is duty
bound to see the precedents and pass appropriate orders.
       14. In the case at hand, as the aforestated exercise has not been
done, we are compelled to set aside the order passed by the High Court           F
and that of the learned Chief Judicial Magistrate and remit the matter to
the file of the Chief Judicial Magistrate to reconsider the application in
accordance with law and we so direct.
       15. The appeal is, accordingly, allowed.
                                                                                 G

Kalpana K. Tripathy                                            Appeal allowed.




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