2009 (6) TMI 34

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....sp; This case is having a chequered carrier of its own and suffice to say that earlier this Court had occasion to pass order on June 30, 1991 in Crl.M.P.No.3158 of 1994;  when the trial was in progress, the learned Public Prosecutor filed the M.P.No.3367 of 2006 in E.O.C.C.No.302 of 1984 under Section 321 of Cr.P.C.read with 279(2) of the Income Tax Act, 1961 seeking consent  to withdraw the prosecution as against A1 to A3.  After hearing all the parties concerned, the learned Magistrate passed the order dismissing the said petition; the operative portion of which is extracted hereunder for ready reference. "12. In view of the above findings that IPC offences under Sections 120B and 420 are still on record for prosecution and no permission has been granted by the Central Government to the Special Public Prosecutor to withdraw the entire case including the IPC offences against A1 to A3, the present petition to withdraw the case against A1 to A3 is not maintainable and the same is liable to be dismissed." 3. Being aggrieved by and dis-satisfied with the order of the lower Court, the accused 1 to 3 have filed this revision on various grounds, the pith and marrow of th....

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....hat A1 to A3 have compounded the offences under Income Tax Act only and not the offences under the Indian Penal Code. 9. At this juncture, I would like to extract hereunder Section 321 of Cr.P.C: "321.Withdrawal from prosecution  The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgement 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, - (a) if it is made before a charge has ben 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- (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 (iii) involved the misappropriation or destruction of, or damage to, any property belong....

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....last  but 4th line, he simply stated as follows, 'to withdraw from prosecution against the accused-1 to 3' without specifying the offence or offences.  However, Section 321 Cr.P.C. clearly contemplates that a Public Prosecutor has got the power to apply for getting consent to withdraw from prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. 13. No doubt, the Magistrate observed in the course of the proceedings that the learned Senior Public Prosecutor was for getting consent for withdrawing all the offences including the IPC offences in respect of A1 to A3. 14. To the risk of repetition without being tautalogous, I would observe that the learned Senior Public Prosecutor could have specified the offences also in his petition. 15. The contention of the learned counsel for the other accused, in my opinion, should not have weighed much in the mind of the Magistrate, as at this stage, the other accused persons had no locus standi to object by stating that the Court should not grant consent to the Public Prosecutor for withdrawing it.  16. The learned counsel for the petitioners cited appropriately and co....

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....inister of Justice. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to the provisions of Section 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the court, the court and its officers alone must have control over the case and decide what is to be done in each case." 45. In the circumstances of this case I find it difficult to say that the Public Prosecutor had not applied his mind to the case or had conducted himself in an improper way. If in the light of the material before him the Public Prosecutor has taken the view that there was no prospect of securing a conviction of the accused it cannot be said that his view is an unreasonable one. We should bear in mind the nature of the role of a Public Prosecutor. He is not a persecutor. He is the representative not of an ordinary party to a controversy, but of sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in ....