A is alleged to have committed the murder of B. The cognizance against A is taken by the Chief Judicial Magistrate and the case is transferred to a Magistrate of 1st class. The Public Prosecutor files an application before the concerned Magistrate… Give reasons

Question: A is alleged to have committed the murder of B. The cognizance against A is taken by the Chief Judicial Magistrate and the case is transferred to a Magistrate of 1st class. The Public Prosecutor files an application before the concerned Magistrate of 1st class who is a committing Magistrate also, for withdrawal from prosecution.

The committing Magistrate gives consent for such withdrawal. Is the consent given by the Magistrate valid in the case of an offence (murder) which is exclusively triable by a Sessions Judge? Give reasons in support of your answer and also refer to the case law, if any, on this point.

Find the answer only on Legal Bites. [A is alleged to have committed the murder of B. The cognizance against A is taken by the Chief Judicial Magistrate and the case is transferred to a Magistrate of 1st class. The Public Prosecutor files an application before the concerned Magistrate… Give reasons]

Answer

Section 321 of the Code of Criminal Procedure provides for “the withdrawal from the prosecution”. Withdrawal from prosecution means retiring or stepping back or detracting from the prosecution. In other words, withdrawal of appearance from the prosecution or refraining from conducting or proceeding with the prosecution. However, when the court consents to such withdrawal from the prosecution, the accused person shall be discharged or acquitted in accordance with the provisions of clauses (a) and (b) of Section 321.

It has been categorically laid down that a Public Prosecutor can withdraw the case at any stage of the prosecution and that the only limitation is the requirement of consent of the court. According to the court, even where reliable evidence has been adduced to prove the charges, the Public Prosecutor can seek the consent of the court to withdraw from the prosecution. All that the court has to see is whether the application is made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law.

Withdrawal from the prosecution can be sought “at any time before the judgment is pronounced” by the trial court. Therefore, the Public Prosecutor has no right at the appellate stage of a case to present any petition for withdrawal under Section 321. On the other hand, an application for withdrawal from prosecution can be moved even during the pendency of the committal proceedings in the Court of a Magistrate in a case in which the offence is exclusively triable by a Court of Session and the Magistrate is competent to give consent to such withdrawal.

In Rajendra Jain v. State (1980)3 SCC 434, the Supreme Court has held that despite the fact that offence is exclusively triable by the Court of Session, the Court of Submitting Magistrate is competent to give his consent to the Public prosecutor to withdraw from the prosecution. In the event that an individual has been indicted or prosecuted by the trial Court and the case is pending before the Appellate Court, at this stage, the Public Prosecutor cannot move an application to the Appellate Court for withdrawal from prosecution in light of the provision under Section 321 of the CrPC.

‘Court’ signifies Trial Court, not Appellate Court, and furthermore, indictment or prosecution is made under the watchful eye of a preliminary Court. Along these lines, the Public Prosecutor cannot move an application for withdrawal from prosecution to an Appellate Court.

Thus, the consent given by the committing Magistrate in the present case at hand for the withdrawal from prosecution is valid, notwithstanding the fact that the offence is exclusively triable by a Sessions Judge.

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