ABDUL WAHAB K. versus STATE OF KERALA AND OTHERS

Citation: [2018] 11 S.C.R. 155 · Decided: 13-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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ABDUL WAHAB K.
v.
STATE OF KERALA AND OTHERS
(Criminal Appeal No. 1047 of 2018)
SEPTEMBER 13, 2018
[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
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,
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
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
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
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-
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[2018] 11 S.C.R. 155
155
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
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
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
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
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
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
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
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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Bansi Lal v. Chandan Lal (1976) 1 SCC 421; Balwant
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
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
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