IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 24127 of 2009(Q) ------------------------------------ CC.496/2008 of J.M.F.C.-II, KANNUR ............................................... PETITIONER(S)/DEFACTO COMPLAINANT: ------------------------------------------------------------- P.K.HARIDASAN, AGED 50 YEARS, S/O.KRISHNAN NAMBIAR, RESIDING AT PALAYIL KALIYATH HOUSE, PANTHOTTAM, PO.MORAZHA BY ADV. SRI.C.K.SREEJITH RESPONDENT(S)/ACCUSED: --------------------------------------- 1. S.H.O.KANNAPURAM POLICE STATION, REP.BY PUBLIC PROSECTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. DHANESH A, S/O.P.P.KUNHIKANNAN, ARAMBAN NIVAS, PANTHOTTAM, MORAZHA AMSOM DESOM, KANNUR DIST. 4. SANDEEP, ARAMBAN NIVAS, PANTHOTTAM, MORAZHA AMSOM DESOM, KANNUR DIST. 5. PRASANTH, ARAMBAN NIVAS, PANTHOTTAM, MORAZHA AMSOM DESOM, KANNUR DIST. 6. BIJU, ARAMBAN NIVAS, PANTHOTTAM, MORAZHA AMSOM DESOM, KANNUR DIST. GOVT.PLEADER SRI.AMJAD ALI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.24127 OF 2009 ------------------------------------------ Dated 28th August 2009 JUDGMENT This petition is filed under Articles 226 and 227 of Constitution of India for a writ of mandamus directing respondents 1 and 2, the Station House Officer and the State of Kerala not to withdraw C.C.496/2008 on the file of Judicial First Class Magistrate-II, Kannur and for a direction to the learned Magistrate not to allow the application for withdrawal. 2. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 3. A Magistrate can grant permission to withdraw prosecution, only as provided under Section 321 of Code of Criminal Procedure. Application for withdrawal of the case is to be filed by the Assistant Public Prosecutor, who is in charge of the case. It is for the Assistant Public Prosecutor to apply his mind and decide whether the prosecution is to be withdrawn or not. Neither the Government nor anybody else can WPC 24127 2 compel the Assistant Public Prosecutor to withdraw the prosecution. So also, it is for the Magistrate to decide, when an application is filed whether permission is to be granted or not. No writ of mandamus could be issued to the Magistrate not to grant permission. It is for the learned Magistrate to decide. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.