IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.MC.No. 1695 of 2009(B) -------------------------------------- CMP.2949/2008 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR. .................... PETITIONER: ------------------- O.R.SOONA, W/O.BALARAMAN, ARATHI, KUTTIPUZHA NAGAR, POOTHOLE P.O., THRISSUR, (FORMER U.D.CLERK, DISTRICT MEDICAL STORES, THRISSUR DISTRICT.). BY ADV. MR.P.R.VENKETESH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE DY.SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, THRISSUR. BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.1695 OF 2009 ------------------------------------------ Dated 4th June 2009 O R D E R Petitioner is the accused in C.C.10/2007 on the file of Enquiry Commissioner and Special Judge, Thrissur. He was working as U.D.Clerk, Medical college hospital, Thrissur. Prosecution case against petitioner is that he committed an offence under Sections 13(1)(C) and 13(2) of Prevention of Corruption Act by dishonestly manipulating invoice/bills submitted for settling the advance amount received by boosting the amount, rate quantity, cost, dates and thereby obtained a pecuniary advantage of Rs.1,02,305/-. When the petitioner is facing trial, Annexure-11 petition was moved before the Special Judge by Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Thrissur purportedly under Section 321 of Code of Criminal Procedure to withdraw the prosecution. It was dismissed under Annexure-11 order dated 13/1/2009. It is challenged in this petition CRMC 1695/09 2 under Section 482 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner was heard. 3. Argument of the learned counsel appearing for petitioner is that Section 321 does not provide for a particular petition to be filed and even oral request is sufficient and Annexure-11 petition filed by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Thrissur shows that the Government has decided to withdraw the case and to proceed against the petitioner for disciplinary action for major penalties and in such circumstances, dismissal of the petition is illegal and it is to be quashed and permission is to be granted to withdraw the case. 4. Section 321 of Code of Criminal Procedure reads as follows; “The Public Prosecutor or 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 CRMC 1695/09 3 such withdrawal- (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:” Section 321 enables a Public Prosecutor or Assistant Public Prosecutor in charge of the case, to withdraw from the prosecution of any person generally or in respect of any one or more of the offences for which he is tried, with the consent of the court. That power is given not to the investigating officer but to the Public Prosecutor or the Assistant Public Prosecutor. As rightly pointed out by the learned Special Judge in Annexure-11 order, petition was not to file by the Public Prosecutor the legal adviser who is in charge of the case but by the Deputy Superintendent of Police. Therefore even if the ingredients of Section 321 is otherwise satisfied, petition can only be dismissed. If it is a petition filed under Section 321, it should be filed by the legal adviser who is CRMC 1695/09 4 in charge of the case after proper application of mind and satisfying that for public interest it is necessary to withdraw the prosecution. Prosecutor cannot be detected by the State to withdraw the case. Therefore, when a petition to withdraw is filed, solely for the reason that Government has decided to withdraw the case, permission cannot be granted to withdraw the case as provided under Section 321. Learned Special Judge rightly dismissed the petition. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.