IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 66 of 2001(A) ------------------------------------ CC.148/1999 of JUDL.MAGISTRATE OF FIRST CLASS, PAYYOLI .................... REVISION PETITIONER/DEFACTO COMPLAINANT : ------------------------------------------------------------- VINODAN, S/O.KELAPPAN, AGED 29 YEARS, KOYILOOTH MEETHAL HOUSE, PALAYADU AMSOM, ELABILADU DESOM BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT & STATE/ACCUSED : --------------------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, PAYYOLI POLICE STATION 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 3. GIRISHKUMAR, KANARANKANDY MEETHAL HOUSE, KARUVANCHERI AMSOM BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/09/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL.R.P.No. 66 of 2001 ------------------------------ Dated this the 22nd day of September, 2008 O R D E R The 3rd respondent was charge sheeted by the Payyoli Police in Cr. No.251/1998 for offence punishable under Sections 143,147, 148 and 324 read with Section 149 of the Indian Penal Code. The Assistant Public Prosecutor appearing for the state filed a petition under Section 321 of the Code of Criminal Procedure seeking permission to withdraw from the prosecution. The learned Magistrate as per the impugned order allowed the petition. The defacto complainant is aggrieved and preferred this revision petition. 2. At the time of hearing there is no representation for the revision petitioner or the third respondent. I heard public prosecutor appearing for the respondents 1 and 2 since the order under challenge appeared to be prima facie not sustainable. 3. It is true that Section 321 of the Code of Criminal procedure permitted the Assistant Public Prosecutor to withdraw from the prosecution with the consent of the court. But, it is not sufficient that the law officer concerned simply states that he has been directed by the State Government to withdraw from the prosecution. He has to CRL.R.P.No. 66 / 2001 2 make out some ground which would show that the prosecution is sought to be withdrawn since, inter alia, the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well found or that there are circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The law officer himself should be satisfied that the withdrawal of the case is in the public interest. In the case on hand, the Assistant Public Prosecutor has merely stated that “ considering the nature of the offence involved in this case, it is just and proper to withdraw this case.” and that he has considered all the facts and circumstances of the case involved and after considering the same he is of the view that it is a fit case to be withdrawn. The order under challenge does not show that the learned Magistrate also has applied mind in the matter and instead, merely observed that “after perusing the report, I am satisfied that the learned Assistant Public Prosecutor has applied her mind judiciously in order to withdraw the case. ” The statements in the report submitted by the Assistant Public Prosecutor CRL.R.P.No. 66 / 2001 3 are quite insufficient to withdraw from the prosecution. The court below therefore was not justified in allowing the Assistant Public Prosecutor to withdraw from the case. The order is liable to be set aside. Resultantly this revision petition succeeds. The order under challenge is set aside and the case is remitted to the court below to be disposed of, as provided under law. THOMAS P. JOSEPH, JUDGE scm