IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.01.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. R.C.No.954 of 2007 K.Viswanathan S/o.Karuppuswamy .... Petitioner/Defacto Complainant Vs. 1.State by The Inspector of Police, Annur Police Station, Avinashi Taluk, Coimbatore District. 2.R.Balakrishnan S/o.Rangasamy Naidu 3.P.Bangaru Naidu, S/o.Palanisamy Naidu ... Respondents/Complainant/Accused Memorandum of Grounds of Criminal Revision Petition filed under Sections 397 r/w 401 of Cr.P.C. praying to call for the entire records in C.C.No.257 of 2005 on the file of the learned District Munsif cum Judicial Magistrate, Avinashi and set aside the order dated 12.09.2006 passed in C.C.No.257 of 2005. For petitioner :Mr.S.Sathia Chandran For respondent (s):Mr.N.R.Elango, APP for R1 Mr.K.Kalyanasundaram for RR2 and 3 ORDER The petitioner is the de facto complainant in C.C.No.257 of 2005 on the file of the learned District Munsif-cum-Judicial Magistrate, Avinashi, Coimbatore District. The 1st respondent is the complainant and the respondents 2 and 3 are the accused in the said case. The respondents 2 and 3 were facing prosecution for offences under Sections 341, 294(b), 506(i) and 153(A) of IPC. 2. When the case was pending trial, the learned Assistant Public Prosecutor, who was in charge of the case, filed a petition under Section 321 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") before the learned Magistrate seeking permission to withdraw the said case as per the orders of the Superintendent of Police, Coimbatore in Ref. https://hcservices.ecourts.gov.in/hcservices/ No.631/SB/Memo/06 dated 13.06.2006 pursuant to G.O. Ms.No.431 Public (Law and Order.H) Department, dated 27.05.2006. The pleadings contained in the said petition are as follows:- "The prosecution prayed that this Hon'ble Court kindly permit the prosecution to withdraw the above case as per proceedings of the Superintendent of Police , Coimbatore District in Ref. No.631/SB/Memo/06 dated 13.06.2006" 3. Based on the above said petition, the learned Magistrate by order dated 12.09.2006 granted permission for withdrawal of the prosecution. Challenging the same, the de facto complainant is now before this Court with this revision. 4. I have heard the learned counsel appearing for the revision petitioner, the learned Additional Public Prosecutor appearing for the 1st respondent and the learned counsel appearing for the respondents 2 and 3. I have also perused the records carefully. 5. At the outset, I have to state that this case is a classic example as to how the scope of Section 321 of the Code has been misunderstood by both the learned Assistant Public Prosecutor, who was in charge of the case – who filed the memo seeking permission to withdraw the prosecution and the learned Magistrate, who passed the impugned order. Needless to say that the Hon'ble Supreme Court as well as this Court have been consistantly holding that the Assistant Public Prosecutor in charge of the case is not subordinate to the Police Officer to act on the instructions or directions of such Police Officers. While making a petition seeking permission for withdrawal of the prosecution under Section 321 of the Code, the Assistant Public Prosecutor is acting as a Quasi Judicial Authority and he has to judiciously analyze as to whether there are grounds for such withdrawal. But, in the case on hand, as I have already extracted, from the pleadings contained in the petition filed by the Assistant Public Prosecutor, it is crystal clear that the Assistant Public Prosecutor has filed the petition only on the basis of the directions issued by the Superintendent of Police, Coimbatore District without any details in support of the petition. Thus, he has exposed himself as though he is acting as an officer subordinate to the Superintendent of Police, Coimbatore District. At this juncture, it has to be stated that the Hon'ble Supreme Court as well as this Court have been consistantly holding that the institution of prosecution should be separate and it should never be under the control, in any form, of the Police Officers. The Assistant Public Prosecutors can act on the instructions given by the police, but, they should not subject themselves to the directions of the Police Officers. When any such instruction is given by the police officers to withdraw the prosecution giving reasons, it is for the Assistant Public Prosecutor to analyse the grounds to get satisfied that there are https://hcservices.ecourts.gov.in/hcservices/ sufficient grounds to make an application for withdrawal of the prosecution. Without any such ground, if any such application is made, in my considered opinion, the same is devoid of merit. In the instant case, the petition filed before the learned Magistrate is devoid of merit for want of any valid ground justifying the withdrawal of the prosecution. 6. Equally, the learned Magistrate, who passed the order is also at fault. As rightly pointed out by the learned Additional Public Prosecutor, the order passed by the learned Magistrate is in a cyclostyled form, where certain particulars alone have been typed out subsequently. The operative portion of the order is as follows:- "The Public Prosecutor having requested permission to withdraw from the prosecution of the accused in respect of offence under Section 341, 294(b), 506(i) & 153(A) Indian Penal Code, and having satisfied this Court that there are sufficient grounds for granting permission is hereby permitted to withdraw from the prosecution as aforesaid of the accused who is acquitted under Section 321 Code of Criminal Procedure." (sic) 7. This would go to show that the learned Magistrate has acted as though the order that was being passed by him is an administrative order and not Judicial Order. No judicial order, under law, can be passed by typing out or filling up certain details in a cyclostyled form. This shows the total non application of mind on the part of the learned Magistrate, which cannot be appreciated at all. It is well settled law that the Magistrate is required to consider the grounds stated in the petition filed under Section 321 of the Code and to judiciously analyse as to whether such grounds warrant permission for withdrawal of the prosecution or not. Such an order should not be passed by the learned Magistrate in a mechanical manner and it should be a detailed order justifying reasons for according such permission. But, the impugned order does not contain any such detail and therefore, the same is liable to be set aside. 8. In the result, the revision is allowed, the impugned order is set aside and C.C.No.257 of 2005 is remitted back to the learned District Munsif-cum-Judicial Magistrate, Avinashi, Coimbatore District for fresh disposal in accordance with law. The learned Assistant Public Prosecutor in charge of the case is directed to file additional grounds, if any, justifying the request for withdrawal. On considering the additional grounds, the learned Magistrate is required to pass appropriate orders strictly in accordance with law. 9. At this juncture, the learned counsel for the petitioner https://hcservices.ecourts.gov.in/hcservices/ would submit that the petitioner may be permitted to raise his objections before the trial Court, when the matter is considered. In my considered opinion, such permission could not be granted by this Court, as it is for the petitioner to seek such permission as an intervener before the trial Court in manner known to law. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kmk To 1.The District Munsif-cum-Judicial Magistrate, Avinashi,Coimbatore District. 2.Do Through The Chief Judicial Magistrate, Coimbatore. 3.The Inspector of Police, Annur Police Station, Avinashi Taluk, Coimbatore District. 4.The Public Prosecutor, High Court, Madras. 5.The Section Officer, Criminal Section, High Court, Madras. 1 cc to Mr.K.Kalyanasundaram, Advocate, Sr.No.3800 1 cc to Mr.S.Sathia Chandran, Advocate, Sr.No.3556 Crl.R.C. No.954 of 2007 NSM {CO} pmk/1.2.2010. https://hcservices.ecourts.gov.in/hcservices/