Judgment:
ORDER
B.M. Thulasidas, J.
1. These revisions are directed against the orders passed by the Judicial Magistrate of First Class, Punalur, on S.T. Case Nos. 38/1987 and 48/1987, dismissing the applications filed Under Section 321, Cr. P.C. by the Assistant Public Prosecutor in charge of those cases. The Magistrate held:
'....complainant has not filed any petition to withdraw the complaint. This is purely a complaint filed by the Food Inspector and APP was authorised to conduct the case only. So it cannot be said that APP is in charge of the case. The locus standi of APP is only that of a counsel who appears for his client. Without the consent of the client, APP cannot file a petition stating that he is withdrawing from Prosecution. The petition filed by APP cannot stand in the eye of the law.
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It is for the complainant to decide whether to withdraw the complaint. He has not done so. Hence I find that this petition by APP is only to be rejected, since he has no locus standi.'
It was also observed that the reasons given for withdrawal from prosecution were unsatisfactory.
2. Petitioners were accused 2 to 4 in the above cases which were laid by the Food Inspector of Punalur Municipality for offences Under Sections 2(1)(a)(m), 7(1), Section 16(1) read with R. 5 of Appendix-A of the Prevention of Food Adulteration Act and the rules. Reportedly, Honey Vinegar was manufactured at the Malankara Food Products which is the 4th accused, who sold it to the 1st accused from whom the Food Inspector purchased a sample for analysis and it was found adulterated. Accused 2 and 3 were respectively the Managing Director and the Production Manager of the above undertaking. Malankara Food Products belongs to Vimala Mahila Samajam which is a charitable society.
3. The defence that accused 2 to 4 projected before the court below was that they did not sell Vinegar but a soft drink by name Honeygar which is a by-product of honey. They denied having committed any offence.
4. The complainant and witnesses were examined and before the defence evidence was to begin, the Assistant Public Prosecutor in charge of the cases, filed applications purporting to be Under Section 321, Cr. P.C. for withdrawal from prosecution which as stated already, were dismissed by the impugned orders.
5. Counsel confined his submission mainly to the legality of the impugned orders and submitted that the Magistrate was not justified to dismiss the applications. Reasons for the dismissal, it was submitted, are untenable.
6. As stated already, the complaint was laid by the Food Inspector, Punalur Municipality and A.P.P. was in charge of the prosecution. Under Section 25, Cr. P.C. the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. Under Section 301(1), Cr. P.C. the Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal. Under Sub-section (2) of Section 301, if in any such case any private person instructs a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case, shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. It is the A.P.P. who has to conduct the prosecution and he is not subservient to anyone including the complainant in the discharge of his functions.
7. The question that falls for decision in these cases is in a short compass and that is whether the application Under Section 321, Cr. P.C. has to come from the Assistant Public Prosecutor or the complainant. The court below has taken the view that such application has to be filed only by the complainant and not by the Assistant Public Prosecutor who, it was observed, has no locus standi in the matter. I do not think the view taken by the Magistrate is correct. The relevant provisions in the Code of Criminal Procedure relating to withdrawal are Sections 224, 257 and 321, Cr. P.C. Section 224, Cr. P.C. deals with 'withdrawal of remaining charges on conviction of one of several charges'. Such withdrawal could be made with the consent of the court on a motion by the complainant or the officer conducting the prosecution. The court could also stay the inquiry into, or trial of such charge or charges. This section is not relevant here. Section 257, Cr. P.C. deals with 'withdrawal of complaint' in summons cases which again has no application to the present case. The only section that applies is Section 321, Cr. P.C. This is not disputed. It has a legislative history. It corresponded to Section 494 of the old Code. There is a substantial difference between the old and new sections. Under Section 494 of the old Code:
'Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases 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.'
But, Under Section 321 the Public Prosecutor or the Assistant Public Prosecutor in charge of a case alone may, with the consent of the Court, withdraw from the prosecution. The Supreme Court in State of Punjab v. Surjit Singh AIR 1967 SC 1214 : (1967 Cri LJ 1084), held (para 31):-
'only a public prosecutor, who is in charge of a particular case and is actually conducting the prosecution, that can file an application under the section, seeking permission to withdraw from the prosecution.'
This decision was noticed by the Law Commission in its 41st Report while recommending amendment of Section 494, Cr. P.C. and it was observed:--
'Section 494 seems to authorise any Public Prosecutor to withdraw from the prosecution with the consent of the Court. The Supreme Court has held (see AIR 1967 SC 1214: (1967 Cri LJ 1084) that the reasonable interpretation to be placed on this section is that only the public prosecutor who is in charge of a particular case and is actually conducting the prosecution can file an application under this section seeking permission to withdraw from the prosecution. If a Public Prosecutor is not in charge of a particular case and is not conducting the prosecution, he will not be entitled to ask for withdrawal from prosecution of that case under Section 494. If any Public Prosecutor who has nothing to do with a particular case is held entitled to file an application under Section 494, the result will be anomalous. The contrary view viz. that the section gives an unqualified right to any person who, in law, is a 'public prosecutor' to file an application for withdrawal from prosecution was, it appears, strongly urged in the case supported by a few decisions of the High Courts. That view was negatived by the Supreme Court'.
The recommendation was accepted and was incorporated in Section 321, Cr.P.C.
8. In the matter of exercise of power under Section 321, Cr.P.C. it makes no difference whether the A.P.P. is conducting a prosecution on a complaint case or a police case. In Emperor v. Labbai Kutti, AIR 1939 Madras 190: (1939) (40) Cri LJ 437) the Madras High Court held:
'To the Public Prosecutor is entrusted discretion to withdraw from the prosecution with the consent of the Court and his withdrawal puts an end to the case. The law gives him a real discretion in the matter. It may often be proper for him to consult the District Magistrate or other authorities before exercising that discretion. But, in the eye of the law, and of the Court the discretion is his alone, subject to the consent of the Court'.
9. In Amar Narain v. State of Rajasthan, AIR 1952 Raj 42 : (1952 Cri LJ 375) the Rajasthan High Court held (para 4):
'In criminal cases it is the State which is in control of the proceedings particularly where the prosecution is launched at the instance of the State. In cases, therefore, in which the public prosecutor appears it is for him to decide whether he would continue with the prosecution or withdraw from it. If he decides to withdraw he has the power to apply to the Court under Section 494, Criminal P.C., for giving consent to his withdrawal. This power cannot be subject to the wishes of a third person even though he might be interested directly in the case'.
The Court notice with approval the observations in Gulli Bhagat v. Narain Singh, AIR 1924 Patna 283 : (1924 (25) Cri LJ 446), where it was held:
'Finally there is a deeper & indeed a fundamental reason for non-interference which turns upon the position of a private prosecutor in prosecutions for cognizable offences. In our opinion, the private prosecutor has no position at all in the litigation. The Crown is the prosecutor & the custodian of the public peace & if it decides to let an offender go, no other aggrieved party can be heard to object on the ground that he has not taken his full toll of private vengeance'.
10. In Pratap Chand v. Behari Lal, AIR 1955 J & K 12 : (1955 Cri LJ 1182), it was held :--
'A public prosecutor can intervene in a criminal case instituted on a private complaint. The public prosecutor who has taken charge of the case instituted on a private complaint can withdraw the prosecution without consulting the complainant'.
11. A Full Bench of this Court in Dy. Acctt. General v. State, AIR 1970 Kerala 158: (1969 Cri LJ 966), held that 'the power must be exercised in the light of his own judgment and not at the dictation of some other authority'.
12. There can be no doubt that only the Public Prosecutor or the Assistant Public, Prosecutor in charge of the case and hone else, with the consent of the Court, could apply for withdrawal from prosecution. He is not expected to act according to the instructions of the complainant but is the sole Judge. The complainant does not come into the picture and indeed has no locus standi in the matter of exercise of discretion by the Assistant Public Prosecutor.
13. I do not wish to say anything about the merits of the applications for withdrawal, which would be a matter for the court below to consider afresh in the light of the law expounded in the decisions of the Supreme Court and of this court.
14. The impugned orders are set aside. The Crl. R. Ps. are accordingly allowed.