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Question No.1
Explain the discretionary power of Court under Section 321 of the CrPC which deals with withdrawal from prosecution?
Answer:
Section 321 of the code deals with withdrawal from prosecution. The public prosecutor or assistant public prosecutor may with the consent of the Court withdraw from the prosecution of a case. The relevant portion of the section is shown under:
S.321-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 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 aquitted in respect of such offence or offences;..........
Thus it is clear that a prosecutor can withdraw from a case before and after framing of charge. But this can be done with the consent of the Court. So the courts have a major role of exercising discretion while permitting to withdraw from prosecution. The main points in the following cases will be of great help:
Parties: Abdul Karim v. State of Karnataka
Present:Hon'ble Mr. Justice S.P. Bharucha, Hon'ble Mr. Justice D.P. Mohapatra & Hon'ble Mr. Justice Y.K. Sabharwal
Citation:2001 (1) KLT SN 7 (C.No. 8) SC
In the above case the prerequisites or matters to be considered by the Court while granting permission to withdraw from prosecution was dealt with. It was clarified that even if the government has ordered the prosecutor to withdraw from prosecution he must satisfy the Court that he has applied his mind in good faith to all the relevant materials of the case and public interest will be advanced by such withdrawal. The application must aver these things and it must not cause injustice. The prosecutor may be required to file an affidavit also and place it before the Court in sealed envelope. Then the Court may consider the averments to its true satisfaction and if, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent.
Another case on the point:
Parties: Rahul Agarwal v. Rakesh Jain
Present: Hon'ble Mr.Justice K.G.Balakrishnan & Hon'ble Mr.Justice B.N.Srikrishna
Citation: 2005(2) KLT SN 44(C.No.55)SC
In the above case it was reiterated that withdrawal from prosecution can be only allowed in the interests of justice and only in cases which is likely to end in an acquittal. As crime is an offence against the society withdrawal shall be permitted only when valid reasons are made out for the same. Although this case repeated what stated in the above case, it also laid that if the conducting of the case will cause severe harassment of the accused and the withdrawal will bury the dispute and bring harmony to the parties it can be allowed. But the Court mentioned that the discretion has to be carefully exercised.
Question No.2
What is the proper procedure to be adopted when the prosecution case and counter case are pending while exercising power under S.321?
Answer:
The above question has been discussed by two Kerala High court judgements. They are as follows:
Parties: Prathap Kumar v. Ramadas
Present: Hon'ble Mr.Justice V.Ramkumar
Citation: 2009(4)KLT SN 57(C.No.51)
The above case reiterated the true meaning of advancement of public interest as a condition while permitting to withdraw from prosecution. Mostly in political cases both rival groups may file case against other group. When permission is granted to withdraw from only one case they will be getting an unfair advantage over the other party. This is not what the precedents state by upholding the public interest. Such a practice will in no manner advance public interest. The proper procedure is to withdraw both cases.
Parties:Hamzakutty v.State of Kerala
Present: Hon'ble Mr.Justice K.V.Sankaranarayanan
Citation: 1999(2)KLT SN 63(C.No.68)
In this case it was observed that when counter case is also pending and the withdrawal was on the ground of political clash only it should have done in both cases.

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