Summary
The Supreme Court set aside consent to withdrawal from prosecution because the prosecutor had merely placed the Government’s notification before the Magistrate without independent consideration. Judicial consent under Section 321 requires scrutiny of good faith and public justice. The High Court also erred in rejecting the serious revision challenges as those of strangers. The withdrawal application was remitted to the Chief Judicial Magistrate for fresh consideration.
Issues
- Whether the prosecutor independently assessed the proposed withdrawal and the Magistrate applied the proper statutory test.
- Whether the High Court could reject the revision challenges solely because the petitioners were third parties.
Provisions considered
- Section 321, Code of Criminal Procedure, 1973Withdrawal requires an independent prosecutorial judgment and informed judicial consent serving public interest and justice; neither governmental instructions nor a mechanical approval suffices. (¶ 7–14)
Held
- The prosecutor must independently examine the material, act in good faith and consider withdrawal’s effect on society and public justice. Government instructions do not bind that judgment; the prosecutor cannot act merely as a conduit for the Government. (¶¶ 8–11, 13)
- Consent requires careful judicial discretion on whether withdrawal serves public interest and advances justice without stifling the lawful prosecution or causing manifest injustice. It cannot be granted merely on request or through a mechanical merits assessment. (¶¶ 9–10, 12–13)
- Here the prosecutor had not applied an independent mind and had only placed the Government notification on record. The Magistrate’s opinion that conviction was unlikely did not supply the examination required by section 321. (¶¶ 6, 12–14)
- The revision petitions raised serious, non-frivolous errors. In exercising its supervisory revisional function, the High Court should have considered the correctness of the withdrawal order rather than treating these petitioners as unconnected strangers. (¶ 12)
- Both orders were set aside and the application returned to the Chief Judicial Magistrate for reconsideration in accordance with law. The Court did not itself finally grant or reject withdrawal. (¶ 14–15)
Result
Appeal allowed; High Court and Chief Judicial Magistrate orders set aside. Withdrawal application remitted to Chief Judicial Magistrate for fresh consideration according to law.