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The Supreme Court has reiterated that the role of a government law officer/ public prosecutor is not that of a postman. Public prosecutors should not be totally guided by the instructions given by the government, instead, they owe a primary duty towards the Court, the Supreme Court ruled.
The observations were part of a judgment rendered by Chief Justice of India Dipak Misra and Justice DY Chandrachud in an appeal against a decision of the Kerala High Court.
By way of background, a criminal proceeding for offences punishable under Sections 195A and 506 of Indian Penal Code was initiated against Eranad MLA and IUML leader PK Basheer for a controversial speech made in 2008.
During the pendency of the criminal case, a petition was filed by the Public Prosecutor to withdraw from the prosecution. The learned Chief Judicial Magistrate vide order dated January 4, 2012 allowed the application and permitted the Public Prosecutor to withdraw from the prosecution.
The said order was assailed by the appellant in High Court. The High Court dismissed the said petitions on the ground that the petitioners/ appellants were not de facto complainants, but only third parties
This led to the appeal in the Supreme Court.
The Supreme Court proceeded to analyse Section 321 of the Code of Criminal Procedure dealing with withdrawal from prosecution.
The said provision confers authority on the Public Prosecutor to withdraw from the prosecution of any person accused of an offence, both when no evidence is taken and even if the entire evidence has been taken. The outer limit for exercising the said power is guided by the expression “at any time before the judgment is pronounced”.
Placing reliance on a catena of judgments on the same, the Court said that it was clear as crystal that the Public Prosecutor or an Assistant Public Prosecutor has an important role under the statutory scheme and is expected to act as an independent person. He/she has to apply his/her own mind and consider the effect of withdrawal on the society in the event such permission is granted.
In the case at hand, the learned Chief Judicial Magistrate dwelt upon the merits and expressed an opinion that the case is not likely to end in conviction. It was clearly manifest that the Public Prosecutor had not applied his mind but had only placed the Government notification on record, the Court noted.
On the role of a public prosecutor, the court noted that he/ she has to act with responsibility. He/she is not to be totally guided by the instructions of the Government but is required to assist the Court, and the Court is duty bound to see the precedents and pass appropriate orders.
On the dismissal of the petition by the High Court on the ground that the appellants are third parties, the Supreme Court ruled that the High Court has been conferred power to entertain the revisions and rectify the errors which are apparent or totally uncalled for. This is the power of superintendence of the High Court. Thus viewed, the petitioners could not have been treated as strangers, for they had brought an error to the notice of the High Court and hence, it should have applied its mind with regard to the correctness of the order.
“It may be said with certitude that the revision petitions filed before the High Court were not frivolous ones. They were of serious nature”, the Court observed.
It was a case where the Public Prosecutor had acted like a post office and the learned Chief Judicial Magistrate has passed an order which was not within the parameters of Section 321 CrPC. He should have applied the real test stipulated under Section 321 CrPC and the decisions of the Supreme Court but that has not been done, the Court held.
It, therefore, set aside the decision of the High Court and remitted the matter back to the Chief Judicial Magistrate to reconsider the application for withdrawal of prosecution in accordance with law.
Advocate Raghenth Basant appeared for the appellant while advocates CK Sasi and Radha Shyam Jena appeared for the respondents.
Read the judgment below.