Public Prosecutors must apply mind, not act as govt channel while withdrawing case: Kerala High Court

The Kerala High Court recently emphasised that public prosecutors must apply their minds and independently decide whether a case should be withdrawn instead of merely following government directions in this regard [Muhammed Ashraf KA v The Sub Inspector of Police & ors].

Justice K Babu said that though Section 321 of the Code of Criminal Procedure (CrPC) allows prosecutors to withdraw cases with court approval, it also mandates that they independently evaluate the materials presented in the case before deciding to withdraw a case.

The judge underlined that prosecutors must not merely act as channels for government instructions but should apply their mind before seeking to withdraw a case and should examine whether the same would align with public interest.

"It is necessary for the public prosecutor to satisfy himself in each case that the case is fit for withdrawal from prosecution. Though the government may have ordered, directed or asked a public prosecutor to withdraw from a prosecution, it is for the public prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution," the Court said.

The Court was hearing a plea by an accused challenging a trial court's refusal to drop the prosecution in the case against him.

The accused, one Muhammed Ashraf, was booked for abusing, threatening and assaulting sub-inspector PV Nirmala of Payyanoor police station.

She alleged that while investigating a complaint and inquiring about the accused’s brother, Ashraf threatened to burn her and dismissed police authority, claiming his political connections would shield him from repercussions.

Consequently, a case was registered against him under various provisions of the Indian Penal Code including Section 353 (assault or criminal force to deter a public servant from duty), Section 354 (assault or criminal force with intent to outrage modesty), and Section 506 (criminal intimidation).

Despite evidence being presented before the trial court, the assistant public prosecutor filed an application under Section 321 of CrPC to withdraw from prosecution.

The magistrate rejected this application, deeming the nature of the allegations severe and emphasising the need for trial to proceed.

The accused then filed the present revision petition before the High Court Court challenging the trial court’s refusal to allow withdrawal of the case.

The High Court noted that external factors had influenced the government’s decision to withdraw the case.

It noted that the prosecutor applied for withdrawal without fully reviewing the case.

The Court emphasised that a prosecutor should not merely apply for a withdrawal but should rather include a brief explanation with respect to the material considered in the case, for assisting the court to determine whether withdrawal of a case is justifiable.

"The application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice," added the Court.

In this case, the High Court after considering the gravity of the offences and public interest, proceeded to dismiss the petition and ordered the trial to proceed with a direction to complete the matter within three months.

It also directed the High Court Legal Services Committee to nominate a lawyer for the victim.

Advocate Sunny Mathew appeared for the petitioner.

Advocate Shahna Karthikeyan represented the woman sub inspector, while Public Prosecutor Neema Jacob appeared for the State.

[Read Order]