Daruman vs State and Others

C.T. Selvam, J.�This revision challenges the order of learned Judicial Magistrate II, Tirupattur, passed in L.P.C. No. 1 of 1989, on 29.05.1998, permitting withdrawal of case registered for offences under Sections 147,148,302,379 r/w. 149 I.P.C. in Crime No. 589/80 on the file of Tirupattur Police station. Pursuant to transfer of case registered in Crime No. 589/80 to CBICD, charge sheet was filed against six persons i.e., second respondent and five others. First respondent had filed a detailed report informing that second respondent is a nasality. As second respondent was absconding, the case was split up.

Heard learned counsel for petitioner, learned Government Advocate [Crl. side] and learned counsel for second respondent, who informs no instructions.

Petitioner/de facto complainant is the son of the deceased in the case and is aggrieved by the order of learned Judicial Magistrate, Tirupattur permitting withdrawal of the same.

Learned counsel for petitioner makes three submissions which call for immediate acceptance:

(i) Court below permitted withdrawal of the case on a petition moved by first respondent/Investigating officer. Section 321 Cr.P.C. requires application for withdrawal to be made by the Public Prosecutor in the case.

(ii) withdrawal has been permitted since the case has been pending on the long pending cases register since 1989 and the accused had been absconding for 16 years. G.O. ''D'' 623 Home (Courts TV) Department dated 04.09.1997 has been relied on. State, through Public Prosecutor, can seek withdrawal only in public interest. The Constitutional Bench in Sheonandan Paswan Vs. State of Bihar and Others, has held thus:

"22. ... It is significant to note that the entire development of administrative law is characterized by a consistent series of decisions controlling and structuring the discretion conferred on the State and its officers. The Law always frowns on uncanalised and unfettered discretion conferred on any instrumentality of the State and it is the glory of administrative law that such discretion has been through judicial decisions structured and regulated. This Court has therefore, despite fluctuating opinions delivered in different cases, laid down the broad principle and consistently acted upon it, namely, that the power to apply for withdrawal from the prosecution can be exercised only in furtherance of justice."

(iii) Power of permitting withdrawal lies with the Court ''trying the case''. The present case would be triable by a Court of sessions and hence, learned Judicial Magistrate II, Tirupattur, could only have committed it for trial and would have no power to permit withdrawal.

A reading of Section 321 Cr.P.C. would make clear that withdrawal from prosecution of any person for any offence could be permitted only in respect of an offence for which he is tried. Therefore, unless the case is pending trial the question of permitting withdrawal would not arise. For the aforesaid reason, this Criminal Revision shall stand allowed. The order of learned Judicial Magistrate II, Tirupattur, passed in L.P.C. No. 1 of 1989, on 29.05.1998, is set aside. The case shall now be restored to the ''Register of Long Pending Cases''.