Order Refusing To Grant Consent For Withdrawal From Prosecution U/S.360 Of BNSS Can Be Challenged By Accused In Revision : Kerala High Court
The Kerala Excessive Court docket has dominated that if the order refusing to grant consent for withdrawal from prosecution underneath Part 360 of BNSS (Part 321 of Cr.P.C) is vitiated by non-application of thoughts to the related supplies, or is demonstrably unlawful, arbitrary, or perverse leading to miscarriage of justice, the accused being the individual aggrieved has each proper to problem the identical in revision, even when the State has not chosen to problem the identical.
The Excessive Court docket was contemplating the Revision Petitions filed in two felony circumstances the place the functions in search of withdrawal from prosecution had been dismissed by the Further Assistant Classes Choose.
The Single Bench of Justice Kauser Edappagath mentioned, “As such, if the order handed underneath Part 360 of BNSS (Part 321 of Cr. P.C.) is vitiated by nonapplication of thoughts as aforesaid, the accused has each proper to convey it to the discover of the Excessive Court docket by means of a revision.”
“Thus, if the order refusing to grant consent for withdrawal from prosecution underneath Part 360 of BNSS (Part 321 of Cr.P.C) is vitiated by non-application of thoughts to the related supplies, or is demonstrably unlawful, arbitrary, or perverse leading to miscarriage of justice, the accused being the individual aggrieved has each proper to problem the identical in revision, even when the State has not chosen to problem the identical. Nonetheless, the accused can not problem the order purely on deserves, in search of reappreciation of proof”, it additional noticed.
Advocate Millu Dandapani represented the Petitioners whereas Senior Public Prosecutor E.C.Bineesh represented the Respondents.
Factual Background
The Excessive Court docket was coping with two issues. Within the first case, the petitioners accused had been booked underneath Sections 143, 147, 148, 452, 427, 332, and 152 learn with Part 149 of IPC, Sections 3 and 5 of the Explosive Substances Act, Part 25(1A) of Arms Act, Sections 3(1) learn with 7 of PDPP Act and Part 38 learn with Part 52 of Kerala Police Act. The petitioners appeared earlier than the trial court docket and had been launched on bail. Thereafter, the Public Prosecutor filed an software in search of withdrawal from prosecution however the identical was dismissed vide the impugned order. Within the different case, the petitioner was accused of committing an offence underneath Sections 466 and 468 of the IPC. The applying in search of withdrawal from prosecution was additionally dismissed by the Justice of the Peace.
Arguments
It was the case of the petitioners that the accused, being the true affected occasion of the order dismissing the appliance for withdrawal from prosecution, is entitled to keep up a revision petition, although the State has not challenged the mentioned order.
The Public Prosecutor, quite the opposite, submitted that the appropriate to use for withdrawal from prosecution underneath Part 360 of BNSS (Part 321 of Cr.P.C) is vested with the Prosecutor solely and the accused has completely no say in it and therefore, when the State/Prosecutor has not chosen to file a revision difficult the order of dismissal of the petition for withdrawal from prosecution, the revision on the occasion of the accused is just not maintainable.
Reasoning
The Bench defined that the withdrawal of prosecution is an government operate. Part 321 of Cr.P.C (Part 360 of BNSS) offers for untimely termination of felony proceedings on the occasion of the Public Prosecutor or Assistant Public Prosecutor, because the case could also be. “The statutory duty to determine upon withdrawal rests with the Public Prosecutor and nobody else. Neither the accused nor the sufferer has a say in it. The supply of Part 321 of Cr.P.C, which supplies the Public Prosecutor the ability of withdrawal of any case at any stage earlier than judgment is pronounced”, it mentioned.
“The supply contemplates consent by the court docket in a supervisory, and never in an adjudicatory method. The Court docket’s responsibility in dealing with the appliance underneath Part 321 of Cr.P.C. (Part 360 of BNSS) is just not to reappreciate the grounds which led the general public prosecutor to request withdrawal from the prosecution, however to think about whether or not the Public Prosecutor utilized his thoughts as a free agent uninfluenced by irrelevant and extraneous or indirect issues”, the Bench added.
The Bench held that if the order handed underneath Part 360 of BNSS (Part 321 of Cr. P.C.) is vitiated by nonapplication of thoughts as aforesaid, the accused has each proper to convey it to the discover of the Excessive Court docket by means of a revision. As per the Bench, although the principle object of Part 360 of BNSS (Part 321 of Cr.P.C) is to withdraw a felony case on the grounds of bigger grounds of public coverage, it will additionally defend the accused from pointless and vexatious prosecution.
On a perusal of the impugned orders, the Bench famous that they weren’t talking orders. No causes had been said within the impugned orders for not permitting the functions filed by the Prosecutor for withdrawal from prosecution. There was no dialogue in regards to the varied grounds canvassed by the Prosecutor justifying the prayer for withdrawal or supplies furnished earlier than the Court docket.
Thus, setting apart the impugned orders, the Bench directed the trial courts to rethink the respective functions for withdrawal from prosecution and eliminate the identical inside two months.
Trigger Title: George Alexander @ Prince v. State Of Kerala (Impartial Quotation: 2025:KER:43501)
Look
Petitioner: Advocate Millu Dandapani
Respondent: Senior Public Prosecutor E.C. Bineesh