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STATE S.H.O.VEDULLAPALLI V/S TIGER NAGESWARA RAO AND ORS., decided on Tuesday, January 29, 1985.
[ In the High Court of Andhra Pradesh, CRI.R.C. Appeal No. 383 of 1983. ] 29/01/1985
Judge(s) : T. LAKSHMINARAYANA REDDY
Advocate(s) :
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  "1985 (2) Andhwr 366"   ==   "1985 (2) APLJ 87"   ==   "1985 CrLJ 1166"   ==   "1985 LAP 134"  







judgment - T. LAKSHMINARAYANA REDDY J.(1) THIS Criminal revision arises in the following circumstances : The I Addl. Sessions Judge-cum-Chief Judicial Magistrate Guntur made a reference with regard to the records passed by the I Addl. Munsif Magistrate Papatla permitting withdrawal of the case by the Asst. Public Prosecutor in C. C. No. 159/79 CC. No. 5/81 CC No. 24/81 and C. C. No. 51/81. C. C. No. 159/79 is a separated case from C. C. No. 132/78 against three accused for offences punishable under Ss. 147 148 323 324 and 341 I. P. C. Originally there are 9 accused in this case in C. C. No. 132/78. As A1 A2 and A3 are absconding the case against them is separated and the same numbered as C. C. No. 159/79. However the remaining accused who were tried in C. C. No. 132/78 were acquitted after a trial on 30-4-1980. Again C. C. No. 51/81 is a separated case from C. C. No. 70/80. In C. C. No. 70/80 there are altogether 7 accused and they were charge-sheeted for the offences punishable under Ss. 147 148 323 324 and 326 read with S. 149 I. P. C. As A7 is absconding the case against him is separated and numbered as C. C. No. 51/81 and the rest of the accused are tried in C. C. No. 70/80. However they were acquitted on 12-8-81. Again C. C. No. 24/81 is a separated case from C. C. No. 74/80 in which the charge-sheet is filed against 10 accused for offences punishable under Ss. 147 148 452 323 and 324 read with S. 149 I. P. C. Since A3 and A6 are absconding the case as against them is separated and the other accused who were tried under the original case were acquitted on 23-3-1981. C. C. No. 5/81 is a separated case from C. C. No. 131/80 and originally two accused were charge-sheeted for the offences punishable under Ss. 454 380 and 411 I. P. C. and since A2 is absconding the case against him has been separated and given the number as C. C. 5/81. A1 is tried in C. C. No. 131/80 and acquitted on 12-3-1981. (2) SINCE the separated cases are very old and the other accused against whom trial went on were acquitted in all these cases the learned Asst. Public Prosecutor Gr. II filed applications to permit him to withdraw the cases under S. 321 Cr P. C. The learned Magistrate had given permission to withdraw and the accused are discharged.(3) NOW in this reference whether the action of the Magistrate in permitting the Asst. Public Prosecutor Gr. II is justifiable in law. The permission to withdraw is granted under S. 321 Cr. P. C. S. 321 Cr. P. C. reads thus : the Public Prosecutor or Asst. Public Prosecutor in charge of a case may with the consent of the Court at any time before the judgment is pronounced withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. Under this provision of law if it is before a charge has been framed he has to order discharge and if it is after a charge it will be an acquittal. In cases where no charge need be framed he has to acquit the accused of the offences with which he was charged. Therefore it is the discretion of the Magistrate to permit or not to permit to withdraw the cases when an application under Section 321 Cr. P. C. is filed by the Public Prosecutor. Here in the case before us the learned Magistrate exercised his discretion in permitting the cases to be withdrawn for the reasons that the charges were not grave ones; that the cases were pending for a very long time and finally these cases are separated cases and the other accused in the same case were tried and acquitted. In these circumstances it cannot be said that the Magistrate has not exercised his discretion under S. 321 Cr. P. C. properly. (4) NO doubt the learned Addl. Sessions Judge made a reference to the case reported in State v. Md. Ismail 1981 Cri LJ 1553 (Ker) in which the learned Judge observed : there are specific provisions laying down the procedure to be followed when the Magistrate finds that an accused cannot be served with summons there was no justification for not following those provisions and granting permission to the Asst. Public Prosecutor to withdraw the case without prejudice to the right to file fresh complaint when the accused becomes available. There is no provision in the Cr. P. C. for permitting the withdrawal of cases solely on the ground that the whereabouts of the accused are not known. No doubt there are other steps that a Magistrate can take against the absconding accused in the Cr. P. C. One such step is the case can be transferred to a long pending register after due permission from the Sessions Judge. But there is no embargo on the powers of a Magistrate under S. 323 Cr. P. C. The section is a self-contained one. It empowers the Magistrate to grant permission to withdraw provided the court is satisfied that there are acceptable grounds to permit the Public Prosecutor to withdraw the cases. (5) HERE in the case before us the cases were not only pending for a long time after separation from the main case the accused in the main case were acquitted and the evidence is one and the same. Even if prosecution is continued against the accused in these cases that were permitted to be withdrawn the result would be the same i. e. acquittal of the accused. That being the case there is no point on the part of the learned Magistrate not to permit the Public Prosecutor to withdraw the cases without proper authority from his superiors they would take necessary action against the Public Prosecutor for his action without permission. But so far as the Magistrate is concerned he was to only see whether the circumstances that obtained in a particular case justified withdrawal of the cases. In the case before us it cannot be said that in the circumstances that obtained the action of the Magistrate in permitting the Public Prosecutor to withdraw the cases is improper or illegal. Therefore the revision is to fail and the orders of the learned Magistrate do not require any interference from this court in revision. (6) THIS reference is accordingly answered. (7) ANSWERED accordingly.