Public prosecutor must act independently, says SC

A public prosecutor has to apply his mind independently on a decision taken by a state government to withdraw a criminal case against a particular person, the Supreme Court has said.

A bench of Chief Justice Dipak Misra and Justices A M Khanwillkar and D Y Chandrachud explained the role of public prosecutor and the power to be exercised by the court under Section 321 (withdrawal from prosecution) of the Criminal Procedure Code.

“Certain criminal offences destroy the social fabric. Every citizen gets involved in a way to respond to it, and that is why the power is conferred on the public prosecutor and the real duty is cast on him/her. He/she has to act with responsibility,” the bench said.

“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,” the bench added.

The court cited previous decisions, including the one by the Constitution bench in 'Sheo Nandan Paswan' case, to point out it is clear as crystal that the public prosecutor or an assistant public prosecutor, as the case may be, 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 society in the event such permission is granted,” the bench said.

The court passed its judgement on a plea filed by Abdul Wahab K against a Kerala High Court's decision, allowing closure of the prosecution. It remitted the case – related to criminal intimidation – to the court of chief judicial magistrate for reconsideration.

“It is a case where the public prosecutor had acted like a post office,” the bench said.