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2019 (9) TMI 166 - HC - Indian LawsSmuggling - white powder/methaqualone - whether the application made under Section 169 of Cr. P.C. can be treated as application made under Section 321 of Cr. P.C.? - HELD THAT:- In the present case, it is unambiguous that the application is made under Section 169 of Cr. P.C. The section itself is quoted by the prosecutor and it is mentioned that since the evidence against the accused is inadequate to adjudge their prosecution, it is respectively prayed that they be released from custody. In Section 169 of Cr. P.C. the discretion to make such application is left to officer in-charge of the police station and he may release the accused on his executing a bond with or without surety and may direct to appear if and when so required - Under Section 321(a) if before charge such withdrawal is made, then the accused shall be discharged in respect of the offence. Under Section 321(b) if it is made after the charge, then it shall be acquittal. Under Section 169 of Cr. P.C. accused is released. Thus, the terms used are to be understood with appropriate meaning, they do not carry same connotations so the effect. In the present case, the order passed by the Learned Magistrate is based on misconception of law and ex facie illegal considering the scope of Sections 169 and 321 of Cr.P.C. Sections 169 and 321 of Cr.P.C. cannot be substituted for each other. They can be invoked in different circumstances and the Court’s power after invocation of these two sections are not the same and therefore, it is a fit case to be entertained under writ jurisdiction. It is the application under Section 169 of Cr. P.C. The Learned Judge has also treated the application under Section 169 and therefore, he did not mention a word about giving consent for withdrawal of the accused from the prosecution. Therefore, it is not a mentioning of mere wrong section but it is the application specifically under Section 169 of Cr. P.C. Later the Investigating officer has filed the affidavit and has stated that he did not want to release the accused and therefore, he did not want to move such application under Section 169 of Cr. P.C. The roznama discloses that Investigating officer was not present when this application was moved by the prosecutor. The Learned Judge has accepted the application as it is made by the Learned Prosecutor. Under such circumstances, the application moved by the Prosecutor under Section 169 is illegal and so the order passed therein. The status of the respondents is restored as accused in the said case - respondents/accused are already out of the prison and therefore, in all fairness, no coercive action is to be taken against them for a period of one month from the date of the filing of the complaint.
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