Abdu, Abdul Sammed, Muhammedali and Kabeer P.P. v. State of Kerala and Sameera Pulikkal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 20TH DAY OF FEBRUARY 2017/1ST PHALGUNA, 1938** **Crl.Rev.Pet.No. 1660 of 2016 () --------------------------------** **AGAINST CC 641/2014 of J.F.C.M,MALAPPURAM DATED 28-10-2016 CRIME NO. 125/2014 OF VENGARA POLICE STATION, MALAPPURAM** ## **REVISION PETITIONERS/ACCUSED:** **------------------------------** ## **1. ABDU** **AGED 48 YEARS, S/O.MOIDEEN HAJI, VALIYAPARAMBIL HOUSE, CHEROOR, KANNAMANGALAM AMSOM,** **2. ABDUL SAMMED** - **AGED 49 YEARS, S/O.MUHAMMED, KAVUNGUMTHOTTATHIL HOUSE, CHEROOR, KANNAMANGALAM AMSOM.** **3. MUHAMMEDALI** - **AGED 62 YEARS, S/O.YOUSAF, PAKKIYAN HOUSE, CHEROOR PO, KANNAMANGALAM AMSOM.** **4. KABEER P.P.** - **AGED 35 YEARS, S/O.AHAMMED KOYA, PALAPPETTY HOUSE, KAPPIL, CHEROOR, KANNAMANGALAM AMSOM.** **BY ADVS.SRI.M.RAMESH CHANDER (SR.) SMT.K.A.SANJEETHA SRI.BALU TOM** ## **RESPONDENTS/COMPLAINANT & STATE:** **----------------------------------** **1. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.** **Addl. 2. SAMEERA PULIKKAL** **D/O.HAMSA HAJI, PULIKKAL HOUSE, CHERUR PO. MALAPPURAM DISTRICT - 676 314.** - **(*ADDL.R2 IS IMPLEADED AS PER ORDER DATED 5.12.2016 IN CRL.M.A.7548/2016 IN CRL.R.P. NO.1660/2016)** **RADDL BY ADV. SRI.S.RAJEEV RADDL BY ADV. SRI.K.K.DHEERENDRAKRISHNAN RADDL BY ADV. SRI.V.VINAY RADDL BY ADV. SRI.D.FEROZE RADDL BY ADV. SRI.M.MUHAMMED SHAFI BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.R.P.No. 1660/2016** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES** **----------------------ANNEXURE A1 PHOTOSTAT COPY OF THE PETITION FILED BY THE ASSISTANT PUBLIC PROSECUTOR, MALAPPURAM DATED 20.3.2015 ANNEXURE A2 PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT** **RESPONDENT(S)' ANNEXURES -----------------------** ## **NIL** **/TRUE COPY/** **VPS PS TO JUDGE** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.R.P. No.1660 of 2016** **----------------------------------------Dated this the 20[th ] day of February, 2017** ## **O R D E R** - 1.The petitioners herein are the accused in C.C.No.641 of 2014 on the file of the Judicial Magistrate of First Class, Malappuram in which case they have been charged for having committed offences punishable under sections 341, 323, 294(b), 354(B), 506(i) read with 34 of the IPC. 2. The prosecution allegation, as borne out from the final report, is that on 9.2.2014 at about 5.30 p.m., the petitioners herein in furtherance of their common intention, wrongfully restrained the 2[nd] respondent herein abused and assaulted her with intent to disrobe. - 3.In the course of proceedings, the Assistant Public Prosecutor filed a petition under section 321 of the Code seeking consent of the court to withdraw the prosecution. Crl.R.P.1660/2016 2 The said petition was allowed and the proceedings were permitted to be withdrawn. - 4.The said order was challenged by the 2[nd] respondent by filing Crl.R.P. No.594 of 2016 . This Court by order dated 26.11.2015, set aside the order and remanded the case back to the trial court for fresh disposal in accordance with law. Pursuant to the remand, the matter was heard and by the impugned order dismissed the petition. The same is under challenge. - 5.Heard the learned Counsel appearing for the petitioners, the 1[st] respondent as well as the public prosecutor. - 6.The learned counsel appearing for the petitioners submitted that the impugned order is unsustainable in the eye of law and the same is not based on a proper appreciation of law and facts. According to the learned counsel, the application was filed by the Assistant Public Prosecutor after applying his mind to the facts of the case and had also given reasons for withdrawal of prosecution. Crl.R.P.1660/2016 3 According to the learned counsel, withdrawal of a case is the prerogative of the learned Public Prosecutor and the court cannot sit in appeal over his decision. On the other hand, the learned Public Prosecutor supported the impugned order and submitted that there is no legal or factual infirmity in the impugned order and the same deserves to be upheld. relying on a catena of decisions submits that the learned Magistrate was at error in rejecting the petition filed by the prosecutor. According to the learned counsel, the conclusions arrived at is wrong and without taking note of the relevant facts. It is further urged that the learned Assistant Public Prosecutor had submitted an application under section 321 after evaluating the materials in detail and also on the basis of conclusion that no purpose will be served by continuing the prosecution proceedings. - 7.I have considered the submissions advanced and have gone through the order impugned. The learned Crl.R.P.1660/2016 4 Magistrate has taken the view that no public interest was involved in the instant case as it was a case of attack by a group of persons on a lady. After perusing the records, the court came to the conclusion that withdrawal from prosecution was not in the interest of justice. - 8.The Apex Court in **Bairam Muralidhar v. State of Andra** **Pradesh** [2014(10) SCC 380] had occasion to deal with the scope of section 321 of the Code and after surveying the earlier decisions including the decision of the constitution bench in **Sheonandan Paswan v. State of Bihar and Others** [1987 (1) SCC 288]. It was held that it was the obligation of the Public Prosecutor to state what materials he had considered which compelled him to move an application under Section 321 of the Code seeking withdrawal of the prosecution. It was held that the Public Prosecutor cannot act like the post office on behalf of the State Government but has to act in good faith, peruse materials on record and form an independent opinion that Crl.R.P.1660/2016 5 withdrawal of the case would really subserve public interest. It was held that while giving consent under Section 321 of the Code, the court is required to exercise its judicial discretion, which is not to be exercised in a mechanical manner, rather it is incumbent upon the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public and justice. In other words, the guiding factors for moving an application for withdrawal from prosecution would be interest of justice and in that regard the public prosecutor to seek withdrawal from the prosecution in furtherance of the cause of public justice. 9.It does not appear how public interest would be subserved by permitting the withdrawal of the prosecution in the instant case. After going through the materials, I am of the view that the court below has rightly rejected the application filed by the Assistant Public Prosecutor under Section 321 of the Code. I find no irregularity, Crl.R.P.1660/2016 6 impropriety and illegality in the order passed by the court below. Resultantly, this petition is dismissed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps