Crl.M.C. Nos. 6134, 6155, 6159 & 6177 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** ## **Crl.MC.No. 6134 of 2016 ()** ## **---------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OS 74/2008 of SUB COURT,THODUPUZHA DATED** **AGAINST THE ORDER/JUDGMENT IN CC 338/2004 of J.M.F.C.- I, DEVICULAM CRIME NO. 184/2002 OF MARAYOOR FOREST STATION OFFICE , IDUKKI** ## **PETITIONER/1ST ACCUSED:** **------------------** **C.RAJENDRAN** **S/O. LATE S. CHELLAPPAN, RASHI, THATTINAKAM, NALANCHIRA, THIRUVANANTHAPURAM** ## **BY ADV. SRI.M.P.PRAKASH** ## **RESPONDENTS/COMPLAINANTS:** **---------------------------** ## **1. STATE OF KERALA** - **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **2. SHAJI.P.S** **PARAKKAL HOUSE, CHITHIRAPURAM PO., ANACHAL, IDUKKI DISTRICT - PIN-685565** ## **R BY PUBLIC PROSECUTOR, SRI.SANDESH RAJA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-12-2016, ALONG WITH CRMC. 6155/2016, CRMC. 6159/2016, CRMC. 6177/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 6134 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE 1: TRUE COPY OF G.O. DATED 30.09.2004** **ANNEXURE 1(A); SERVICE DETAILS OF THE PETITIONER** **ANNEXURE 2: TRUE COPY OF THE JUDGMENT DATED 30.06.2005 IN C.C.NO.292/2003 OF THE JFCM, DEVIKULAM** **ANNEUXRE 3: TRUE COPY OF THE JUDGMENT DATED 09.05.2008IN C.CN.NO.293/2003 OF THE JFCM, DEVIKULAM** **ANNEXURE 4: TRUE COPY OF THE LETTER DATED 06.01.2003 OF THE DFO, MUNNAR,** **ANNEXURE 5: TRUE COPY OF THE JUDGMENT DATED 30.09.2015 IN O.S.NO.74/2008 OF THE SUB COURT, THODUPUZHA** **ANNEXURE 6: TRUE COPY OF THE COMPLAINT FILED BY 2ND RESPONDENT C.C.NO.338/2004** **ANNEUXRE 7: TRUE COPY OF THE FINAL REPORT IN C.C.NO.338/2004** **ANNEXURE 8: TRUE COPY OF THE FINAL REPORT IN C.C.NO.338/2004** **ANNEXURE 9: TRUE COPY OF THE REPORT DATED 30.08.2010 OF THE INVESTIGATING OFFICER IN C.C.NO.338/2004** **ANNEXURE 10: TRUE COPY OF THE GOVT. LETTER DATED 03.04.2010** **ANNEXURE 11: TRUE COPY OF THE PETITION SEEKING WITHDRAWAL OF C.C.NO.338/2004** **ANNEUXRE 12: TRUE COPY OF THE ORDER DATED 22.09.2015 REJECTING THE PETITION FOR WITHDRAWAL** **ANNEUXRE 13: TRUE COPY OF THE STATEMENT OF CW22** **RESPONDENT(S)' EXHIBITS** **-----------------------** **//TRUE COPY//** **PA TO JUDGE** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ **Crl.M.C. Nos. 6134, 6155, 6159 & 6177 of 2016** -----------------------------------------Dated this the 16[th] day of December, 2016 ## **O R D E R ~~~~~~~~** - 1.The petitioner herein is the 1[st] accused in C.C. Nos. 338 of 2004, 339 of 2004, 336 of 2004 and 369 of 2004 on the files of the Chief Judicial Magistrate, Devikulam. The above cases were registered on the basis of separate complaints filed in respect of an incident which took place on 19.07.2002. The cases were referred to Police for investigation and on its conclusion final report was laid before the jurisdictional Court . - 2.While so, the State Government as per letter dated - 3.4.2010 informed the District Collector that the Government has no objection to withdraw with leave of the court C.C.Nos.336, 339, 338 and 364 of 2004 and in ## **Crl.M.C. No. 6134/2016 & connected cases.** **-2-** pursuance to the same, the Assistant Public Prosecutor had filed separate applications before the learned Magistrate seeking consent to withdraw the cases from prosecution under Section 321 of the Code of Criminal Procedure. The learned Magistrate considered those applications and by separate orders dismissed the same. These petitions are filed challenging the aforesaid orders. - 3.I have heard the learned counsel appearing for the petitioner, the 2[nd] respondent as well as the learned Public Prosecutor. - 4.Since identical questions are involved, these matters are taken up and disposed of together. - 5.Annexure-11 is the petition filed by the learned Assistant Public Prosecutor under section 321 of the Code of Criminal Procedure. In the said application, the learned APP has sought for consent to withdraw the prosecution **Crl.M.C. No. 6134/2016 & connected cases.** **-3-** on two grounds. It is stated in the said petition that the petitioner and the other accused being Government Officials, obtaining of sanction under section 197 of the Code of Criminal Procedure was a necessary pre-condition for a successful prosecution. The said sanction had not been obtained. It is also stated in the petition that the APP has, after perusing entire case records and after applying his mind to the facts, character of the charge, circumstances of the case, concluded there cannot be a successful prosecution. He has further stated that the Government has accorded sanction to withdraw the case with the leave of the Court and proceedings of the District Collector is also referred to in the application. It is on the above basis that the consent for withdrawal was sought. - 6.The learned Magistrate rejected the application on the ground that there was no requirement to obtain sanction to prosecute the petitioner and the other accused either ## **Crl.M.C. No. 6134/2016 & connected cases.** **-4-** under section 197 of the Code or under Section 74 of the Forest Act. The learned Magistrate relied on a decision of this Court in **Pradeep Kumar V State of Kerala** [2005 (4) KLT 339 ] to hold that the petitioner, being a forest ranger, will not fall under the category of public servants referred to under section 197 of the Code. - 7.The question whether consent, if granted would sub serve the administration of justice has not been considered by the learned Magistrate. The learned Magistrate has also not considered whether the grounds raised by the public prosecutor are germane or relevant to advancement of public justice and as to whether the grounds in fact are satisfactorily established. - 8.In **Sheo Nandan Paswan V State of Bihar and Others** , (AIR 1987 SC 877), the Apex Court has laid down the guidelines which are to be borne in mind while a **Crl.M.C. No. 6134/2016 & connected cases.** **-5-** petition seeking withdrawal is filed by the Prosecutor . It was held as follows :- _“When the application for consent to the withdrawal from the prosecution comes for consideration, the Court has to decide whether to grant such consent or not. The function which the Court exercises in arriving at this decision, as pointed out by this Court in State of Bihar v. Ram Naresh, (AIR 1957 SC 389), is a judicial function. The Court has to exercise its judicial discretion with reference to such material as is then available to it and in exercise of this discretion the Court has to satisfy itself that the executive function of the public prosecutor has not been improperly exercised and that the grounds urged in support of the application for withdrawal are legitimate grounds in furtherance of public justice. The discretion has not to be exercised by the Court mechanically and the consent applied for has not to be granted as a matter of formality or for the mere asking. The Court has to consider the material placed before it and satisfy itself that the grant of consent would serve the interest of justice. That is why this Court in State of Bihar v. Ram Naresh (supra) examined the entire material which was available to it for the purpose of coming to the conclusion that there was no evidence worth the name on the basis of which the prosecution could be sustained against the accused Mahesh Desai. This Court pointed out that consent is not to be lightly given on the application of public prosecutor "without a careful and proper scrutiny of the grounds on which the application for consent is made". It_ **Crl.M.C. No. 6134/2016 & connected cases.** **-6-** _was emphasised by this Court that in these matters the public prosecutor exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is that of the Court. This Court again reiterated in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan, (AIR 1972 SC 496) (supra), that the Court must satisfy itself that the executive function of the public prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice and added that the Court may give its permission only if it is satisfied on the materials placed before it that the grant of consent subserves the administration of justice. The same view has been taken in all the subsequent cases and it must now be regarded as well settled that the Court while considering whether to grant consent or not must not accept the ipse dixit of the public prosecutor and content itself by merely examining whether the public prosecutor has applied an independent mind but the Court must satisfy itself not only that the grounds are germane or relevant to advancement of public justice but also whether the grounds in fact are satisfactorily established. The ultimate test which must be applied by the Court in order to determine the validity of the grounds in a particular case is that the requirement of public justice outweighs the legal justice of that case so that withdrawal from the prosecution could be permitted in the larger interest of public justice. The same considerations which we have discussed while determining what are the legitimate grounds on which an application may be made by the public prosecutor for withdrawal from the prosecution must also apply in guiding the Court as to_ **Crl.M.C. No. 6134/2016 & connected cases.** **-7-** _whether consent for withdrawal of the prosecution should be granted or not. We may again emphasise that the imperative of public justice provides the only relevant consideration for determining whether consent should be granted or not. It is not possible to provide an exclusive definition of what may be regarded as falling within the imperative of public justice nor is it possible to place the concept of public justice in a strait jacket formula. Every case must depend on its peculiar facts and circumstances because there may be a myriad situation where this question may have to be considered by this Court. The paramount consideration must be the requirement of public justice and some of the grounds which would bring the case within the fabric of public justice have already been discussed by us in the preceding paras and we need not repeat them. The same grounds may be regarded as germane and relevant to the requirement of public justice and if they exist, the Court would be justified in granting consent to withdrawal from the prosecution.”_ 9.As is settled by now section 321 of the Code gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to **Crl.M.C. No. 6134/2016 & connected cases. -8-** determine any matter judicially. The judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. No such consideration appears to have weighed in the mind of the Court while considering Annexure 11 application. 10.A three - Judge Bench of the Apex Court in **Abdul Karim etc. etc. v. State of Karnataka and Others etc** ., [AIR 2001 SC 116] referring to the Constitution Bench judgment in **Sheonandan Paswan** case had observed thus: - _"19. The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good_ **Crl.M.C. No. 6134/2016 & connected cases.** **-9-** _faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice._ _20. It must follow that the application under S.321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the Court, with its permission, in a sealed envelope. The Court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the Court to weigh the material. The Court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The Court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the Court accords consent, it must make such order on the application as will indicate_ **Crl.M.C. No. 6134/2016 & connected cases.** **-10-** _to a higher Court that it has done all that the law requires it to do before granting consent."_ 11.After perusing the impugned order, it appears that the only consideration which prevailed in the mind of the Court below was whether one of the ground which was raised by the learned public prosecutor, namely, want of sanction under section 197 of the Code or under section 74 of the Forest Act, is sustainable or not. After scanning the entire order, it does not appear that the Court below had applied its mind as to feasibility of granting consent for withdrawal under section 321 of the Code. As held above, the ultimate test which must be applied by the Court in order to determine the validity of the grounds in a particular case is that the requirement of public justice outweighs the legal justice of that case so that withdrawal from the prosecution could be permitted in the larger interest of public justice. The fact whether the prosecution ## **Crl.M.C. No. 6134/2016** **& connected cases.** **-11-** could be sustained for want of sanction was only an incidental question. 12.In that view of the matter, I am unable to sustain the impugned orders. The same is set aside. The learned Magistrate is directed to consider the matter afresh in terms of the above observations and to pass appropriate orders in accordance with law expeditiously, at any rate within 45 days from the date of production of a copy of this order. **Sd/RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/4/10/16