CRL.Rev.Pet.No.1119 OF 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** **Crl.Rev.Pet.No.1119 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRL.MP 33/2016 IN SC 917/2014 DATED 09-04-2019 OF PRINCIPAL ASSISTANT SESSIONS COURT,IRINJALAKUDA** **CRIME NO.553/2013 OF ATHIRAPPILLY POLICE STATION , Thrissur** ## **REVISION PETITIONER/ACCUSED NO.2:** **DR. GOPINATHMON AGED 48 YEARS S/O. T.N. GOPINATHAN, MALIYECKAL HOUSE, RAJAKKAD DESOM, IDUKKI DISTRICT.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/PETITIONER/STATE:** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031, (CRIME NO. 553 OF 2013 OF ATHIRAPALLY POLICE STATION, THRISSUR DISTRICT).** ## **OTHER PRESENT:** ## **SRI.C.S.HRITHWIK(SR.PP)** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON 06.02.2020 PASSED THE FOLLOWING:** Crl.RP 1119/2019 2 ASHOK MENON, J. -----------------------------------Crl.RP No.1119 of 2019 ------------------------------------Dated this the 6[th] day of February, 2020 ## O R D E R The petitioner is the second accused (A2) in Crime No.553/2013 of Athirappilly Police Station which has been taken on file as SC No.917/2014 of Principal Assistant Sessions Court, Irinjalakuda, for having allegedly committed offences punishable under Sections 333, 332, 294(b) and 506(i) read with Section 34 IPC. The prosecution case in brief is thus: On 15.5.2013 at about 12.20 a.m, while the petitioner was travelling in a car bearing Regn.No.KL-45 D 100, driven by the first accused (A1), cine actor Late Kalabhavan Mani, along the road at a place named Kannamkuzhy, CWs 1 and 2, forest officials intercepted the car, getting suspicious as it was an odd hour of night to travel. They sought to inspect the vehicle. A1 got enraged hurled abusive and obscene words, and beat CW1 with a stick. When CW2 attempted to prevent him, Crl.RP 1119/2019 3 he too was assaulted resulting in grievous hurt to him. A2 also joined A1 in beating the forest officials on duty, in furtherance of common intention with A1. Apart from the petitioner and A1, there was another man and the petitioner's wife inside the car. On the first information given by CW1, the Athirappilly police registered Crime No.553/2013 and after investigation, Annexure-A1 final report was laid before the Judicial First Class Magistrate's Court, Chalakkudy, which was committed to the Court of Sessions for trial. There is also a counter case registered against the forest officials pending as SC No.70/2017 for alleged offences under Sections 324(b), 324, 506(i) r/w s 34 IPC for allegedly outraging the modesty of the petitioner's wife who was accompanying him in the car. 2. The Addl. Public Prosecutor filed Crl.MP No.33/2016 produced at Annexure-II in SC No.917/2014 under Section 321 Cr.PC, stating that the incident had occurred following the interception of the car by the forest officials who allegedly misbehaved towards the woman in the car, when she asked them to talk politely. Crl.RP 1119/2019 4 The forest officials thereafter harassed the passengers and the accused in consequent to which there was a verbal altercation followed by A1 hitting them with stick and the petitioner/A2 beating them with hands. The Prosecutor submitted that the Government has granted no objection to the withdrawal of the case together with the counter case. Considering the evidence consisting of the statement of the witnesses, the Prosecutor was of the opinion that a successful prosecution appears impossible, and proceeding with the trial is a sheer waste of time. That apart, it was pointed out that A1, late Kalabhavan Mani, being a celebrity and popular cine artist and an acclaimed social activist, a trial would demoralise him and spoil the amicable relationship between the celebrities and the Government officials. It was therefore, essential in the best interest of the society, to bury the disputes and withdraw the cases, which public interest and interest of justice demands. 3. The learned Principal Asst. Sessions Judge vide the impugned order dated 9.4.2019 held that the Crl.RP 1119/2019 5 Addl. Public Prosecutor has not been able to prove before the court as to what public interest is involved which compelled the State for ordering withdrawal from prosecution. It is also pointed out that the ultimate result of the trial will end up in acquittal of the accused cannot be a ground for withdrawal from prosecution. Under the circumstances, the learned Principal Asst. Sessions Judge found that the decision taken by the learned Addl. Public Prosecutor to withdraw from the prosecution is not arrived at by application of mind and in good faith. According to the Judge, the withdrawal would serve only the personal interests of the accused. Further, it is pointed out that despite the pendency of the counter case, the forest officials have objected to the withdrawal of the case and counter case. Hence, the prayer made in Crl.MP No.33/2016 in SC No.917/2014 was rejected and the petition dismissed. Aggrieved by this, the petitioner/A2 is before this Court. 4. The main ground raised by the petitioner is that the court should have appreciated the fact that Crl.RP 1119/2019 6 the Government has decided to withdraw from the prosecution, after considering the pros and cons. No serious injury was sustained to the victim. The observation of the Prosecutor that the trial was not likely to end in success and conviction of the accused, ought to have been given much importance by the learned Principal Asst. Sessions Judge. That apart, it is pointed out that there is no particular overt act attributed to the petitioner apart from the fact that he was present at the scene. The petitioner too was brutally attacked by the forest officials in consequent to which a separate case has been lodged and therefore, it is prayed that the impugned order of the learned Principal Asst. Sessions Judge may be set aside and Crl.MP No.33/2016 filed by the Prosecutor under Section 321 Cr.PC to withdraw from the prosecution be allowed. 5. Heard the learned counsel appearing for the petitioner and the learned Senior Public Prosecutor appearing for the State. 6. There is no doubt that the Government through the Public Prosecutor has liberty to withdraw from the Crl.RP 1119/2019 7 prosecution under Section 321 Cr.PC. It is incumbent that the Public Prosecutor applies his mind to the question of withdrawal in order to explicit the just nature of the request but also to point out the reasonableness as the Prosecutor has to keep in mind the interest of the society against which the wrong is alleged to have been committed. While permitting or rejecting an application under Section 321 Cr.PC to withdraw from prosecution, the prime consideration should be the public interest and the public policy and the impact it has on the society. 7. When an application under Section 321 Cr.PC is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. The Court's function is to give consent. This Section does not obligate the Court to record reasons before consent is given. However, it does not mean that consent of the Court is a matter of course. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the materials before him, the Court Crl.RP 1119/2019 8 exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines it. The Section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. All that is necessary to satisfy the Section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper. (see Sheo Nandan Paswan Appellant v. State of Bihar and others Respondents - AIR 1987 SC 877 ) 8. The learned counsel for the petitioner also relies on the decision in Sheo Nandan Paswan (supra), wherein it is also stated that Section 321 Cr.PC is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the Crl.RP 1119/2019 9 prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis. 9. Even if there is a direction by the Government to withdraw from the prosecution, the Public Prosecutor has to go through the records, convince himself and file an application to that effect. The court is bound to consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the Court may permit withdrawal of the prosecution. Further, if the withdrawal of the prosecution is to bury the disputes and bring about harmony between the parties and it would be in the best interest of justice for the court to allow the application for withdrawal of prosecution. However, the discretion under Section 321 Cr.PC is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised the jurisdiction under Section 321 to stifle the Crl.RP 1119/2019 10 prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same. (See Rahul Agarwal v. Rakesh Jain [2005 KHC 656 : AIR 2005 SC 910] . 10. In a recent decision in Abdul Wahad K. v. State of Kerala and Others [2018(4) KHC 715 : AIR 2018 SC 4265] , the Hon'ble Supreme Court has held thus : "13. We are compelled to recapitulate that there are frivolous litigations but that does not mean that there are no innocent sufferers who eagerly wait for justice to be done. That apart, 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. 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." Crl.RP 1119/2019 11 11. Coming to the facts of this case, it can be seen that the victims are forest officials, who are performing their duty in the middle of night along the public road going through the middle of a forest area. They had authority to intercept any vehicle about which they entertained a genuine suspicion. The case of the petitioner is that the forest officials had misbehaved towards his wife, in retaliation of which A1 questioned them, and following the altercation, A1 had allegedly attacked the forest officials with a stick causing grievous hurt to one of them. The case records would indicate that the petitioner also had joined in assaulting the forest officials with his hands. Whether there was common intention between A1 and A2 to attack the forest officials, is a matter of evidence. The reason stated by the Prosecutor that A1 is a cine artist and an acclaimed social activist cannot be a reason for not implicating him. Any how, the charge as against him has abated because he is no more. Nevertheless, the petitioner cannot be given advantage Crl.RP 1119/2019 12 of having accompanied a cine artist or an acclaimed social activist. Law does not discriminate between persons and irrespective of his/her status in the society, he/she has to be given equal treatment while dealing with an offence allegedly committed by him/her. It is true that there is an allegation that the forest officials had outraged the modesty of the petitioner's wife. A counter case has been registered and that is also pending before the same court for trial. That also will have to be decided on the basis of the evidence that may be adduced. The forest officials, CW1 and CW2, are ready to face the consequences of the allegations made against them in the counter case. They are not willing for a compromise. The reason that an important public figure is involved in a criminal case and therefore, it is appropriate to grant permission to withdraw from the prosecution, would give a wrong message to the society, and cannot be justified. Section 321 Cr.PC is not intended to stifle the prosecution. It is the duty of the State to redress the grievance of every individual who Crl.RP 1119/2019 13 approaches it against the assault or atrocity of any person howsoever high may be his status. Society demands that every wrong doer should be punished and I do not find any reason to interfere with the findings of the learned Principal Asst. Sessions Judge in disallowing the prayer of the Addl. Public Prosecutor to withdraw from prosecution. The Criminal Revision Petition is dismissed. The case being of the year 2014, the learned Principal Asst. Sessions Judge is directed to expedite disposal of the same. **Sd/-** **ASHOK MENON** **JUDGE** jg Crl.RP 1119/2019 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE FINAL REPORT IN CRIME NO. 553 OF 2013 OF ATHIRAPALLY POLICE STATION.** **ANNEXURE II** **TRUE COPY OF THE CMP NO. 33 OF 2016 FILED BY THE PUBLIC PROSECUTOR.**