Crl.Rev.Pet.No.1779 of 2012 (Kerala High Court)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH DAY OF AUGUST 2012 / 16TH SRAVANA 1934 **Crl.Rev.Pet.No. 1779 of 2012** AGAINST THE ORDER IN C.M.P.NO.768/2012 IN C.C.NO.42/2003 of THE COURT OF ENQUIRY COMMISSIONER.& SPL.JUDGE, KOZHIKODE. ## **REVISION PETITIONERS** /ACCUSED NOS.4 TO 11 - 1 A.V.MATHEW, S/O. VARKEY MATHEW, MUTTATHUKUNNEL HOUSE, KAKKOLE, - BALAL VILLAGE, KASARAGOD DISTRICT. - 2 K. K. THANKACHAN, S/O. KURIAKOSE, - KAIVELIKKAL, MARUTHUMKULAM, BALAL VILLAGE. - 3 THANKACHAN THOMAS, S/O. THOMAS, POOVATHINGAL HOUSE, CHULLI, MARUTHUMKULAM, BALAL VILLAGE. - 4 SHERIN JOSE, S/O. V.C. JOSEPH, VETTIKUZHIYIL HOUSE, MARUTHUMKULAM, BALAL VILLAGE. - 5 SABU THOMAS, S/O. THOMAS, POOVATHINGAL HOUSE, CHULLI, MARUTHUMKULAM, BALAL VILLAGE. - 6 V.C. JOSEPH, S/O. CHACKO, VETTIKUZHIYIL HOUSE, MARUTHUMKULAM, BALAL VILLAGE. - 7 R. GOPALAKRISHNAN, S/O. RAMAN, MARUTHUMKULAM, - BALAL VILLAGE. - 8 K. KOARAN, S/O. THERU, - MARUTHUMKULAM, BALAL VILLAGE. BY ADV.SRI.SUNNY MATHEW ## **RESPONDENTS** /COMPLAINANT AND STATE: 1. THE DEPUTY SUPERINTENDENT OF POLICE - VIGILANCE AND ANTI CORRUPTION BUREAU, KASARAGOD. 2. STATE OF KERALA. (RESPONDENTS 1 AND 2 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.) BY PUBLIC PROSECUTOR SMT.LISHA M.G. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** ---------------------------- Crl.R.P.No.1779 of 2012 ---------------------------Dated 7[th] August, 2012 ## **ORDER** The revision petitioners herein are accused Nos.4 to 11 in C.C.No.42 of 2003 on the files of the Court of Enquiry Commissioner and Special Judge, Kozhikode. They along with their co-accused are indicted for offences punishable under Section 13(1)(d) read with S ection 13(2) of the Prevention of Corruption Act, 1988 and under Sections 120(B), 420, 460 and 471 of the Indian Penal Code. 2. The prosecution was launched in the following factual backdrop:- Balal Grama Panchayat decided to construct a well for the benefit of Maruthamkulam Anganwadi and necessary sanction was accorded and a sub-committee was constituted consisting of accused Nos.1 to 4. The location of the well was re-fixed in the land relinquished by the 5[th] accused in R.S.No.446/4A5 of Balal Village. The allegation is that to deceive Balal Grama Panchayat and to get undue pecuniary advantage, accused Nos. 1 to 4 abused their official position as public servants and conspired with accused Nos.5 to 12 and misappropriated an amount of ₹24,621/- during the period from 20.4.1996 to 9.5.1997 under the pretext that they had newly Crl.R.P.No.1779/2012 2 constructed a well for the use of Anganwadi in the land relinquished by the 5[th] accused and prepared false records to the effect that a new well was constructed by showing the existing well which was constructed by the 5[th] accused after availing an IRDP loan from the North Malabar Gramin Bank, Vellarikundu. 3. Based on the Government order GO(MS)No.33/2012/Vig. dated 25.6.2012 the learned Public Prosecutor filed C.M.P.No.768 of 2012 under Section 321 Cr.P.C. to withdraw the above case from prosecution. The petition so filed by the learned Public Prosecutor is annexed with this revision petition. It is stated therein that on a meticulous examination and analysis of the entire evidence in the case the petitioner/the prosecutor found that it is a case for withdrawal on the ground that the cause of action arose in the year 1997 and as per documents the 5[th] accused had submitted application to relinquish three cents of his land comprised in R.S.No.146/4A5 situated in Balal Village for the construction of the well for Anganwadi. Since the well and the property are now in the possession of the Panchayat, it is contended that no loss is sustained to the Government and the 5[th] accused had not claimed any amount for the property surrendered by him to the Panchayat. It is further stated therein that accused Nos. 1 to 3 who were Secretaries and President of the Panchayat and the 12[th] accused, who is one of the beneficiaries are no more. The remaining Crl.R.P.No.1779/2012 3 accused persons are Vice President, owner of the property and the subcommittee members. Accused Nos.6 to 11 are only beneficiary committee members who had participated in the meeting. The prosecution evidence is weak to connect accused Nos.4 to 11. It is also stated therein that it will be a futile exercise to proceed with the case against the remaining accused. As per order dated 4.8.2012 the Tribunal dismissed the petition. It is in the said circumstances, that the above revision petition has been filed to set aside the said order and to grant the prayer in CMP.No.768 of 2012. 4. In this context, it is proper and profitable to refer to Section 321 Cr.P.C.:- **“S.321. Withdrawal from prosecution -** Any Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal - - (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; - (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences :- _Provided_ that where such offence- - (i) was against any law relating to a matter to which the executive power of the Union extends, or Crl.R.P.No.1779/2012 4 - (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 2946), or - (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or - (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.” 5. The contention appears to be that since the State is the master of litigation in criminal cases the court is having only a limited role in respect of section 321 Cr.P.C. It is contended that it is for the prosecutor to form the opinion and once it is evident that the application submitted by the prosecutor is after proper application of mind the role of the court is limited and virtually, it is reduced only to a supervisory jurisdiction. In other words, when an application is made by the prosecutor with application of mind, the court cannot reject it. However, a bare perusal of the provisions under section 321 Cr.P.C. would reveal that the Court is the ultimate repository of the legislative confidence in the matter of withdrawal from prosecution lest the Crl.R.P.No.1779/2012 5 provisions under section 321, Cr.P.C. would not have been couched in the aforesaid manner. It is evident that the withdrawal from prosecution can only be with the consent of the court. An order to be passed on an application under section 321 Cr.P.C. for withdrawal from prosecution can only be a judicial order. When a judicial order is to be passed, it is incumbent on the court to pass such an order with application of mind and after satisfying itself to the judicial conscience that the application submitted is not one calculated to interfere with the course of justice. The judicial discretion under Section 321 Cr.P.C. is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle prosecution which is usually being instituted at the instance of the aggrieved parties or the State for redressing the grievance. Every crime is essentially an offence against the society and when an accused committed an offence the society demands the offender to be punished and it is the essential requirement for the maintenance of law and order and peace in the society. Therefore, the application for withdrawal from the prosecution shall be permitted only when valid reasons are made out for the same. Bearing those cardinal principles and decision of law in mind I may examine the sustainability of the impugned order passed by the learned Magistrate declining the application for withdrawal from prosecution. Crl.R.P.No.1779/2012 6 6. Going by the prosecution case, it is the Balal Grama Panchayat which decided to construct a well for the benefit of the aforementioned Anganvadi. The case of the prosecution is that accused Nos.1 to 4 while working as public servants entered into criminal conspiracy with accused Nos.5 to 12 and misappropriated Rs.24,621/- under the pretext that they have constructed a new well for the use of Anganvadi in the relinquished land of the 5[th] accused in survey No.148/4A5 in Maruthumkulam in Balal Village and for that purpose forged records to the effect that the well was a newly constructed one and obtained undue pecuniary advantage. It was the further case of the prosecution that the well in question was actually constructed by the fifth accused after availing a loan from IRDP and going by the allegation the well in question was already there in the property and, therefore, it is not a newly constructed one. I do not think that this Court can go into the merits of such a question and they are essentially, matters of evidence. However, these facts were adverted to by the Enquiry Commissioner and Special Judge, Kozhikode to form the opinion that the allegation of corruption involved in this matter cannot be taken lightly on account of lapse of time or on account of the death of some of the accused persons. 7. The opinion of the public prosecutor that prosecution case is weak or incapable to prove could not justify a consent to withdraw. Crl.R.P.No.1779/2012 7 There can be no doubt that it is well within the right of the Public Prosecutor in terms of provisions under section 321 Cr.P.C. to apply for withdrawal from prosecution in appropriate cases. Merely because in view of the provisions the Public Prosecutor or the Additional Public Prosecutor in charge of a case files an application for withdrawal from prosecution that will not and cannot absolve the bounden duty of the court which the legislature reposited on the judiciary and to apply the mind to satisfy itself that it is an application not for the purpose of interfering with the normal course of justice of illegitimate purposes. Permission for withdrawal from prosecution could not be lightly given merely because the Public Prosecutor asked for it. Though the discretion of withdrawal from prosecution is an executive function the discretion cannot be said to be neither absolute nor irrevocable. The provisions under section 321 Cr.P.C. would definitely make it undoubtedly clear that it is still subject to the court's supervisory jurisdiction. The provisions under section 321 Cr.P.C. cannot be understood as one giving an absolute right to decide whether the prosecution is to be proceeded with to the public prosecutor. The provisions would definitely show that on receiving application for withdrawal from prosecution the court has a duty to see that it is not filed to stifle the prosecution and the reason for withdrawal must satisfy the judicial conscience of the court. In **State of Orissa** v. **Chandrika** Crl.R.P.No.1779/2012 8 **Mohapatra and others etc. (AIR 1977 SC 903)** the Hon'ble Apex Court held that though the discretion of withdrawal from prosecution is an executive function left to the Public Prosecutor or the Assistant Public Prosecutor in charge of a case still the court must exercise its judicial discretion. It is evident from the impugned order that, witnesses examined by the prosecution had given evidence that the well in question situated in the property of the fifth accused was constructed by him after availing IRDP loan and it is the same well that is claimed by the Panchayat as the newly constructed one. It is taking into account all those aspects that the court formed the opinion that it is not in public interest to permit the withdrawal of prosecution merely for the reason of lapse of time or on account of the fact that some of the accused persons are no more. After a proper consideration of the issue the court below found that interest of justice demands that the request for granting such permission for withdrawal to be rejected. It is in the said circumstances that the Enquiry Commissioner and Special Judge, Kozhikode rejected the application for withdrawal from prosecution made as per C.M.P.No.768 of 2012 in C.C.No.42 of 2003. In **Mamoo & others** v. **A.P.P., Malappuram & others** ( **1980 KLT 292)** this Court held that if the consent for withdrawal of prosecution has been improperly given without judicial consideration this Court can interfere with the said order which granted the consent and the order has to be Crl.R.P.No.1779/2012 9 revoked by exercising the revisional jurisdiction. Certainly, the converse position is that if the decision declining the permission is a well-merited one it calls for no interference in exercise of the revisional jurisdiction. This is a case wherein after properly applying the provisions and also considering all the aspects the Enquiry Commissioner and Special Judge, Kozhikode dismissed the application for withdrawal of prosecution. I do not find any illegality, impropriety or error infecting the impugned order. Exercise of revisional jurisdiction in such matters is invited only if there is any glaring illegality or palpable and perverse appreciation. In view of the said position, I do not find any reason to interfere with the impugned order. This revision petition is liable to fail and accordingly, it is dismissed. Sd/C.T.RAVIKUMAR Judge TKS