Crl.Rev.Pet.No.1936 of 2013 (Saji v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 11TH DAY OF OCTOBER 2013/19TH ASWINA, 1935** ## **Crl.Rev.Pet.No. 1936 of 2013 ()** **--------------------------------** **IN WP(C) 14792/2012 of HIGH COURT OF KERALA DATED 02-07-2012** **IN SC 209/2011 of 1ST ADDL. DISTRICT AND SESSIONS JUDGE, THODUPUZHA** ## **REVISION PETITIONER/DEFACTO COMPLAINANT/CW1:** **--------------------------------------------------------------------------------** **SAJI , AGED 33 YEARS S/O.KOCHU CHERUKKAN, HUZHIMATTATHIL HOUSE, MUTTOM THODUPUZHA.** **BY ADVS.SRI.P.P.THAJUDEEN SRI.MANSOOR.B.H.** ## **RESPONDENTS/STATE & ACCUSED 1 TO 3:** **-----------------------------------------------------------** ## **1. STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. (STATION HOUSE OFFICER KALIYAR POLICE STATION, IDUKKI DISTRICT.)** ## **2. MANI** **S/O.KUNJUMON, NEDUMATTATHIL VEEDU, MATHAPPARA COLONY MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA.-685587** ## **3. BIJU.N.K** **S/O.KUNJUMON, NEDUMATTATHIL VEEDU, MATHAPPARA COLONY MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA.685587** ## **4. BIJU** **S/O.THANKAPPAN, MADATHIL VEEDU, P.C.T.COLONY MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA.-685587** **R2-R4 BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) R2-R4 BY ADV. SRI.GEORGE MATHEWS** **R BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. 1936 of 2013 ()** **--------------------------------** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE A COPY OF THE CRL.M.P NO.2759/2013 IN S.C. NO.209/2011 FILED BY THE ADDITIONAL PUBLIC PROSECUTOR** **ANNEXURE B COPY OF THE POSITION CRL.M.P NO.2758/2013 IN S.C. NO.209/2011 FILED BY THE ADDITIONAL PUBLIC PROSECUTOR SEEKING ADVANCE HEARING OF THE CASE.** **ANNEXURE C COPY OF THE JUDGMENT IN W.P.C NO.14792/2012 DATED 2/7/2012** ## **RESPONDENTS ANNEXURES NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **K.HARILAL, J.** = = = = = = = = = = = **Crl.R.P.No.1936 of 2013** = = = = = = = = = = = = = = = Dated this the 11[th] day of October, 2013 ## **O R D E R** The Revision Petitioner is the de facto complainant/CW1 in S.C. No.209 of 2011 on the files of 1[st] Additional District and Sessions Judge, Thodupuzha. The said case arose from a Crime No.148 of 2010 of Kaliyar Police Station charge sheeted alleging the commission of the offences punishable under Sections 307,324 read with Sec.34 of the Indian Penal code. The respondents 2 to 4 herein are the accused in the above case. 2. The charge against the accused is that on 10/04/2010 at about 8 P.M, the accused due to previous enmity towards the de facto complainant with the common intention to murder him, the 1[st] accused inflicted a cut injury on the left side of the head with a chopper, the 2[nd] accused attempted to inflict a cut injury on the head and he dissuaded it with his left hand and thereby sustained injury Crl.R.P.No.1936 of 2013 **==> picture [7 x 9] intentionally omitted <==** on his left thumb finger and the 3[rd] accused fisted on the nose and forehead with an iron block and a scuffle occurred between them and thereby the accused attempted to murder the de facto complainant. 3. During the course of trial, all the accused persons entered appearance and thereafter charge was framed and it was explained to the accused and they pleaded innocence to the same and the case was scheduled for trial from 20/08/2013 to 26/08/2013. Facts being so, on 12/07/2013, the Additional Public Prosecutor, who is in charge of the case, has filed Annexure A application under Section 321 of the Cr.P.C before the trial court, seeking permission to withdraw the case. Since the trial of the case was already scheduled, the Additional Public Prosecutor has also preferred Annexure B petition to advance the case from 20/8/2013 to a near date. 4. The trial court, without issuing notice and hearing the Revision Petitioner, who is the victim in the case, Crl.R.P.No.1936 of 2013 **==> picture [7 x 10] intentionally omitted <==** allowed the applications on 29/07/2013 and permission was granted to the prosecution to withdraw the case. The legality, propriety and correctness of this order is under challenge in this Revision Petition. 5. The learned counsel for the the Revision Petitioner submits that the impugned order passed by the trial court is against the well settled judicial precedents of the Apex Court, reiterated, time and again, through various decisions. The impugned order is per se illegal as well as improper. The impugned order apparently reflects the non-application of the mind into the facts and circumstances of the case. The reasons stated for withdrawal of the case by the learned Public Prosecutor are not sufficient reasons to withdraw the case. In view of the judicial precedents well settled by the Constitution Bench of the Apex Court, the impugned order apparently shows that the public prosecutor has not applied his mind in good faith and it cannot be held that the decision to withdraw Crl.R.P.No.1936 of 2013 **==> picture [7 x 9] intentionally omitted <==** the case was taken independently uninfluenced by any extraneous consideration. None of the reasons stated in the application filed by the Public Prosecutor are sustainable under law. The learned counsel for the Revision Petitioner further submits that on an earlier occasion when the Government accorded permission to withdraw the case, the Petitioner approached this Court challenging the order and this Court vide judgment in WP(C)No.14792 of 2012 closed the Writ Petition with the observation that the Petitioner has adequate opportunity to oppose the application, if any, moved under Section 321 of the Cr.P.C. by the Public Prosecutor. The true copy of the said judgment is also produced along with this Revision Petition. But no opportunity had been given to the Revision Petitioner and the impugned order was passed hastily. Though notice had been served on the accused /respondent No. 2 to 4 herein they did not appear before this Court to contest this Revision Petition on merits. Crl.R.P.No.1936 of 2013 **==> picture [7 x 10] intentionally omitted <==** 6. In view of the submissions, the questions to be considered are : (i) Whether there is any illegality or impropriety in the impugned order granting consent to withdraw from prosecution passed by the learned Sessions Judge. (ii) Whether the Public Prosecutor had applied his mind in good faith independently, uninfluenced by any other extraneous considerations and (iii) Whether the victim has a right to be heard on the application filed under Section 321 of the Code of Criminal Procedure seeking consent of the court to withdraw from the prosecution of the accused. 7. Going by the impugned order, it is seen that the main reason stated in the application for withdrawal is that the accused and the de facto complainant/CW1 belong to different political parties and due to their rivalry, the incident had happened. Now the political leaders intervened and the matter has been settled between the parties and now the atmosphere is very calm and the Crl.R.P.No.1936 of 2013 **==> picture [7 x 10] intentionally omitted <==** cordial environment is prevailing in the locality. Further, the Public Prosecutor has asserted that he has applied his mind in good faith uninfluenced by any other consideration. It is also stated that many of the witnesses in the case were not acquainted with the accused and, therefore, the possibility of identification of the accused may not be possible. The articles alleged to be used in the incident to attack the victim have not been sent for chemical examination. The injuries on CW1 do not clearly tally with the M.Os. which are alleged to have been used for the commission of the offence. So the incident, as such, may not be easily proved. 8. Going by the prosecution case, it could be seen, prosecution has no case that the de facto complainant and the accused belong to different political parties and the incident occurred due to political rivalry. But, the prosecution case shows that it was a personal attack against CW1 by the accused. So, it is nothing less than a Crl.R.P.No.1936 of 2013 7 camouflage intended to obtain consent of the Court. Similarly, the averment in that petition that rivalry between the parties had been settled and the atmosphere in the locality is very calm and harmonious relationship exists between the parties is also an utter falsehood, evidenced by stiff opposition against withdrawal by the injured victim. Earlier, in anticipation of the withdrawal of the prosecution, with abundant caution, he had filed WP(C) No.14792/2012 challenging the order permitting to withdraw from prosecution, passed by the Government and this revision is also filed by the victim. Had the rivalry been settled, the victim would not have strongly opposed the application for withdrawing from prosecution. Thus, the reasons falsely stated, apparently show the lack of bona fides and it cannot be held that the decision was taken in good faith, independently and uninfluenced by any other extraneous consideration. But, the learned Sessions Judge passed the impugned order without applying his mind over the ## Crl.R.P.No.1936 of 2013 **==> picture [7 x 10] intentionally omitted <==** prosecution case and the reasons for withdrawing the prosecution. Consequently, the impugned order is liable to be set aside. It is to be remembered that in **Rejender Kumar v. State (AIR 1980 SC 1510),** the Supreme Court cautioned the inferior courts, holding that the Court has a special duty in the matter of withdrawal as it is the ultimate repository of legislative confidence in granting or withholding its consent for withdrawing from prosecution. It is for the Court to see that legitimate prosecution shall not be thwarted or stifled. 9. What is the nature and extent of jurisdiction of the Court on an application under Sec.321 of Cr.P.C.? What is the role of the Public Prosecutor on an application under Sec.321 of the Cr.P.C for withdrawal and what is the role of Court in the process of granting consent to withdrawal on the application of Public Prosecutor.? In **Sheo Nandan Paswan v. State of Bihar** (AIR 1987 SC 877), the Constitution Bench of the Supreme Court laid down the Crl.R.P.No.1936 of 2013 **==> picture [7 x 10] intentionally omitted <==** principles for seeking withdrawal as well as for granting consent. The principle that can be culled out from the Constitution Bench decision is that when an application under Sec.321 of the Cr.P.C is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. What the Court has to see is whether the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law. The Court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice, if consent is given. When the Public Prosecutor makes an application for withdrawal, after taking into consideration of all the materials before him, the Court must exercise judicial discretion by considering such materials and on such consideration must either give consent or decline consent. What the Court must ensure is that the application for withdrawal has been properly made Crl.R.P.No.1936 of 2013 **==> picture [13 x 10] intentionally omitted <==** after independent consideration by the Public Prosecutor and in furtherance of public interest. What is necessary to satisfy the section is to see that the Public Prosecutor acted in good faith and the exercise of discretion by him is proper. The Constitution Bench has placed reliance on the decision in **State of Bihar v. Ram Naresh Pandey (AIR 1957 SC 389).** Later, the Constitution Bench decision was followed by **M.N.Sankaranarayanan Nair v. P.V. Balakrishnan and others (AIR 1972 SC 496)** , **Subhash Chander v. The State (AIR 1980 SC 423), Rejender Kumar v. State (AIR 1980 SC 1510)** and **Abdulkarim v. State of Karnataka (AIR 2001 SC 116).** 10. Keeping in mind the above principle, let us examine the first question in the instant case. The main reason stated in the petition is that the incident took place solely due to political rivalry and leaders of political parties amicably resolved the dispute and differences. Now, the atmosphere is very calm and cordial relationship prevails in Crl.R.P.No.1936 of 2013 11 this locality. It is pertinent to note that the victim was not heard and the victim has not been given a right to be heard on the application for withdrawal. But, even before the withdrawal anticipating the withdrawal, he filed the writ petition before this Court in anticipation alleging that Government has taken a decision to withdraw the prosecution. That itself is sufficient to show that the averments in the petition that the matter was settled amicably between the revision petitioner and the accused are absolutely false and untrustworthy. Despite the judgment in the writ petition directing the court below to give an opportunity of being heard to the victim, the court below has not issued notice. 11. There arises a question whether the victim has a right to be heard on an application under Sec.321 of the Cr.P.C. seeking consent of the Court for withdrawal from prosecution. I am of the opinion that with passage of time the concept of victimology has been given due regard and Crl.R.P.No.1936 of 2013 **==> picture [13 x 9] intentionally omitted <==** recognition in our criminal justice system also. Act 5 of 2009 introduced amendments signifying the grievances of the victim in a case charge sheeted on police report by insertion of the definition “victim” under Sec.2(wa), proviso to Sec.372 and Sec.357A of the Cr.P.C. The victim, who could not find a place in the prosecution of the accused, in a complaint on police report, is given a right to file an appeal under Sec.372. Thus, now if the prosecution ends in acquittal of the accused and the State does not prefer an appeal, the victim need not be remained at the mercy of the State or District Magistrate. The victim who were stood remediless at the mercy of the State is given sufficient opportunity in the criminal prosecution on a case instituted on police report under Sec.190(b) of the Code of Criminal Procedure. I am of the opinion that if the victim has been given a right of appeal, certainly in the matter of withdrawal from prosecution of the accused against whom he had filed a complaint before the police, the victim must Crl.R.P.No.1936 of 2013 **==> picture [13 x 10] intentionally omitted <==** have an opportunity of being heard on the application seeking consent of the court for withdrawal from prosecution. 12. Moreover, a victim Compensation Scheme is also provided in the Cr.P.C under Sec.357A, a new provision inserted by the above amendment Act of 2009. According to sub section (2) of Sec.357A of the Cr.P.C, it is for the Court which conducts the trial to make recommendations for compensation to the District legal Service Authority or the State Legal Service Authority, as the case may be. Under Sec.357(3), at the conclusion of the trial, if the Court is satisfied that compensation awarded under Sec.357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge, the victim has to be rehabilitated, it may make recommendation for compensation under Sub Sections (5) and (6) of 357A of the Cr.P.C. the Legal Service Authority is also given power to award adequate compensation to the victim. ## Crl.R.P.No.1936 of 2013 **==> picture [13 x 9] intentionally omitted <==** 13. It is to be borne in mind of both the Prosecutor and the Court that, a withdrawal from prosecution of the accused, without compensating the victim or without giving a right to be heard on the application seeking consent for withdrawal would certainly deprive the victim from availing the remedies provided to him to alleviate his sufferings under Sec.357A and it is fatal to him. 14. Victim also shall be given a right to be heard on application seeking consent of the Court for withdrawal from prosecution under Sec.321 of the Cr.P.C. It is incumbent upon the Court, which consider the application to issue notice to the victim and the victim must be heard, before granting consent for withdrawal. 15. To sum up, the voice of the victim also must be an input in the decision making process of the Public Prosecutor for moving the court for withdrawal invariably in all cases and the same must be manifested in the application seeking withdrawal as well as the order Crl.R.P.No.1936 of 2013 **==> picture [13 x 10] intentionally omitted <==** granting consent by the Court. Needless to say, since the State is the master of the prosecution, the Government must give due regard to the grievances of the victims and their rights to get compensation under the new scheme provided under Sec. 357A of the Cr.P.C, while granting permission to withdraw from prosecution. 16. But, unfortunately, despite the specific direction of this Court in the writ petition filed by the revision petitioner in anticipation of the withdrawal, he has not been given an opportunity of being heard. Therefore, I am of the opinion that the impugned order, under challenge, is vitiated by procedural irregularity and impropriety and the same is fatal. 17. What is stated in the application for withdrawal is absolutely false and I find that the Public Prosecutor has not applied his mind. Moreover, it cannot be held that he has applied his mind uninfluenced by any extraneous consideration. In short, the application is made without Crl.R.P.No.1936 of 2013 **==> picture [13 x 10] intentionally omitted <==** bona fides and moreover I am of the opinion that considering the facts and circumstances of the case, in the light of the Constitution Bench decision as well as the decision from 1959 onwards, this is not a fit case for which consent can be granted for withdrawal. 18. Therefore, I set aside the impugned order under challenge and the learned Sessions Judge is directed to restore the Sessions Case on the files and proceed in accordance with law. Any how, the trial shall be concluded within a period of three months from the date of receipt of a copy of this order. The revision petition is allowed accordingly. **K.HARILAL, JUDGE.** Mjl/stu //True copy// P.A to Judge