Crl.Rev.Pet.No.2267/2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932** **Crl.Rev.Pet.No. 2267 of 2010()** **--------------------------CC.501/2006 OF JUDL. FIRST CLASS MAGISTRATE COURT, KUTHUPARAMBA ........................................** ## **REVISION PETITIONER / DEFACTO COMPLAINANT :** **-----------------------------------------------------------------------** **ALI, S/O.MOIDU, CHEKKUNTAVIDA HOUSE, MANANTHERI AMSOM, NJALIL, KANNUR DISTRICT.** **BY ADV. SRI. SUNNY MATHEW** ## **RESPONDENTS / ACCUSED NOS. 1 TO 9 AND STATE :** **---------------------------------------------------------------------------** **1. PUTHUCHERY PRADEEPAN, S/O.BALAN, THAYYIL HOUSE, MANANTHERI AMSOM, VANNATHIMOOLA, KANNUR DISTRICT.** **2. NJATTUTHALA SINEESH, S/O.MUKUNDAN, ATHOLIMMAL HOUSE, MANANTHERI AMSOM, NJALIL, KANNUR DISTRICT.** **3. KALIYARAMBAN REGHUTHAMAN, S/O.GOVINDAN, ATHOLIMMAL HOUSE, MANANTHERI AMSOM, NJALIL, KANNUR DISTRICT.** **4. MAROLI SURESH BABU, S/O.GOVINDAN, UNAIMBARA HOUSE, MANANTHERI AMSOM, NJALIL, KANNUR DISTRICT.** **5. ELANCHERI NANU, S/O.ACHU, NATHARAPARAMB HOUSE, MANANTHERI AMSOM DESOM, NJALIL, KANNUR DISTRICT.** **6. KOTTAYI VINOD, S/O.VASU, KIZHAKKETHALAKKAL HOUSE, MANANTHERI AMSOM DESOM, NJALIL, KANNUR DISTRICT.** **...2/-** **Crl.Rev.Pet.No. 2267 of 2010 -2-** **7. ALAKKADAN SURESH BABU, S/O.NANU, OTTAPILAKKUL HOUSE, MANANTHERI AMSOM DESOM, NJALIL, KANNUR DISTRICT.** **8. MANOJ, S/O.VASU, KIZHAKKETHALAKKAL HOUSE, MANANTHERI AMSOM DESOM, NJALIL, KANNUR DISTRICT.** **9. PRAJEESH, S/O.KUMARAN, VADAKKEKARAMMAL HOUSE, MANANTHERI AMSOM, THENKAD, KANNUR DISTRICT.** **10.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 TO R9 BY ADV. SRI. C.P. PEETHAMBARAN R10 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **V.K.MOHANAN, J.** **---------------------------------------Crl. R.P. No.2267 OF 2010 ----------------------------------------** Dated 6[th] Day of September, 2010 ## **ORDER** The de facto complainant in C.C.No.501/2006 on the file of the Judicial First Class Magistrate, Kuthuparamba is the revision petitioner since he is aggrieved by the order dated 30.6.2009 of the learned Magistrate, by which the learned Magistrate granted permission in favour of the State upon the petition filed by the Assistant Public Prosecutor under section 321(b) Cr.P.C. to withdraw the above case. 2. I have heard Sri Sunny Mathew, the learned counsel appearing for the revision petitioner and Sri C.P. Peethambaran, the learned counsel appearing for Respondents 1 to 9 and also Sri Tek Chand, the learned Public Prosecutor. 3. The learned counsel for the revision petitioner on the basis of the decisions of this Court in Abdul Azeez v. State of Kerala (1995 (2) KLT 626) and Pratap Kumar v. Ramadas (2009 (4) KLT SN 57 (C.No.51), submitted that the order of the learned Magistrate is liable to be set aside. It is also the contention of the learned counsel that the impugned order does not disclose any ground to show that the learned Magistrate had applied his mind Crl.R.P. No.2267/10 **-:2:-** ## in allowing the petition preferred by the APP of that court. 4. On the other hand, Sri Peethambaran, the learned counsel appearing for respondents 1 to 9 submitted that the impugned order was passed by the learned Magistrate considering the allegations and materials available on record including that of the petition preferred by the learned APP. It is also the contention of the learned counsel that the decision in **Pratap Kumar's case** (cited supra) is not applicable in the preset case since no counter case is pending before the same court connected with the present case. 5. The learned Public Prosecutor, resisting the revision petition submitted that though it is not worded in the impugned order, it is discernible that the learned Magistrate had applied his mind and the impugned order was issued on the basis of the request made by the APP of the court concerned, who had applied his mind and decided to withdraw the case and the said fact considered by the learned Magistrate and accordingly, permission was granted and therefore, no interference is warranted. 6. I have carefully considered the arguments advanced by the learned counsels for the parties concerned and also the Crl.R.P. No.2267/10 **-:3:-** learned Public Prosecutor. I have also perused the order impugned in this revision petition. 7. Going by the impugned order, it can be seen that even though there is no recital about the incident which led to the institution of C.C.No.501/2006, under Section 321 of Cr.P.C, it is not incumbent upon the court below to accord sanction as and when a petition is moved by the APP for the same. From Section 321 Cr.P.C., it is crystal clear that the prosecution can be withdrawn only with the consent of the court. Therefore, the trial court has to state the grounds under which the consent is granted for withdrawing the prosecution case. So it is crystal clear that unless it is explicitly stated in the order or in the absence of any reference to the facts or ground to show that the Magistrate has applied his mind upon the application moved by the APP in this regard, it cannot be presumed that the court has considered the application filed by the APP and after having satisfied with the grounds mentioned in the petition for withdrawal of the prosecution, the sanction is granted. 8. In the present case, nothing is stated in the impugned order, at least, what are the facts led to the institution of the Calender Case, the grounds which are mentioned by the APP Crl.R.P. No.2267/10 **-:4:-** for withdrawing the case and whether such grounds are relevant or sufficient to accord permission etc. are not mentioned in the impugned order. In this juncture, it is also relevant to note that in the Revision petition it is stated that another case is pending in which the de facto complainant is an accused and no step was taken to withdraw that case, but this averment is controverted by the counsel appearing for respondents 1 to 9. However, no details are available in the impugned order. If there is case and counter case or connected case, it is also for the learned Magistrate to consider those aspects and come into a conclusion as to whether sanction should be given or not. Thus, it can be seen that the order impugned is not a speaking order. The learned Public Prosecutor submitted that the learned Magistrate issued the order based upon a petition field by the APP in which the entire facts and circumstances are explained and the grounds also mentioned. The way in which I proposed to dispose of this revision petition, I do not think it is necessary to go through the petition filed by the APP at this stage, since whatever may be the grounds taken in the petition, are not reflected in the order of the learned Magistrate impugned in this Crl.R.P. In the result, this Crl.R.P is disposed of setting aside the Crl.R.P. No.2267/10 ## **-:5:-** impugned order, i.e., the order dated 30.6.2009 in C.C.No.501/2006 of the court of Judicial First Class Magistrate, Kuthuparamba and remitting the matter back to the same court for fresh consideration and disposal by passing an appropriate speaking order after hearing all the parties concerned. The presence of the accused is not required for disposing of the matter afresh and it is for the accused to approach the court to get dispensed with their presence, if so advised. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.R.P. No.2267/10 **-:6:-**