Crl.Rev.Pet.No.261 of 2013 (C1)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 5TH DAY OF DECEMBER 2013/14TH AGRAHAYANA, 1935** ## **Crl.Rev.Pet.No. 261 of 2013 (C1)** **-------------------------------** **(AGAINST THE ORDER IN CMP.4154/12 IN C.C.52/09 OF THE CJM COURT, THODUPUZHA.)** **REVISION PETITIONERS/ACCUSED NOS 1-11:** **--------------------------------------------** **1. SHAHUL, S/O.KONTHALAM** - **ILLATHUPARAMBU HOUSE, VENGALOORKARA KUMARAMANGALAM VILLAGE.** **2. NOUSHAD, S/O.ISMAIL, KARIPATTIL HOUSE, VENGALOORKARA KUMARAMANGALAM VILLAGE.** **3. SHAIRAJ, S/O.ADAM, EDAVANAPATTAYIL HOUSE, KIZHAKKEMARADI KARA MARADI VILLAGE.** **4. JAFFAR, S/O.HANEEFA, KAPRATTIL HOUSE, VENGALOORKARA KUMARAMANGALAM VILLAGE.** **5. NASEER, S/O.HASSAN, KAPRATTIL HOUSE, VENGALOORKARA, KUMARAMANGALAM VILLAGE.** **6. ANWAR, S/O.HANEEFA, KAPRATTIL HOUSE, VENGALOORKARA KUMARAMANGALAM VILLAGE.** **7. IBRAHIM, S/O.FAKRUDEEN, KAPRATTIL HOUSE, VENGALOORKARA KUMARAMANGALAM VILLAGE.** **8. JAFFAR, S/O.NAGOOR KHANI, EDATHIPARAMBIL HOUSE, VENGALOORKARA, KUMARAMANGALAM VILLAGE.** **9. SAIDUMUHAMMED, S/O.FAKRUDEEN, KUNJANPARAMBIL HOUSE VENGALOORKARA, KUMARAMANGALAM VILLAGE.** **(....2/-)** **CRL.R.P.261/13** **(2)** **10. SIDHIQUE, S/O.KASSIM, KAVANIPARAMBIL HOUSE,** - **VENGALOORKARA, KUMARAMANGALAM VILLAGE.** ## **11. SAVAD, S/O.HUSSAIN, PAZHAYAMBALATHIL HOUSE, KAPPUKARA, MADAKKATHANAM BHAGOM, MANJALLOOR VILLAGE.** **BY ADVS.SRI.P.P.THAJUDEEN** **SRI.MANSOOR.B.H.** **RESPONDENT(S)/STATE/COMPLAINANT & INJURED CWS.1 AND 2 :** **----------------------------------------------------------------** **1. STATE OF KERALA** - **REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING CIRCLE INSPECTOR OF POLICE, THODUPUZHA, IDUKKI DISTRICT.** **2. SEEMON, S/O.RAMACHANDRAN, PADAYATTIL VEETTIL MANJUMMAL, ELOOR, ERNAKULAM DISTRICT 682 315.** **3. ABDUL SALAM, S/O.KUNJUMARAKKAR, KANJIKATHARA VEETTIL KADUNGALLUR KARA, PATHALAM, ERNAKULAM DISTRICT-682 315.** **R1 BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.261 of 2013 ()** ## **APPENDIX** **REVN. PETITIONER'S EXHIBITS:** **ANNEXURE-A: TRUE COPY OF THE APPLICATAION FILED BY THE DY. DIRECTOR OF PROSECUTION, IDUKKI.** **ANNEXURE-B: TRUE COPY OF THE ORDER DTD. 28.9.12 IN CMP.4154/12 IN C.C.52/09 OF THE CJM COURT, THODUPUZHA.** **RESPONDENT'S EXHIBITS: NIL** _**OKB.**_ ## _**TRUE COPY**_ ## _**P.A. TO JUDGE**_ **.** ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **Crl.R.P. No.261 of 2013** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 5[th] day of December, 2013 ## **O R D E R** The revision petitioners are the accused in C.C.No.52/09 on the files of the Chief Judicial Magistrate's Court, Thodupuzha. They are being prosecuted for the offences punishable under Sections 143, 147, 342, 294(b), 506(i), 232, 332, 225(b) and 427 r/w 149 of the Indian Penal Code. The learned Magistrate took cognizance of the offence and the trial is yet to be started. While so, the learned Public Prosecutor filed a petition under Section 321 of the Cr.P.C. seeking consent of the court to withdraw the prosecution of the accused in the above case. The learned Magistrate issued notice to C.Ws.1 and 2 and they expressed their objection against withdrawal of the prosecution. After hearing both the parties, the learned Magistrate dismissed the above petition on the ground that _Crl.R.P.261/13_ **:2:** the petition does not contain any averment to the effect that it is filed in the interest of justice or public interest. The legality, propriety and correctness of the above finding are under challenge in this Revision Petition. 2. The prosecution case is that on 15.8.2008 at about 11.30 A.M. C.Ws.1 and 2, the police officers, came at Vengaloor in order to execute a warrant against the first accused and they arrested the said accused in the courtyard of one Basheer. Then the other accused persons formed an unlawful assembly in prosecution of common object, confined the police officers and their driver and forcibly rescued the first accused after attacking and threatening them. While doing so, the accused persons destroyed the shirts of C.Ws.1 to 3 and caused damage to their vehicle and thereby committed the offences punishable as aforesaid. 3. In the petition seeking consent of the court to withdraw prosecution, the Prosecutor stated as follows:- “Now the Govt. have issued an order _Crl.R.P.261/13_ **:3:** No.2759/11 Home dated 02/05/2012 consenting to withdraw the case with the leave of the court. In this circumstance, I have gone through the entire case records. The place of occurrence is near a mosque. Nobody is seen apprehended from the place of occurrence. No proper identification is seen done in this case. None of the independent witness was seen questioned and cited as witness. The statement of the local police personnel shows that there were so many persons gathered there during the time of occurrence from the mosque. Hence I am of the view that a successful prosecution is not possible in this case. Considering these aspects and else to establish a peaceful harmony in the society among the people of the locality it is better to withdraw the case.” 4. The short question that arises for consideration in this Revision Petition is, whether there is any illegality or impropriety in the order rejecting the application seeking consent for withdrawal from prosecution? Going by the reasons, it could be seen that the sole ground projected for withdrawal is that successful prosecution is not possible in this case. It is also stated that to secure peaceful harmony in the society along with people at locality it is better withdraw the case. _Crl.R.P.261/13_ **:4:** 5. Though, Sec.321 of the Cr.P.C. does not prescribe any specific ground for granting consent of the court for withdrawing prosecution, the scope and extent of jurisdiction under Sec.321 of the Cr.P.C., particularly the role of the court and the role of the Public Prosecutor, are well delineated by the judicial precedents from the decision in **State of Bihar Vs. Ram Naresh Pandey (AIR 1957 SC 389)** to **Abdul Karim Vs. State of Karnataka (2000 (8) SC 710)** . In **State of Bihar Vs. Ram Naresh Pandey (AIR 1957 SC 389),** the Supreme Court held that: “The judicial functions, therefore, 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. In this context it is right to remember that the Public Prosecutor though an executive officer is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairlyconsidered view and the Court is entitled to have the benefit of the fair exercise of his function.” ## 6. In the decision in **Subhash Chander v. State,** _Crl.R.P.261/13_ **:5:** ## **(1980)2 SCR 44: (AIR 1980 SC 423),** the Supreme Court held as follows: “The even course of criminal justice cannot be thwarted by the Executive however high the accused, however sure the Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle Court justice because of hubris, affection or other noble or ignoble consideration. Once the prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. The Court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor. The Public Prosecutor cannot therefore withdraw from the prosecution unless the Court before which the prosecution is pending gives its consent for such withdrawal. This is a provision calculated to ensure non-arbitrariness on the part of the Public Prosecutor and compliance with the equality clause of the Constitution.” 7. Later, relying on the above decision, in **Sheo Nandan Paswan Vs. State of Bihar (AIR 1987 (SC) 877)** , the Constitution Bench of the Supreme Court settled the nature and extent of Jurisdiction of the court under Section 321 of the Cr.PC. In the above decision, Supreme _Crl.R.P.261/13_ **:6:** ## Court held that: “ All that is necessary for the Court to see is to ensure that the application for withdrawal has been properly made, after independent consideration, by the Public Prosecutor and in furtherance of public interest. In view of the wide language it uses, enables the Public Prosecutor to withdraw from the prosecution any accused, the discretion exercisable under which is fettered only by a consent from Court on a consideration of the materials before it and that at any stage of the case. The Section does not insist upon a reasoned order by the Magistrate while giving 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.” ## 8. In **Rajender Kumar Vs. State (AIR 1980 SC** **1510)** the Supreme Court relying on the earlier decisions settled and enumerated the guidelines for the exercise of Jurisdiction under Section 321 as follows: - (1) Under the Scheme of the Code, prosecution of an offender for a serious offence is primarily the responsibility of the Executive. - (2) The withdrawal from the prosecution is an executive function of the Public Prosecutor. - (3) The discretion to withdraw from the prosecution is _Crl.R.P.261/13_ **:7:** that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. - (4) The government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. - (5) The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes. - (6) The Public Prosecutor is an officer of the court and responsible to the Court. - (7) The court performs a supervisory function in granting its consent to the withdrawal. - (8) The court's duty is not to re appreciate the grounds which led the public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. “The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.” 9. Later, relying on the earlier decisions three Judges Bench of the Apex Court in **Abdul Karim Vs. State of** _Crl.R.P.261/13_ **:8:** ## **Karnataka (2000(8) SC 710)** held as follows: “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 would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration of the material available, the order giving consent has necessarily to be upheld.” 10. The substratum of the principles enunciated in the above decisions can be summarised as follows: The basic principle underlying all the grounds for withdrawal must be that the withdrawal can be sought only for furthering the cause of public justice. The main question to be considered is whether the Public Prosecutor has applied _Crl.R.P.261/13_ **:9:** his mind independently in good faith, uninfluenced by irrelevant and extraneous consideration. It must be satisfied that withdrawal will serve public interest. “At the same time, it is not for the court to weigh the material or decide whether prosecution will end in conviction or acquittal as if it is exercising the appellate jurisdiction over the decision of the Prosecutor. But “the court must be satisfied that the Public Prosecutor has considered the materials in good faith, reached the conclusion that his withdrawal from 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. ## 11. In **Vinod Vs. State of Kerala and Another** ## **(2013 (2) KHC 895)** , this Court held that: “13. How can the court find out bona fides of a decision taken by the Prosecutor at the request of the Government to withdraw from prosecution? Certainly, the decision taken by the Prosecutor is the outcome of a thinking process wherein the facts of the Prosecution case and the reasons for seeking consent to withdraw _Crl.R.P.261/13_ **:10:** from prosecution are the inputs. Mere assertion of the Public Prosecutor that he had independently applied his mind in good faith uninfluenced by any extraneous consideration or mere adoption of certain expressions like 'Public Interest' or 'Public Policy' apparently incompatible with facts of the prosecution case, in the application seeking consent for withdrawal from prosecution is neither sufficient nor satisfactory to grant consent. The bona fides and independence of the decision taken by Public Prosecutor at the request of the Government could have manifested in the decision itself, in view of fact of the prosecution case and reasons relied on for withdrawal from prosecution. As the ultimate repository under Section 321 of the Cr.P.C., it is for the court to verify the veracity and credibility of the said averments in view of the decision taken thereon. The said verification and granting or declining of consent will come under judicial function. It follows that the court can exercise judicial discretion either granting or declining consent. The decision taken by the Public Prosecutor at the request of the Government to withdraw from prosecution must be logical, rationale and compatible with the facts of the prosecution case and reasons for withdrawal from prosecution. It is needless to say that where the decision appears otherwise, it can be held that the decision taken by the Public Prosecutor is improper and sans bona fides and independence.” _Crl.R.P.261/13_ **:11:** 12. In view of the above principles, let us examine the legality and propriety of the findings in the impugned judgment. In the above decision also, the Supreme Court has specifically stated that the question whether the prosecution will end in conviction or acquittal cannot be looked into while taking a decision to withdraw from prosecution. But, here, apparently, the said aspect, which cannot be taken, has been taken as a main ground for withdrawal. At this stage, there cannot be a mini trial or scrutiny as to whether there can be a successful prosecution or not. Therefore, it cannot be held that the Prosecutor has applied his mind in good faith. Similarly, the principle that can be culled out from the plethora of decision of the Supreme Court is that the withdrawal can be permitted only for the interest of justice or public interest. As noted by the learned Magistrate, in the instant case, in the application seeking withdrawal, the Public Prosecutor has no case that the withdrawal is for public interest or public justice. Moreover, it seems that _Crl.R.P.261/13_ **:12:** the alleged incident was a personal attack against public servants while they were discharging official duty. Even according to prosecution case, people of the locality are neither connected with nor involved in the commission of the offence. So, the averment in the petition, that the withdrawal of prosecution is essential for keeping peaceful harmony in the locality, is an utter falsehood intended to misguide the Court. The withdrawal of an offence against public servants was also considered by this Court in **Dineshan K.V. and Another Vs. State of Kerala and Others (2013 (4) KHC 206)** and held as follows:- “15. It is a matter of common knowledge as well as a reasonable presumption that the commission of any offence causing mischief or damages to the public property under the PDPP Act or by attacking public servants while acting in discharge of their public duty is against the public interest and public peace. Necessarily, it follows that the withdrawal of the prosecution of such offences is also against public interest and public peace and consent for withdrawing prosecution of such offences cannot be granted. How the continuance of prosecution of the offences causing damages to the public property under the PDPP Act or _Crl.R.P.261/13_ **:13:** the offences attacking public servants on public duty would adversely affect the public interest or public peace or how the withdrawal of such prosecution would promote public interest or public peace? I am also unable to accept the contention that withdrawal of prosecution of offences causing damages to public property under the PDPP Act and attacking the public servants while acting in discharge of their duty is for 'public interest' or 'public justice', the essential causes for which consent to withdraw from prosecution can be granted, in view of the principle laid down by the Apex Court in the decisions referred above. So, the withdrawal of such prosecutions under the guise of public interest, public policy or public justice is also impermissible. I remind myself that all the decisions referred above would say that Public Prosecutor may withdraw from prosecution of the accused in order to further broad ends of public interest, public order and peace. 16. If there is any other reason overruling the above said common knowledge and presumption involved in the withdrawal of such prosecution, it is for the Public Prosecutor to satisfy the Court with sufficient reasons overruling the public interest of public justice. Unless the Court is fully satisfied with such reasons overruling the common knowledge and presumption as stated above, the Court is not inclined to grant consent to withdraw from prosecution of the accused who have allegedly committed the offences under the PDPP Act or _Crl.R.P.261/13_ **:14:** offences attacking servants on duty in view of the decisions referred above.” 13. In the light of the above decision, let us analyse the question whether there is any reason overruling the presumption that the commission of any offence by attacking public servant while acting in discharge of their public duty is against the public interest or public peace. In the application filed under Section 321 of the Cr.P.C., the prosecution has no case that withdrawal is sought for public interest or public justice. Per contra, the incident was occurred when CW1 and CW2 police officers came at Vengalloor in order to execute a warrant against the first accused in this case. Thus, the public servant was attacked while in discharge of his official duty, in obedience to the direction in the court order. So, I have no hesitation to hold that the withdrawal of such prosecution is against public interest and public justice. In the light of the foregoing discussions, I am of the opinion that the Public Prosecutor has not applied his mind in good faith _Crl.R.P.261/13_ **:15:** independently, untrammelled by any extraneous influence. Therefore, I confirm the order rejecting the application for withdrawal. The Revision Petition is dismissed accordingly. Sd/- **(K.HARILAL, JUDGE)** **okb.**