Crl.R.P. Nos. 89 & 440 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 6TH DAY OF JUNE 2013/16TH JYAISHTA 1935** ## **Crl.Rev.Pet.No. 89 of 2012 ()** **---------------------------------------CC 1475/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM. .......** **PETITIONER(S):ACCUSED NOS. 1 TO 9** **--------------------------------------------------------** **1. JOSEPH CHALISSERY, AGED 64 YEARS S/O.UTHUPPU, VAZHAPILLI VEEDU, KORATTIKKARA DESOM KADAVALLUR VILLAGE** **2. ALI, AGED 57 YEARS S/O.KUNJALI, NALAKATH VEETIL, KARIKKAD DESOM KARIKKAD VILLAGE** **3. VISWAMBARAN, AGED 54 YEARS S/O.KUNJUKUTTAKURUPPU, KARUTHOLIYIL HOUSE PERUMBILAVU VILLAGE** **4. MUHAMMADALI, AGED 68 YEARS S/O.ABDULLAKUTTY, PALLIMANJALAYIL HOUSE PERUMOILAVU VILLAGE DESOM** **5. DEVADAS, AGED 35 YEARS S/O.KORAN, PANNISSERY VEETTIL KORATTIKKARA DESOM VILLAGE** **6. SAJEESH, AGED 32 YEARS S/O.VELAYUDHAN KOZHIKKILATH VEETTIL KORATTIKKARA DESOM KADAVALLUR VILLAGE** **7. PRADEEP KUMAR, AGED 39 YEARS, S/O.VASU, KORATTIKKARA VEETTIL, LAKSHMI NIVAS KORATTIKKARA DESOM, KADAVALLUR VILLAGE** **tss** ## **CRRP. NO.89/2012** ## **8. PRASANTH, AGED 29 YEARS S/O.SREEDHARAN NAIR, MULLAPPILLI VEETTIL KORATIKKARA DESOM, KADALLUR VILLAGE** ## **9. SURESH, AGED 32 YEARS** **S/O.SUBRAMANIAN, ACHIYATH VEETTIL, KORATTIKKARA DESOM KADAVLLUR VILLAGE** **BY ADVS.SRI.B.RAMAN PILLAI** **SRI.R.ANIL** **SRI.ANIL K.MOHAMMED SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.MANU TOM** ## **COMPLAINANT(S):** **------------------------------** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM** **BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI BY GOVT.PLEADER SRI.LIJU V.STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-06-2013, ALONG WITH CRRP. 440 OF 2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **CRRP. NO.89/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** ## **A:- COPY OF THE APPLICATION FILED BY THE APP BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE , KUNNAMKULAM.** **B:- COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (CRL.) NO.8209/2008 DTD. 19.9.2011.** ## **RESPONDENT'S ANNEXURES** ## **NIL** ## **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## **K.HARILAL, J.** = = = = = = = = = ## **Crl.R.P.Nos.89 & 440 of 2012** = = = = = = = = = = = = = = = = = Dated this the 6[th] day of June, 2013 ## **O R D E R** These revision petitions arises out of an order passed in M.P.No.6895/2011 in C.C.No.1475/2007 on the files of the court of Judicial First Class Magistrate, Kunnamkulam. The above M.P was filed by the Public Prosecutor u/s 321 of Cr.P.C, seeking consent of the court to withdraw from prosecution. The Revision petitioners in Crl.R.P.No.89/2012 are accused Nos.1 to 9 in the above case. After considering the application for withdrawal, the learned Magistrate refused to grant consent and dismissed the application by the order under challenge. The impugned order passed by the Magistrate is challenged in this revision on various grounds. 2 The prosecution case is that on 03/06/2007 at 8 a.m., a reception was arranged for the vehicle procession of Indian National Congress Party, Wadakkancherry Assembly Constituency. The tri-colour flags of Indian **Crl.R.P.Nos.89 & 440 of 2012** **==> picture [7 x 9] intentionally omitted <==** National Congress were displayed at the site of reception. It is alleged that one of said flags so displayed was actually a National flag of which the Ashoka wheel (Chakram) in the centre was modified as a Charka, which is the emblem in the tri-colour flag of Congress party so as to make it appear as the flag of Congress party. It is also alleged that the accused are the organizers of the reception and they are responsible for displaying such a flag and thereby they are guilty of committing the offence u/s 2 of the Prevention of Insults to National Honour Act 1971. 3. After taking cognizance, on final report, summons were issued to the accused and they appeared in the court. While so, a Public Prosecutor filed an application u/s 321 Cr.P.C to withdraw from prosecution. The reasons for withdrawal is narrated as follows: 4. It is a politically motivated one and lodged on account of political animosity. The chance for fabrication of evidence and false implications of accused cannot be ruled **Crl.R.P.Nos.89 & 440 of 2012** **==> picture [7 x 9] intentionally omitted <==** out. The flag was allegedly hosted on 3/6/2007 but till 10/06/2007 nobody noticed that it as a National flag. According to them, this is only a flag among several flag in different part of the Panchayat and this is the only flag seen as alleged. The First Information statement was given only on 10/06/2007, in which neither the time of incident nor the role of each accused is specifically mentioned. The another reason for withdrawal is that the withdrawal is needed for the interest of public justice, public order and peace. The Government have no objection to withdraw the case with the leave of this court and that fact was informed by vide order No.60903/L3/11/Home dated 25/10/2011. The last ground is that to proceed against the accused any more would mean unnecessary harassment and trouble to the accused as well as the state. 5. After analysing the reasons for withdrawal the court below refused to grant consent on a finding that a perusal of records show that there is prima facie case against all **Crl.R.P.Nos.89 & 440 of 2012** 4 accused. Moreover, the offence alleged against the accused is serious in nature. The reasons for withdrawal that the prosecution may not be able to produce sufficient evidence to sustain the charge which does not appear to be well founded or that there are other circumstances clearly showing that the object of administration of justice would not be advanced or furthered by going on with the prosecution, are incorrect and unsustainable. The learned Magistrate further found that considering the public policy and interest of justice, the APP is not entitled to get consent to withdraw the prosecution. 6. I heard Sri.B.Raman Pillai, the learned counsel appearing for the Revision petitioner Crl.R.P.No.89/2012 and Director General of Prosecution appeared for the petitioner in Crl.R.P.No.440/2012 and I have given anxious consideration to submissions made at the Bar. 7. In view of the rival submissions made at the Bar the question to be considered is whether there is any **Crl.R.P.Nos.89 & 440 of 2012** 5 illegality or impropriety in the impugned order refusing to grant consent to withdraw from prosecution. At first, let us have look at the law governing Sec.321 of the Cr.P.C. Though the Section does not prescribe a specific ground for seeking withdrawal or denying consent for withdrawal, the scope and extentention of the jurisdiction of the court and the role of Public Prosecutor are well settled by the Apex Court from 1957 onwards. The role of Public Prosecutor under Section 321 was considered at first, 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 fairly-considered view and the Court is entitled to have the benefit of the fair exercise of his function.” ## 8. In the decision in **Subhash Chander v. State,** **Crl.R.P.Nos.89 & 440 of 2012** 6 ## **(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.” ## 9. Relying on the said decision, latter 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 Court held that: “ All that is necessary for the Court to see is to ensure that the application for withdrawal has been properly **Crl.R.P.Nos.89 & 440 of 2012** 7 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.” ## 10. 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 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. **Crl.R.P.Nos.89 & 440 of 2012** 8 - (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.” ## 11. Later, relying on the earlier decisions three Judges ## Bench of the Apex court in **Abdul Karim Vs. State of 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.” **Crl.R.P.Nos.89 & 440 of 2012** **==> picture [7 x 9] intentionally omitted <==** 12. 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 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. **Crl.R.P.Nos.89 & 440 of 2012** **==> picture [13 x 9] intentionally omitted <==** 13. Let us examine the impugned order under challenge in view of the above principle. The court below has found that a perusal of records shows that there is a prima facie case against the whole accused. Moreover, the offence alleged against the accused is serious in nature. The court below was not on the view that the prosecution may not be able to produce sufficient evidence to sustain the charge. The court below rejected the contention that the chance for fabrication of evidence and false implication of accused cannot be ruled out. 14. Going by the impugned order, it could be seen that obviously, the court below has not considered the question whether the Public Prosecutor has applied his mind in good faith uninfluenced by extraneous consideration. In view of the legal position, well settled by the Supreme Court, the court below ought to have considered the above question, and consent or refusal to grant consent should have been based on this question. Therefore, the refusal to grant **Crl.R.P.Nos.89 & 440 of 2012** **==> picture [13 x 9] intentionally omitted <==** consent to withdraw from prosecution without considering the above said question is improper and unsustainable. 15. Consequently, I am inclined to set aside the impugned order under challenge and remit back to the court below for fresh consideration and I do so. The learned Magistrate is directed to consider the petition afresh in the light of the decisions and also in view of the observation made above and pass order as early as possible. These Criminal Revision petitions are disposed of accordingly. **K.HARILAL, JUDGE.** ## **Stu** **//True copy//** **P.A to Judge.** **Crl.R.P.Nos.89 & 440 of 2012** 12 In **State of Bihar vs. Ram Naresh Pandey (AIR 1957 SC 389)** , the Supreme Court considered the question at first. The role of the Public Prosecutor in exercising the discretion provided u/s 321 of Code of Criminal Procedure was settled by the landmark decision of the Apex Court in **State of** ## **Bihar vs. Ram Naresh Pandey (AIR 1957 SC 389).** “His discretion in such matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of the triable issue. For instance the discharge that results therefrom need not always conform to the standard of “no prima facie case” under Sections 209(1) and 253(1) or of groundlessness” under Sections 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made.” Later, the constitution bench of Supreme court upheld the principle laid down in AIR 1957 SC 389 and further provided the nature and the extent of jurisdiction u/s 321 **Crl.R.P.Nos.89 & 440 of 2012** 13 Cr.P.C. Thereafter **Rajender Kumar Jain v. State (AIR 1980 SC 1510)** the Supreme Court has considered the earlier decisions and relying on the same principles, the Supreme Court enumerated eight points, which the court has to consider on an application for withdrawal u/s 321. In this decision, it is held that the court is not to re-appreciated the grounds to which let the Public Prosecutor requested withdrawal from prosecution but to consider whether the Public Prosecutor applied his mind as a free agent uninfluenced by irrelevant and exteriors consideration. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding consent for withdrawal from the prosecution. Therefore, going by the decision, it could be seen that though the jurisdiction is neither adjudicatory nor appellate. it is for the court to decide whether consent can be granted or not. In short, jurisdiction u/s 321 is undoubtedly **Crl.R.P.Nos.89 & 440 of 2012** 14 discretionary. Going by these decisions the principles that can be called out can be summarized as follows: 8. when the court grants consent to Public Prosecutor to withdraw the prosecution, it must be satisfied that withdrawal will serve public interest. At the same time it is not for the court to vein the materials or decide whether the prosecution will intent conviction or acquittal. As if it is exercising appellate jurisdiction of 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 is withdrawal from prosecution will serve the public interest. Therefore, sum up than crucial question to be considered in an application seeking permission for withdrawal is whether the public prosecutor has applied his mind in good faith uninfluenced by any extraneous consideration.