John Jacob v. State of Kerala and Others

Crl.R.P.No.2477/2012 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** **Crl.Rev.Pet.No.2477 OF 2012** **AGAINST THE ORDER/JUDGMENT IN CC 29/2009 DATED 18-09-2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHANGANACHERRY** **CRIME NO.334/2008 OF Changanassery Police Station, Kottayam** ## **REVISION PETITIONER/S:** **JOHN JACOB, AGED 49 YEARS, S/O.P.P.JACOB, MATTACKAL PERUMAL BHAVAN, COLLECTORATE P.O., KOTTAYAM.** **BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, CHANGANASSERY, PIN-686 101.** **2 THE ASSISTANT PUBLIC PROSECUTOR, JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHANGANASSERY, KOTTAYAM DISTRICT, PIN-686 101.** **3 A.J.SCARIAH, S/O.JOHN, ALUNKAL VEEDU, KOONANTHANAM AREA, VEROOR KARA, CHETHIPUZHA VILLAGE, KURISSUMOODU P.O., KOTTAYAM DISTRICT, PIN-686 104.** **4 THOMAS KURIAN, S/O.KURIAN, VALIYAPRAMBIL VEEDU, VEROOR KARA, CHETHIPUZHA VILLAGE, KURISSUMOODU P.O., KOTTAYAM DISTRICT, PIN-686 104.** Crl.R.P.No.2477/2012 2 - **5 SANALKUMAR,** **S/O.CHANDRAN PILLAI, AMBALAPRAMBU VEEDU, VADAKKEKARA AREA, VEROOR KARA, CHETHIPUZHA VILLAGE, KURISSUMOODU P.O., KOTTAYAM DISTRICT, PIN-686 104.** ## **6 SEBASTIAN ANTONY,** **S/O.ANTONY, MARATTUKALAM VEEDU, VEROOR KARA, CHETHIPUZHA VILLAGE, KURISSUMOODU P.O., KOTTAYAM DISTRICT, PIN-686 104.** - **7 BINOY JOSEPH,** **S/O.JOSEPH, KOCHOLAPRAMBIL VEEDU, VEROOR KARA, CHETHIPUZHA VILLAGE, KURISSUMOODU P.O., KOTTAYAM DISTRICT, PIN-686 104.** - **8 PRATHEESH BABU,** **S/O.BABU, PURAKKADAVU VAZHAVELIL VEEDU, VEROOR KARA, CHETHIPUZHA VILLAGE, KURISSUMOODU P.O., KOTTAYAM DISTRICT, PIN-686 104.** - **9 VINOD,** **S/O.GOPALAN, PUTHUPARAMBU VEEDU, KOONANTHANAM AREA, VEROOR KARA, CHETHIPUZHA VILLAGE, KURISSUMOODU P.O., KOTTAYAM DISTRICT, PIN-686 104.** **R1-2 BY PUBLIC PROSECUTOR SRI.M.S.BREEZ R3-9 BY ADV.SRI.JOSEPH SEBASTIAN KOLLAM** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.2477/2012 3 ## **O R D E R** ## **Dated this the 4[th] day of November, 2020** The revision petitioner is the de facto complainant in C.C.No.29 of 2009 on the files of the Judicial First Class Magistrate Court – I, Changanacherry. The respondents 3 to 9 are the accused Nos.1 to 7 respectively in the said case. The Offences alleged against the accused are under Sections 143, 147, 447, 427, 506(i) read with Section 149 of the Indian Penal Code. 2. The prosecution case in brief is that on 12.07.2008 at 11 a.m, accused 1 to 7 framed themselves into unlawful assembly armed with deadly weapons for the purpose for rioting and in prosecution of their common object barged into the property of PW1 situated near Canara Paper Factory, Chethipuzhakadavu area of Vazhappally East Village and committed mischief by destroying implements and other items used for building construction of the de facto complainant and thereby the accused sustained a loss of 25,000/-. It is further₹ alleged that the accused threatened the de facto complainant with dire consequences. 4 Crl.R.P.No.2477/2012 3. When the accused entered appearance before the trial court, the particulars of the offences were hand over to the accused to which they pleaded not guilty. Thereupon, the court issued summons to three witnesses including the de facto complainant. Before commencing the examination of the witnesses, the learned Assistant Public Prosecutor in charge of the case filed an application under Section 321 Cr.P.C to withdraw from the prosecution of the case in respect of the offences for which they are tried. After having heard the prosecution and the de facto complainant who was present in court, the court allowed the application and, consequently, the accused were acquitted under Section 321(b) of the Cr.P.C. Challenging the aforesaid order dated 18.09.2012, the de facto complainant is before this Court. 4. Heard Sri.M.V.Thamban, the learned counsel for the revision petitioner, Sri.Joseph Sebastian, learned counsel for the respondents 3 to 9 and Sri.M.S.Breez, learned Senior Public Prosecutor. 5. The learned counsel for the revision petitioner submitted that the learned Assistant Public Prosecutor in charge of the case filed this application for withdrawal of the case on the basis of the direction of the Government by its order dated Crl.R.P.No.2477/2012 5 05.02.2011 to withdraw the case from the prosecution with the the leave of the court. According to the learned counsel for the revision petitioner, while exercising the powers under Section 321 of the Cr.P.C, the learned Assistant Public Prosecutor in charge of the case is obliged to apply his mind independently in the subject uninfluenced by any directions of the executive in this regard. The learned counsel for the revision petitioner further submits that due to the unlawful criminal act on the part of the accused, revision petitioner had sustained a loss to the the tune of ₹25,000/and the learned Assistant Public Prosecutor had not considered the untold hardship sustained to the de facto complainant on account of the illegal acts committed by the accused. The learned counsel for the revision petitioner further submitted that the trial court mechanically accepted the application filed by the learned Assistant Public Prosecutor and acquitted the accused on insufficient grounds. 6. The learned counsel appearing for the respondents 3 to 9 submitted that both the learned Assistant Public Prosecutor and the trial court applied their mind and rightly exercised the discretion under Section 321 of the Cr.P.C, uninfluenced by the directions of the Government. According to the learned counsel for the respondents, it is within the realm of the Government to Crl.R.P.No.2477/2012 6 decide as to whether the prosecution is to be withdrawn or not. He further submitted that no public interest is involved and no offence coming under the category of moral turpitude or serious offence such as murder, rape or dacoity are sought to be withdrawn against public interest. In the said circumstances, it is submitted that, the trial court allowed the application filed by the learned public prosecutor finding that the impugned order is a well reasoned one. 7. Annexure-A1 application filed by the learned Assistant Public Prosecutor in charge of the case would show that he filed an application under Section 321 of the Cr.P.C after perusing the case diary and applying his mind to the facts and circumstances of the case. He further stated that the facts of the case would reveal that the case is almost political in nature and he is of the view that in order to ensure the peace and harmony in the locality and also to promote the goodwill among the public in the locality, in the interest of justice, it is just and proper to withdraw the prosecution. The learned Assistant Public Prosecutor further stated that he had considered the entire materials on record and arrived at a conclusion and thereafter, he filed the application to withdraw the prosecution in the interest of public. Crl.R.P.No.2477/2012 7 8. It is settled principle of law that the statutory responsibility for deciding upon withdrawal squarely lies on the Public Prosecutor. In **Balwant Singh v. State of Bihar [AIR 1977 SC 2265],** it was held that the power of the Public Prosecutor is non negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to the Cr.P.C only. This principle has been upheld on the Constitution Bench decision of the Apex Court in Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288. In Sheonandan Paswan's case the Apex Court observed 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 Crl.R.P.No.2477/2012 8 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. S.321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. S.321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under S.321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. ” 9. On going through the Constitution Bench decision, it is clear that the Public Prosecutor is a Minister in the Temple of Justice and he is expected to take a decision to withdraw a case or not under Section 321 Cr.P.C untrammeled by the directions issued by the executive in this regard. Application filed by the learned Assistant Public Prosecutor would show that the learned Public Prosecutor has applied his mind to the facts and circumstances of the case. This is a case of unlawful assembly and rioting. The offences are purely personal in nature and no Crl.R.P.No.2477/2012 9 public interest is involved. While so, the de facto complainant had sustained a loss of 25,000/-. When a rioting case is sought₹ to be withdrawn, the learned Assistant Public Prosecutor is fully justified in arriving at a conclusion that in the interest of public at large and also to maintain peace and harmony in the society, it is absolutely essential to withdraw the case. While exercising the powers under Section 321 Cr.P.C, it is not necessary to obtain CW1's consent for withdrawal of the case. The CW1's consent is immaterial. What is material is as to whether the learned Assistant Public Prosecutor in charge of the case has applied is mind independently to the case. It is seen from the records that he applied his mind to the case. 10. It is a fact that the de facto complainant sustained a loss of 25,000/- on account of the alleged act of the accused. It₹ is a fact that he has been bonafide pursuing this criminal prosecution to recover the amount by way of compensation. The occurrence in this case took place on 12.07.2008 at 11 a.m. The application to withdraw from the prosecution was allowed on 08.09.2012. It is not just and proper to foreclose his remedy, if any, legally permitted to claim damages from the accused in accordance with a process known to law. It is just and proper to reserve the right of the de facto complainant to recover the Crl.R.P.No.2477/2012 10 damages from the accused in accordance with law. 11. Judged by the above standards, this Court is of the view that the impugned order of the trial court is based on reasons. It is neither perverse nor suffers from any infirmity. Hence, interference in revision is not necessary. In the result, this revision is dismissed without prejudice to the rights of the revision petitioner to pursue his legal remedies for recovery of damages against respondents 3 to 9. Sd/- **N.ANIL KUMAR JUDGE** DG/05.11.2020 Crl.R.P.No.2477/2012 11 ## **APPENDIX** **ANNEXURE A1: TRUE COPY OF THE C.M.P.NO.3103/2012 IN C.C.No.29/09 JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHANGANACHERRY, FILED BY THE 2ND RESPONDENT. ANNEXURE A2: TRUE COPY OF THE REPRESENTATION DT.29.04.2010 FILED BY THE 4TH RESPONDENT. ANNEXURE A3: TRUE COPY OF THE COVERING LETTER NO.D231764/10/K AND PROFORMA FORWARDED BY THE SUPERINTENDENT OF POLICE, KOTTAYAM TO THE PRINCIPAL SECRETARY OF THE GOVERNMENT, DEPARTMENT OF HOME. ANNEXURE A4: TRUE COPY OF THE FIR IN CRIME NO.334/2008 OF CHENGANASSERY POLICE STATION. ANNEXURE A5: TRUE COPY OF THE CHARGE SHEET IN C.C.NO.29/09 JUDICIAL FIRST CLASS MAGISTRATE COURT – I, CHANGANACHERRY.**