Kollam Valappil Bhaskaran v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934 Crl.Rev.Pet.No. 2329 of 2004 ( )** **-------------------------------CC.347/2001 of J.M.F.C.,TALIPARAMBA** ## **REVISION PETITIONER(S)/PETITIONERS/DEFACTO COMPLAINANT:: -------------------------------------------------------** ## **KOLLAM VALAPPIL BHASKARAN, S/O. RAMAN, KALINBARAYAM, THADIKKADAVU, CHAPPRAPPADAM KANNUR.** **BY ADVS.SRI.M.SASINDRAN SRI.M.B.PRAJITH** ## **COMPLAINANT(S):** ## **---------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR** - **HIGH COURT OF KERALA, ERNAKULAM.** **2. PUNNAKKAN JAYASEELAN, S/O. AMBU, AGED 24 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **3. KOOLERI KRISHNAN, S/O. KOTTAN, AGED 48 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **4. EACHA KUMARAN, S/O. KUMARAN, AGED 50 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **5. PUNNAKKAN KUNHIRAMAN, S/O. RAMAN, AGED 41 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **6. CHENGANAR SUDHIKUMAR, S/O. BALAN, AGED 28 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **7. KOLLAM VALAPPIL GOVINDAN, S/O. RAMAN, AGED 60 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **Crl.Rev.Pet.No. 2329 of 2004 ( )** **-2-** **8. KOLLAM VALAPPIL RAGHAVAN, S/O. RAMAN, AGED 46 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **9. OLIYAN MOHANAN, S/O. POKKAN, AGED 42 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **10. KANHIRANGATU SASI @ NARAYANAN, S/O. GOPALAN, AGED 37 YEARS, KARIMKAYAM THIMIRI, KANNUR.** **11. KELACHAMARIYIL THOMASKUTTY, S/O. MANI, AGED 36 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **12. KELACHA MURIYIL NELSON, S/O. DEVASSIA, AGED 24 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **13. VAYALIL KUNHIKORAN, S/O. KORAN, AGED 49 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **14. VAYALIL SAJI @ SAJEEV, S/O. KUNHIKORAN, AGED 25 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **15. P.K.RAMESAN, S/O. KUMARAN, AGED 28 YEARS, PUTHIYAPURAYIL HOUSE, KARIMKAYAM THIMIRI, KANNUR.** **16. .K.RAJESH, S/O. KUMARAN, AGED 24 YEARS, PUTHIYAPURAYIL HOUSE, THIMIRI AMSOM KARIMKAYAM, THIMIRI, KANNUR.** **17. PUNNAKKAN AMBU, S/O. KOTTAN, AGED 47 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **18. KANNADA RAMESH, S/O. KUMARAN, AGED 23 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **19. VAYALIL DEVAKI, W/O. AMBU, AGED 42 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **20. KOOLERI KAMALAKSHI, S/O. KRISHNAN, AGED 37 YEARS, KARIMKAYAM, THIMIRI KANNUR.** **Crl.Rev.Pet.No. 2329 of 2004 ( )** **-3-** **R1 BY PUBLIC PROSECUTOR SRI. ROY THOMAS R2 TO R20 BY ADVS. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.Rev.Pet.No. 2329 of 2004 ( )** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE A I : COPY OF THE FIR LODGED BEFORE THE ALAKODE POLICE ANNEXURE A II : COPY OF THE FINAL REPORT BEFORE THE COURT IN CRIME NO.271/2000 ANNEXURE A III : COPY OF THE PETITION FILED BY THE PUBLIC PROSECUTOR ANNEXURE A IV : COPY OF THE ORDER IN C.C. 347/2001** ## **RESPONDENTS ANNEXURES** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** ## **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. R.P. No: 2329 of 2004 -----------------------------------------Dated this the 3[rd] day of December, 2012 ## **O R D E R** The de facto complainant has filed this revision petition challenging the judgment of acquittal passed by the learned Magistrate under section 321 of Cr.P.C. The accused persons stood charged for offences punishable under sections 143, 147, 148, 323, 324 and 326 r/w 149 of IPC. An application was filed by the Assistant Public Prosecutor stating that he had gone through the case diary in C.C. No.347 of 2001 and that the case originated only due to previous animosity and that there was change of circumstance. It was also stated that he went through the file thoroughly and 'applied his mind' sufficiently in the matter. It was also stated that in his opinion no useful purpose would be served in keeping this file pending before court. Hence, the A.P.P. thought it as a fit case to be ## **Crl.R.P. No: 2329/2004** **-2-** withdrawn from the file of that Court under section 321 of Cr.P.C. 2. The learned counsel for the accused would submit that since the learned A.P.P. has stated that he had gone through the case file and was satisfied that no purpose would be served by proceeding with the case and since it was also observed that there was change of circumstance, it has to be said that the learned A.P.P. actually applied his mind and so the permission granted by the learned Magistrate on the request/petition filed by the learned A.P.P. cannot be said to be unsustainable. On the other hand, the learned counsel for the petitioner herein (de facto complainant) submits that had the learned A.P.P. gone through the case file then certainly it would have revealed that there was a counter crime which was charged against the other group (the petitioner's group) as C.C. No:348/2001. The charge was laid against the accused ## **Crl.R.P. No: 2329/2004** **-3-** therein under sections 143, 147, 148, 325 and 324 r/w 149 of IPC. Nothing was stated by the learned A.P.P. regarding that counter case – C.C. 348/2001. Had the learned A.P.P. applied his mind and then thought that it was a case to be withdrawn under section 321 of Cr.P.C., the other case – C.C. No.348/2001 also would have been sought to be withdrawn, for, that alone would create harmony among the parties concerned. If one case is allowed to be withdrawn and the other case is allowed to be prosecuted, that would only create disharmony and unrest, the learned counsel for the petitioner submits. 3. Therefore, the learned counsel for the petitioner submits that it is a clear case where the learned A.P.P. has not even cared to go through the case file before thrusting in such a petition based on the alleged consent given by the Government . It is further submitted that the learned A.P.P. has to independently consider the facts of the case and not **-4-** ## **Crl.R.P. No: 2329/2004** act upon the directions of the Executives. In this connection the decision of the Supreme Court in **Abdul Karim v. State of Karnataka AIR 2001 SC 116** has also been relied upon, where it was held: “The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause **Crl.R.P. No: 2329/2004** **-5-** ## manifest injustice. It must follow that the application under section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public; interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its permission, in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to weigh the material. The court must be **-6-** ## **Crl.R.P. No: 2329/2004** satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the 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. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent.” 4. It was held in **Sheonandan Paswan v. State of** **Bihar 1987 (1) SCC 288** that grant of consent by the court is not a matter of course and that when such an application under section 321 of Cr.P.C. is filed by the Public Prosecutor after taking into consideration the material before him, the court exercises its judicial discretion by considering such material and on such consideration either gives consent or **Crl.R.P. No: 2329/2004** **-7-** declines consent. 5. According to the learned counsel for the revision petitioner, the learned A.P.P. filed the petition only to favour one group and to stifle the prosecution against the accused in that case. The learned counsel for the revision petitioner has also relied upon the decision of the Supreme Court in **Rahul Agarwal v. Rakesh Jain 2005 (2) SCC 377** where it was held: “Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the **-8-** ## **Crl.R.P. No: 2329/2004** withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under section 321, Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the Society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are **Crl.R.P. No: 2329/2004** **-9-** made out for the same.” 6. The learned counsel for the revision petitioner submits that the learned Magistrate has also not considered the issue in the correct perspective in the light of the decisions of the Supreme Court referred to earlier and without application of mind simply endorsed the view taken by the learned A.P.P., mechanically passed the order allowing withdrawal under section 321 of Cr.P.C. The learned Magistrate has not adverted to the facts of the case as to whether the learned A.P.P. has applied his mind in filing that petition, for, nothing has been stated in the order regarding the facts of the case and also as to whether there was a counter case or anything of that sort. There is nothing in the order to indicate that the learned Magistrate applied his mind to the relevant facts and circumstances of the case. The order passed by the learned Magistrate is bereft of any reason. Without stating any reason the **-10-** ## **Crl.R.P. No: 2329/2004** learned Magistrate mechanically passed the impugned order. I find no reason to sustain the order. On that ground also the order is liable to be set aside. 7. In the result, this Criminal Revision Petition is allowed. The order of acquittal passed by the learned Magistrate is set aside. C.C. No.347/2001 will stand restored to file. The learned Magistrate will proceed in accordance with law. The learned Magistrate will take up the case on 27.12.2012. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj