Manojan and others v. State of Kerala (Crl.Rev.Pet.No.315 of 2019)

Crl.Rev.P.No.315/19 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941** **Crl.Rev.Pet.No.315 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CMP 6995/2018 DATED 16-11-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VADAKARA** **CRIME NO.745/2016 OF Vadakara Police Station, Kozhikode** ## **REVISION PETITIONER/S:** |**1**|**MANOJAN,**| |---|---| ||**AGED 38 YEARS,**| ||**S/O ANDI, KOMAN KAIKKUNNI VEEDU,**| ||**THIRUVALLUR P.O.,THIRUVALLUR 673 541.**| |**2**|**SHAJU,**| ||**AGED 38/16,**| ||**PADINHARE NEELIYARATH VEEDU,**| ||**THIRUVALLUR P.O., THIRUVALLUR-673 541.**| |**3**|**T.K.MUHAMMAD ASHIR,**| ||**AGED 20/16,**| ||**S/O MOOSA, THAYYULLAKUNI VEEDU,**| ||**CHANIYAMKADAVU P.O.THIRUVALLUR**| ||**NEAR CHANIYAM KADAVU POST OFFICE.**| |**4**|**SAHAD N.K.,**| ||**S/O MOITHU, NAMBOORIKKANDIYIL VEEDU,**| ||**APPU BAZAR, THIRUVALLUR P.O.673 541**| |**5**|**ABDUL SALAM,**| ||**AGED 34/16,**| ||**S/O.KUNHU MUHAMMED, PUTHIYOTTIL VEEDU,**| ||**KANNI NADA, THIRUVALLUR P.O.673 541.**| |**6**|**ANU RAG.P.T,**| ||**AGED 22/16,**| ||**S/O.VIJAYAN, KOYILOTH THAZHA KUNI (H),**| ||**THIRUVALLUR P.O.,**| ||**THIRUVALLUR EXCHANGE ROAD-673 541.**| Crl.Rev.P.No.315/19 2 - **7 ABDUL BASITH, AGED 23/16,** - **S/O MOITHU, KUNDUKADAVATH (H), CHANIYAMKADAVU P.O.NEDUMBRAMANNA, THIRUVALLUR 673 541.** - **8 MUHAMMED ASHKAR U.K, S/O.MOITHU, UNNIYECHIKKANDI(H), CHANIYAMKADAVU P.O., VELUKKARA ROAD, THIRUVALLUR 673 541.** - **9 ASLAM, AGED 20/16, S/O MOITHEEN, VELLACHERI KOVILATH VEEDU, THIRUVALLUR P.O.** - **10 FAHAD, AGED 20/16, S/O KUHABDULLA, KELAMKULANGARA VEEDU, THIRUVALLUR, KOTTAPPALLI ROAD.** **11 MUHAMMAD, AGED 21/16, S/O ALIKKUTTY, PADIKKANDI VEEDU, THIRUVALLUR, BALAWADI ROAD.** - **12 UBAID, AGED 23/16,** - **S/O YUSAF, NADUVILAKKOROTH(H), NEDUMBRAMANNA, SANTHI NAGAR, THIRUVALLUR.** - **13 ASHRAF, AGED 39/16,** - **S/O AMMAD, PULIYANATTU VEEDU, KANNAMBATH KARA, THIRUVALLUR P.O.** - **14 RAHIL, AGED 20/16, S/O RASHEED, KOOVALATHIL VEEDU, CHANIYAMKADAVU P.O.,THIRUVALLUR .** - **15 MUHAMMADLI, S/O KUNHABDULLA, KOMMOTTI VEEDU, CHANIYAMKADAVU P.O., THIRUVALLUR .** - **16 NIKHIN LAL, AGED 24/16,** - **S/O NARAYANAN, CHEMBRAYIL THAZHAKUNI, THIRUVALLUR P.O.THIRUVALLUR.** Crl.Rev.P.No.315/19 3 **17 LIJITH, AGED 29/16, S/O RAJEEVAN, MARAKKAMPARAMBATH (H), THIRUVALLUR.P.O.THIRUVALLUR.** - **18 VIJIN LAL, AGED 26/16, S/O BALAN, PANAYULLA PARAMBATH (H), THURUTHI, THIRUVALLUR P.O.** - **19 RAHUL, AGED 20/16, S/O KELAPPAN, KALLULLA PARAMBIL, THIRUVALLUR P.O., THIRUVALLUR.** - **20 SABIN, 28/16, S/O BHASKARAN, MARAKKAM PARAMBATH VEEDU, THIRUVALLUR P.O.,THIRUVALLUR.** - **21 ABDUL ROUF, AGED 21/16,** - **S/O MOITHU, KODAKKATTU VEEDU, SANTHI NAGAR, THIRUVALLUR P.O.** - **22 AFSAL, AGED 23/16, S/O ABDUL KAREEM, MEPPARAMBATH VEEDU, THIRUVALLUR.P.O.,** - **23 ROHITH, AGED 21/16, S/O RAJAN, KANDIYIL KUNIYIL VEEDU, THIRUVALLUR.P.O.** - **24 RAJESH, AGED 35/16, S/O POKKAN, CHEMBRERI THAZHA KUNI VEEDU, THIRUVALLUR.P.O.** - **25 SREEJITH, AGED 27/16, S/O KUNHIKANNAN, KODKKATTU VEEDU, SANTHI NAGAR, THIRUVALLUR.P.O.** - **26 RIJU @ RAMAN, AGED 24/16,** **S/O BALAN, KOOVANA VAYAL VEEDU, CHANIYAMKADAVU P.O., THIRUVALLUR.** Crl.Rev.P.No.315/19 4 **27** **BRAVIN, AGED 22/16, S/O BABU, NADEMMAL VEEDU, CHANIYAMKADAVU P.O.,THIRUVALLUR.** **BY ADVS. SRI.ZUBAIR PULIKKOOL SHRI.SHAMEM M.S.** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.** ## **OTHER PRESENT:** **SRI E.C.BINEESH , PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.P.No.315/19 5 ## **O R D E R** ## **Dated this the 14[th] day of January 2020** Petitioners are accused in C.P.No.06/18 for having allegedly committing offenes punishable under Sections 143, 145, 147, 148, 353, 332, 307 read with 149 IPC. The specific allegation of the prosecution is that on 19.05.2016, while the defacto complainant and others, who are the police officials of Vatakara Police Station were doing law and order duty in connection with the Legislative Assembly election, the accused persons who are the supporters of rival political factions, namely, UDF and LDF, formed themselves into an unlawful assembly and in furtherance of common object of said assembly, abused each other and thereafter even assaulted the police officials when intervened and thereby obstructed them from discharging their official duty. Stones were pelted and the defacto complainant police officer sustained an injury on being hit by stone, which according to the prosecution is an attempt to commit murder. The learned Assistant Public Prosecutor on instruction from the Government filed a petition under Section 321 Cr.P.C, stating that the 27 persons were picked out and arrayed as accused from out of a mob of nearly 300 persons. The Investigating Officer did not take any steps to conduct any identification parade so as to zero in the actual perpetrators of the crime. According to the Public Prosecutor this would weaken the prosecution case. The prosecution is definitely under obligation to identify the persons who are the perpetrators. All Crl.Rev.P.No.315/19 6 the 300 persons may not be possible to be arrayed as accused. From out of the mob of 300 persons somebody has pelted stones on the defacto complainant due to which he sustained serious injuries. The learned trial judge after considering the petition filed by the Assistant Public Prosecutor under Section 321 Cr.P.C dismissed the application, stating that the medical records indicates that the defacto complainant has sustained injuries on his head and considering that they were discharging their official duties and that the accused attempted to kill them by pelting stones, the prayer of the Assistant Public Prosecutor appears to be without application of mind. Offences being grievous, the Magistrate was not inclined to allow the application to withdraw from prosecution. Consequently, the petition was dismissed. The accused are aggrieved, and before this court. 2. Perused the application filed by the Assistant Public Prosecutor before the trial court and it is seen that the specific allegation was regarding the identification of the perpetrators of the crime from among a mob consisting of about 300 persons belonging to the rival factions namely UDF and LDF. The learned counsel appearing for the petitioners relied on a decision on **Rahul** ## **Agarwal v. Rakesh Jain and another [AIR 2005 (S.C) 910]** wherein it is held as follows: “10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. 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 Crl.Rev.P.No.315/19 7 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 withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest or 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 States for redressing their grievance.” 3. In the instant case, reason given by the learned Magistrate that the defacto complainant has sustained serious injury on his head due to stone pelting may not by itself be sufficient to disregard the application filed by the Assistant Public Prosecutor. The prosecutor has reasons for why the prosecution cannot be sustained successfully and the learned Magistrate has not applied mind towards the said statement made in the petition regarding the inherent infirmities in the prosecution case. There is no doubt that when the Public Prosecutor considers the materials placed by the prosecution as the reason for the withdrawal of prosecution it needs to be given importance. That apart, it is also a reason to bring about harmony between rival factions in the best interest of justice. The dispute between two factions had arisen consequent to the ongoing elections. Once elections are over the rivalry may not continue. Pendency of criminal cases against youth would only further foment the rivalry between the parties and the Government is well with its authority and power to withdraw such cases which perpetrates rivalry between the political factions. In Crl.Rev.P.No.315/19 8 such circumstances, I find that the learned Magistrate was not justified in disallowing the application filed by the Assistant Public Prosecutor to withdraw prosecution case filed under Section 321 Cr.P.C. Impugned judgment of the learned Magistrate is set aside and petition filed by the Assistant Public Prosecutor to withdraw the prosecution case is allowed. Crl.R.P. is allowed. DG Sd/- **ASHOK MENON JUDGE**