Muhammed Haneefa v. State of Kerala and Station House Officer, Kannapuram Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 993 of 2013 () -------------------------------** **AGAINST THE ORDER DATED 25/3/13 IN CMP NO.84/13 IN SC NO.361/12 on the FILE OF THE ASSISTANT SESSIONS JUDGE, KANNUR.** **REVISION PETITIONER(S)/PETITIONER/ACCUSED:** **-------------------------------------------** **MUHAMMED HANEEFA, S/O. MUHAMMED, AGED 33 YEARS, MATTOOL AMSOM, THEKKUMBAD, KANNUR DISTRICT.** **BY ADVS.SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA** **RESPONDENT/RESPONDENT AND STATE:** **--------------------------------** **1. STATION HOUSE OFFICER, KANNAPURAM POLICE STATION, KANNUR DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. ROY THOMAS.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** K. HARILAL, J. -----------------------------------------------------Crl.R.P. Nos. 993 of 2013 -----------------------------------------------------Dated this the 29[th] day of November, 2013 ## ORDER The revision petitioner is the accused in S.C.No.361/12 on the files of the Assistant Sessions Judge, Kannur. The said case was charge sheeted against the revision petitioner and a group of unidentified persons on the basis of Crime No.231/09 registered for the offences punishable under Secs.143, 147, 148, 332, 353, 427, 501(i) and 308 read with Sec.149 of the Indian Penal Code as also under Sec.3(1) of the Prevention of Destruction of Public Property Act. While so, the Additional Government Pleader and the Public Prosecutor filed C.M.P.No.84/13 under Sec.321 of the Code of Criminal Procedure seeking consent from the court to withdraw the prosecution of the case, including the revision **Crl.R.P. Nos. 993 of 2013** -: 2 :- petitioner. After considering the reasons stated in the application for withdraw, the learned Assistant Sessions Judge dismissed the above C.M.P. The legality, impropriety and correctness of the order dismissing the application seeking consent for withdrawal from prosecution is challenged in this revision petition. 2. The prosecution case is that on 23/10/09 at 7 p.m. the accused Nos. 1 to 21, along with about 100 unidentified persons, formed an unlawful assembly with a common object to commit crime on the public road near the Post Office at Mattool and they prevented the vehicle in which C.Ws.1 to 11 were travelling. They pelted granite stone pieces towards the above said witnesses by shouting that no single policeman will be let free. Due to the pelting of stones, C.W.13 sustained injuries. There was a loss of `4,130/- due to the damage to the police vehicle. C.Ws. to 13 are the police officials. 3. In the application for seeking consent of the court for withdrawal, the Government of Kerala has given approval to withdraw the prosecution by letter No.79342/L4/11/Home **Crl.R.P. Nos. 993 of 2013** -: 3 :- dated 23/1/12. The incident took place due to the death of one SDPI - PFI activist by name 'P.T. Riyas', who died in Thekkumbad river while escaping from the police party. At present, there is no dispute in between the public and there is no law and order problem in the locality. There is peace in the locality. If the prosecution in the above case is to be proceeded further, the prevailing clam and peaceful atmosphere will be disturbed. On a careful study, it is understood that the crime is not of a serious nature and no serious damage has been done to any person or property. These are the reasons stated for withdrawing prosecution, in the application. 4. C.W.13, who was working as the Assistant Sub Inspector of Police, filed an objection stating that he is also an injured in the above crime and he was travelling in the police vehicle and he had sustained injury by the overt act of the accused. According to him, he sustained grievous injury in the incident. It is also seen from the objection filed by the injured that the accused with intention to commit murder had caused grievous injury to him. **Crl.R.P. Nos. 993 of 2013** -: 4 :- 5. The learned counsel for the revision petitioner advanced arguments assailing the findings of the learned Assistant Sessions Judge. According to him, the learned Sessions Judge ought to have granted permission to withdraw from prosecution in view of the present situation in the locality. The findings in the impugned order are opposed to the principles laid down by the judicial precedents. 6. In view of the rival contentions, the question to be considered is whether there is any illegality or impropriety in the impugned order refusing to grant consent for withdrawal from prosecution. 7. 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 **Crl.R.P. Nos. 993 of 2013** -: 5 :- 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, (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 powersthat-be who wish to scuttle Court justice because of hubris, affection or other noble or ## **Crl.R.P. Nos. 993 of 2013** -: 6 :- 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. 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 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. **Crl.R.P. Nos. 993 of 2013** ## -: 7 :- 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 **Crl.R.P. Nos. 993 of 2013** -: 8 :- 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.” 11. Later, relying on the earlier decisions three Judges ## **Crl.R.P. Nos. 993 of 2013** -: 9 :- 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.” 12. The substratum of the principles enunciated in the above decisions can be summarised as follows: The basic **Crl.R.P. Nos. 993 of 2013** -: 10 :- 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. 13. In Vinod v. 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 **Crl.R.P. Nos. 993 of 2013** -: 11 :- 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 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 **Crl.R.P. Nos. 993 of 2013** -: 12 :- 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. In view of the above principles, let us examine the legality and impropriety of the findings in the impugned judgment. 14. The first reason for withdrawal is that the Government has approved withdrawal by the order dated 23/1/12. Going by the above decision, it could be seen that the decision of the Government cannot be a ground for seeking withdrawal and the decision for withdrawal of the prosecution is exclusively a matter within the domain of the Public Prosecutor alone. In the decisions also it is stated that even if the Government recommended for withdrawal of **Crl.R.P. Nos. 993 of 2013** -: 13 :- the prosecution, it is for the Public Prosecutor to take a decision independently in good faith uninfluenced by any extraneous consideration. 15. The reason for the Government to take such a decision is also not stated in the petition. Therefore, the reason that the Government has granted approval for withdrawal from prosecution has no relevancy at all in deciding the issue. Secondly, it is stated that at present there is no dispute in between the public and there is no law and order problem in the locality. Going by the prosecution case, it is seen that the said ground is nothing other than a falsehood. The prosecution has no case that there was any attack or dispute between two groups of the people in the locality. The prosecution case is that one group of people attacked police officers and caused damage to public property. Thus, the attack was between one group of people and public servants. CW3, the police officer, who sustained serious injury, filed very strong objection opposing withdrawal of the prosecution and it is pertinent to note that charge is under Section 308 of the Indian Penal Code and **Crl.R.P. Nos. 993 of 2013** -: 14 :- Section 3(1) of the PDPP Act. In the prosecution case, it is specifically stated that there is a heavy loss to the Government. Needless to say, loss to Government means loss to public exchequer. This Court considered the issue involved in a withdrawal of prosecution for the offence under the PDPP Act in Dineshan K.V. and Another Vs. State of Kerala and Others (2013 (4) KHC 206) and held as follows:- - “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 offences attacking servants on duty in view of the decisions referred above.” 16. Going by the application filed by the Public Prosecutor, there is no reason overruling common knowledge **Crl.R.P. Nos. 993 of 2013** -: 15 :- and the presumption that the commission of any offence causing mischief or damage to public property under the PDPP Act or by attacking public servants while acting in discharge of their public duty is against public interest and public peace. 17. In all the above decisions, it is unambiguously stated that withdrawal from prosecution can be for the public interest and public justice alone. Necessarily it follows that withdrawal of prosecution of such offences which caused damage to public property and injuries to public servant is also against public interest and public peace, and consent for withdrawal of prosecution of such offence cannot be granted. Thirdly, in the application, it is stated that the crime is not serious in nature and no serious damage had been done to any person or property. Going by the prosecution case itself, it could be seen that C.Ws.1 to 13 were injured in the incident and the offence alleged against the accused is punishable under Section 308 of the Indian Penal Code for which the accused can be punished with imprisonment of either descriptive for a term which may extend for 7 years or **Crl.R.P. Nos. 993 of 2013** -: 16 :- with fine or with both. I am of the opinion that such an offence is not a minor offence. Similarly, the prosecution case specifically states that damage is caused to public property and thereby loss to public exchequer. Therefore, the averment in the application filed by the Prosecutor that no serious damage has been done to any person or property is also an utter falsehood and nothing less than a camouflage intended to misguide the court. 18. In the light of the above discussions, I also concur with the finding of the court below that the Public Prosecutor has not applied his mind in good faith, uninfluenced by any extraneous consideration. The reason stated for withdrawal has no nexus with the prosecution case and the grounds stated are irrational and incompatible with the prosecution case. Therefore, I find that there is no illegality or impropriety in the impugned order under challenge. This petition is dismissed accordingly. Sd/- (K. HARILAL, JUDGE) Nan //true copy// P.S. to Judge