N.P. Paulose and others v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935** **C.M.P.NO.648/13 IN C.C.NO.2862/11 PASSED BY THE JFCM COIURT, KOLENCHERY.** **Crl.Rev.Pet.No. 1326 of 2013 () --------------------------------** **REVN.PETITIONERS/ACCUSED NOS.1 TO 6:** **------------------------------------** **1. N.P.PAULOSE, AGED 62 YEARS, S/O. PATHROSE, NELLIKUZHIYIL HOUSE, PAMBRA, MANEED, PIN-686 726.** **2. REEZ, AGED 52 YEARS, S/O. PAULOSE, PUTHEN VEEDU, KINDANGAYAM, CHOTTANIKKARA-682 312.** **3. JAYAKUMAR, AGED 46 YEARS, S/O.RAMANA NAIR, KAPIL HOUSE, EDAKKATTUVAYAL.** **4. JOHN, AGED 60 YEARS, S/O. ABRAHAM, MURIKKAL VEEDU, TALAKODE, KUZHIARA P.O., KANAYANNOOR, PIN-682 312.** **5. BIPIN PAULOSE, AGED 39 YEARS, S/O. PAULOSE, MOOLETHADATHIL VEEDU, PULIKKAMALI, MULANTHURUTHY, PIN-682 313.** **6. NITHYANANDAN, AGED 40 YEARS, S/O. NARAYANAN SWAMI, VETTATHUPARAMBIL HOUSE, VETTIKKAL, MULANTHURUTHY, PIN-682 314.** **BY ADV. SRI.C.P.UDAYABHANU** **RESPONDENT/COMPLAINANT:-** **------------------------** **STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, (CRIME NO.252/11), MULANTHURUTHY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, DISTRICT COURT, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K. HARILAL, J. -----------------------------------------------------Crl.R.P. No.1326 of 2013 -----------------------------------------------------Dated this the 21[st] day of November , 2013** ## **ORDER** The petitioners are the accused Nos.1 to 6 in C.C. No.2862/2011 on the files of the Judicial First Class Magistrate's Court, Kolenchery. They are charge sheeted for the offences punishable under Secs.143, 144, 147 and 148 read with Sec.149 of the Indian Penal Code and Sec.2 (3)(e) of the Prevention of Damages to Public Properties Act, 1982 (for short 'the PDPP Act'). 2. The case of the prosecution, in brief, is that on 31/3/2011 at 10.45 p.m., the accused formed themselves into an unlawful assembly and in furtherance of their common intention, they forcefully broken the front glass of the police jeep bearing registration No.KL-01-AQ-8154 **Crl.R.P. No.1326 of 2013** -: 2 :- which was parked in front of a workshop by name “Sreenath Automobiles” in building No.IX/36-A of Mulamthuruthy Panchayat by throwing stones and sustained a loss to the tune of `4,000/- to the Government and thereby they have committed the aforesaid offences. The trial of the case is yet to be commenced. 3. While so, the learned Assistant Public Prosecutor filed C.M.P.No.648/13 under Sec.321 of the Code of Criminal Procedure seeking consent of the court to withdraw the prosecution of the revision petitioners. In the above petition, it is stated that as per the F.I.R., there are 100 members in the unlawful assembly. The witnesses cannot be able to identify the accused and the success of the prosecution is not possible. Moreover, he was informed by the Government that the Government has no objection to withdraw the case and an order No.57199/L3/12/Home dated 15/1/2013 has been passed to that effect. Hence, the learned Assistant Public Prosecutor sought for an order granting consent for withdrawing the prosecution of the revision petitioners. **Crl.R.P. No.1326 of 2013** -: 3 :- After considering the grounds stated for withdrawal in the above C.M.P., the learned Magistrate refused to grant consent and dismissed the petition accordingly. This order is under challenge in this revision petition. 4. 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 trial court has not properly appreciated the power vested in the Public Prosecutor under Sec.321 of the Cr.P.C. A wide discretion is given to the Public Prosecutor to withdraw from prosecution. The role of the court is only limited. It is only supervisory, not adjudicatory or appellate. The findings in the impugned order are opposed to the principles laid down by the judicial precedents. 5. In view of the above contentions, the question to be considered is whether there is any illegality or impropriety in the impugned order refusing to grant consent for withdrawal **Crl.R.P. No.1326 of 2013** -: 4 :- from prosecution. 6. 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 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 **Crl.R.P. No.1326 of 2013** -: 5 :- 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.” 7. 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 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 **Crl.R.P. No.1326 of 2013** -: 6 :- 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.” 8. 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. 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 **Crl.R.P. No.1326 of 2013** -: 7 :- in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper.” 9. 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. **Crl.R.P. No.1326 of 2013** -: 8 :- 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.” 10. 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 **Crl.R.P. No.1326 of 2013** -: 9 :- 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.” 11. 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 from prosecution? Certainly, the decision taken by the Prosecutor is the outcome of a thinking process wherein the facts of the **Crl.R.P. No.1326 of 2013** -: 10 :- 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 consent will come under judicial function. It follows that the court can exercise judicial **Crl.R.P. No.1326 of 2013** -: 11 :- 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. 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 **Crl.R.P. No.1326 of 2013** -: 12 :- 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. In view of the above principles, let us examine the legality and impropriety of the findings in the impugned judgment. 13. 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 above decisions also it is stated that even if the Government recommended for withdrawal of the prosecution, it is for the Public Prosecutor to take a decision independently in good faith uninfluenced **Crl.R.P. No.1326 of 2013** -: 13 :- by any extraneous consideration. 14. Another reason stated for withdrawing from the prosecution is that as per the F.I.R., there are 100 members in the unlawful assembly, but the witnesses cannot be able to identify the accused and the success of the prosecution is not possible. In the above decisions, it is specifically stated that whether the prosecution will end in conviction or acquittal cannot be considered for granting withdrawal from prosecution. Similarly, the question whether a successful prosecution is possible or not also cannot be considered while exercising the jurisdiction under Sec.321 of the Cr.P.C. In short, there cannot be a mini trial before the actual trial for considering the application for withdrawal under Sec.321 of the Cr.P.C. Therefore, I find that consent for withdrawal from prosecution cannot be granted on the reason that successful prosecution is not possible or identification of the accused is not possible. More interestingly, the same Public Prosecutor has approved the charge and thereafter all on a sudden on receipt of the order passed by the Government **Crl.R.P. No.1326 of 2013** -: 14 :- granting consent to withdraw the prosecution, he turned round and finds reasons that successful prosecution is not possible as identification is not proper. But going by the final report, it is seen that the Sub Inspector of Police is cited as the witness, who identified the accused Nos.1 to 6. Thus, the reasons stated in the application seeking consent of the court for withdrawal is an utter falsehood made without bona fides. I do not find any provision in the Cr.P.C. enabling the Public Prosecutor to do so after filing the final report. 15. More importantly, the essence of the decision in State of Bihar Vs. Ram Naresh Pandey (AIR 1957 SC 389) always is that withdrawal from prosecution can be sought only for furthering the cause of public justice or public interest. In application for seeking consent of the court, the Public Prosecutor has no case that the withdrawal is sought for furthering the cause of public justice or withdrawal will serve the public interest. This proposition is re-affirmed by the Constitution Bench of the Apex Court in Sheo Nandan Paswan Vs. State of Bihar (AIR 1987 (SC) 877) (supra). **Crl.R.P. No.1326 of 2013** -: 15 :- 16. In the above view, I concur with the findings of the court below and I am unable to find that the Public Prosecutor has applied his mind in good faith, uninfluenced by any extraneous consideration. When applying the test laid down in Vinod v. State of Kerala and Another (2013 (2) KHC 895), I find that the reasons stated for withdrawal from prosecution are irrational and incompatible with the facts of the prosecution case. The reason stated for withdrawal has no nexus with the prosecution case. Therefore, I find that there is no illegality or impropriety in the impugned order under challenge. This revision petition is dismissed. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge