P. Radhakrishnan v. Gopalakrishnan, Balachandran, Chandran, Manoj and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S.S. Satheesachandran
Judgment Date: 2011-12-06
Court Decision / Holding: There is no merit in the revision, and it is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

P. Radhakrishnan

Respondents

Gopalakrishnan T.
Balachandran K.
Chandran P.
Manoj P.
The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Jawahar Jose
• Smt. Cissy Mathews

Counsels for Respondents

• Sri M. Sasindran
• Public Prosecutor Seena R.

Case Synopsis & Summary

This is a criminal revision petition filed by the de facto complainant, P. Radhakrishnan, challenging an order of the Judicial First Class Magistrate at Kasaragod allowing withdrawal of the case under Section 321 CrPC. The underlying police case relates to a night-time arson attack on the office of a rival political party on 3 November 2008, resulting in property damage estimated at Rs. 60,000. The accused, listed as respondents 1–4, along with the State of Kerala, were charged with offences under sections 143, 147, 148, 341/2, 323, 324 read with Section 149 IPC. After trial proceedings began, the Assistant Public Prosecutor sought withdrawal, submitting that the accused had been falsely implicated in political vendetta, that there is no eye-witness to prove the prosecution case, and that continuing prosecution would be futile and a waste of court time. The de facto complainant objected, alleging mala fides. The Magistrate allowed withdrawal after hearing both sides. The petitioner contends the order is tainted and that withdrawal would permit abuse of process. The respondents argue that the withdrawal was based on bona fide assessment of the record and in the public interest, and that Section 321 permits withdrawal at any stage before judgment. The learned judge held that the court’s role is to determine bonafides and public interest, not to reweigh government decision, and that the withdrawal was made in the public interest. Accordingly, the revision is dismissed.

Provisions of Law Cited

Section 321 CrPCSections 143, 147, 148, 341, 342, 323, 324 read with Section 149 IPC

Legal Doctrines & Maxims

bona fide
public interest
mala fide
public good
public interest

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the withdrawal application moved by the Public Prosecutor under Section 321 CrPC is mala fide and not in bonafide public interest. It was moved when three witnesses had already been examined and only the examining officer remained, suggesting possible abuse and mala fides. The petitioner relies on Abdul Karim v. State of Karnataka (2000) 8 SCC 710 to argue that a withdrawal application is not a mere formality and must be examined for public good and bona fides. The de facto complainant asserts the order reflects mala fide motives and seeks to prevent improper termination of proceedings.

Contentions of Respondents

The respondents submit that there is no infirmity in the order allowing withdrawal. They contend the prosecution had no evidence to implicate the accused and that the Public Prosecutor acted in bona fide public interest. They argue that Section 321 CrPC empowers withdrawal at any stage before judgment, and the court’s role is to assess whether withdrawal serves the public good, not to substitute the government’s or prosecutor’s decision. The record shows the prosecutor considered the materials and concluded that proceeding would not yield a conviction, justifying withdrawal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Abdul Karim v. State of Karnataka	2000(8) SCC 710	Mentioned Only	Cited by petitioners to emphasize that withdrawal under Section 321 requires public good and bona fides; the court acknowledges the reference but applies its own doctrine focusing on public interest and bonafides, ultimately upholding the withdrawal as proper.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 6TH DAY OF DECEMBER 2011/15TH AGRAHAYANA 1933** **CRRP.No. 2496 of 2011 ( )** **CC.1145/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT I,KASARAGOD** **......** ## **- PETITIONER(S)/CW 1 (DEFACTO COMPLAINANT):** **P.RADHAKRISHNAN,AGED 48 YEARS, S/O.KUNHIKANNAN MANIYANI, PRESIDENT, MAHADMAJI VAYANASHALA, PERADUKKAM,KASARAGOD TALUK AND DISTRICT.** **BY ADVS.SRI.JAWAHAR JOSE, SMT.CISSY MATHEWS.** ## **RESPONDENTS/ACCUSED NOS.1-4 & STATE:** **1. GOPALAKRISHNAN.T,AGED 38 YEARS, S/O.DAMODHARAN, RESIDING AT PANDI HOUSE,** **PERALADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542.** **2. BALACHANDRAN.K,AGED 40 YEARS, S/O.NARAYANAN,RESIDING AT KALATHINGAAL HOUSE, PERADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542.** **3. CHANDRAN.P.AGED 35 YEARS,** **S/O.AMBHU, RESIDING AT PANAYATHODE HOUSE, PERADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542.** **Kss** **..2/-** **..2....** ## **CRRP.NO.2496/2011** **4. MANOJ.P, AGED 27 YEARS, S/O.NARAYANAN, RESIDING AT PERADUKKA HOUSE, PERADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542.** **5. THE STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - PIN 682 031.** **R1-R4 BY ADV. SRI.M.SASINDRAN** **R5 BY PUBLIC PROSECUTOR SMT.SEENA.R.** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRRP.NO.2496/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.1: COPY OF PETITION FILED BY ASSISTANT PUBLIC PROSECUTOR. ANNEX.II: COPY OF THE OBJECTION FILED BY THE PETITIONER. ANNEX.III: COPY OF THE MEMO TOGETHER WITH THE REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE. ANNEX.IV: COPY OF THE ORDER IN CC.NO.1145 OF 2008 ON THE FILES OF JUDICIAL FIRST CLASS-I, KASARGODE. RESPONDENT'S ANNEXURES: N I L** ## **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **S.S.SATHEESACHANDRAN, J.** **----------------------------------------------Crl.R.P.No.2496 of 2011 ----------------------------------------------Dated this the 6[th] day of December, 2011** ## **O R D E R** The de facto complainant in a police charge sheeted case has filed this revision impeaching the propriety, legality and correctness of the order passed by the magistrate allowing an application moved by the prosecutor under Section 321 of the Code of Criminal Procedure {for short “the Code”} for withdrawal of the case. 2. Notice given, respondents 1 to 4 in the above case have entered appearance. I heard the counsel on both sides. 3. Prosecution case imputed against the accused is that on account of political animosity they set fire to an office of a rival political party during the night of 03.11.2008 ## **Crl.R.P.No.2496 of 2011** **:: 2 ::** and thereby caused damage to the tune of Rs.60,000/-. The crime case registered over the occurrence, after investigation, led to the indictment of respondents 1 to 4 for offences punishable under Sections 143, 147, 148, 3412, 323, 324 read with Section 149 of the Indian Penal Code. After initial formalities were over, and the trial proceeded, on the accused pleading not guilty to the indictment levelled, the Assistant Public Prosecutor in charge of the case moved an application under Section 321 of the Code for withdrawal of the case citing among other grounds that the accused had been implicated falsely on account of political vendetta, there is no eye witness to prove the prosecution case and chances of successful prosecution are remote and ## **Crl.R.P.No.2496 of 2011** ## **:: 3 ::** continuation of the proceedings would result only in wastage of time of the court. The court issued notice to the de facto complainant, who, then, filed objections to the withdrawal sought for contending that the application has been moved mala fide. 4. After hearing both sides and considering the materials tendered and being satisfied with the request made by the Public Prosecutor, the court below passed the order impugned allowing withdrawal of the case. 5. Assailing the order, the learned counsel for the petitioner/de facto complainant contended that the application moved by the Public Prosecutor was tainted with oblique motive and it was not at all bona fide. Three witnesses have already been ## **Crl.R.P.No.2496 of 2011** **:: 4 ::** examined in the case and when the closing of the prosecution evidence with the examination of the investigating officer alone remained to be completed, the application was moved for withdrawal and that itself would show that it was mala fide, is the submission of the counsel. Reliance is placed on Abdul Karim v. State of Karnataka {2000(8) SCC 710} to contend that the application for withdrawal is not an empty formality, but the court has to look into the materials and see whether it has been made for public good and is bona fide. 6. Per contra, the learned counsel appearing for respondents 1 to 4 contended that there is no infirmity whatsoever in the order passed by the court below allowing the withdrawal of the case. There was no evidence ## **Crl.R.P.No.2496 of 2011** ## **:: 5 ::** whatsoever to inculpate any of the accused on the materials tendered by the investigating agency and it was under that circumstance the Public Prosecutor with all bona fides moved the application for its withdrawal after applying his mind to the records, according to the counsel. 7. Whether any witness has already been examined at the time when the Public Prosecutor moved the application for withdrawal of the case is not material since Section 321 of the Code itself would indicate that such withdrawal application can be moved at any stage before the judgment is pronounced. What has to be looked into is only whether the application moved by the Public Prosecutor was bona fide or not. The role of ## **Crl.R.P.No.2496 of 2011** ## **:: 6 ::** the court when an application is moved is only to see whether it was in public good, and it cannot sit in judgment over the decision taken by the Government or the Public Prosecutor for withdrawal of the case. Where the application has been moved mala fide, then, necessarily, the court has to turn it down. The court must be satisfied that the public prosecutor has considered the material, and, in good faith, reached the conclusion that withdrawal from prosecution will serve the public interest. It is seen the application has been moved by the prosecutor stating reasons that there is no evidence to bring home the guilt of the accused in respect of the indictment charged against them. It is also stated that the occurrence which happened ## **Crl.R.P.No.2496 of 2011** ## **:: 7 ::** during night cannot be substantiated as there is no eye witness to prove the same. Further more, it is also stated that the case has been foisted on account of the political vendetta. When that be the case stated by the Public Prosecutor and that remains unchallenged, the challenge now canvassed by the de facto complainant that the application has been made prosecutor is tainted with mala fides for the reason that some prosecution witnesses had already been examined is devoid of any merit. 8. Going through the order passed by the magistrate, I find that he has applied his mind and was satisfied that the application moved by the Public Prosecutor has to be allowed in the interest of the public. ## **Crl.R.P.No.2496 of 2011** **:: 8 ::** There is no merit in the revision, and it is dismissed. Sd/(S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.