Radha Krishna Naik v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935** **Crl.Rev.Pet.No. 2444 of 2012** **--------------------------------** **REVISION PETITIONER/1ST ACCUSED:** **--------------------------------------------------------** **RADHAKRISHNA NAIK S/O. LATE JANARDHANA NAIK, AGED 35/09, THOTTATHAMAN SHENI, MAIRE GRAMAM.** **BY ADVS.SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.LIJU V. STEPHEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **Crl.R.P. No.2444 of 2012** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 8[th] day of November, 2013 ## **O R D E R** The revision petitioner is the 1[st] accused in S.C.No.415/2010 on the files of the Additional Sessions Judge (Adhoc) - I, Kasaragod, alleging offences punishable under Sections 143, 147, 148, 427, 452, 324 and 308 read with Sec.149 of the Indian Penal Code. Now, the above case is awaiting trial. While so, the Public Prosecutor filed an application under Sec.321 of the Code of Criminal Procedure seeking withdrawal from prosecution. The learned Sessions Judge, after considering the grounds raised in the application, dismissed the said petition on a finding that the Public Prosecutor has not applied his mind properly and independently, uninfluenced by any extraneous consideration. The State of Kerala has not filed revision challenging the said decision of the learned _Crl.R.P.2444/12_ **:2:** Sessions Judge. But, the accused filed this revision petition challenging the dismissal of the application for withdrawal on various grounds. In short, the legality, propriety and correctness of the decision is under challenge in this revision petition. The prosecution case narrated by the Prosecutor himself in the application for withdrawal can be recapitulated as follows: 2. On 09/02/2009 at 10.15 p.m., the accused due to political enmity, under the leadership of the 1[st] accused formed themselves an unlawful assembly with an intention to commit the offence, trespassed into the house of the de facto complainant with deadly weapons like stick, stone etc. and attacked the de facto complainant. They destroyed the window glass, car and motor bike which are kept outside the house. The accused pelted stones against the de facto complainant and caught hold of the wife of the de facto complainant to outrage her modesty. It was alleged that the pelting of stones would have caused the death of the de facto complainant. The de facto _Crl.R.P.2444/12_ **:3:** complainant sustained a loss of Rs.4,000/- by the unlasful activities of the accused. 3. The learned counsel for the revision petitioner submits that the court below had erroneously exercised its jurisdiction without considering against the grounds narrated in the application for withdrawal, in its correct perspective. The court below failed to appreciate the fact that the Public Prosecutor has applied his mind objectively in an independent manner. The court below went wrong in considering the scope and application of Sec.321 of the Cr.P.C, in view of the decision laid down by the constitutional Bench of the Apex Court in **Sheo Nandan Paswan v. State of Bihar and Others** [AIR 1987 SC 877]. The learned counsel relied on the decision in **Sheo Nandan'** s case (supra) to fortify his arguments. According to the learned counsel, the application of the mind of the Public Prosecutor in a proper way is manifested in the application seeking withdrawal itself. But, the court below failed to appreciate the same in its proper way. The Public _Crl.R.P.2444/12_ **:4:** Prosecutor having been gone through the case diary and found that there is no chances of succeeding prosecution case. The court below ought to have accepted the same as an observation made with bona fides. There is nothing to doubt the credibility of the grounds narrated in the application. The court below has no authority to arrive at a conclusion whether the prosecution will end in conviction or acquittal. 4. In view of the contentions raised in this revision petition, the question to be considered is whether there is any illegality or impropriety or incorrectness in the impugned order under challenge in view of the scheme under Sec.321 of the Cr.P.C in the light of the judicial precedents of the Apex Court. Put it differently, the question is whether the Public Prosecutor has applied his mind properly with bona fides, independently, uninfluenced by any extraneous consideration. 5. Though, Sec.321 of the Cr.P.C. does not prescribe any specific ground for granting consent of the _Crl.R.P.2444/12_ **:5:** 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 to assist the Court with his fairlyconsidered view and the Court is entitled to have the benefit of the fair exercise of his function.” ## 6. In the decision in **Subhash Chander v. State,** **(1980)2 SCR 44: (AIR 1980 SC 423),** the Supreme Court held as follows: _Crl.R.P.2444/12_ **:6:** “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 powers-that-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 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.” 7. Later, relying on the above decision, in **Sheo Nandan** 's case (supra), 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 _Crl.R.P.2444/12_ **:7:** 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 in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper.” ## 8. 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 _Crl.R.P.2444/12_ **:8:** 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.” 9. 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 considering the facts of the case, has to see whether the application suffers from such improprieties or _Crl.R.P.2444/12_ **:9:** 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.” ## 10. In **Vinod Vs. 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 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 _Crl.R.P.2444/12_ **:10:** 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 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.” 11. 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 _Crl.R.P.2444/12_ **:11:** 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. 12. The prosecution case is narrated above as stated in the application for withdrawal itself. Let me consider the grounds raised in the application for withdrawal. “The Government has examined the matter in detail and due to the inexpediency of the prosecution, granted administrative sanction by _Crl.R.P.2444/12_ **:12:** way of expressing no objection to withdraw the case with the leave of the Court. I have perused the CD file and applied my mind to facts and circumstances of the case. I am of the opinion that it is a fit case to be withdrawn in order to safeguard the peaceful atmosphere of the locality. Since it is a political motivated case, in my opinion in order to keep peaceful and cordial relationship and to preserve peace and harmony in the locality, it is just to drop the further proceedings in the interest of justice in view of the fact that the Government is willing to withdraw the case with the leave of the respective Hon’ble court. Hence it is most humbly prayed that this Hon’ble Court may be pleased to grant sanction to the prosecution to withdraw the case in connection with Crime No.34/2009 of Badiadka Police Station (S.C.No.415/2010 on the file of this Hon’ble Court) in the interest of justice”. 13. In view of the above principles, let us examine the legality and propriety of the findings in the impugned order under challenge. In the impugned order, it is stated that the learned Magistrate had issued notice to C.W.1 and C.W.2 who are the victims of the crime on the application for withdrawal. C.Ws.1 and 2 have appeared before the _Crl.R.P.2444/12_ **:13:** Court and they informed that they have still grievance against the accused. C.W.1 has sustained loss due to the damage caused to his car and motor cycle. According to them, the accused had attempted to commit culpable homicide of them by pelting stones to his house. More importantly, it is the specific case of the victims that the accused trespassed into the house and made an attempt to outrage the modesty of a woman. I am of the opinion that a case wherein there is serious allegation against the accused that the accused have attempted to outrage the modesty of a woman, is not a fit case to be withdrawn, particularly, when the victim appeared before the Court and stood by his earlier stand that the accused are liable to be prosecuted under law. I am unable to accept the contention that withdrawal of such cases alleging offences committed against women would promote peace and harmony in the society. Per contra, I find that such withdrawal would aggravate the rivalry between the parties. Consequently, I find that the averment in the _Crl.R.P.2444/12_ **:14:** application for withdrawal that the withdrawal would promote peace and harmony in the locality is an utter falsehood without any bona fides and the same is intended to misguide the Court for getting consent of the Court. In such circumstances, the finding of the court below, that the present withdrawal petition is filed on account of some political influence exercised by the accused, cannot be ruled out. In the above context, I concur with the findings of the court below that the Public Prosecutor has not applied his mind in good faith. It appears that the Public Prosecutor has taken the decision under extraneous influence. There is no illegality, or impropriety in the impugned order under challenge. This Revision Petition is devoid of merits and hence dismissed accordingly. ## **(K.HARILAL, JUDGE)** **okb.**