Ranjith and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938** ## **Crl.MC.No. 3567 of 2016 ()** **--------------------------CMP NO. 134/2016 IN CC NO. 96/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA** **-------------------------** ## **PETITIONER/RESPONDENTS 2 TO 16/ACCUSED :** **------------------------------------------------------------------------** **1. RANJITH, S/O.RAMACHANDRAN PILLAI AGED 42 YEARS, ANANDA BHAVANAM, IVERKKALA KIZHAKKU MURI, KUNNATHUR VILLAGE.** **2. SABU, S/O.ALBERT** - **AGED 40 YEARS, VILATHARA VEEDU, KOTHAPURAM, PADINJARE KALLADA, KOLLAM DISTRICT.** **3. ANSAR SHAFI, S/O.MAJEED, AGED 37 YEARS, KUTTIYIL VEEDU, MYNAGAPPALLI, KADAPPA, KOLLAM.** **4. RAHIM,** - **S/O.HAMEED KUTTI** - **AGED 42 YEARS, KOCHUVEETTIL THEKKETHIL, KADAPPA, MYNAGAPPALLY, KOLLAM.** **5. SAJEEV,** - **S/O.SADANANDAN** - **AGED 44 YEARS, VARIKKOLITHARAYIL, KADAPPA, MYNAGAPPALLY, KOLLAM.** **6. SHIBU, S/O.GOPALAN AGED 36 YEARS, SHIBU BHAVANAM, KOYIKKAL BHAGAM, PADINJARE KALLADA, KOLLAM.** **...2/-** ## **Crl.MC.No. 3567 of 2016 () -2-** ## **7. VINOD, S/O.YOHANNAN AGED 35 YEARS, THOTTUKARA KIZAKKATHIL, KADAPPA, MYNAGAPPALLY THEKKU, KOLLAM.** **8. PRADEEP,** - **S/O.MURALEEDHARAN PILLAI AGED 35 YEARS, KUTTIKKATTU PUTHEN VEEDU, AREENELLOOR, THEVALAKKARA, KOLLAM.** **9. KARTHIK, S/O.BHADRAN PILLAI** - **AGED 24 YEARS, UTHRUTTATHI VEEDU, ARINELLOOR, THEVALAKKARA, KOLLAM.** **10. LIJU, S/O.PATHROS** - **AGED 26 YEARS, KALLAYYATHU VEEDU, KADAPPA, MYNAGAPPALLY, KOLLAM.** **11. JAYAN, S/O.SADASIVAN AGED 37 YEARS, ADITHYA VILASOM, KARALIMUKKU, PADINJARE KALLADA, KOLLAM DISTRICT.** **12. ANTONY, S/O.SAKKARIYA AGED 47 YEARS, THEJASS VEEDU, MANAKKARA, SASTHAMCOTTA, KOLLAM.** **13. SHIHAS, S/O.IBRAHIM AGED 24 YEARS, KAIPPALLIL VEEDU, PALAKKAL, THEVALAKKARA, KOLLAM.** **14. ARUN,** - **S/O.AYYAPPAN PILLAI AGED 29 YEARS, AKHILAM VEEDU, PORUVAZI, KOLLAM.** **15. VISHNU, S/O.SHIVANKUTTI AGED 25 YEARS, KARINGATTIL VEEDU, PALAYKKAL, THEVALAKKARA, KOLLAM.** **BY ADVS.SRI.K.SIJU SRI.S.ABHILASH SMT.S.SEETHA** **...3/-** **Crl.MC.No. 3567 of 2016 () -3-** ## **RESPONDENTS/COMPLAINANT & STATE :** **-------------------------------------------------------------** |**1.**|**STATE OF KERALA**| |---|---| ||**THROUGH SUB INSPECTOR OF POLICE,**| ||**SASTHAMCOTTA POLICE STATION,**| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA AT ERNAKULAM.**| |**2.**|**ASST. PUBLIC PROSECUTOR**| ||**JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**SASTHAMCOTTA.**| ||**R1 & R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN**| ||**THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION**| ||**ON 14-07-2016, THE COURT ON THE SAME DAY PASSED THE**| ||**FOLLOWING:**| ## **Mn** **...4/-** **Crl.MC.No. 3567 of 2016 ()** **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES : ---------------------------------------------** **ANNEXURE-1 THE COPY OF PETITION FILED BY THE ASST. PUBLIC PROSECUTOR, JFMC, SASTHAMCOTTA IN CMP NO.134/2016** **ANNEXURE-2 THE COPY OF ORDER DATED 22.4.2016 PASSED BY JFMC, SASTHAMCOTTA IN CMP NO.134/2016 IN C.C.NO.96/2012.** **RESPONDENT(S)' ANNEXURES : NIL ---------------------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **Crl.M.C. No. 3567 of 2016** -----------------------------------------Dated this the 14[th] day of July, 2016 ## **O R D E R ~~~~~~~~** - 1.The petitioners herein are the accused in C.C.No.96 of 2012 on the files of the Judicial Magistrate of First Class, Sasthamcotta. They are proceeded against for having committed offence punishable under Sections 143, 147, 148 and 353 read with Section 149 of the IPC and under Section 3(2)(e) of the PDPP Act. - 2.The challenge in this petition filed under Section 482 of the Code of Criminal Procedure is against Annexure 2 order by which the learned Magistrate had rejected the application filed by the learned prosecutor under Section 321 of the Code of Criminal Procedure for withdrawal from prosecution. - 3.Heard the learned counsel appearing for the petitioner and **Crl.M.C. No. 3567 of 2016 -2-** the learned public prosecutor. - 4.The prosecution allegation is that the accused were activists of the DYFI and on 26.9.2011 at 12.30 p.m., in prosecution of their common object, formed themselves into an unlawful assembly and trespassed into the Sasthamcotta Excise Range office premises and smashed the window glasses, and damaged furniture, office files etc. They are also alleged to have obstructed the excise officials from discharging their official duty and damaged a Mahindra Van bearing registration No.KL-4G/G 7901, thus causing a loss of Rs.15,000/- to the Government. - 5.The learned Magistrate had meticulously considered the facts and the law involved and after relying on the judgment of the Apex Court in **Sheo Nandan Paswan v. State of Bihar** [AIR 1987 SC 877] and also **Dineshan K.V. and Another v. State of Kerala and Others** [2013 - (4) KHC 206] came to the conclusion that the withdrawal **Crl.M.C. No. 3567 of 2016 -3-** of the case would not promote any public peace or public interest. It was also held that the application filed by the Public Prosecutor was bereft of good faith. 6.The learned counsel appearing for the petitioner assails the impugned order on various grounds. It is submitted that the learned Magistrate had not properly evaluated the principles laid down in the judgment referred to above. It is also submitted that the learned Public Prosecutor had filed the application after satisfying himself that there was only a bleak chance for a successful prosecution. It is finally submitted that PWs 1 to 4 who were examined before the court below did not support the prosecution case and the continuance of the criminal trial is nothing but a futile exercise. It is further urged that the 11[th] petitioner is placed in a rank list published by the Public Service Commission and due to the long delay in concluding the trial he is unable to join his duty and the **Crl.M.C. No. 3567 of 2016 -4-** same will adversely affect his future. - 7.Heard the learned Public Prosecutor as well. 8.It is borne out from the records that the Government had initially issued orders to withdraw the prosecution under Section 321 of the Code of Criminal Procedure. The learned Magistrate was not impressed with the application filed by the learned Prosecutor and came to the conclusion that it would not promote public peace or public interest . It is by now settled that it is the duty of the court to see that permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law directs the Public Prosecutor or Assistant Public Prosecutor to withdraw from the prosecution. It is the duty of the Public Prosecutor to make out some ground **Crl.M.C. No. 3567 of 2016 -5-** which would show that the prosecution is sought to be withdrawn because inter alia, the prosecution might not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be wellfounded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by continuing with the prosecution. The ultimate guiding consideration must be the administration of justice. ## 9. In **Bairam Muralidhar v. State of Andhra Pradesh** [AIR 2014 SC 3437], the Apex Court after an elaborate discussion of the case law on the point had laid down as follows in paragraph No.16 of the judgment. 16. In Rahul Agarwal v. Rakesh Jain and Another, 2005 (2) SCC 377 the Court was dealing with what should be the lawful consideration while dealing with an application for withdrawal under S.321 of the Code. The Court referred to the decisions in Ram Naresh Pandey (supra), State of Orissa v. Chandrika Mohapatra, 1976 (4) SCC 250 Balwant Singh v. State of Bihar (supra) and the authority in Abdul Karim (supra) wherein **Crl.M.C. No. 3567 of 2016** **-6-** the earlier decision of the Constitution Bench in Sheonandan Paswan was appreciated and after reproducing few passages from Abdul Karim (supra) ruled that: - "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 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 of justice, the Court may allow the withdrawal of prosecution. The discretion under S.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 State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same." **Crl.M.C. No. 3567 of 2016 -7-** 10.In the case on hand, the accused had trespassed into the Excise Range Office and had deterred the excise officials from discharging their official duty and had also caused extensive damages to the furniture, files and a vehicle. The learned Magistrate after evaluation of the materials came to the conclusion that the request for withdrawal from the prosecution is not bona fide and had rejected the application. After independently evaluating the materials, I find no reason to interfere with the impugned order. - 11.However, taking note of the fact that the trial is almost half way and the main witnesses have already been examined, I am of the view that directions can be issued to the learned Magistrate to expedite the proceedings and to dispose of the matter. I take specific note of the fervent submission of the learned counsel that the 11[th] petitioner had secured an employment and the same will be jeopardized due to the pendency of the criminal **Crl.M.C. No. 3567 of 2016 -8-** prosecution. 12.It is therefore ordered that all efforts shall be taken by the court below to conclude the trial as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this order. Petition is disposed of with the above observations. Sd/- **RAJA VIJAYARAGHAVAN.V. JUDGE** ps/15.7.2016