SHOAM C.J. v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2016-09-22
Court Decision / Holding: This petition is dismissed. The learned Magistrate’s order denying consent to withdraw is upheld. The Court directs the Magistrate to take up and dispose of CC No. 2243 of 2009 on the file of the Judicial First Class Magistrate-I, Punalur, as expeditiously as possible, but in any case within six months from receipt of a copy of this order.
Final Disposition: Petition dismissed; order to expedite trial within six months

Parties to the Case

Appellants / Petitioners

SHOAM C.J.

Respondents

State of Kerala rep. by Public Prosecutor, High Court of Kerala, Ernakulam, representing Sub Inspector of Police, Yeroor.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Praveen K. Joy

Counsels for Respondents

• Sri. Amjad Ali

Case Synopsis & Summary

This is a Kerala High Court Criminal Miscellaneous Case challenging a magistrate’s order denying withdrawal of prosecution under Section 321 CrPC in CC No. 2243/2009 arising from Crime No. 104/2009 of Yeroor Police Station, Kollam. The petitioner is accused 24 in a multi-accused case, charged under IPC Sections 143, 145, 149, 151, 188, 283 and under Section 38 of the Kerala Police Act, for allegedly blocking traffic during a march near Yeroor on 22 March 2009. During trial, the Public Prosecutor moved for withdrawal on grounds of insufficiency and unreliable evidence; the Magistrate dismissed the motion. The petitioner contends that Section 321 grants the Public Prosecutor broad authority to withdraw, subject to court consent, and that the Magistrate erred in refusing it. The Public Prosecutor counters that the Magistrate independently applied mind, weighed public interest, and that the administration of justice requires caution in consent to withdraw, noting that the trial had already begun and only petitioner challenged the order. The court cites Bairam Muralidhar v. State of Andhra Pradesh to emphasize that withdrawal should advance justice and require independent mind. Having examined submissions and the impugned order, the High Court dismisses the petition and directs the Magistrate to dispose of CC 2243/2009 expeditiously, within six months.

Provisions of Law Cited

Section 321 CrPCSections 143, 145, 149, 151, 188, 283 IPCSection 38 of the Kerala Police Act

Legal Doctrines & Maxims

Interest of administration of justice is the paramount consideration
Withdrawal should advance the cause of justice and serve public interest
Independent application of mind by the Public Prosecutor

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that Section 321 CrPC vests the Public Prosecutor with a general discretion to withdraw from prosecution, subject to the court's consent. The withdrawal application was made on grounds of insufficiency and the meagerness of reliable evidence. The Magistrate allegedly erred in refusing consent, and the decision should be reviewed to permit withdrawal to serve justice and public interest, especially since the trial has progressed and only the petitioner challenges the order.

Contentions of Respondents

The Public Prosecutor submits that the Magistrate properly exercised independent mind, considering public interest and administration of justice. Since the trial had begun and the Government order (Annexure-A1) and the circumstances support withdrawal, consent should be refused only if it would thwart justice. The court’s role is to ensure an informed consent and not to nullify the trial by usurping the prosecutorial discretion.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Bairam Muralidhar v. State of Andhra Pradesh	2014 (10) SCC 380	Positive	Cited to support the proposition that withdrawal should advance the cause of justice and serve public interest, and that independent mind of the Public Prosecutor is essential in such applications.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 22ND DAY OF SEPTEMBER 2016/31ST BHADRA, 1938** **Crl.MC.No. 1407 of 2013 ()** **--------------------------CMP 16845/2012 IN CC 2243/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PUNALUR CRIME NO. 104/2009 OF YEROOR POLICE STATION, KOLLAM DISTRICT ----------** **PETITIONER(S)/ACCUSED NO. 24 :** **----------------------------** **SHOAM C.J., AGED 34 YEARS, S/O. CHITRANGATHAN, CHITHIRA VEEDU, BAHARATHIPURAM, KOLLAM DISTRICT.** **BY ADV. SRI.PRAVEEN K. JOY** **RESPONDENT/STATE/COMPLAINANT :** **-------------------------------** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, YEROOR.** **BY PUBLIC PROSECUTOR SRI. AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 1407 of 2013 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** |**ANNEXURE A1:**|**TRUE PHOTOCOPY OF THE LETTER DATED 10-10-12**| |---|---| ||**ISSUED BY GOVT. WITH NO. 62563/L2/11/HOME.**| |**ANNEXURE A2:**|**TRUE PHOTOCOPY OF THE ORDER DATED 6-1-13 IN**| ||**C.M. P. NO. 16845/12 IN C.C. NO. 2243/2009 OF**| ||**JFCM-I, PUNALUR.**| |**ANNEXURE A3:**|**TRUE PHOTOCOPY OF THE FINAL REPORT IN C.C.**| ||**NO. 2234/2009 BEFORE JFCM-I, PUNALUR.**| |**RESPONDENT(S)'**|**EXHIBITS**<br>**:**<br>**NIL.**| ||**//TRUE COPY//**| **P.A. TO JUDGE** ## **bp** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ **Crl.M.C. No. 1407 of 2013** ------------------------------------------ -----------------------------------------Dated this the 22[nd] day of September, 2016 ## **O R D E R** ## **~~~~~~~~** - 1.The petitioner is the 24[th] accused in C.C.No.2243 of 2009 on the file of the Judicial Magistrate of First Class-I. He along with the other accused are being proceeded against for having committed offences punishable under Sections 143, 145, 149, 151, 188, 283 of the IPC and under Section 38 of the Kerala Police Act. - 2.The prosecution allegation is that, on 22.3.2009 at about 5.30 p.m., the petitioner along with the other accused had ignored the lawful orders of the Sub Inspector of Police, Yeroor Police Station and had conducted a march causing obstruction to the traffic. Crl.M.C. No. 1407 of 2013 **-2-** - 3.While the case was pending trial, the Public Prosecutor concerned had filed an application before the Court seeking withdrawal of the prosecution on the basis of Annexure-A1 order of the Government but the same was dismissed by the learned Magistrate by Annexure-A2 order. The said order is under challenge. - 4.Heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. It is submitted by the learned counsel that Section 321 gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution subject to the consent of the court. In the instant case, the application was filed by the prosecutor on the ground of insufficiency and meager nature of reliable evidence that was available and the learned Magistrate had erred in refusing consent. 5. The learned Public Prosecutor on the other hand would Crl.M.C. No. 1407 of 2013 **-3-** refute the contentions and would submit that the learned Magistrate had dismissed the application after independently applying his mind and taking note of the public interest involved. It is further submitted that interest of administration of justice is the paramount consideration for grant of consent for withdrawal of prosecution. Further it is submitted that the trial in the instant case has already commenced and out of 25 accused who were charged, only the petitioner has challenged the impugned order. 6.In **Bairam Muralidhar v. State of Andhra Pradesh** [2014 (10) SCC 380] the Apex Court after an elaborate survey of previous precedents have observed that withdrawal of prosecution should advance the cause of justice and serve public interest. It was further held that there should be independent application of mind on the Crl.M.C. No. 1407 of 2013 **-4-** part of the learned Public Prosecutor. The trial court is not expected to mechanically pass orders on the application filed seeking consent. The court has to give an informed consent and should be satisfied that it would serve the public interest. The court is also to consider whether the grant of consent would thwart or stifle the course of law or result in manifest injustice. After having considered the rival submissions and after going through the impugned order, I am of the view that all the relevant aspects have been considered by the court below while dismissing the application seeking consent. I do not find any reason to interfere with the impugned order invoking the powers of this Court under Section 482 of the Code. - 7.The learned counsel appearing for the petitioner prays that necessary directions be issued to the court below to expedite the matter. Crl.M.C. No. 1407 of 2013 **-5-** In the result, this petition is dismissed. However, the learned Magistrate is directed to take up and dispose of C.C.No. 2243 of 2009 on the file of the Judicial First Class Magistrate-I, Punalur, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this order. **Sd/-** **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/22/9/16 Crl.M.C. No. 1407 of 2013 **-6-**