Sreekumar S/o Gopalan Nair & Others v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934** **Crl.MC.No. 1325 of 2012 ()** **-------------------------CMP.NO.7135/2009 IN CC.226/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT.-III,THIRUVANANTHAPURAM.** **PETITIONER(S):** **-------------** **1. SREEKUMAR S/O.GOPALAN NAIR, TC 7/1072(A),SREELAKSHMI VEETTIL, PANGODE WARD, SASTHAMANGALAM VILAGE,** **2. UNNI, S/O.KRISHNANKUTTY, JEEVAN MIDHUN VEETTIL, NEAR VELLAYANI JUNCTION, NEMAM VILLAGE, THIRUVANANTHAPURAM DIST.** **3. K.A.MANUEL, S/O.ANTONY, T.C.27/2049,CRA 16. CHIRAKKULAM ROAD, VACHIYOOR WARD, VANCHIYOOR VILLAGE.** **4. VINU, S/O.SADASIVAN, POORNIMA VEETTIL, WEST TO KOVALAM POLICE STATION, AVADUTHURA DESOM, VIZHINJAM VILLAGE.** **BY ADVS.SRI.ALAN PAPALI** **SRI.SOJAN MICHEAL** **COMPLAINANT(S):** **---------------** **STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGHG COURT OF KERALA, ERNAKULAM, KOCHI-31** **BY ADV.SRI.T.ASAF ALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DG** **Crl.MC.No. 1325 of 2012 ()** **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **ANNEX.I:COPY OF THE PETITIN DTD 11/11/2009 IN CC NO 226/2008 FILED BY THE ASSISTANT PUBLIC PROSECUTOR,BEFORE THE JFCM COURT III, THIRUVANANTHAPURAM.** **ANNEX.II:COPY OF THE ORDER DTD 20/9/2011 IN CMP N0.7135/2009 IN CC NO 226/2008 OF THEJFCM COURT III,TIRRUVANANTHAPURAM** **RESPONDENTS' EXHIBITS** **-** **NIL** **//TRUE COPY//** **P.A TO JUDGE** **DG** **'C.R'** **S.S.SATHEESACHANDRAN, J.** **----------------------------------------------Crl.M.C No.1325 OF 2012 ------------------------------------------------------Dated this the 9[th] day of July, 2012** ## **ORDER** Petitioners are the accused in a case pending before the Judicial First Class Magistrate-III, Thiruvananthapuram. They are being prosecuted in the case for the offence punishable under Section 332 r/w Section 34 of the Indian Penal Code. 2. Petitioners are employees in the Accountant's General Office, Thiruvananthapuram. When an agitation by some employees was going on in that office, it is alleged, the petitioners restrained a peon, the de facto complainant, voluntarily caused hurt to him and prevented him from discharging his duties as a public servant. The crime registered over such occurrence led to indictment of the accused for the offence stated, and the case now awaits trial. The Assistant Public Prosecutor in charge of the case moved an application under Section 321 of the Code of Criminal Procedure, for short, 'the Code', for withdrawal of the case. Annexure I is the copy of that petition. Request made for Crl.M.C No.1325/2012 2 withdrawal was later not pressed by the Assistant Public Prosecutor, who made an endorsement to that effect in the petition. The learned Magistrate thereupon dismissed Annexure I petition vide Annexure II order. Challenge in the above petition is against Annexure II order invoking the inherent jurisdiction of this court under Section 482 of the Code. 3. Learned counsel for the petitioners would submit that Annexure I application was filed on 11-11-2009 and it was pending consideration before the court for nearly two years. Notice was also ordered to the de facto complainant. Pending inquiry on the withdrawal from prosecution applied, for the sole reason there was a change of Government, without any application of mind, according to the counsel, the Assistant Public Prosecutor endorsed non pressing of that petition. The only reason stated for non pressing of the petition for withdrawal was that the Government has withdrawn the consent. That, at any rate, could not be considered as a justifiable and acceptable ground to hold that the Assistant Public Prosecutor has applied his mind in not pressing the application for withdrawal. Non pressing of the petition moved for withdrawal from prosecution is tainted with malafides and it is illegal and unsustainable, is the submission of the learned counsel. Crl.M.C No.1325/2012 3 Countering the challenge raised, the learned Director General of Prosecution submitted that after application for withdrawal was moved objection was raised thereto by the de facto complainant, and on a reconsideration of the entire matter the Government found that the previous consent given for withdrawal was not proper. The Assistant Public Prosecutor, having regard to that circumstance and applying his mind to the facts and circumstances involved in the case, reported to the court that the petition for withdrawal is not pressed. Withdrawal from prosecution under Section 321 of the Code rests with the Assistant Public Prosecutor in charge of the case, subject to the consent of the court. Till the request for withdrawal is decided by the court, nothing prevents or interdicts the Assistant Public Prosecutor in not pressing that request, is the submission of the learned Director General of Prosecution. 4. If we go by Section 321 of the Code dealing with withdrawal from prosecution there cannot be any doubt that the authority or empowerment to seek withdrawal of the case rests with the Public Prosecutor or Assistant Public Prosecutor in charge of a case, and he can do so at any point of time before judgment is pronounced. Though such empowerment for withdrawal is Crl.M.C No.1325/2012 4 conferred on the Public Prosecutor or Assistant Public Prosecutor, withdrawal can be effected only with the consent of the court after it has exercised its seizin over the case and it is pending consideration. Government, no doubt, as the master of litigation can suggest for withdrawal having regard to various circumstances involved in the case. Whatever suggestion be given by the Government for withdrawal, the Public Prosecutor or Assistant Public Prosecutor, as the case may be, has to apply his mind and then take a decision whether withdrawal from prosecution has to be applied of. In **“Abdul Karim and Others v State of Karnataka and Others” (2000(8) SCC 710)** the apex court has held in unequivocal terms that the Public Prosecutor himself has to independently apply his mind to the relevant material and reach his own satisfaction regarding the need for withdrawal from prosecution in good faith disregarding any decision or direction of the Government. So, previously, an application was moved as directed by the Government and, later, on withdrawal of the consent from the Government, the Assistant Public Prosecutor endorsing that reason moved for non pressing of that application, has little significance in judging whether there is any impropriety on the part of the Assistant Public Prosecutor in moving for non Crl.M.C No.1325/2012 5 pressing of the withdrawal application. So long as he is empowered to move an application for withdrawal of the case, then, till that matter is finally decided by the court, it should be taken that he has competency not to press that application for withdrawal. The accused cannot contend that once the application is moved by the Assistant Public Prosecutor for withdrawal till a decision is taken thereof by the court he has no authority or empowerment not to press that application. 5. There are three stages when a request for withdrawal of prosecution is made under Section 321 of the Code namely:- i) A request by the prosecutor seeking the consent of the court for withdrawal of the prosecution. ii) Satisfaction of the court that the case is a fit one for granting such consent, and iii) A formal order of discharge or acquittal as the case may be if consent is given. When an application for withdrawal is moved and an inquiry is pending with or without notice to the accused or the de facto complainant the first stage alone has passed and the remaining yet to be completed. If at that stage the application is not pressed for one reason or another by the Assistant Public Prosecutor, the court cannot compel him to prosecute that application for withdrawal. In Crl.M.C No.1325/2012 6 **“Mohammed v State of Kerala” (1982 KLT 60)** a more or less identical fact situation arose for consideration, in which after the question of consent for withdrawal was heard and pending orders the Assistant Public Prosecutor reported that the withdrawal was sought under a mistake. The Magistrate acted upon the submissions made on the report subsequently filed, and passed orders for recording the evidence in the case. Challenge against that order by the accused on the premise that the Assistant Public Prosecutor had no authority to withdraw the petition reporting that he was not pressing the petition, was turned down holding that the Magistrate was perfectly justified in taking into account the report subsequently filed and decide that consent need not be given for withdrawal. In Mohammed's case it has been held thus: “The Code of Criminal Procedure does not insist that notice should be given to an accused person or that he should be heard before disposing of an application for permission to withdraw a prosecution. If that be so, it does not stand to reason that he should be given notice or should be heard before the Court acts on a report by the Public Prosecutor that he does not want to press the withdrawal. It was pending decision on the question of consent that the report was filed by the Assistant Public Prosecutor that the application seeking consent was filed under a mistake. The Court was perfectly within its powers in taking into account the said report and decide that consent need not be given for withdrawal”. Crl.M.C No.1325/2012 7 I am in respectful agreement with the views expressed in the aforesaid decision. There is no merit in the challenge raised against Annexure II order. Petition is dismissed. vdv **S.S.SATHEESACHANDRAN, JUDGE**