State of Kerala v. Arun and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 Crl.Rev.Pet.No. 3443 of 2008 -----------------------------------(CMP 6417/2007 IN CC.225/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM) .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------- STATE OF KERALA, REP.BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.TEK CHAND. RESPONDENTS(S): ACCUSED ------------------------- 1. ARUN, AGED 19,S/O.VAMADEVAN, TC 14/692, NANDAVANAM, PALAYAM WARD, THYCAUD VILLAGE. 2. BIJU, AGED 20, S/O.PRABHAKARAN, CHANDRIKA BHAVAN, MELATTUR MUZHI JUNCTION, VAMANAPURAM VILLAGE. 3. DARVIN @ BEN DARVIN, AGED 26,S/O.STUVERT PERUVILA VEEDU, PARASUVAYAL DESOM, NEYYATTINKARA TALUK. 4. SINDHU JOY, AGED 24,D/O.LAILA, NEAR SUDHEESH SMARAKA MANDIRAM & AYURVEDA COLLEGE, VANCHIYOOR WARD, VANCHIYOOR VILLAGE. 5. SIRAJ, AGED 20, S/O.THAHA, SEENA MANSIL, TC 32/192,NEAR MADHAVAPURAM MUSLIM CHURCH, MADHAVAPURAM DESAM KADAKAMPALLY VILLAGE. 6. SHRIJITH,AGED 19,S/O.ASOKAN,THAKKETHIL VEEDU, NEAR VENKAVILA BLOCK OFFICE, AANAD VILLAGE, NEDUMANGAD TALUK. 7. RAMKUMAR, AGED 18,S/O.RAVIKUMAR, KOUSTHABHAM VEEDU, G.K.GARDEN (GKRA-19), VALLAKKADAVU WARD, MUTTATHARA VILLAGE. CRL.R.P.NO.3443 OF 2008 :-2-: 8. UNNIKRISHAN, AGED 18,S/O. NANDAKUMAR,MAN IMANGALAM VEEDU, TC 3/2402 (3) (PKRA-71-A) IYSWARYA LANE, PLAMOODU JUNCTION PATTOM WARD & VILLAGE. 9. MATHEW JACOB, AGED 18, W/O. JACOB GEORGE, SALVATION COTTAGE HOUSE NO.46, KAVADIYAR WARD, KAVADIYAR VILLAGE. 10. SAJU, AGED 27, S/O. ISMAIL, P.A. HOUSE, NEAR PILLODU KARTIVAKILL JUNCTION, KULATHUR VILLAG E 11. SHAIJU, AGED 22,S/O. VARGHESE, POTTAYIL VEEDU,MANNAKKAL, MOOLATHOTTAM WARD, THIRUPURAM VILLAGE. 12. ANEESH, AGED 21, S/O. THANKACHAN, ANEESH BHAVAN, T.C. 27/2144 (2153), CHIRAKKULAM COLONY, RISHIMANGALAM WARD, VANCHIYOOR VILLAGE, 13. SREENISH, AGED 20, S/O. PURUSHOTHAMAN, KARTHIKA, NEAR CHEERAZHA SIVA TEMPLE, VATTAPPARA VILLAGE. 14. SHIBU, AGED 18, S/O. SIVADASAN, VIKAS BHAVAN, POLICE QUARTERS, E -13, PALAYAM WARD, VANCHIYOOR VILLAGE. 15. MANISH, AGED 25, S/O. KAMALAN,SAVITHAM HOUSE, VADASSERYKONAM, SREENARAYANAPURAM, KOTTOOR VILLAGE. 16. SANTU, AGED 19, S/O. MANOHARAN, MANOHAR HOUSE, NEAR PACHALLOOR BHADRAKALI TEMPLE, PACHALLOOR, THIRUVALLOM VILLAGE. 17. HARIL, AGED 22, S/O. VIJAYAN, PRASANTH HOUSE, CHAKOTTUKONAM, THUNDATHIL WARD, IYIROORPPARA VILLAGE. 18. ABHILASH, AGED 21, S/O. BASHEER, ABHILASHBHAVAN, KUNJALAMOODU SASTHRI NAGAR T.C.20/1523, KARAMANA WARD, THIRUMALA VILLAGE. 19. ARUN, AGED 18,S/O. THANKAPPAN, S.B. NIVAS, PUNNAMOODU, PALLICHAL VILLAGE. 20. KOCHANI, AGED 26, S/O,SUKUMARAN NAIR IDAPAZHANJI, CS NAGAR,TC 15/487, VAZHUTHACUAD WARD, SASTHAMANGALAM VILLAGE. CRL.R.P.NO.3448 OF2008 :-3-: 21. SYAMANTHAKAM, AGED 21, S/O. BHAKTHADASAN THAIULLATHIL, NEAR AZHEEKKODE SAMARAKA MANDIRAN, KOONATTU, PATTIYAM VILLAGE. 22. JAGATH KRISHNAN, AGED 19, S/O. KOLAPPAN PILLAI, SANGEETH NAGAR, H.NO.211 (TC 24/408), NEAR MODAL SCHOOL, THYCAUD VILLAGE. 23. PRABEETH, AGED 24 S/O. SUNDARESHAN, VALIAKATHU HOUSE, DAIVAPURAYIDAM, TC 31/100 NEAR KSEB OFFICE, CHACKA WARD, PETT VILLAGE. 24. AJITH, AGED 25, S/O.MADHAVAN NAIR, AJITH BHAVAN, KULATHOOR DESOM,KULATHUR VILLAGE. 25. BINU, AGED 28,S/O. SAHADEVAN, SREEVILAS HOUSE, CHALAMUKKU WARD, MULAKKAL VILLAGE, KOLLAM DISTRICT. 26. RAHIM, AGED 24 S/O. ABDUL SAMAD, SREEJA MANSIL HOUSE, THYCAUD DESOM, VELAVOOR WARD, KOLIYAKKODE VILLAGE. 27. ARU, AGED 23, S/O. CHANDRABALAN,LALITHA BAHVAN, GANDHIMATHI ROAD, TC 34/509, PTP WARD, VATTIYOORKAVU VILLAGE, 28. LAL KUNJUMON AGED 21 S/O. NEPPOLIAN FISHERMEN COLONY,TC 70.3462, VALIYATHURA WARDMUTTATHARA VILLAGE, 29. RENGITH, AGED 18, S/O. SURENDRAN NAIR, NEDIYARATHALA HOUSE, KULANGARA KONAM, PALLICHALA DESOM, PALLICHAL VILLAGE. 30. MIDHUN, AGED 18 S/O MOHANAN, PUSHAP NAGAR, TC 12/450, KUNNUKUZHI WARD, PATTOM VILLAGE. ADV. SRI.P.V.SURENDRANATH FOR R-21 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.R.P.No. 3443 of 2008** **----------------------------------------** Dated this the 14[th] day of June, 2011 ## **ORDER** The above revision petition is filed at the instance of the State of Kerala, challenging the order dated 19.8.2008 in CMP No.6417 of 2007 in C.C.No.225 of 2005 of the Judicial First Class Magistrate Court-III, Thiruvananthapuram, by which the learned Magistrate dismissed the petition filed under Section 321 of the Code of Criminal Procedure (for short 'the Cr.P.C.') for withdrawal of the case filed by the Assistant Public Prosecutor of that court. 2. C.C.No.225 of 2005 was instituted in the trial court based upon the report filed by the Cantonment Police in Crime No.345 of 2004 in which the offences involved are under Sections 143,147,148 and 282 read with Section 149 I.P.C. and Section 38 read with Section 52 of the Kerala Police Act and Section 3(2) of the Prevention of Damage to Public Property Act, 1984. The accused are 30 in number. ## **Crl.R.PNO.3443 of 2008** ## **:-2-:** 3. The prosecution case is that on 2.12.2004, at 12.20 p.m. about 150 SFI workers in protest against the attitude of one of the then Ministers of the State of Kerala, in not resigning from the post, connected with an allegation formed themselves into an unlawful assembly and caused obstruction to the traffic on the road in front of the Secretariat and though CW9 ordered them to disperse, A1 to A33 did not comply with the lawful orders issued by CW9 and accordingly, they were arrested and removed in a police van to the Police Station and while the accused persons were inside the van, they had broken the glasses of the police van and thereby caused a loss of Rs.5000/- to the State. 4. Thus, while C.C.No.225 of 2005 is pending for consideration, the Assistant Public Prosecutor has preferred a petition dated 19.7.2007 under Section 321 of Cr.P.C. which is numbered as CMP No.6417 of 2007, seeking permission of the court to withdraw the above case. The learned Magistrate,as per Annexure-2 order ## **Crl.R.PNO.3443 of 2008** ## **:-3-:** dismissed the above petition. It is against the above order,the present revision petition is preferred. 5. Heard the learned Public Prosecutor for the State and also heard Sri.P.V.Surendranath, learned counsel appearing for respondent No.21. 6. On a perusal of the petition preferred by the A.P.P. under Section 321 of Cr.P.C., it can be seen that the A.P.P. has filed a petition on the following grounds:- “ _As in this case, there had been more than 150 persons (who were the students) only 33 persons were arrested witness they were actual accused or not was not investigated or ascertain by the investigating officer that may tell upon the prosecution case._ _There was no proper identification by the witness in this case. Moreover, overtact by each accused was also not made out with charge which will also tell upon the prosecution case._ _Hence I have applied my mind and has come to the conclusion that it is a fit case to be withdrawn from the file of this Hon'ble court_ ” 7. The legal position, especially regarding the power and ## **Crl.R.PNO.3443 of 2008** ## **:-4-:** jurisdiction of the court which deals with an application under Section 321 of Cr.P.C. for withdrawal of criminal case is now well settled. In the decision _**State of Kerala**_ v. _**Varkala Radhakrishnan and Another reported in ILR 2009(1) Kerala Series page No.721**_ particularly paragraph 5: “ _5. It is not the law that the Government cannot suggest to the Public Prosecutor that he may withdraw from prosecution. The only restriction is that for the reason that the Government suggested to withdraw from prosecution the Public Prosecutor cannot withdraw the prosecution. No one including the Government can compel the Public Prosecutor to withdraw from prosecution. It is also not the law that prosecution could be withdrawn only for paucity of evidence. The Public Prosecutor is entitled to withdraw from prosecution on all relevant grounds, including in appropriate cases social, economic and political purposes, if it is for the public good. Analysing the earlier decisions Apex Court in_ _**Rajender Kumar v. State** held that it shall be the duty of the Public Prosecutor to inform the court to appraise itself of the reasons which prompted the Public Prosecutor to withdraw from the prosecution. The court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its “Minister of Justice”. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S.321”. As cautioned by Their Lordships, independence of the judiciary requires that once the case has travelled to the court, the Court and its officers alone_ ## **Crl.R.PNO.3443 of 2008** ## **:-5-:** _must have control over the case and decide what is to be done in each case. Therefore the argument of the Director of Prosecution Sri.V.G.Govindan Nair that the State being the master of the litigation is entitled to withdraw the prosecution, taking into consideration all relevant grounds including social, economic and political purposes and court cannot refuse to grant permission cannot be accepted. Even though the Government is entitled to suggest the Public Prosecutor that he may withdraw from the prosecution, the Government even though the master of the litigation, is not entitled to compel the Public Prosecutor to withdraw the prosecution. It is absolutely within the province of the Public Prosecutor to act in good faith and exercise the discretion vested in him, to decide even in that case whether the prosecution is to be withdrawn or not.”_ ## 8. It is further held in paragraph six thus: _“6. Analysing the earlier proceedings it was held in ._ _**Rajender Kumar's case**_ “ _13. (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 prosecution not merely on the ground of paucity of_ ## **Crl.R.PNO.3443 of 2008** ## **:-6-:** _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 sans Tammany Hall Enterprises._ _(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 reappreciate 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”_ _When the court grants consent to the Public Prosecutor to withdraw the prosecution, it must be satisfied that the 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.”_ ## 9. On examination of the petition preferred by the Assistant ## **Crl.R.PNO.3443 of 2008** ## **:-7-:** Public Prosecutor, in the light of the decisions cited supra, I am of the view that the A.P.P. had applied his mind in making the application under Section 321 of the Cr.P.C. In the above decision, this Court has held that when the jurisdiction of the court in granting or refusing to grant consent or withdrawal is only supervisory and not either adjudicatory or appellate, the orders passed by the learned Magistrate refusing to grant permission are illegal and are to be set aside. In the light of the dictum laid down by this Court through the decision cited supra and in view of the ground taken in the petition under Section 321 of Cr.P.C. and the reasons stated by the learned Magistrate in dismissing such petition, the question to be considered is whether the learned Magistrate is justified in his impugned order, in dismissing the petition filed by the A.P.P. for withdrawal of the case. From the grounds contained in the petition which are extracted hereinbefore, the learned Public Prosecutor is of the opinion that though there were more than 150 persons involved, only 33 persons were arrested and ## **Crl.R.PNO.3443 of 2008** ## **:-8-:** there was no investigation as to whether the arrested persons were the actual accused or not. It is also stated by the Public Prosecutor that there was no proper identification by the witness in the case and the overtact by each accused was also not made out in the charge which will also tell upon the prosecution case. Thus, according to the learned Public Prosecutor, he had applied his mind and had come to a conclusion that it is a fit case to be withdrawn from the file of the trial court. 10. But,the learned Magistrate, after consideration of the petition, is of the opinion that the ground taken by the A.P.P. that only 33 persons were arrested is not a good ground to allow the request for withdrawal because the non-inclusion of all the accused is not a ground to withdraw the case, especially when the accused are the persons who committed the destruction of the property. The learned Magistrate also went to the extent to say that non-identification parade is not at all fatal to the prosecution case since the accused persons ## **Crl.R.PNO.3443 of 2008** ## **:-9-:** were arrested from the spot itself and they committed the offence of destruction of public property while they were in the custody of the Police. The above approach of the learned Magistrate is absolutely unwarranted and arbitrary. On going by Annexure-I report and the petition of the learned A.P.P., it can be seen that altogether more than 150 persons were involved in the incident and there is no overt act alleged against the accused and there is no witness to identify the accused who actually committed the offence. It is also relevant to note that the alleged destruction of glass panel of the Police van has not allegedly taken place before the arrest of the accused. Thus, going by the impugned order of the learned Magistrate, it appears that the learned Magistrate has exceeded his jurisdiction under Section 321 of the Cr.P.C. and it seems that the learned Magistrate considered the application of the A.P.P. as the learned Magistrate discharging his appellate jurisdiction and this approach of the learned Magistrate is diametrically opposed to the test and dictum laid down by this Court ## **Crl.R.PNO.3443 of 2008** ## **:-10-:** in the decision cited supra. Therefore, Annexure-1 order of the learned Magistrate is not sustainable either in law or on facts. Consequently,the impugned order is liable to be set aside. In the result, this petition is allowed setting aside Annexure-2 order dated 19.8.2008 of the court of the Judicial First Class Magistrate-III, Thiruvananthapuram in CMP No.6417 of 2007 in C.C.No.225 of 2005 and CMP No.6417 of 2007 filed by the A.P.P. in that court is allowed and accordingly,the respondents/accused are acquitted of all the charges levelled against him in the above case. The Criminal Revision Petition is accordingly allowed. ## **V.K.MOHANAN, Judge** MBS/ ## **Crl.R.PNO.3443 of 2008** **:-11-:** **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** ## **Crl.R.PNO.3443 of 2008** ## **:-12-:** Dated:..