State of Kerala v. Krishnakumar and Prasanth

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933** **Crl.Rev.Pet.No. 2118 of 2010()** **------------------------------** **AGAINST THE ORDER DATED 30/04/2010 IN CMP.5693/2009 IN CC.145/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, THIRUVANANTHAPURAM** **....................** ## **REVN. PETITIONER/COMPLAINANT** **----------------------------------------------------** **STATE OF KERALA, REP. STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.V.TEK CHAND** ## **RESPONDENTS/ACCUSED** **-----------------------------------** **1. KRISHNAKUMAR, S/O. MURALEEDHARAN NAIR, HARIKRISHNA HOUSE, NEAR MFAC CLUB, WARD NO.IV, AZHOOR VILLAGE, CHIRAYINKEESHU TALUK.** **2. PRASANTH, S/O. KRISHNAN NAIR, KOCHUMANAKATTIL HOUSE, NEAR PILLAAMMACHAN TEMPLE, KARIYAM WARD, KAZHAKUTTOM VILLAGE.** **R1 ADV. SRI.K.P.SUJESH KUMAR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **VK** ## **V.K.MOHANAN,J** **-----------------------------** ## **Crl.R.P.No.2118 of 2010** **----------------------------------------** Dated this the 2[nd] day of June, 2011 ## **ORDER** Aggrieved by the order dated 30.4.2010 of the court of Judicial First Cass Magistrate Court-III, Trivandrum in C.M.P.No.5693/2009 in C.C.No.145/2004, the State preferred this revision petition. In the above revision petition, the challenge is against the order of the learned Magistrate by which the learned Magistrate dismissed the petition filed by the Asst. Public Prosecutor of that court under Section 321 of Cr.P.C to withdraw the above calender case, which pending, in the very same court. 2. Heard the learned Public Prosecutor as well as the learned counsel appearing for the respondents. 3. C.C.No.145/2004 was instituted in the court of Judicial First Class Magistrate-III, Trivandrum, on the basis of the report filed by the Police in Crime No.15/2002 of the Contonment Police Station, Trivandrum. In the above ## **Crl.R.P.No.2118 of 2010 2** crime, the allegation is that due to the previous enmity of the accused against CW1, at about 5.15 pm on 22.1.2004, the accused along with 15 other persons attacked CW1. According to the prosecution the accused are belonged to SFI and CW1, the defacto complainant belonged to KSU. The incident was taken place when the “Kalolsavam” was going on in the University College, Trivandrum and according to the prosecution A1 restrained CW1 by holding his neck and A2 fisted him on his chest. Thereafter, they pushed down CW1. Thus, according the prosecution the accused have committed the offences punishable under Sections 341, 323, 427 r/w Section 34 of IPC. On filing the report after investigation in the above crime, cognizance was taken by the learned Magistrate and instituted C.C.No.145/2004 in the above court. 4. During the pendency of the above calendar case, the Asst. Public Prosecutor of that court had preferred an application for withdrawal of the above case by filing ## **Crl.R.P.No.2118 of 2010 3** Crl.M.P.No.3358/2007 before the said court, but the same was dismissed by the learned Magistrate by order dated 25.6.2009, for the reason that there was no valid ground. Thereafter, the APP of the trial court moved Annexure-II petition under Section 321 of Cr.P.C before the court below. In the above petition the learned APP has taken six grounds in support of the prayer for withdrawal of the case. But the learned Magistrate by Annexure-III order dismissed the above petition. It is the above order challenged in this revision petition. 5. In this juncture, it is relevant to note that the prosecution preferred the report, after investigation of an incident which taken place about seven years back that too inside a College campus connected with an art festival termed as “Kalolsavam”. It is also an admitted fact that the case arose out of political rivalry as the accused are belonged to Students Federation of India and the defacto complainant belonged to Kerala Student Union namely, ## **Crl.R.P.No.2118 of 2010 4** KSU. Along with the revision petition, the State has produced a copy of the petition filed by the APP in the court below which marked as Annexure-A2. As I indicated earlier in the said petition the APP has mentioned the following reasons which persuaded him to approached the court by filing such petition. a. This case comes under political influence and arose out of the political rivalry between A1 and A2 who were members of SFI and the defacto complainant who was a member of KSU(I) fraction. Hence, in public interest and changed circumstance, the present government decided to withdraw the case. b. Lack of prospectus of successful prosecution in the lift of available evidence. c. Inexpediency of the prosecution for reason of the state and public policy. d. The adverse effects that the continuance of prosecution will bring on public interest in the light of the changed situation. e. The broader public interest like maintenance of Law and Order, public peace and changed political situation. f. In the FI Statement given by CW1 it was stated that he was attacked by A1 & A2 and 15 identifiable persons at sight. In the wound certificate he stated that he was attacked by a group of people around 8 to 10 and the names of A1 & 2 were not mentioned in the wound certificate. It is seen that CW1 has given an additional statement U/s.161 Cr.P.C and in that statement he had stated that he had attacked by A1 & 2 only and he has not given any explanation why he has stated he was attacked by A1 & 2 along with 15 others in the FI Statement. Admittedly, CW1 was political rivalry with CW1 & 2 which cause serious doubt regarding the statement of CW1. Even though 427 IPC is alleged no valuation of the actual loss sustained by CW1 is assessed in this case. **Crl.R.P.No.2118 of 2010 5** 6. The legal position, especially regarding the power and 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** particular 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 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 ## **Crl.R.P.No.2118 of 2010 6** 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. ## 7. 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 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” ## **Crl.R.P.No.2118 of 2010 7** 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. 8. On a perusal of Annexure-2 petition filed by the APP, following the test laid in the decision cited supra, it can be seen that the APP has applied his mind in making such petition under Section 321of Cr.P.C. In the very same decision this Court has held that the jurisdiction of court in granting or refusing to grant consent or withdrawal is only supervisory and not either adjudicatory or appellate. In the present case also, according to me, the learned Magistrate has gone beyond his jurisdiction under Section 321 of Cr.P.C. In Annexure-II petition, the APP has categorically stated that in the wound certificate produced by the Police, the names of the accused are not stated and the valuation of the actual loss sustained by CW1 has also not made in the ## **Crl.R.P.No.2118 of 2010 8** case. Apart from the above fact which are very particular and material in the above case, the APP has also stated the general grounds in support of his prayer for withdrawal of the case. It is the above grounds rejected by the learned Magistrate in dismissing the application. On a perusal of Annexure-2 petition as I indicated earlier, I am of the view that the learned APP has applied his mind to move an application under Section 321 of Cr.P.C in support of such opinion he had assigned several reasons or grounds. If that be so, the learned Magistrate has no jurisdiction to examine the correctness and legality of the grounds taken by the APP in filing the petition since the learned Magistrate is not expected to sit in appeal upon the application preferred by the APP under Section 321 of Cr.P.C and the learned Magistrate is not called upon to adjudicate the correctness of the grounds taken thereon. Therefore, the order of the learned Magistrate is not sustainable either in law or on facts, consequently, the order impugned is liable to be set ## **Crl.R.P.No.2118 of 2010 9** aside. In the result, this revision petition is allowed, setting aside the order dated 30.4.2004 of the Judicial First Class Magistrate-III, Trivandrum in C.M.P.No.5693/2009 in C.C.No.145/2004 and Annexure-2 petition filed by the learned APP of that court is allowed and accordingly, the accused/respondents are acquitted. Accordingly the revision petition is allowed. **V.K.MOHANAN, JUDGE** pm/