Madras High Court
Jesudoss vs R. Vijayaraghavan on 22 June, 2007
Author: P.Murgesen
Bench: P.Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 22/06/2007 Coram: THE HONOURABLE MR.JUSTICE P.MURGESEN Criminal Revision Case (MD) No.853 of 2005 Jesudoss ... Petitioner Vs 1. R. Vijayaraghavan 2. State through The Inspector of Police, Tallakulam P.S Cr.No.595 of 2001... Respondent PRAYER Criminal Revision Petition is filed under Section 397 & 401 of Criminal Procedure Code to set aside the judgment passed by the learned Judicial Magistrate No.II, Madurai in C.C.No.876 of 2001 dated 17.09.2005. !For Petitioner ... Mr.C.M.Arumugam ^For Respondent 1 ... Mr.M.P.Damodharan for R1 For Respondent 2 ... Mr.L.Murugan, G.A.(Crl. Side) :ORDER
This Revision is directed against the order of permitting the Respondent/Complainant to withdraw the calender Case No.876 of 2001 on the file of the Judicial Magistrate No.II, Madurai dated 17.09.2005.
2. The brief facts of the prosecution case are as follows:-
A complaint was lodged by the petitioner herein on 01.06.2001 against the first respondent herein. According to him that he was travelling in an Auto bearing Registration No.TN.59 M 3355 near Raja Muthiah Hall, Madurai. At that time, a person was travelling in M.80 motor cycle and he was attempted to dash against the Auto. So, the petitioner shouted at him. Then, the accused stopped his vehicle and waylaid the Auto. Then, he stated that he is a police man and assaulted the petitioner and also kicked in his testicles and the auto driver ran away.
(ii) Further, the policeman threatened him to endanger his life. His friend Muthuraman pacified him. Later, he came to know that the accused has been working in Karimedu Police Station. Then, the petitioner lodged a complaint in Tallakulam Police Station.
(iii) The second respondent received the complaint and registered a case in Cr.No.595 of 2001 and prepared the printed First Information Report.
Investigating Officer also recorded the statement of the complainant. Then the learned Assistant Public Prosecutor filed a memo for withdrawing the case of the prosecution.
(iv) According to the prosecution, the Commissioner of Police, Madurai City, found that there was some defects in the registration of the complaint and the witnesses. So, he advised the Additional Public Prosecutor to withdraw the case.
(v) Hence, the Assistant Public Prosecutor filed a petition to withdraw the case under Section 321 Cr.P.C. Subsequently, the learned Judicial Magistrate also permitted the prosecution to withdraw the case. His order reads as follows:
The Public Prosecutor having requested permission to withdrawal from the prosecution of the Vijayaraghavan accused in respect of offence under Sections 341, 323, 506(1) I.P.c and having satisfied this Court and there are sufficient grounds for granting permission is hereby permitted to withdrawal from the prosecution as above said of the accused who is requested under Section 321, Code of Criminal Procedure.
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1. Date of Offence : 01.06.2001
2. Date of Complaint : 11.07.2001
3. Date of hearing : 17.09.2003
3. Challenging the order of the learned Judicial Magistrate No.II, Madurai in calender Case No.876 of 2001 dated 17.09.2005, this Revision has been filed by the petitioner.
4. The point for determination is:-
Whether the Revision is maintainable?
Points:-
In this revision, the order of the learned Judicial Magistrate was challenged on the ground that the withdrawal from prosecution is not proper.
(ii) Though withdrawal from prosecution is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the Court's supervisory function. As per Section 321 Cr.P.C, withdrawal can be permitted only with the consent of Court. such being the case, before an application is made under Section 321 Cr.P.C., the Public Prosecutor should apply his mind to the facts of the case independently, without being subject to any outside influence.
(iii) This Court and apex Courts on various occasions held, while interpreting Section 321 Cr.P.C, that the sole consideration for the public prosecutor, when he decides to withdraw from the prosecution is the larger factor of the administration of Justice. The interests of public justice being the paramount consideration that may transced and overflow the legal justice of the particular litigation.
(iii) The ultimate guiding consideration must always be the interest of administration of justice and there is the touch-stone on which the question must be determined whether the prosecution should be allowed to be withdrawn.
(iv) Permission to withdraw from the prosecution should not be granted for the mere asking but the Court must be satisfied on the materials placed before it that the grant of permission would serve the administration of justice. The discretion to withdraw from the prosecution is that the public prosecutor cannot surrender that discretion to someone else.
(v) Though the reasons for withdrawal could be many, it should be clear that the withdraw was ultimately to promote the ends of justice in this case.
So, withdrawal was allowed on the ground that there is a departmental inquiry against the accused and there is some defect in the materials.
(vi) But, the petitioner has categorically stated about the occurrence,the Public prosecutor is not able to show what are the defects in the complaint and investigation. The accused is a police constable. Naturally, there was an attempt to withdraw the case. The role of the public prosecutor was considered by the Honourable Mr. Justice Karpagavinayagam, the decision reported in V. Krishnasamy and etc. Vs. S.K.Monoharan and others (1997 Crl.L.J.654) and by the Hon'ble Suprement Court's decision reported in Bansi Lal Vs. Chandan Lal and another (AIR 1976 Supreme Court 370) will explain the role of the Public Prosecutor and also the Court in consideration 321 Cr.P.C.
(vii) The Court ought to have applied his mind whether the claim of the prosecution is correct or not?. The Public Prosecutor must exercise his decision independently. I find in this case, the stand of the public prosecutor is not correct. It is the case of prosecution since department action was taken, prosecution against the accused is not necessary. The decision reported in Moulana Basha Vs. State rep. by the Inspector of Police (1993 Crl.L.J.1545 Madras High Court), will furnish the answer as to the claim of the prosecution. In the above decision, it was held as follows.
The pendency of the departmental enquiry was not a sufficient ground for consenting to withdraw the pending prosecution against the accused. In that case also, the case was registered against a police constable and the withdrawal petition was set aside by the Madras High Court. The principle laid down in the above said case is squarely applicable to this case.
5. On careful consideration of the analysis materials and of the submissions made by both the parties, I find that the withdrawal of the case of prosecution under Section 321 Cr.P.C. is not correct and the same is liable to be set aside.
6. In the result, this Revision is allowed and the order of the learned Judicial Magistrate No.II, Madurai in C.C.No.876 of 2001 dated 17.09.2003 is set aside.
To
1. The Judicial Magistrare No.II, Madurai.