Kerala High Court
Prakash Babu vs State Of Kerala on 17 June, 2004
Equivalent citations: 2004(2)KLT908
Author: R. Basant
Bench: R. Basant
ORDER R. Basant, J.
1. Did the learned Sessions Judge travel beyond the scope of his jurisdiction or act incorrectly in withholding the consent for withdrawal of a prosecution against the petitioners who face indictment, inter alia, under Section 3 of the P.D.P.P. Act and Sections 357, 353 and 307 read with Section 149 of the Indian Penal Code? This is the crucial question that arises for consideration in this revision petition.
2. Fundamental facts are not in dispute. The prosecution was launched and cognizance was taken on the basis of a final report filed by the police. The prosecution alleged that the petitioners/accused, 46 in number, who are leaders and workers of the D.Y.F.I. belonging to the L.D.F. which was in opposition at the relevant time, were members of an unlawful assembly of persons. Their common object was to disrupt a meeting which was scheduled to be held at the Tiruvalla Service Co-operative Bank. The Minister for Co-operation was to conduct the inauguration of the strong room and counter of the said Co-operative bank. The petitioners and the political group to which they belong had, certain objections on political reasons against the Minister concerned. This was allegedly the reason which prompted them to take the decision to obstruct and disrupt the meeting which was scheduled to take place on 13.6.1995. The police had prior information about the programme as also the intention of the accused persons to disrupt such meeting. The police had made very effective arrangements to ensure the safety and security of the Minister as also the orderly conduct of the function. There was substantial police personnel at the venue of the meeting. The Superintendent of Police of the District (C.W.1) was personally present along with a posse of policemen including CWs. 2 to 15 to oversee and ensure order, peace and tranquility. The effective action taken by the police allegedly ensured that the function was not disrupted. Thereupon, the ire of the petitioners allegedly turned against the police who had discharged their duty satisfactorily and ensured peaceful conduct of the function and the safety of the Minister. The unlawful assembly of persons led by the accused allegedly attempted to break the police cordon and march. When they were stopped, the members of the unlawful assembly turned violent and resorted to blatant violence. Crude and unrefined weapons, stones, were made use of. Stones were thrown at the policemen. They suffered injuries. The alleged common object of the unlawful assembly and their attempt was allegedly to cause the death of policemen including CWs. 1 to 15. The victims suffered simple hurt. The unlawful assembly allegedly indulged in wanton destruction of buses belonging to the Kerala State Road Transport Corporation resulting in loss to public property of about Rs. 6,000/-. This is the case of the prosecution.
3. The learned Magistrate, below whom the final report was filed, after observing all statutory requirements, committed the case to the Court of Session. It is submitted at the Bar that the charges have already been framed against the accused under Sections 143, 147, 148, 149, 332, 353, 324 and 307 and Section 3(2)(c) of the P.D.D.P. Act read with Section 149 of the IPC.
4. At that stage, the Additional Public Prosecutor in charge of the prosecution filed an application seeking consent of the Court to, withdraw from prosecution under Section 321 of the Cr.P.C.
5. In the said petition, it is stated that:
"The incident was happened due to political rivalry between the parties. CWs.l to 15 are Police Officials of Pathanamthitta District and the accused 1 to 46 are Trade Union Leaders, Social Workers, and political groups. The issue has been amicably settled by the initiative of mediators and they have given a warning to the accused to keep peace, discipline and not to repeat such incidents. Now they are keeping harmony. The accused are the residents of various places at Tiruvalla and Mallappally Taluk. If the trial is continued, there is every possibility to change the present harmony between the parties and to the locality. To ensure peace and command harmony in the locality and promoting goodwill between the police and public and between political parties and also in the interest of justice the withdrawal of the above case from the prosecution is inevitable".
6. This petition was obviously filed after the political group to which the petitioners belong came to power in the State of Kerala. Later, they went out of power also. The petition was not disposed of while the said political group was holding the reigns of power. Later, the Public Prosecutor, who succeeded the one who filed the application, took over charge. He did not want to press this petition. He sought permission to withdraw the petition. The said request was turned down by the learned Assistant Sessions Judge. That order is not assailed before me by any one and that order has now become final.
7. The learned Assistant Sessions Judge thereafter proceeded to consider the question whether on the averments referred to above made by the Public Prosecutor the consent under Section 321 of the Cr.P.C. deserves to be granted or not. The learned Assistant Sessions Judge by the impugned order held that the consent does not deserve to be granted and that the proposed withdrawal from prosecution would hamper the interests of justice and public order.
8. The learned counsel for the petitioners vehemently assails the impugned order. He contends that the learned Assistant Sessions Judge had gone totally beyond the scope of his jurisdiction while considering the grant of consent under Section 321 of the Cr.P.C. The learned Assistant Sessions Judge erred grossly in not according consent on the ground that the victims -CWs. 1 to 15 are not shown to have settled the dispute with the accused. He further contends that the learned Assistant Sessions Judge was totally wrong in coming to the conclusion that the interests of justice and public order will not be advanced by the grant of the consent under Section 321 of the Cr.P.C. as prayed for. The learned counsel prays that the impugned order may be set aside, petition allowed, consent granted and withdrawal from prosecution under Section 321 of the Cr.P.C. permitted.
9. The learned Public Prosecutor, on the contrary vehemently, opposes the Revision Petition and contends that consent is not liable to be granted under Section 321 of the Cr.P.C. The learned Assistant Sessions Judge has correctly adverted to the law and facts and in these circumstances, the impugned order does not warrant interference at all, contends the learned Public Prosecutor.
10. I have considered all the submissions made. The statutory provision in Section 321 of the Cr.P.C. reveals clearly that it is the executive function of the Public Prosecutor to choose to withdraw or not from a prosecution. The statutory provision further makes it clear that the exercise of such executive power is not unbridled. It is subject to the supervisory jurisdiction of the Court. Only with the consent of the Court, such withdrawal can be resorted to.
11. My attention has been drawn by the learned counsel for the petitioners to all the relevant and binding precedents. To me, the law appears to be well settled and it is not necessary to advert to the precedents in detail. I need only mention that my attention has been drawn to the following decisions which are the leading lights on the subject:
(1) Rajender Kumar v. State, AIR 1980 SC 1510.
(2) Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877.
(3) Abdul Karim v. State of Karnataka, AIR 2001 SC 116.
(4) Madan Gopal v. State of Kerala, 1989 (1) KLT92.
(5) Razack v. State of Kerala, 2000 (3) KLT 686.
12. A fairly exhaustive discussion on the subject and identification of the 8 cardinal principles is available in Rajender Kumar v. State, AIR 1980 SC 1510. Subsequent decisions have not in any way, questioned the correctness of the said decision. Principle B enumerated therein clearly shows that while exercising supervisory powers over the exercise of executive authority by the Public Prosecutor, 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 withdraw from the prosecution. The interests of justice and public order, the legislature appears to have accepted, is too serious a business to be left to the uncontrolled discretion of even the Public Prosecutor, a distinct and separate office which is at least fictionally deemed to be beyond the reach and influence of the political executive in power from time to time.
13. The law expects the Public Prosecutor to function as a Minister of Justice and consider the question whether withdrawal from prosecution is necessary, proper and just. He is not expected to act as an officer/employee of the Government. But, as the Supreme Court stressed, he is to function as a Minister of Justice. Even the conduct of such Minister of Justice is brought within the supervisory jurisdiction of the court which is to accord consent or withhold it after testing the request of the Public Prosecutor in the interests of justice and public order. The Court, it is trite, does not sit in appeal over the discretion of the Public Prosecutor. But it certainly is the duty of the Court to ensure and satisfy itself that the Public Prosecutor has exercised his function honestly, properly in good faith and bearing the interests of the public justice in mind.
14. An unjustified withdrawal from prosecution is likely to prompt the raising of the ugly head of private vengeance. This is not to say that the interests of the private individual/aggrieved is the be-all and end-all when the question of withdrawal from prosecution or grant of consent is considered. The Public Prosecutors and Courts by the training which they have, by the detached approach to problems before them which they are trained and groomed to imbibe, must be able to correctly decide whether withdrawal from prosecution is wholesome viewed from the interests of the polity as a whole. Convenient withdrawals from prosecution to permit the followers of a political party to escape from the consequences of their culpable facts will certainly not be recommended by the Public Prosecutor; nor approved by the Court. The difficulty is not in identifying the legal principles which have been laid down within sufficient clarity by the decisions referred above. Difficulty, if any, is in applying those principles to the given set of facts.
15. The learned Assistant Sessions Judge appears to have undertaken a conscientious attempt to apply the principles to the facts on hand. The dispute in this case is certainly not one between private individuals. The crux or gravamen of the charge is that the police personnel discharged their duty which law expects them to perform and commands and obliges them to perform. If a Minister, who the law must assume is a leader of the polity, is not permitted to take part in public functions and his right to movement were attempted to be restricted and curtailed by any one for whatsoever reasons, that is indeed an objectionable act and the police are duty bound to prevent such culpable conduct. If the police perform their functions efficiently and satisfactorily in this regard, no person has the right to resort to violence against the police. The police in this country may be guilty of several indiscreet conduct. But it is significant that there is no allegation in this case or explanation in the petition filed by the learned Public Prosecutor that the police was guilty of any such indiscretion in the instant case. It is crucial to note that the learned Public Prosecutor does not state in the petition that the policemen were guilty of any indiscreet act which prompted the violence or that the Prosecutor in his wisdom and discretion is satisfied that there is inadequacy of evidence to substantiate the change. The petition which I have extracted above clearly shows that the learned Public Prosecutor accepts that the petitioners are guilty and mediators had warned them against such conduct.
16. The only reason stated by the learned Public Prosecutor to justify the prayer for withdrawal is that the disputes have been settled. It is the duty of the Court to exercise supervisory function to ascertain whether the statements in the petition are correct. It is in this context that the Court asked the question who had settled the dispute, when and under what circumstances the victims are policemen on duty. No one has a case even now before me that the victims had settled the dispute. That, of course, is not a sine qua non to justify the Public Prosecutor filing an application for withdrawal. But when that is shown as the only reason/ground for withdrawal, the court is certainly justified in asking its Public Prosecutor as to whether that statement is correct and acceptable. The foundation of the prayer for withdrawal made by the learned Public Prosecutor is the settlement of the dispute. That is found to be unreal, non-existent and illusory. 1 am unable to accept the argument that a court called upon to exercise its supervisory function over the executive decision of the Public Prosecutor has erred or misdirected itself in taking note of the fact that the alleged settlement of the dispute is unreal and non-existent.
17. It is contended that the real dispute was between the two political factions-pro-Minister and anti-Minister. They have settled their disputes, it is attempted to be advanced. When, how and what manner was their disputes settled? How can that be reckoned to be relevant in a case where the very allegation is that the policemen on duty who discharged their duty to maintain law and order were attracted. It is crucial to note that no one has a case that the fight was between the two factions and the policemen happened to suffer injuries when the rival contestants indulged in mutual acts of violence.
18. Our police forces or at least some members of the same do not have an enviable track record of commitment to human rights. But it would be improper to brand the police force as such as persons who are not entitled to the protection of law especially when there is no allegation even that the policemen have resorted to any improper conduct in the instant case. A refined and sophisticated polity must frown against the attempts of law breakers to raise their hands against the police in violence. As rightly noted by the learned Judge if police force do not get the protection of law against the acts of violence indulged in by the miscreants against them, they would thereafter be reluctant to act in aid of law and order and that in turn would bring in anarchy. The sufferers will be the ordinary members of the polity. If such an impression gains grounds among the police force the cause of justice will be defeated. It is the duty of the court while considering the question of accord of consent under Section 321 of the Cr.P.C. to prevent miscarriage of justice and to protect the interests of the public justice. The learned Assistant Sessions Judge who refused permission to the Prosecutor to withdraw from prosecution, according to me, acted alertly, diligently and in aid of the interests of public justice. The impugned order refusing to grant consent does not, in these circumstances, warrant interference by invocation of the revisional jurisdiction of superintendence and correction vested in this Court. The challenge must, in these circumstances, fail.
11. In the result:
(a) This Revision Petition is dismissed.
(b) The impugned order is upheld.