Kerala High Court
Sreejesh Panickar vs State Of Kerala on 7 July, 2020
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942
Crl.Rev.Pet.No.1220 OF 2019
AGAINST THE ORDER/JUDGMENT IN CMP NO.1389/2018 IN CC 1847/2015
DATED 08-03-2019 OF JMFC, KALAMASSERY (TEMPORARY)
CRIME NO.953/2015 OF Kalamassery Police Station , Ernakulam
REVISION PETITIONERS/RESPONDENTS/A1-A38 & A41:
1 SREEJESH PANICKAR
AGED 25 YEARS
S/O. SHAJI BONZLE, MUKKAPPILLIL VEEDU, KIZHAKKEKARA
NORTH, HARIPPADU, ALAPPUZHA
2 SUDHANSHU PRAKASH,
AGED 23 YEARS
S/O. VED PRAKASH, BALBADRAPUR, DARBANGA , BIHAR
3 SAJAD,
AGED 23 YEARS
S/O. MUHAMMED SHAFI, CHEMMUKAL VEEDU, NAYADIPPARA,
KOTTAKKAL, MALAPPURAM
4 FAZIL,
AGED 25 YEARS
S/O. ABDUL NAZR, SAFA HOUSE, NEAR POOVADAN GATE,
BEACH ROAD, VADAKARA
5 SANOON,
AGED 22 YEARS
S/O. UADAYAN, VARIKKAMUNDAYIL VEEDU, N.G.O QUARTERS,
MUNDUPARAMBU, MALAPURAM
6 KEVIN JAMES,
AGED 24 YEARS
S/O. JAMES GEORGE, MANATHARAYIL VEEDU, THUMBAMON
NORTH, MEZHUVELI VILLAGE, PATHANAMTHITTA
7 ASWIN V. NAIR,
AGED 24 YEARS
S/O. VINAYAKAN NAIR, CHANDRAMANGALAM VEEDU, MEDICAL
COLLEGE P.O, THIRUVANANTHAPURAM
Crl.RP 1220/2019
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8 UDHITH KRISHNAN V.V,
AGED 24 YEARS
S/O. BALAKRISHNAN V.V,
VADAKKUMVADAKKAN VEEDU, ERANTHODU, ANGADIPURAM
9 AJAY HARIDAS,
AGED 24 YEARS
S/O. HARIDAS, CHANDAPARAMBIL VEEDU, VATTANKULAM,
EDAPPAL
10 AANAND A,
AGED 24 YEARS
SHELTER VEEDU, TEMPLE ROAD, KUNNUPURAM,
CHETTUPUZHA P.O, THRISSUR
11 JIBIN T.P
AGED 23 YEARS
THAREPARAMBIL VEEDU, KUZHAAR , MALA
12 ASWATHI AJAYAN,
AGED 24 YEARS
D/O. AJAYAN, VARIYAMBATH VEEDU, MALAPPARAM, PIN
670 631
13 DAIDHA DAYANANDAN,
AGED 24 YEARS
D/O. DAYANANDAN, MUNDUKATTIL VEEDU, KUNNUMKARA
P.O, CHELANNU 676 616
14 ATHIRA,
AGED 24 YEARS
MEYANA, 38/668-A, THAZHATHEYYILPARAMBU, EDAKKAD
P.O, KOZHIKODE
15 TEENA SALEEM CITADAL,
AGED 24 YEARS
CITTADAL, VETTICHIRA P.O, PUNNATHALA, MALAPPURAM
16 ANJALI M.S,
AGED 24 YEARS
MULLOLI VEEDU, NEAR C.C.M.K HOSPITAL, CHALAKKUDI
17 RASNA S,
AGED 23 YEARS
D/O. SIVADASAN, POLLAPUTHALATHAZAM, PERUMANNA-
Crl.RP 1220/2019
-3-
18 RINI JOSEPH,
AGED 23 YEARS
D/O. JOSEPH MATHEW, 101 KASTOORI APARTMENTS,
CIRCULAR ROAD, RANCHI
19 SHAMSIYA SHYKATH ALI,
AGED 24 YEARS
D/O. SHOWKATH ALI, CHERIPARAMBIL VEEDU, VANDOOR
ROAD, KALIKKAVU, PIN 676 525
20 NEETHU SAJEEVAN,
AGED 23 YEARS
D/O. SAJEEVAN, MANGALATH VEEDU, KAIRADI P.O,
PARAYAMBALAM, PALAKKAD
21 JUNAID V.M,
AGED 23 YEARS
VATTAPARA P.O, METHALA,
KURUPPAMPADI, ERNAKULAM
22 SACHIN JOHNSON,
AGED 24 YEARS
S/O. JOHNSON, KANJIRATHINKAL VEEDU, DHANYA ROAD,
KATTIPARAMBU, DRA 52, VENNALA
23 GUFRAN IB-IN ABDUL GAFOOR,
AGED 24 YEARS
S/O. ABDUL GAFOOR, NAFEESAS, MUZHIKKARA P.O,
THALASSERY, KANNUR
24 FARHAN EBIN ABDUL GAFOOR,
AGED 23 YEARS
S/O. ABDUL GAFOOR,NAFEESAS, MUZHIKKARA P.O,
THALASSERRY, KANNUR
25 AMAL DEV,
AGED 24 YEARS
S/O. VASU DEV, ANJANNAM VEEDU, AMRA-114
AMBADIMOOLA, KAKKANAD
26 DHEERAJ,
AGED 24 YEARS
S/O. KURIYAKOSE, SHAKTHI NAGAR EXTENSION,
KAVUNDERPALAYAM, P AND T COLONY, COIMBATORE
Crl.RP 1220/2019
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27 RAMAKRISHNAN,
AGED 24 YEARS
S/O. NARAYANASWAMI, 30/630/1 SREEKIRAN,
POOKUNNAM P.O, THRISSUR
28 GOKUL S,
AGED 24 YEARS
S/O. SHAJAHAN, POOVAMNILKUNNATH VEEDU,
VAYALA P.O, KOTTAYAM
29 ACHUTH VENU,
AGED 24 YEARS
S/O. VENUGOPAL, VELIKKAKATH VEEDU,
MATHILAKAM P.O, THRISSUR
30 DEEPAK DIVAKARAN,
AGED 23 YEARS
S/O. DIVAKARAN, MURIKKUMTHODIYIL VEEDU,
AATHALLOOR P.O, THAVANNOOR, MALAPPURAM
31 JALILB AKTHAR,
AGED 24 YEARS
S/O. MAJEED, MARVA MAHAL,
K.V CAVE, PULIKKAL VIA,
MALAPPURAM
32 JISHNU REJIMON,
AGED 24 YEARS
S/O. REJI, AANIKUNNEL,
SUKODAYA LANE ROAD, KANJIRAPALLY
33 SREEKUMAR P,
AGED 24 YEARS
S/O. KRISHNAKUMAR, PAANCHATH VEEDU,
MUNDUPARAMBU P.O, MALAPURAM
34 JITHESH P,
AGED 24 YEARS
S/O. SADASIVAN, POOKKAD,
MANNOOR P.O, KOZHIKODE
35 SARATH DAS,
AGED 24 YEARS
VALAPPIL VEEDU, KALLUVAYIL,
MYTHANIKUNNEL, SULTHAN BATHERY
Crl.RP 1220/2019
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36 VISHNU M.V,
AGED 24 YEARS
METTUPARAMBATH VEEDU, TAMBURATH PARAMB, PATTIKAD,
MALAPPURAM
37 DANISH MUHAMMED POTTAKKAL,
AGED 24 YEARS
S/O. KABEER BABU, PADIYATH VEEDU, VALAYANNOOR P.O,
KALPAKANCHERY, MALAPPURAM
38 NIHAZ
AGED 24 YEARS
S/O. ABDUL NAZEER, ENTHADUMPAYIL, NOORUMTHODE P.O,
KOZHIKODE
39 BILAL A NAZEER,
AGED 24 YEARS
S/O. NAZEER, CHEELAKKAD HOUSE, PAANOOR, PALLANA
P.O, ALAPPUZA
BY ADVS.
SRI.D.KISHORE
SMT.MINI GOPINATH
SRI.R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENTS/STATE AND PETITIONER/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM 682 031
2 THE SUB INSPECTOR OF POLICE,
KALAMASSERY POLICE STATION, ERNAKULAM 682 034
R1-2 BY SRI.SUMAN CHAKRAVARTHY, SENIOR
GOVT.PLEADER
OTHER PRESENT:
SMT.V.SREEJA PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 19.11.2019, THE COURT ON 07.07.2020 PASSED THE FOLLOWING:
Crl.RP 1220/2019
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ORDER
Crl.R.P. No. 1220 of 2019 [Dated, this the 7th Day of July, 2020] This is a revision petition filed by accused Nos.1 to 38 and 41 in C.C No. 1847/2015, challenging the order dated 08.3.2019 of the Judicial First Class Magistrate's Court, Kalamassery in C.M.P No. 1389/2018, an application filed by the Assistant Public Prosecutor under Section 321 of the Cr.P.C.
2. The petitioners are implicated as accused in Crime No.953/2015 of Kalamassery Police station for having allegedly committed offences punishable under Sections 143, 147 and 342 read with Section 149 of the I.P.C and under Section 3 (1) of the Prevention of Damages to Public Properties Act, 1982.
3. The petitioners were students of Cochin University of Science and Technology during the academic year 2015-2016.
4. The prosecution case in brief is thus:-
on 30.7.2015, the accused including the petitioners were members of an unlawful assembly and in prosecution of the common object of the unlawful Crl.RP 1220/2019 -7- assembly, they committed riot, wrongfully confined the hostel warden and Pro-Vice Chancellor in the Students Amenity Centre, and thereafter destroyed the public property of the University such as furniture and windows thereby causing a damage of Rs.38,095/-
(Rupees Thirty eight thousand and ninety five only) to the University.
5. Assistant Public Prosecutor (APP), in charge of the case, filed an application as mentioned above seeking permission of the Court to withdraw from the prosecution stating that the alleged offences were committed by about hundred students out of which only 41 students could be arrayed as accused. It is further stated that the investigating officer has not given any explanation regarding why the remaining students were not implicated. The identification of the students who were actively involved in offence of confinement and destruction to public properties, was not properly made during the investigation and hence, identification of the accused for the first time during examination of witnesses may not be proper. The APP has stated that he has produced the entire Crl.RP 1220/2019 -8- records and after applying his free and independent mind to the allegations levelled against the accused, is of the opinion that withdrawal from the prosecution would be appropriate in the larger interest of justice. The Government has vide Order No.L/3/67/2018/Home dated 14.5.2018 has expressed no objection in withdrawing from the prosecution with the permission of the Court.
6. The learned Magistrate considering the application filed under Section 321 of the Cr.P.C heard the Registrar of the University who did not have any objection in allowing the application to withdraw the prosecution against the accused. The learned Magistrate relying on the decision of this Court in the Dineshan K.V and another v. State of Kerala and another [2013(4) KHC 206] has held that commission of an offence causing mischief or damages to the public properties under the PDPP Act or by attacking public servants who are acting in discharge of their public duty is against the public interest and therefore the application cannot be allowed.
7. Aggrieved by that the petitioners are before Crl.RP 1220/2019 -9- this Court in revision. The petitioners were all students in their early twenties. It is contended that even according to the prosecution case, there were hundreds of students who had participated in the agitation and there is no proper identification of the students involved. The investigating officer has randomly selected a few and arrayed them as accused. It is submitted that the the Court below went wrong in holding that the financial loss sustained to the University was not compensated. Although the total loss sustained by the University is assessed at only Rs.38,095/-, more than Rs.80,000/- has been deposited by the accused at the time of granting of bail. Hence, it is prayed that the impugned order may be revised and the application filed by the APP to withdraw from the prosecution under Section 321 Cr.P.C be allowed.
8. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor.
9. The learned counsel appearing for the accused submits that the decision of the Honourable High Court of Kerala in Dinesan's case (supra) is not Crl.RP 1220/2019 -10- applicable to the facts and circumstances of this case. The University is not Government in the strict sense and the campus cannot be described as a public place. The University can condone the acts of the students and exonerate them. The Registrar of the University has appeared before the Magistrate to admit that he does not have any objection in the prosecution case being withdrawn. The learned counsel pointing to the proviso to Section 321 of the Cr.P.C submits that all that is required is that when the destruction or damage to any property belonging to the Central Government is committed, the Prosecutor in charge of the case who has not been appointed by the Central Government shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution. According to the learned counsel, inclusion of the said proviso to Section 321 Cr.P.C indicates that there is no Crl.RP 1220/2019 -11- prohibition from exercising jurisdiction under Section 321 Cr.P.C even in cases where the destruction is concerning property belonging to the Central Government. Nothing has been stated in the Section regarding total embargo to withdrawal of cases under the provision as far as the State Government is concerned. In the instant case, permission of the Government has already been obtained. The Registrar of the University appeared before the court below to express that he does not have any objection in the case being withdrawn. Hence, the learned counsel submits that the petition filed by the APP for withdrawal from prosecution may be allowed.
10. The Honourable Supreme Court has in the decision In Re : Destruction of Public & Pvt, Property v. State of A.P. and others [2009(2) KLT 552 : 2009(5) SCC 212] issued certain directions and guidelines with regard to destruction of public properties based on reports obtained from two Committees headed by Justice K. T. Thomas and Mr.F.S. Nariman. The recommendations were mainly pertaining Crl.RP 1220/2019 -12- to certain rebuttable presumptions to be added to the PDPP Act; videography to be arranged by the Police regarding the act of destruction to public properties, prohibition of all weapons during demonstration in the public; etc. There is no suggestion by the Committees or the Court regarding creating embargo to the provisions under Section 321 Cr.P.C.
11. A Division Bench of this Court has in Gopi.P.S and another vs. Sub Inspector of Police and others [2011 (4) KHC 95] exercising jurisdiction under Article 226 of the Constitution held that the High Court has ample powers to assess and quantify and fix liability for the loss caused to public property as well as to recover the same from the concerned.
12. In Kodungallur Film Society and another vs. Union of India and others [2018 (5) KHC 297] directions have been issued regarding the preventive and remedial measures to be taken in cases of mob violence during public demonstrations. There is also direction to grant bail on condition of the positive Crl.RP 1220/2019 -13- amount towards loss sustained due to damage to public properties.
13. Considering the scope and the exercise of judicial discretion by the Court in granting consent to the discharge of accused under the provisions of Section 494 (analogous to S.321) of the pre-amended Cr.P.C, the Honourable Supreme Court had in State of Bihar vs. Ram Naresh Pandey and another [A.I.R. 1957 S.C.389] held thus:
"5. The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. There can be no doubt, however, that the resultant order, on the granting of the consent, being an order of 'discharge' or 'acquittal', would attract the applicability of correction by the High Court under S.435, 436 and 439 or 417 of the Code of Criminal Procedure. The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of S.494 would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially............................ The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. S.494 requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme, than with the provisions of the Code relating Crl.RP 1220/2019 -14- to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue."
14. In Rajender Kumar Jain vs. State through Spl Police Establishment and others [AIR 1980 SC 1510] , the Hon'ble Supreme Court considered the various earlier decisions of the Apex Court including the decision in Ram Naresh Pandey (supra) and the changes brought about by amendment in S.321 Cr.P.C; and held thus:
"13. Thus, from the precedents of this Court; we gather
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 Crl.RP 1220/2019 -15- is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."
15. In the Dineshan's case (supra), this Court had observed thus:
"The commission of any offence causing mischief or damage to public property under the PDPP Act or by attacking public servants while acting in discharge of their public duty is against the public interest and public peace. Necessarily, it follows that withdrawal of prosecution of such offences is also against public interest and public peace and consent for withdrawing prosecution in your of such offences cannot be granted."
16. Section 321 Cr.PC does not lay down any rule regarding the category of cases in which consent should be granted or refused (see State of Orissa vs. Chandrika Mahapatra [AIR 1977 SC 2265]). The Court's duty is not to re-appreciate the grounds which are let the public prosecutor to request withdrawal from prosecution but to consider whether the public prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations.
17. In Sheonandan Paswan vs. State of Bihar and others [1983 KHC 434:AIR 1983 SC 194] , it is held as follows:
"124. If once it is accepted that the application for withdrawal from the prosecution can be made on various grounds and it is not confined to political offences, Crl.RP 1220/2019 -16- the contention raised on behalf of the appellant that grounds Nos. (b), (c), (d) mentioned in the application for withdrawal are irrelevant in the instant case will not be tenable. The Indian Penal Code or the Code of Criminal Procedure does not make any such distinction between Political offences and offences other than political ones. Even if it is accepted that political offences are not unknown to jurisprudence and other Acts do contemplate political offences, the fact remains that S.321, Cr. P. C. is not confined only to Political offences or social offences; but it applies to all kinds of offences and the application for withdrawal can be made by the Public Prosecutor on various grounds. The only safeguard that should be kept in mind by the Public Prosecutor is that it should not be for an improper or oblique or ulterior consideration, and the guiding consideration should be that of vindication of public justice."
18. The facts in the Dineshan's case (supra) can be clearly distinguished from the facts in the instant case. The destruction to public property was caused in that case following a political demonstration wherein the demonstrators turned violent, attacked public servants and caused damage to public properties. The Court had also expressed doubts regarding the application of mind independently by the Public Prosecutor. The facts are not similar in the case in hand. No offences under Sections 151, 152, 332 and 353 of the I.P.C are attracted in this case. The only allegation here is that the the hostel warden and the Pro-Vice Chancellor were confined. The University had Crl.RP 1220/2019 -17- sustained a loss of Rs.38,095/-only. In view of the directions of the Hon'ble Apex Court, the petitioners had deposited amounts far exceeding the damages sustained by the University. The learned counsel for the petitioners concedes that the petitioners are willing to forgo the amount deposited as bail condition even if the petitioners are discharged in consequence to permission being granted under Section 321 Cr.P.C.
19. The role of the Court while exercising jurisdiction under Section 321 Cr.P.C is only supervisory and is neither adjudicatory nor appellate. All that is to be considered is whether the Public Prosecutor has exercised his discretion unfettered by the opinion of the Government. I find no reason to find otherwise.
20. I am therefore inclined to reverse the impugned order of the learned Magistrate. The only question that remains to be decided is whether the amount deposited by the petitioners as bail condition could be forfeited or adjusted towards compensation to the State/University in case of discharge of the Crl.RP 1220/2019 -18- accused. Section 357A Cr.P.C provides for victim compensation scheme. Sub Section (3) to Section 357A provides for compensation for rehabilitation of victim even in cases which ends in acquittal or discharge. The Sub Section reads thus:
"(3) If the trial Court, at the conclusion of the trial, is satisfied, the compensation awarded under Section 357 is not adequate for such a rehabilitation, or when the cases and the acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation."
Section 2 (wa) of the Cr.P.C defines a 'victim' as thus:
"(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and expression "victim"
includes his or her guardian or legal heir;"
Borrowing the definition of "person" defined under Section 11 of the I.P.C, it would include any company or association or body of persons whether incorporated or not. A wider interpretation of the definition of 'person' could include even a university. Hence, I find that, despite the accused Crl.RP 1220/2019 -19- being discharged under Section 321 Cr.P.C; the "victim" University could be adequately compensated.
In the decision of the Division Bench of this Court in Gopi P.S (Supra), it was held that the High Court has ample powers to assess, quantify and fix liability for the loss caused to public property as well as to recover the same from the concerned under Article 226 of the Constitution. Exercising the inherent powers of the High Court under Section 482 Cr.P.C also, nothing shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Cr.P.C, or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.
21. The upshot of the aforesaid findings and discussions is that the revision petition is to be allowed and the impugned order of the Judicial Magistrate of First Class, Kalamassery in C.M.P. No.1389/2018 in C.C. No.1847/2015 dated 8.3.2019 is hereby set aside and C.M.P No.1389/2018 is allowed and the State is permitted to withdraw from the Crl.RP 1220/2019 -20- prosecution against the accused in C.C. 1847/2015. The accused are discharged. The amount deposited by them before the trial Court at the time of granting bail shall be paid to CUSAT as compensation for the loss sustained during the agitation by the accused persons.
The Revision Petition is allowed as above.
Sd/-
ASHOK MENON JUDGE jg