Kerala High Court
Vimal T vs State Of Kerala on 27 October, 2017
Author: A. Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 27TH DAY OF OCTOBER 2017/5TH KARTHIKA, 1939
Crl.Rev.Pet.No. 1261 of 2017 (C)
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SC.392/2013 of SESSION COURT, KOZHIKODE
CRIME NO.508/2011 OF KUNNAMANGALAM POLICE STATION, KOZHIKODE
REVISION PETITIONER(S)/INFORMANT:
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VIMAL T.,
AGED 34 YEARS, S/O BHASKARAN NAIR,
KARIMBANAKKAL HOUSE,
KUNNAMANGALAM P.O., SHIVAGIRI,
KOZHIKODE.
BY ADVS.SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
RESPONDENT(S)/STATE/ACCUSED:
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1. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM. 682 031 (CRIME NO.508.2011
OF KUNNAMANGALAM POLICE STATION
KOZHIKODE DISTRICT).
2. BASHEER,
S/O.MOIDEEN KOYA, NADUVILASSERY,
ANAPPARA HOUSE, KUNNAMANGALAM,
KOZHIKODE 673571.
3. ABDURAHIMAN,
S/O.HASSANKOYA
MUTHIDAKKODE HOUSE,
KUNNAMANGALAM, KOZHIKODE 673 571.
4. SABITH,
S/O. HANEEFA,
MUTHIDAKKODE HOUSE,
KUNNAMANGALAM, KOZHIKODE 673 571.
R1 BY PUBLIC PROSECUTOR SRI.C.K.PRASAD
R2 BY ADVS. SRI.K.M.FIROZ
SRI.S.KANNAN
SMT.M.SHAJNA
R3 BY ADV. SRI.K.RAKESH
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 27-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
EL
Crl.Rev.Pet.No. 1261 of 2017 (C)
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APPENDIX
PETITIONER(S)' ANNEXURES
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AI TRUE COPY OF THE FINAL REPORT IN CRIME NO.508/2011 OF
KUNNAMANGALAM POLICE STATION
AII TRUE COPY OF THE PETITIONER FILED BY THE ASSISTANT PUBLIC
PROSECUTOR UNDER SECTION 321 CR.PC. TO WITHDRAW THE
PROSECUTION AS AGAINST THE RESPONDENTS 2 TO 4
RESPONDENT(S)' ANNEXURE
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NIL
TRUE COPY
P.S. TO JUDGE
EL
A. HARIPRASAD, J.
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Crl.R.P No.1261 of 2017
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Dated this the 27th day of October, 2017
O R D E R
Aggrieved by the order passed by the First Additional Assistant Sessions Court, Kozhikode in S.C No.392 of 2013, allowing withdrawal of the State from prosecution under Section 321 Cr.P.C, the defacto complainant has preferred this revision petition.
2. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the second and third respondents. Learned Public Prosecutor is also heard.
3. The defacto complainants' grievance is that Crime No.508 of 2011 registered by Kunnamangalam Police for offences punishable under Crl.R.P No. 1261 of 2017 2 Sections 143, 147, 148, 323, 324 and 308 r/w Section 149 I.P.C, was withdrawn without any legal justification.
4. The Prosecutor has filed Annexure II petition under Section 321 Cr.P.C stating that he was of opinion that a successful prosecution was not possible and also that the injuries sustained was not serious in nature.
Further, he stated that witnesses were not likely to support the prosecution.
5. Learned counsel for the petitioner would contend that these all are speculations before the start of trial of the case. It is highly speculative to say that the witnesses would not support the prosecution. That apart, application of mind by the Prosecutor is completely absent in the petition.
6. To crown all these things, the learned Additional Assistant Sessions Judge passed a cryptic order merely by saying that petition filed under Section 321 Cr.P.C allowed and all accused acquitted. On a perusal Crl.R.P No. 1261 of 2017 3 of the judgment of the court below, it is evident that the Presiding Officer has not considered the factual issues and not applied a judicial mind to the issues before the court.
7. Learned counsel for the petitioner relying on a decision in Saji v. State of Kerala and Others (2014 (1) K.H.C 324), contended that withdrawal was allowed without hearing the defacto complainant which goes against the principles of natural justice.
8. Learned counsel for the contesting respondent contended that Crime No.509 of 2011 of the same Police station is a counter case to this and both the cases were decided to be withdrawn by the State. It is further submitted that Crime No.509 of 2011 pending in C.C No. 3431 of 2011 on the file of the Judicial First Class Magistrate Court, Kunnamangalam was also withdrawn as per the decision. If that be so, the respondents will Crl.R.P No. 1261 of 2017 4 suffer prejudice. All these aspects will have to be considered by the court below at the time of considering the merit of the application filed under Section 321 Cr.P.C by the Prosecutor. The impugned order is legally unsustainable, hence, I set it aside. The court below shall consider the matter afresh in accordance with law.
Sd/-
A. HARIPRASAD, JUDGE amk //True copy// P.A to Judge