Kerala High Court
Pallikkalakath Hamza @ Bappu vs The State Of Kerala on 31 July, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 8TH DAY OF JUNE 2016/18TH JYAISHTA, 1938
CRL.REV.PET.NO. 2408 OF 2003 ( )
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AGAINST THE ORDER IN CC NO.398/2001 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT,TIRUR DATED 31-07-2002
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REVISION PETITIONER(S)/DEFACTO COMPLAINANT :
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PALLIKKALAKATH HAMZA @ BAPPU
S/O ABDULLAKUTTY,
PURATHUR AMSOM DESOM,
PADINHAREKKARA,
MALAPPURAM DISTRICT
BY ADV. SRI.P.CHANDRASEKHAR
RESPONDENT(S)/STATE/ACCUSED :
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1. THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. MOIDEEN, S/O AVARAN,
NEERITTIKKAL HOUSE, PURATHUR AMSOM,
PADIJAREKKARA, JETTILANE.
3. MOHAMMED @ BAVA, S/O AVARAN,
PALLIKKALAKATH HOUSE, PURATHUR AMSOM,
PADIJAREKKARA.
4. THAREEQUE, S/O MOIDEENKUTTY,
MALIYEKKAL HOUSE, PURATHOOR AMSOM,
PADIJAREKKARA.
5. MUSHTHAQUE, S/O MOIDEENKUTTY,
MALIYEKKAL HOUSE,
PURATHOOR AMSOM, PADIJAREKKARA.
BY PUBLIC PROSECUTOR SMT.M.G.LISHA
R2 TO R5 BY ADVS. SRI.T.KRISHNAN UNNI (SR.)
SRI.SAJU.S.A
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 08-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
NS
P.D. RAJAN, J.
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Crl. R.P. No.2408 of 2003
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Dated this the 8th day of June, 2016
O R D E R
This revision petition is preferred by the defacto complainant against the order in C.C. No.398 of 2001 by the Judicial First Class Magistrate Court, Tirur under Sec.321 of the Code of Criminal Procedure. The above case was registered by Tirur Police under Secs.143, 147, 447, 341, 323 read with Sec.149 of the Indian Penal Code against the accused and after completing investigation, laid charge in the trial court.
2. Petitioner's case is that on 17.02.2002 at 9.00 a.m., respondents 2 to 5 formed themselves into an unlawful assembly, trespassed into the petitioner's house, assaulted him, his wife and children and thereby, the accused caused grievous hurt to them. Immediately, they were treated in the Government Hospital, Tirur. Revision petitioner alleged that respondents 2 to 5 are highly influential and due to their political influence, they Crl. R.P. No.2408 of 2003 2 approached the government and obtained an order. Subsequently, the learned Magistrate allowed the petition to withdraw the case invoking Sec.321 Cr.P.C.
3. Learned Public Prosecutor submitted that the incident occurred in the year 2001 and the petitioner and respondents 2 to 5 are close relatives. The withdrawal was made by application of mind and no illegality or irregularity in the order of the learned Magistrate. Hence, she prays for dismissal of the application.
4. Sec.321 Cr.P.C. reads as follows:
" Sec.321: Withdrawal from Prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgment is pronounced, withdrew from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) If it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
Provided that where such offence-
(i) was against any law relating to a matter to which the Crl. R.P. No.2408 of 2003 3 executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not been appointed by the Central Government he 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."
A reading of the Section shows that withdrawal from the prosecution means retiring or stepping back from the prosecution. On the other hand, it means retracting from the prosecution also. From the appearance of the prosecution case or after perusing the proceedings however, if the Magistrate consented to withdraw from prosecution the accused persons shall be discharged or acquitted with the provisions of Clause (a) and (b) of Crl. R.P. No.2408 of 2003 4 Sec.321 Cr.P.C. Here, records show that withdrawal was initiated even before framing charge. Therefore, the Judicial First Class Magistrate, Tirur discharged the accused invoking Sec.321(a) Cr.P.C. Apex Court in State of Punjab v. Surjith Singh [AIR 1967 SC 1214] held that Public Prosecutor or Assistant Public Prosecutor, who is in charge of the case and is actually conducting the prosecution, can file application under Sec.321 Cr.P.C., seeking permission to withdraw from the prosecution. The defacto complainant has no say in making the decision either to withdraw or not withdraw from the prosecution.
5. Here, the defacto complainant alleges that the case was withdrawn on the basis of political influence. Even though such a statement was made by the learned counsel, no materials were placed before this court to satisfy the court that the case was withdrawn due to political influence. This Court in Saramma Peter v. State of Kerala [1991 Crl.L.J. 3211 (Kerala)] held that the original complainant has no say in making the Crl. R.P. No.2408 of 2003 5 decision either to withdraw or not to withdraw from the prosecution in which paragraph 12 reads as follows:
" There can be no doubt that only the Public Prosecutor or the Assistant Public Prosecutor in charge of the case and none else, with the consent of the Court, could apply for withdrawal from prosecution. He is not expected to act according to the instructions of the complainant but is the sole Judge. The complainant does not come into the picture and indeed has no locus standi in the matter of exercise of discretion by the Assistant Public Prosecutor. "
6. Learned counsel relied on the decision reported in Rahul Agarwal v. Rakesh Jain (2005 KHC
656) in which it is held that withdrawal of the prosecution can be allowed only when valid reasons are made out from the case. Moreover, it can be invoked only in the interest of justice. The court at the time of allowing the petition has to consider all circumstances and find out whether the withdrawal of prosecution would advance the cause of justice and that the discretion has to be applied cautiously. If that be the position, the trial court considered all relevant circumstances highlighted by the Crl. R.P. No.2408 of 2003 6 Assistant Public Prosecutor and finally allowed the petition in the interest of justice.
There is no merit in this revision petition and it is dismissed accordingly.
Sd/-
P.D. RAJAN,
JUDGE
/ True Copy /
NS/09.06.2016 P.A. To Judge