Kerala High Court
Asim K.N vs State Of Kerala on 21 November, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA,
1935
Crl.Rev.Pet.No. 1169 of 2013 ()
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ORDER IN CRL.M.P.NO.58/13 IN S.C.NO.400/11 ON THE FILE OF
THE ADDITIONAL ASSISTANT SESSIONS COURT, THALASSERY.
REVISION PETITIONER(S)/ACCUSED NO.3:
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ASIM K.N, AGED 24 YEARS,
S/O ABDUL AZEEZ, NELLIKKA HOUSE,
PERINGAHUR AMSOM,
OLIPPIL.
BY ADVS.SRI.ZUBAIR PULIKKOOL
SRI.P.S.BINU
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 21-11-2013, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
K. HARILAL, J.
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Crl.R.P. No. 1169 of 2013
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Dated this the 21st day of November , 2013
ORDER
The revision petitioner is the 3rd accused in Crime No.755/2010 of the Chokli Police Station registered for the alleged commission of the offences punishable under Secs. 143, 145, 147, 148, 153, 352, 332 and 333 read with Sec.149 of the Indian Penal Code and Sec.3(2)(c) of the Prevention of Damages to Public Properties Act, 1982 (for short 'the PDPP Act').
2. The prosecution case is that on 27/10/2010 at 18.10 hours at Thokkottuvayal of Peringathoor amsom, about 20 unidentified CPM activists and about 100 IUML activists were in a victorious march after the counting of the Panchayat election and they formed themselves into Crl.R.P. No. 1169 of 2013 -: 2 :- an unlawful assembly and attacked the complainant and other three Police Constables and caused damages to the police vehicles and thereby committed the offences alleged against them. Now he stands charge sheeted for trial.
3. While so, the learned Assistant Public Prosecutor filed C.M.P.No.58/13 under Sec.321 of the Code of Criminal Procedure seeking consent of the court for withdrawing the prosecution of the revision petitioner for the above said offences. In the petition, the sole reason stated is that the incident took place due to political enmity between the two rival groups and there is no law and order problem in the locality. After considering the ground stated in the application, the learned Magistrate dismissed the petition. The legality, impropriety and correctness of the said order refusing to grant consent for withdrawing from prosecution is under challenge in this revision petition.
4. The learned counsel for the revision petitioner advanced arguments assailing the findings of the learned Assistant Sessions Judge. According to him, the learned Crl.R.P. No. 1169 of 2013 -: 3 :- Sessions Judge ought to have granted permission to withdraw from prosecution in view of the present situation in the locality. The findings in the impugned order are opposed to the principles laid down by the judicial precedents.
5. In view of the rival contentions, the question to be considered is whether there is any illegality or impropriety in the impugned order refusing to grant consent for withdrawal from prosecution.
6. Though, Sec.321 of the Cr.P.C. does not prescribe any specific ground for granting consent of the court for withdrawing prosecution, the scope and extent of jurisdiction under Sec.321 of the Cr.P.C., particularly the role of the court and the role of the Public Prosecutor, are well delineated by the judicial precedents from the decision in State of Bihar Vs. Ram Naresh Pandey (AIR 1957 SC 389) to Abdul Karim Vs. State of Karnataka (2000(8) SC 710). In State of Bihar Vs. Ram Naresh Pandey (AIR 1957 SC 389), the Supreme Court held that:
Crl.R.P. No. 1169 of 2013 -: 4 :-
" The judicial functions, therefore, implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In this context it is right to remember that the Public Prosecutor though an executive officer is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly-considered view and the Court is entitled to have the benefit of the fair exercise of his function."
7. In the decision in Subhash Chander v. State, (1980) 2 SCR 44: (AIR 1980 SC 423), the Supreme Court held as follows:
"The even course of criminal justice cannot be thwarted by the Executive however high the accused, however sure the Government feels a case is false, however unpalatable the continuance of the prosecution to the powers- that-be who wish to scuttle Court justice Crl.R.P. No. 1169 of 2013 -: 5 :- because of hubris, affection or other noble or ignoble consideration. Once the prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice.
The Court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor. The Public Prosecutor cannot therefore withdraw from the prosecution unless the Court before which the prosecution is pending gives its consent for such withdrawal. This is a provision calculated to ensure non- arbitrariness on the part of the Public Prosecutor and compliance with the equality clause of the Constitution."
8. Later, relying on the above decision, in Sheo Nandan Paswan Vs. State of Bihar (AIR 1987 (SC) 877), the Constitution Bench of the Supreme Court settled the nature and extent of Jurisdiction of the court under Section 321 of the Cr.PC. In the above decision, Supreme Court held that:
" All that is necessary for the Court to see is to Crl.R.P. No. 1169 of 2013 -: 6 :- ensure that the application for withdrawal has been properly made, after independent consideration, by the Public Prosecutor and in furtherance of public interest.
In view of the wide language it uses, enables the Public Prosecutor to withdraw from the prosecution any accused, the discretion exercisable under which is fettered only by a consent from Court on a consideration of the materials before it and that at any stage of the case. The Section does not insist upon a reasoned order by the Magistrate while giving consent. All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper."
9. In Rajender Kumar Vs. State (AIR 1980 SC 1510) the Supreme Court relying on the earlier decisions settled and enumerated the guidelines for the exercise of Jurisdiction under Section 321 as follows:
(1) Under the Scheme of the Code, prosecution of Crl.R.P. No. 1169 of 2013 -: 7 :- 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.
(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 re appreciate the Crl.R.P. No. 1169 of 2013 -: 8 :- 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 is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."
10. Later, relying on the earlier decisions three Judges Bench of the Apex court in Abdul Karim Vs. State of Karnataka (2000(8) SC 710) held as follows:
"What the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering Crl.R.P. No. 1169 of 2013 -: 9 :- such material and, on such consideration, must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration of the material available, the order giving consent has necessarily to be upheld."
11. The substratum of the principles enunciated in the above decisions can be summarised as follows: The basic principle underlying all the grounds for withdrawal must be that the withdrawal can be sought only for furthering the cause of public justice. The main question to be considered is whether the Public Prosecutor has applied his mind independently in good faith, uninfluenced by irrelevant and extraneous consideration. It must be satisfied that withdrawal will serve public interest. "At the same time, it is not for the court to weigh the material or decide whether prosecution will end in conviction or acquittal as if it is Crl.R.P. No. 1169 of 2013 -: 10 :- exercising the appellate jurisdiction over the decision of the Prosecutor. But "the court must be satisfied that the Public Prosecutor has considered the materials in good faith, reached the conclusion that his withdrawal from prosecution will serve the public interest". The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice.
12. In Vinod v. State of Kerala and Another (2013 (2) KHC 895), this Court held that:
"13. How can the court find out bona fides of a decision taken by the Prosecutor at the request of the Government to withdraw from prosecution? Certainly, the decision taken by the Prosecutor is the outcome of a thinking process wherein the facts of the Prosecution case and the reasons for seeking consent to withdraw from prosecution are the inputs. Mere assertion of the Public Prosecutor that he had independently applied his mind in good faith uninfluenced by any extraneous consideration or mere adoption of certain Crl.R.P. No. 1169 of 2013 -: 11 :- expressions like 'Public Interest' or 'Public Policy' apparently incompatible with facts of the prosecution case, in the application seeking consent for withdrawal from prosecution is neither sufficient nor satisfactory to grant consent. The bona fides and independence of the decision taken by Public Prosecutor at the request of the Government could have manifested in the decision itself, in view of fact of the prosecution case and reasons relied on for withdrawal from prosecution. As the ultimate repository under Section 321 of the Cr.P.C., it is for the court to verify the veracity and credibility of the said averments in view of the decision taken thereon. The said verification and granting or declining of consent will come under judicial function. It follows that the court can exercise judicial discretion either granting or declining consent. The decision taken by the Public Prosecutor at the request of the Government to withdraw from prosecution must be logical, rationale and compatible with the facts of the Crl.R.P. No. 1169 of 2013 -: 12 :- prosecution case and reasons for withdrawal from prosecution. It is needless to say that where the decision appears otherwise, it can be held that the decision taken by the Public Prosecutor is improper and sans bona fides and independence. In view of the above principles, let us examine the legality and impropriety of the findings in the impugned judgment.
13. The first reason for withdrawal is that the Government has approved withdrawal by the order dated 23/1/12. Going by the above decision, it could be seen that the decision of the Government cannot be a ground for seeking withdrawal and the decision for withdrawal of the prosecution is exclusively a matter within the domain of the Public Prosecutor alone. In the decisions also it is stated that even if the Government recommended for withdrawal of the prosecution, it is for the Public Prosecutor to take a decision independently in good faith uninfluenced by any extraneous consideration.
14. This Court considered the issue involved in a Crl.R.P. No. 1169 of 2013 -: 13 :- withdrawal of prosecution for the offence under the PDPP Act in Dineshan K.V. and Another Vs. State of Kerala and Others (2013 (4) KHC 206) and held as follows:-
"15. It is a matter of common
knowledge as well as a reasonable
presumption that the commission of any
offence causing mischief or damages to the 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 the withdrawal of the prosecution of such offences is also against public interest and public peace and consent for withdrawing prosecution of such offences cannot be granted. How the continuance of prosecution of the offences causing damages to the public property under the PDPP Act or the offences attacking public servants on public duty would adversely affect the public interest or public peace or how the withdrawal of such prosecution would promote public interest or public peace? I am also unable to accept the Crl.R.P. No. 1169 of 2013 -: 14 :- contention that withdrawal of prosecution of offences causing damages to public property under the PDPP Act and attacking the public servants while acting in discharge of their duty is for 'public interest' or 'public justice', the essential causes for which consent to withdraw from prosecution can be granted, in view of the principle laid down by the Apex Court in the decisions referred above. So, the withdrawal of such prosecutions under the guise of public interest, public policy or public justice is also impermissible. I remind myself that all the decisions referred above would say that Public Prosecutor may withdraw from prosecution of the accused in order to further broad ends of public interest, public order and peace.
16. If there is any other reason overruling the above said common knowledge and presumption involved in the withdrawal of such prosecution, it is for the Public Prosecutor to satisfy the Court with sufficient reasons overruling the public interest of public justice. Unless the Court is Crl.R.P. No. 1169 of 2013 -: 15 :- fully satisfied with such reasons overruling the common knowledge and presumption as stated above, the Court is not inclined to grant consent to withdraw from prosecution of the accused who have allegedly committed the offences under the PDPP Act or offences attacking servants on duty in view of the decisions referred above."
15. Going by the application filed by the Public Prosecutor, there is no reason overruling common knowledge and the presumption that 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 public interest and public peace.
16. In all the above decisions, it is unambiguously stated that withdrawal from prosecution can be for the public interest and public justice alone. Necessarily it follows that withdrawal of prosecution of such offences which caused damage to public property and injuries to public servant is also against public interest and public Crl.R.P. No. 1169 of 2013 -: 16 :- peace, and consent for withdrawal of prosecution of such offence cannot be granted.
17. Let us examine the sole reason stated in the application for withdrawal. The reason is that the incident took place due to political enmity between the two rival groups and there is no law and order problem in the locality. I am of the opinion that consent cannot be granted for the above reason in the light of the decision of this Court in Dineshan K.V. and Another Vs. State of Kerala and Others (2013 (4) KHC 206).
18. In the above decision, no consent can be given to withdraw from prosecution in the instant case. In the light of the above discussions, I also concur with the findings of the court below that Public Prosecutor has not applied his mind in good faith, uninfluenced by any extraneous consideration. The reason stated for withdrawal has no nexus with the prosecution case and the grounds stated are irrational and incompatible with the prosecution case. Therefore, I find that there is no illegality or impropriety in Crl.R.P. No. 1169 of 2013 -: 17 :- the impugned order under challenge.
This revision petition is dismissed accordingly.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge