Kerala High Court
Jamsheer vs The State Of Kerala on 11 April, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 11TH DAY OFAPRIL 2014/21ST CHAITHRA, 1936
Crl.Rev.Pet.No. 2150 of 2013 (C2)
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CMP.3010/13 IN CP.19/12 OF J.F.C.M. COURT-I, MANJERI.
REVISION PETITIONER(S)/ACCUSED:
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1. JAMSHEER
S/O.RAYINKUTTY,KODITHODIKA HOUSE, KUNNATHEERI
PULPATTA, MALAPPURAM DISTRICT.
2. MOYINKUTTY
S/O.CHERIYAMMAD, KODITHODIKA HOUSE, KUNNATHEERI
PULPATTA, MALAPPURAM DISTRICT.
3. JASIR
S/O.UMMER, KODITHODIKA HOUSE, KUNNATHEERI
PULPATTA, MALAPPURAM DISTRICT.
4. NISHAD
S/O.CHERIYAMMAD, KODITHODIKA HOUSE, KUNNATHEERI
PULPATTA, MALAPPURAM DISTRICT.
BY ADVS.SRI.BABU S. NAIR
SMT.SMITHA BABU
RESPONDENT(S)/STATE & COMPLAINANT/ADDL. RESPONDENT:
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.
2. THE SUB INSPECTOR OF POLICE
MANJERI POLICE STATION
MALAPPURAM DISTRICT. PIN 676 121.
*ADDL.R3:
RAJAN S/O. KARI,
VAZHAKUDAMCHALIL HOUSE,
KALATHUMPADY, PULPATTA,
MALAPPURAM DISTRICT.
(*ADDL. 3RD RESPONDENT IS IMPLEADED AS PER ORDER DTD.1.11.2013 ON
CRL.M.A.NO.7953/13 IN CRL.RP.NO.2150/13)
R1 AND R2 BY PUBLIC PROSECUTOR SRI. ROY THOMAS
R3 BYADV. SRI.K.S.MADHUSOODANAN
R3 BYADV. SRI.THOMAS CHAZHUKKARAN
R3 BYADV. SRI.M.M.VINOD KUMAR
R3 BYADV. SRI.P.K.RAKESH KUMAR
R3 BYADV. SRI.K.S.MIZVER
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
24-01-2014, THE COURT ON 11-04-2014 PASSED THE FOLLOWING:
Crl.Rev.Pet.No. 2150 of 2013 (C2)
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE A: TRUE COPY OF THE APPLICATION SUBMITTED BY THE ASSISTANT
PUBLIC PROSECUTOR BEFORE THE J.F.C.M.-I, MANJERI AS C.M.P NO. 3010/2013.
RESPONDENT(S)' EXHIBITS : NIL
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OKB.
//true copy//
P.A. to Judge
K.HARILAL, J.
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Crl.R.P. No.2150 of 2013
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Dated this the 11th day of April, 2014
O R D E R
The revision petitioners herein are the accused Nos.1 to 4 in C.P. No.19/2012 on the files of the Judicial First Class Magistrate's Court-I, Manjeri. The above case was registered against the revision petitioners alleging offences punishable under Sections 323, 324, 326, 506(ii) r/w Section 34 IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1984. The allegation against the revision petitioners is that on 23.8.2009 at 8 p.m., all the accused formed themselves into an unlawful assembly and assaulted the de facto complainant, who belonged to Scheduled Caste community. The charge sheet is filed and the committal proceedings Crl.R.P.2150/13 :2:
were pending before the learned Magistrate. At that point of time, the learned Assistant Public Prosecutor filed CMP. No.3010/2013 under Section 321 of the Cr.P.C. seeking consent of the Court for withdrawing the prosecution against the petitioners on the ground that on the facts and circumstances of the case, the APP has genuinely convinced that it is just and proper and for maintaining communal harmony in the locality the case has to be withdrawn. The learned Magistrate issued notice to the de facto complainant and they appeared and filed a strong objection against withdrawal of the prosecution. After considering the rival contentions, the learned Magistrate dismissed the above application by the impugned order under challenge. The legality and propriety in the findings by the learned Magistrate, who dismissed the application, are under challenge in this Revision Petition.
2. There are four accused persons in the case. A1 and A3 entered appearance on summons. They were granted bails. Copies of relevant prosecution records were Crl.R.P.2150/13 :3:
furnished to them. Subsequently, A3 jumped bail and now he is absconding. A2 and A4 are also absconding. After splitting up the case against A2 to A4, when the case against A1 was taken for committal, the learned APP filed this petition.
3. The prosecution case, in brief, is that C.W.1 and the accused were in inimical terms due to some property dispute. On 23.10.2009 at about 8 p.m. while C.W.1 was returning to his house from the workplace, the accused called his caste name with intent to humiliate him before the public and attacked him with dangerous weapons. A1 and A2 beat him with a stick and thereby caused fracture on his left leg. A3 and A4 put blows on the face of C.W.1 and thereby broke a tooth on the front jaw and the accused caused other injuries on his body. It is further alleged that the accused had criminally intimidated C.W.1 to cause death. Thus the accused are alleged to have committed the above said offences.
4. In the objection filed by the de facto complainant, Crl.R.P.2150/13 :4:
it is stated that he is a manual labourer belonging to Scheduled Caste community and the accused are powerful and influential persons in the locality. Due to the attack, he had suffered serious injuries in the incident, including fracture of bone and loss of a tooth. He was admitted in the Government Hospital in Manjeri as in-patient and continued treatment for three months. After the incident, he is unable to do any hard work. As he is a coolie worker, his physical condition has affected his earning capacity very much and that made the life of his family miserable. According to him, the police had not initially initiated proceedings against the accused under the influence exerted by the accused and the case was registered only when he preferred complaint to the higher authorities. According to him, the accused have political influence and they obtained sanction of the Government to withdraw the prosecution because of his political influence only. Hence he prayed for dismissal of the application.
5. The learned counsel for the revision petitioners Crl.R.P.2150/13 :5:
submits that the dismissal of the application submitted by the APP under Section 321 of the Cr.P.C. by refusing consent to withdraw the prosecution is, per se, illegal, arbitrary and unjust. The dismissal of application is nothing but gross abuse of the process of the court. The scope and ambit of Section 321 of the Cr.P.C. has been elaborately considered by the Apex Court in various decisions. But the court below miserably failed to consider the legal propositions and the guidelines made thereunder by the Apex Court in various decisions. The learned counsel further cited the decisions in Sheo Nandan Paswan Vs. State of Bihar (AIR 1987 (SC) 877), Rajender Kumar Vs. State (AIR 1980 SC 1510) and State of Bihar Vs. Ram Naresh Pandey (AIR 1957 SC 389) and submits that when the APP exercises his jurisdiction, the Court cannot simply refuse consent except on the finding that the discretion was exercised improperly with mala fides or extraneous consideration, by the APP. Unless the Court finds that the discretion of the APP has been improperly exercised there Crl.R.P.2150/13 :6:
is no question of refusing the consent on an application under Section 321 of the Cr.P.C. But, in the instance case, there is no such finding that the decision taken by the APP to withdraw the suit is vitiated by mala fides or extraneous consideration. It is clearly stated in the application that the withdrawal is essential for maintaining communal harmony in the locality, particularly, when both parties belong to different communities. Thus, the withdrawal was sought for public interest and public justice. But the court below miserably failed to understand the reasons stated in the application in its correct perspective.
6. Per contra, the learned counsel for the respondents/de facto complainants advanced arguments to justify the findings in the impugned order under challenge. The learned counsel also drew my attention to the different paragraphs in AIR 1987 (SC) 877 (supra), AIR 1980 SC 1510 (supra) AIR 1957 SC 389 (supra), Rahul Agarwal Vs. Rakesh Jain and another (AIR 2005 SC 910), Abdul Karim Vs. State of Karnataka (AIR 2001 SC Crl.R.P.2150/13 :7:
116) and submits that the withdrawal can be sought for public interest or public justice alone. But, in the instance case, the reasons stated by the APP are utter falsehood, in view of the strong objection raised by the de facto complainant. According to him, the APP has taken the decision to withdraw the prosecution under the influence exerted by the accused and they are powerful persons having political influence in the Government. Only because of their influence, they have obtained sanction of the Government also so as to stifle the legitimate prosecution.
The APP has not applied his mind independently. In short, he had filed the application at the hands of the accused so as to save them from penal consequences for the serious offences committed by them.
7. In view of the rival contentions, the short question that arises for consideration in this Revision Petition is whether there is any illegality or impropriety in any of the findings in the impugned order dismissing the application seeking consent for withdrawal from prosecution?
Crl.R.P.2150/13 :8:
8. 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 said decision the Supreme Court held that:
" 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 Crl.R.P.2150/13 :9:
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."
9. In the decision in Subhash Chander Vs. 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 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 Crl.R.P.2150/13 :10:
provision calculated to ensure non-arbitrariness on the part of the Public Prosecutor and compliance with the equality clause of the Constitution."
10. 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 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 Crl.R.P.2150/13 :11:
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."
11. 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 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 Crl.R.P.2150/13 :12:
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 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."
12. 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 Crl.R.P.2150/13 :13:
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 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."
13. 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 Crl.R.P.2150/13 :14:
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 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.
14. In Vinod Vs. 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 Crl.R.P.2150/13 :15:
any extraneous consideration or mere adoption of certain 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 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.
Crl.R.P.2150/13 :16:
15. In view of the principles laid down by the Apex Court, let us examine the legality and propriety of the findings in the impugned order under challenge. At first, the reasons stated for withdrawal in the application deserve to be considered. In the application, the learned APP has stated as follows:-
"I have bonafide applied my mind to the facts and circumstances of the case and am genuinely convinced that it is just and proper for the ends of justice and better advancement of public justice to withdraw from prosecution in the matter. Such a withdrawal is indispensable for the total communal harmony in the locality.
The continuation of the case certainly breeds communal disharmony to the detriment of the parties, their relatives and friends in every respect. Moreover, State Government have no objection in withdrawing the case."
So, the only point to be considered is, whether the reasons stated in the application for withdrawal is correct and genuine, in view of the prosecution case as well as the strong objection filed by the de facto complainant?
Crl.R.P.2150/13 :17:
16. In the petition, as rightly pointed out by the court below, the learned APP has not stated the specific grounds on which he formed an opinion that withdrawal is indispensable for the total communal harmony in the locality. In the decision in (2013 (2) KHC 895) (supra), this Court specifically held that mere assertion of the APP that he had independently applied his mind in good faith, uninfluenced by any extraneous consideration or mere adoption of certain expressions, like "public interest" or "public policy", apparently incompatible to the facts of the prosecution case in the application seeking consent for withdrawal from the prosecution is neither sufficient nor satisfactory to grant consent. The bona fides and independence of the decision taken by the APP 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. When we apply the above test in the instance case, without stating the specific grounds, the APP has adopted the Crl.R.P.2150/13 :18:
word, "communal harmony", which is apparently a falsehood in view of the strong objection raised by the de facto complainant.
17. Going by the objection raised by the de facto complainant, I am of the opinion that, when he was allegedly attacked by the accused, the withdrawal of the prosecution, in spite of his strong resistance, may aggravate the communal rivalry in the locality instead of communal harmony, as claimed by the APP. After considering the prosecution case and documents sent along with the final report under Section 173 of the Cr.P.C., the learned Magistrate observed that the attack against the de facto complainant was a personal attack in connection with some property dispute. If that be so, there is no truth in the statement of the APP that the continuation of the case will breed communal disharmony in the locality. So, if there is no truth in the reasons stated by the APP in the application for withdrawal, or, if the reasons are incompatible with the prosecution case, it can be Crl.R.P.2150/13 :19:
reasonably presumed that the APP has not applied his mind in good faith independently, uninfluenced by any extraneous consideration. Here, I must remember that in Rahul Agarwal Vs. Rakesh Jain and another (AIR 2005 SC 910), the Supreme Court held that, "The discretion under Section 321 of the Criminal Procedure Code is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle prosecution, which is being done at the instance of aggrieved parties or State for redressing their grievance. Every crime is an offence against society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated a crime is an essential requirement for maintenance of law and order and peace in the society. Therefore, withdrawal of prosecution shall be permitted only when valid reasons are made out for the same." In the instance case, the reasons stated have no connection with the prosecution case. On an application of mind over the reasons stated in the Crl.R.P.2150/13 :20:
application, in view of the prosecution case, I am also of the opinion that the APP has not applied his mind independently. Hence there is no illegality or impropriety in the impugned order under challenge.
This Revision Petition is dismissed accordingly.
Sd/-
(K.HARILAL, JUDGE) okb.