Kerala High Court
Pradeepkumar vs The State Of Kerala on 8 May, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939
Crl.MC.No. 4500 of 2013 ()
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CRIME NO. 159/2005 OF POOYAPALLY POLICE STATION, KOLLAM
PETITIONERS/1 AND 3 ACCUSED IN CRIME NO 159/05:
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1. PRADEEPKUMAR
S/O.GOPINAHTA PILLAI,PRARAVILA VEEDU,
ARAYIL, PALLIKKAL (PO),THIRUVANANTHAPURAM DISTRICT
2. RAJEEV, AGED 29 YEARS
S/O.RAMACHANDRA PILLAI,RAJEEV MANDIRAM
NEDUNGOTTU,KALLUVATHUKKAL VILLAGE,KOLLAM DISTRICT
BY ADV. SRI.C.R.SIVAKUMAR
RESPONDENTS/COMPLAINANT:
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THE STATE OF KERALA
REP.BY THE SUB INSPECTOR OF POLICE,
POOYAPPALLY POLICE STATION,
KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY PUBLIC PROSECUTOR SMT.K.K.SHEEBA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-09-2017,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 4500 of 2013 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE 1 THE TRUE COPY OF THE FIRST INFORMATION REPORT DATED
08/05/2005
ANNEXURE 2 THE TRUE COPY OF THE CRIME NO 164/05 DATED 12/05/2005
ANNEXURE 3 THE TRUE COPY OF THE COMMUNICATION DATED 01/12/2012
ANNEXURE 4 THE TRUE COPY OF THE ORDER DATED 07/05/2013 IN CRL MP NO
827/2013 IN C.C NO 1428/09
RESPONDENT(S)' EXHIBITS: N I L
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//TRUE COPY//
PA TO JUDGE
A. HARIPRASAD, J.
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Crl.M.C.No.4500 of 2013
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Dated this the 19th day of September, 2017
ORDER
Aggrieved by the dismissal of a petition filed by the Assistant Public Prosecutor in charge of a criminal case under Section 321 Cr.P.C., accused have preferred this petition under Section 482 Cr.P.C. The petitioners are accused in C.C.No.1428 of 2009 before the Judicial First Class Magistrate Court-II, Kottarakkara. They were charged with offences punishable under Sections 341, 324 and 427 read with Section 34 IPC. Annexure-A4 is the order impugned. Learned Magistrate dismissed the application filed by the Assistant Public Prosecutor finding that on perusal of the records, he was of the view that the Assistant Public Prosecutor did not apply her mind independently and became a tool in the hands of the ruling party.
2. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
3. Learned counsel for the petitioners contended that Crl.M.C.No.4500/2013 2 the court below committed a grave error in referring to the facts of the case to determine the correctness of the application filed by the Public Prosecutor under Section 321 Cr.P.C. to withdraw the complaint. The Supreme Court in Rajender Kumar v. State [AIR 1980 SC 1510] has clearly laid down the guidelines when an application under Section 321 Cr.P.C. is considered:
"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 releant-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 Tamany Hall enterprises.
Crl.M.C.No.4500/2013 3
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 is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution. 13-A. We may add, it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S. 321, Criminal Procedure Code. The independence of the judiciary requiries that once the case has travelled to the Court, the Court and its Officers' alone must have control over the case and decide what is to be done in each case."
4. This decision was followed by a learned Single Judge Crl.M.C.No.4500/2013 4 of this Court in Razack v. State of Kerala [2000 (3) KLT 686]. On going through the impugned order, I am of the view that the court below, without considering the merit of the request by the Public Prosecutor, relied on the material before him, to decline the request to withdraw from prosecution. It has been clarified in many decisions that not the evidence in the case that is to be considered at that stage and what is to be considered is only whether the Public Prosecutor has applied his mind to the said facts and stated valid reasons for withdrawing from prosecution. In this case, if I apply the principles in Rajender's case (supra), I find that the learned Magistrate did not apply his mind correctly. Therefore,the order suffers from a legal infirmity.
In the result, the petition is allowed. Annexure-A4 order is set aside. From the records, it is not seen that the Court had framed a charge in this matter. Therefore, the petitioners are discharged in respect of the offences mentioned in the above crime.
Sd/-
A. HARIPRASAD
JV JUDGE