Kerala High Court
A.M. Arif vs State Of Kerala on 30 September, 2024
2024:KER:72460
CRL.MC NO. 4453 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.MC NO. 4453 OF 2023
CRIME NO.440/2021 OF HARBOUR POLICE STATION, ERNAKULAM
AGAINST THE ORDER DATED 27.04.2023 IN CMP.NO.291/2023 IN CC
NO.1040 OF 2021 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE -II,
ERNAKULAM
PETITIONERS/ACCUSED A1,A2,A6,A7,A8,A10 & A12:
1 A.M. ARIF, AGED 58,
(MEMBER OF PARLIAMENT),ARUNYAM,
ERAVUKADU,THIRUVAMBADI,
ALAPPUZHA, PIN - 688002
2 ELAMARAM KAREEM
AGED 69, (MEMBER OF PARLIAMENT),
ELAMARAM HOUSE, KOVOOR,
MEDICAL COLLEGE P.O., KOZHIKODE,
PIN - 673008
3 JOHN BRITTAS
AGED 57, MEMBER OF PARLIAMENT,
KAIRALI TOWERS, ASAN SQUARE,
UNIVERSITY P. O., PALAYAM,
THIRUVANANTHAPURAM, PIN - 695034
4 V. SIVADASAN
AGED 51, (MEMBER OF PARLIAMENT),
M. P. OFFICE, AZHHEKODAN SMARAKA MANDIRAM,
TALAP, KANNOOR, PIN - 670002
5 C. N. MOHNAN
AGED 58,
FLAT.NO.207, TRAVANCORE TOWERS,
2024:KER:72460
CRL.MC NO. 4453 OF 2023
2
ST. FRANCIS CHURCH ROAD,
KATHRIKADAVU, KALOOR,
KOCHI, PIN - 682017
6 A. VIJAYARAGHAVAN
AGED 66,(FORMER MEMBER OF PARLIAMENT)
THE JASWANI VEEDU, HARISREE NAGAR,
AYYANTHOLE P. O. , THRISSUR, PIN - 680003
7 RIYAD
AGED 49 YEARS
KOYUKKA HOUSE, CHULLIKKAL,
THOPPUMPADY, ERNAKULAM, PIN - 682005
BY ADVS.
N.SATHEESH
K.JANARDHANA SHENOY
PRIYA CAROL
RESPONDENT/COMPLAINANT/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 ASSISTANT PUBLIC PROSECUTOR
REPRESENTING BY THE SI OF POLICE,
HARBOUR POLICE STATION,
THOPPUMPADY, PIN - 682005
BY ADVS
A RAJESH,SPL.PUBLIC PROSECUTOR (VIGILANCE)
REKHA S, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
30.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2024:KER:72460
CRL.MC NO. 4453 OF 2023
3
C. JAYACHANDRAN, J.
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Crl.M.C.NO. 4453 OF 2023
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Dated this the 30th day of September, 2024
ORDER
Petitioners are accused nos.1,2,6,7,8,10 and 12 in C.C.No.1040/2021 of the Additional Chief Judicial Magistrate Court, Ernakulam (Special Court for the Trial of Criminal cases against sitting and former MPs/MLAs of the State). They are aggrieved by Annexure-A3 order of the learned Magistrate, which refused sanction to withdraw the above case in terms of Section 321 of the Code of Criminal Procedure, only for the reason that necessary permission from the High Court, as enjoined by an interim order of the Hon'ble Supreme Court in Aswini Kumar Upadhyay v. Union of India and Another dated 10.08.2021 has not been obtained.
2. Essential facts:-
The allegation is that, the accused persons assembled in front of the office of the Lakshadweep Administration on 10.06.2021, at about 12 O'clock, 2024:KER:72460 CRL.MC NO. 4453 OF 2023 4 without keeping social distance, thus violating the provisions of the Kerala Epidemic Disease Ordinance 2021 (for short, 'KEDO'), and committing offence under Section 269 of Penal Code and also under Section 4(2)(e),r/w Section 5 of the KEDO.
3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. Perused the records.
4. Learned counsel for the petitioner would bring to the notice of this Court a Government Order dated 24.11.2022 empowering the District Police Chief to take steps for withdrawing the criminal cases, which are not of a serious nature and which are enumerated in the table attached to that order in accordance with law and the directions of the Hon'ble Supreme Court in State of Kerala v. K. Ajith and Others [2021 SCC OnLine SC 510]. It is accordingly that the Public Prosecutor filed application under Section 321 Cr.P.C. to withdraw from the prosecution in the above C.C, upon being satisfied that none of the guidelines in K.Ajith (Supra) has been violated. Therefore, refusal of sanction by the learned Magistrate, only on the premise that permission from the 2024:KER:72460 CRL.MC NO. 4453 OF 2023 5 High Court for withdrawing the case has not been obtained, is not legal and proper. The learned counsel would hasten to add that the obvious purpose of the interim order dated 10.08.2021 (Annexure A4) is to prevent misuse of the powers under Section 321 for extraneous and political considerations, which is not the case herein.
5. Per Contra, the learned Public Prosecutor would submit that the interim order produced at Annexure-A4 mandates permission of the High Court (in charge of suo motu Writ Petitions against MPs and MLAs) in order to withdraw cases, wherein sitting or former MPs/MLAs are parties. The same having been not obtained admittedly, no error or illegality can be fastened to Annexure-A3 order. According to the learned Senior Public Prosecutor, Annexure-A3 order does not require any interference, whatsoever.
6. This Court will first address the context in which the Hon'ble Supreme Court directed obtainment of prior leave of the High Court to withdraw cases against a sitting or former MP/MLA. The interim order is 2024:KER:72460 CRL.MC NO. 4453 OF 2023 6 produced at Annexure-A4. One among the issues dealt with in the interim order is the misuse of the prosecutor's power to withdraw cases under Section 321 Cr.P.C. The following paragraph of the interim order is quite relevant and is extracted here below:
"Learned amicus has drawn out attention to various instances across the country, wherein various State Governments have resorted to withdrawal of numerous criminal cases pending against M.P/M.L.A by utilising the power vested under Section 321 Cr.P.C. It merits mentioning that the power under Section 321 Cr.P.C.
is a responsibility which is to be utilized in public interest, and cannot be used for extraneous and political consideration. This power is required to be utilized with utmost good faith to serve the larger public interest."
7. It could thus be seen that, the vice which was sought to be prevented by virtue of the interim order is the misuse of powers under Section 321 Cr.P.C by the State Governments to withdraw criminal cases pending against MPs and MLAs for extraneous and political considerations, bereft of any public interest. The 2024:KER:72460 CRL.MC NO. 4453 OF 2023 7 Hon'ble Supreme Court then referred to the principles culled out in K.Ajith (Supra) and observed that in view of the law laid down by the Hon'ble Supreme Court, it is only appropriate that the prosecution against the sitting or former MPs or MLAs shall not be allowed to be withdrawn, without the leave of the High Court, which is in charge of the suo motu Writ Petitions against sitting or former MPs and MLAs.
8. This Court is afraid whether the instant case is one which falls squarely in the teeth of the directions of the Hon'ble Supreme Court. It is relevant to note that all the accused persons are not MPs or MLAs. Nor is the case sought to be withdrawn for the reason that the accused persons are MPS and MLAs. There is no distinction/discrimination carved out in G.O.3326/2022 dated 24.11.2022 (a copy of which is handed over to this Court during the course of hearing and which is marked as Court Ext.X1) as between MPs and MLAs or for that matter, any ordinary citizen. Instead, Annexure-X1 Government Order refers to a committee being constituted to deliberate on withdrawal cases, which are 2024:KER:72460 CRL.MC NO. 4453 OF 2023 8 not of a serious nature. Based on the recommendations of the committee, the Government took a decision that cases which belongs to the categories mentioned in the table in Annexure-X1 Government Order can be withdrawn, after adhering to the guidelines in K.Ajith (Supra). A perusal of the table would indicate that the cases which have been permitted to be withdrawn are cases under Sections 188, 269 and 290 of the Indian Penal Code; under Section 118(e) of the Kerala Police Act; under Section 4(2)(a) to 4(2)(j) of the KEDO and the cases under the Disaster Management Act.
9. This Court is of the opinion that Annexure-A2 application for withdrawal is not a mal-exercise of power by the Public Prosecutor to favour the MPs and MLAs. Instead, it is only a bonafide action in terms of Annexure-X1 Government Order. None of the parameters which stands against the exercise of that power culled out in K.Ajith (Supra) is attracted in the given facts. It cannot be said that the instant application is not one, so as to broad the ends of justice. It is not for any illegitimate reason or purpose, so as to interfere 2024:KER:72460 CRL.MC NO. 4453 OF 2023 9 with the normal course of justice. Nor was it to thwart or stifle the process of the Court. The application does not suffer from any manifest injustice, but it sub-serves the cause of justice.
10. In the circumstances, Annexure-A3 order is set aside. The learned Magistrate is directed to pass necessary orders in Annexure-A2 application in the light of the observations contained in this order.
The Crl.M.C. is disposed of accordingly.
Sd/-
C. JAYACHANDRAN JUDGE SPV 2024:KER:72460 CRL.MC NO. 4453 OF 2023 10 APPENDIX OF CRL.MC 4453/2023 PETITIONERS' ANNEXURES ANNEXURE A1 THE ACCUSED' COPY OF THE FINAL REPORT IN CC NO. 1040/2021 DATED 10-06-2021 ALONG WITH FIR NO. 440/2021 DATED 10-06-2021 REGISTERED BY HARBOUR POLICE STATION ANNEXURE A2 CERTIFIED COPY OF CMP NO. 291/2023 DATED 13-01-2023 FILED UNDER SECTION 321 CR. P. C ANNEXURE A3 CERTIFIED COPY OF THE ORDER DATED 27-04- 2023 OF ORDER IN CMP NO. 291/2023 IN C.C. NO. 1040/2021 PENDING BEFORE THE HON'BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM (SPL. COURT FOR THE TRIAL OF CRIMINAL CASES AGAINST SITTING AND FORMER MPS/MLAS OF THE STATE) ANNEXURE A4 TRUE COPY OF THE INTERIM ORDER OF HON'BLE APEX COURT DATED 10-08-2021 IN WP(C) NO. 699/2016 (ASHWINI KUMAR UPADHYAY VS. UNION OF INDIA AND ANOTHER) RESPONDENTS' ANNEXURES:
EXHIBIT X1 A COPY OF G.O.3326/2022 DATED 24.11.2022 //TRUE COPY// PA TO JUDGE