Kerala High Court
State Of Kerala vs Rajesh on 4 February, 2009
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 433 of 2009()
1. STATE OF KERALA, REP.BY THE STATE
... Petitioner
Vs
1. RAJESH, S/O.BALAKRISHNAN NAIR, AGED 29,
... Respondent
2. BINEESH, S/O.KODIYERI BALAKRISHNAN,
3. YASIM, S/O.JALALUDDEEN, AGED 21,
4. RASSAL, S/O.PONNAPPAN, AGED 26,
5. BIJU,S/O.PRABHAKARAN,AGED 26,CHANDRIKA
6. ABHILASH, S/O.BASHEER AHAMMED, AGED 22,
7. SHAFIQUE, AGED 20,POIKAVILAKAM VEEDU,
8. B.SATHYAN, S/O.BHASKARAN, AGED 42,
9. DR.K.SASIKUMAR, NISHANTH HOUSE,
10. R.MOHANAN, ARAAMAM VEEDU,VARKKALA
11. JIJI KRISHNAN, AGED 25,S/O.KRISHNAN,
12. BINU.I.P,S/O.PARAMESWARAN, AGED 25,
13. SHAFFI, AGED 22, S/O.MUHAMMED,MUHAMMED
14. JITHIN, AGED 22,S/O.SREEDHARAN NAIL,
15. BINOY, AGED 22, S/O.SOMARAJAN,
16. SUDHEER, AGED 23,S/O.JALALUDDEEN, SOOFI
17. JUSTINE RAJ, AGED 22,S/O.RAJESH POULOSE,
18. PREMKRISHNAN, AGED 23,S/O.MURALEEDHARAN,
19. JYOTHI, AGED 23, S/O.RAVEENDRAN,
20. BAIJU, AGED 24, S/O.RAGHAVAN,BAIJU
21. RAJESH KUMAR, AGED 23, S/O.UDAYAKUMAR,
For Petitioner :PUBLIC PROSECUTOR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/02/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.433 OF 2009
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Dated 4th February 2009
O R D E R
State is challenging the order passed by Judicial First Class Magistrate-III, Thiruvananthapuram in C.M.P.3776/2007 in C.C.371/2003 partly allowing the application filed under Section 321 of Code of Criminal Procedure. C.M.P.3776/2007 was filed by Assistant Public Prosecutor to withdraw the prosecution under Section 321 of the Code of Criminal Procedure. There are altogether 25 accused. The charge against them was that they formed themselves into an unlawful assembly on 19/12/2002 to protest against education policy of the Kerala State and attempted to erect a shed in front of the Statue and when it was restrained by the police they revolved and they thereby committed offences under Sections 143,147, 149, 283, 353 with Section 34 of Indian Penal Code and Sections 32 and 52 of Kerala Police Act. Assistant Public Prosecutor filed the application to withdraw the prosecution stating that CRRP 433/09 2 he has applied his mind and come to the conclusion that it is a fit case to withdraw the prosecution.
2. Learned Magistrate allowed the application as against accused 8 to 11 and dismissed it as against accused 1 to 7 and 12 to 25. Learned Director General of Prosecution rightly submitted that the jurisdiction of the learned Magistrate is only supervisory and not appellate or adjudicatory and it is not for the Magistrate to decide while considering the question whether sanction is to be granted or not whether the accused if tried would be convicted or acquitted and the application should have been considered in the light of the settled law position.
3. On going through the order passed by the learned Magistrate it is clear that learned Magistrate considered the application filed by Assistant Public Prosecutor and the exercise of his discretion to withdraw the prosecution as if, Magistrate is considering it as the appellate forum. Learned Magistrate should have considered the application in the proper perspective as settled by the Apex court. The question has been considered by this court in detail in Crl.R.P.3389/2008 and connected case. The CRRP 433/09 3 duty of the court is not to re-appreciate the grounds which led the Prosecutor to request withdrawal from prosecution but to consider whether Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. While discharging that duty it must be born in mind that Magistrate is not discharge an appellate jurisdiction, but only exercise of the supervisory power. As learned Magistrate was not justified in dismissing the application, without considering the application in the proper perspective, the order dated 29/10/2008 is set aside. C.M.P.3776/2007 is remitted to for fresh disposal in the light of the legal principles settled in Crl.R.P.3389/2008 and connected case. Assistant Public Prosecutor is also permitted to file an additional statement/petition if necessary disclosing the reasons for withdrawal.
M.SASIDHARAN NAMBIAR, JUDGE.
uj.