Madras High Court
G.Subramani vs State Rep. By on 28 November, 2019
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.R.C.(MD)No.354 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 28.11.2019
CORAM
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
Crl.R.C.(MD)No.354 of 2014
G.Subramani ... Petitioner
Vs.
1.State Rep. by
The Inspector of Police,
Sempatti Police Station,
Dindigul District.
2.Muthuvel
3.Pandi
4.Thangasadai
5.Gopi
6.Thangavel
7.Vanaraj
8.Andichamy
9.Kumaravel
10.Mohan @ Mohanraj
11.Dhayalan
12.Chandrasekaran
13.Nagaraj
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Crl.R.C.(MD)No.354 of 2014
14.Vellaichamy
15.Arumugam
16.Murugan
17.Ayyachamy
18.Ganesan
19.Murugeswari
20.Rajammal
21.Maniammal
22.Arasi
23.Pichaimurugan
24.Karuppiah
25.Pichai
26.Kandavel
27.Arumugam
28.Ivar
29.Bothagar @ Karuppiah ... Respondents
PRAYER: Criminal Revision Case filed under Section 397 r/w
401 of the Criminal Procedure Code to call for the records
in S.C.No.201 of 2010, dated 04.12.2012, on the file of
the learned Additional Subordinate Judge, Dindigul and
quash the same.
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Crl.R.C.(MD)No.354 of 2014
For Petitioner : Mr.J.Lawrance
For Respondents : Mr.K.K.Ramakrishnan
Additional Public Prosecutor
for R.1
Mr.N.Sankar Ganesh
for R.2, R.4 to R.12,
R.14 to R.29
*****
ORDER
This criminal revision case is filed by the defacto complainant in Crime No.28 of 2005 on the file of the Inspector of Police, Sempatti Police Station, Dindigul District, as against the order passed by the trial Court, namely, Additional Sub Court, Dindigul, in S.C.No.201 of 2010, dated 04.12.2012, in and by which, the trial Court acquitted the accused under Section 321(b) Cr.P.C., based on the application filed by the Public Prosecutor under Section 321 Cr.P.C. to withdraw the prosecution.
2. The brief facts of the case, leading to the filing of this petition, are as follows:
2.1. The petitioner / defacto complainant in Crime No.28 of 2005 is a resident of Bodikamanvadi village of 3/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 Dindigul Ditrict. One Samiyappa Thevar is also a resident of that village. Kavidass S/o.Samiyappa Thevar is residing at Chokkalingapuram and on 15.01.2005, one Priya, D/o.Kavidass along with one Pandi, the sister's son of Kavidass, were coming on the way to Vadikulam Kanmoi by walk. On noticing them near Vadikulam Kanmoi, one Vanaraj, Gopi and Murugan of the petitioner's village have teased Priya by making whistles. Pandi, who accompanied Priya, objected to it and also scolded them. This incident was informed to the petitioner and on the same day, at about 06.30 pm, one Pitchai [A24], S/o.Andivel came to the North Street, questioned Pandi as to what is wrong in whistling and also abused him. A wordy quarrel aroused between them and Samiyappa Thevar, who was in the place of occurrence, advised both of them and solved the issue amicably.
2.2. Again, on 16.01.2005, at about 09.00 am, while the petitioner / defacto complainant was standing near a temple, along with three others, the said Pitchai [A24] came to that place along with two others and confronted with them. The petitioner and others attempted to pacify the situation and requested them not to intensify the 4/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 same. In order to avoid a scuffle, they left the place.
But, around 12 noon, on the same day, when the petitioner and others were in their house, a Mob with Aruval, Sticks and Stones entered into their street, ransacked their houses, damaged the doors, tiles; assaulted the petitioner, his sister, namely, Indrani and innocent people were chased and attacked. In that incident, the petitioner sustained serious injuries and he lodged a complaint before the Sempatti Police Station on 16.01.2005 at about 03.00 pm and the same was registered in Crime No. 28 of 2005, as against 28 persons, for the offence under Sections 147, 148, 341, 323, 427, 452 & 307 IPC.
2.3. The Inspector of Police, Sempatti Police Station, after conducting investigation in Crime No.28 of 2005, filed a final report as against 17 persons on 01.01.2006 before the learned Judicial Magistrate No.2, Dindigul. The learned Magistrate took the same on file in P.R.C.No.10 of 2006 and committed the case to the Court of Sessions and the same was taken on file by the Additional Sub Court, Dindigul, in S.C.No.201 of 2010. 5/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 2.4. Pending proceedings, the Government, in continuation of the celebration of the 100th birth centenary of Thiru Pasumpon Muthuramalinga Thevar, made a proposal to withdraw cases of group clashes, excepting serious nature of offences like murder and rape. Accordingly, the Superintendent of Police, Dindigul District, submitted a list of cases to the District Collector, Dindigul, for withdrawing the prosecution on 17.11.2007. Based on the recommendation, the District Collector, vide proceedings dated 18.11.2007, referred the present case in Crime No.28 of 2005 of Sempatti Police Station, along with four other cases, as fit cases for withdrawing the prosecution, as suggested by the Secretary to the Government, Public Department, dated 26.10.2007. The Government, in turn, sought for the opinion of the learned State Public Prosecutor and after obtaining the same, recommended for withdrawing the present case under Section 321 Cr.P.C., vide G.O.Ms.No.360, Public (Law & Order – B) Department, dated 18.03.2008.
2.5. Thereafter, the learned Assistant Public Prosecutor filed an application before the trial Court to 6/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 withdraw the prosecution in Crime No.28 of 2005 on the file of the Sempatti Police Station, Dindigul District and based on the application filed by the prosecution, the learned trial Judge, vide order dated 04.12.2012, permitted to withdraw the case pertaining to Crime No.28 of 2005 on the file of the Sempatti Police Station. Aggrieved over the same, the defacto complainant / victim has filed the instant criminal revision case.
3. Heard Mr.J.Lawrance, learned Counsel appearing for the petitioner; Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor appearing for the first respondent / State; and Mr.N.Sankar Ganesh, learned Counsel appearing for respondents 2, 4 to 12 & 14 to 29.
4. Mr.J.Lawrance, learned Counsel appearing for the petitioner has raised the following points for the consideration of this Court:
4.1. The case in Crime No.28 of 2005 on the file of the Sempatti Police Station is neither a communal clash nor a group clash, as suggested by the Government for withdrawing the prosecution.7/34
http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 4.2. The case in Crime No.28 of 2005 is on account of eve teasing by the accused as against one Priya and for having questioned the same by the victim in this case, not only the victim but also his family members and others were assaulted by the accused persons and have sustained serious injuries.
4.3. The petitioner / complainant got head injuries. Apart from him, three others have sustained serious injuries. One Ravi [LW2] has sustained cut injury on his left hand wrist. One Indrani [LW3] has sustained cut injury on her left calf and one Somu [LW4] has also sustained serious injury. Among these individuals, according to the learned Counsel for the petitioner, on account of the injury sustained by Ravi [LW2], he lost the functioning of his left hand.
4.4. Without verifying the case records, the learned Assistant Public Prosecutor has filed the application and without applying his mind, the learned trial Judge has also passed a cryptic order, in a mechanical manner. 8/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 4.5. Moreover, in the entire proceedings, the petitioner / victim was not put on notice and the entire proceedings for withdrawal have taken place behind his back.
4.6. He has also relied upon the decision of the Hon'ble Supreme Court in Abdul Wahab vs. State of Kerala and others, reported in 2018 (3) MWN (Cr.) 1 (SC) and prayed for interference.
5. Per contra, Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor appearing for the first respondent / State would submit that it was the decision taken by the Government of the day, in view of the centenary celebration of Thiru Pasumpon Muthuramalinga Thevar, to withdraw all the group clash cases and also requested the District Collectors to make proposal in this regard. Pursuant to the request of the Government, the Superintendent of Police, Dindigul District has recommended five cases including the present case, which were scrutinised and recommended by the District Collector, Dindigul and the Government, after careful 9/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 consideration of the case materials and also after obtaining opinion from the learned State Public Prosecutor, has taken a decision to withdraw the prosecution and accordingly, issued G.O.Ms.No.360, Public (Law & Order – B) Department, dated 18.03.2008. Thereafter, the learned Assistant Public Prosecutor has filed an application under Section 321 Cr.P.C to withdraw the prosecution in respect of Crime No.28 of 2005 as per the aforesaid Government Order.
6. The learned Additional Public Prosecutor has also referred to the provision under Section 321 Cr.P.C and submitted that the Government is having powers under the Code to withdraw the prosecution at any stage and therefore, he prays for dismissal.
7. Mr.N.Sankar Ganesh, learned Counsel appearing for the private respondents / accused, made his arguments in the following lines:
7.1. The case in Crime No.28 of 2005 is on account of eve teasing upon one Priya. When the same was questioned, a quarrel erupted between both the parties. The defacto 10/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 complainant and others belong to different community and the accused persons belong to different community and the Government, in order to maintain peace, decided to withdraw the case pertaining to communal clash / group clash and accordingly, issued G.O.Ms.No.360, Public (Law & Order – B) Department, dated 18.03.2008.
7.2. As per the aforesaid Government Order, the learned Assistant Public Prosecutor filed an application to withdraw the prosecution in respect of Crime No.28 of 2005. He would further submit that the case was registered in the year 2005 and charge sheeted in the year 2006.
Without any progress in the trial, the case was pending for almost six years and the Government has taken a decision vide the aforesaid Government Order to withdraw the prosecution and necessary application was also filed under Section 321 Cr.P.C, which is an enabling provision for the Government, to withdraw the prosecution with the consent of the Court.
7.3. He would further contend that since the offences are not serious in nature, there is no necessary to put 11/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 the defacto complainant on notice before according permission to withdraw the case. Moreover, Section 321 Cr.P.C does not contemplate any notice to the complainant. In this regard, the learned Counsel has also relied upon an unreported decision of the Madhya Pradesh High Court, in Ashutosh Shrivastava vs. State of Madhya Pradesh, Through Police Station Arakshi Kendra Chhindwara, District Chhindwara and others, in M.Cr.C.No.181 of 2014, decided on 12.01.2018. Therefore, he prays for dismissal.
8. This Court has paid it's anxious consideration to the rival submissions and also to the documents placed on record.
9. Section 321 Cr.P.C. enables the Government to withdraw the prosecution and for proper appreciation, Section 321 Cr.P.C is extracted hereunder:
“321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one 12/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence-
(i) was against any law relating to a
matter to which the executive power of the
Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he hag been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before 13/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.”
10. The decision for withdrawing the prosecution in this case was taken pursuant to the centenary celebration of Thiru Pasumpon Muthuramalinga Thevar. The Government, vide it's letter dated 26.10.2007, directed the District Collector, Dindigul, to furnish the details about the group clash cases. Accordingly, the Superintendent of Police, Dindigul District, forwarded certain cases to the District Collector, which was later forwarded by the District Collector to the Government, for withdrawing the prosecution.
11. Considering the objections raised by the petitioner, this Court has called for the files pertaining to the proposal made for withdrawing the prosecution and has also perused the same.
12. The Government, in view of the centenary celebration of Thiru Pasumpon Muthuramalinga Thevar, by 14/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 letter dated 26.10.2007, directed the District Collector to furnish the details about the cases between two communities. Based on the letter, the Inspector of Police, Sempatti Police Station, thought it fit to recommend this case as one of the communal clash case and accordingly, made his recommendation, but, without assigning any specific reasons. It appears the learned Assistant Public Prosecutor G-II, Judicial Magistrate Court No.2, Dindigul District, has mechanically recommended the same and has simply followed the recommendation of the Inspector of Police, without assigning any reasons. The Deputy Superintendent of Police and the Superintendent of Police have also recommended without applying their mind. The District Collector has also simply followed the recommendations of the Superintendent of Police, the Deputy Superintendent of Police and the learned Assistant Public Prosecutor and has not applied her mind independently. The only thing they have stated is that in order to maintain public order, they are recommending the case for withdrawing the prosecution, pursuant to the letter of the Government.
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13. The proposal received by the Government from the District Collector was forwarded to the learned State Public Prosecutor for his opinion and the State Public Prosecutor has also recommended that it is a fit case for withdrawal. But, none of the Officers, who have recommended for withdrawing the present case, have made any discussions with regard to the grounds on which they have recommended for withdrawing the prosecution.
14. The case on hand cannot be considered either as a communal clash or a group clash. The daughter of Kavidoss, namely, Priya was teased by the accused and for having questioned the same, the defacto complainant and others were assaulted. The said Priya belongs to a particular community and the defacto complainant and the other injured persons are of different communities and therefore, it cannot be termed as a communal clash. Admittedly, there is no counter complaint in this case, as against the defacto complainant and others, to term it as a group clash.
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15. Admittedly, there are six injured eye witnesses in this case. The investigation agency has also, after thorough investigation, filed final report as against the private respondents / accused. The case was also committed to the Court of Sessions and when the same riped for trial, a decision was taken by the Government to withdraw the prosecution. One of the injured in this case, namely, Ravi [LW2] has sustained grievous injury, on account of which, he lost the functioning of his left hand. Yet another victim, namely, Indrani [LW3] also sustained grievous injury in this case. Without considering any of these material facts, the Inspector of Police; the Assistant Public Prosecutor G-II; the Deputy Superintendent of Police; the Superintendent of Police, Dindigul District have recommended that it is a fit case for withdrawal and the reason assigned by them is that to maintain peace among the group. The District Collector, Dindigul, has also recommended that after this incident, there was no untoward incident and peace is maintained in that area and therefore, it is a fit case for withdrawal. 17/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014
16. The reasoning assigned by the authorities for withdrawing the prosecution in Crime No.28 of 2005 is not acceptable one and in fact, no valid reasons have been assigned by them for withdrawal of the prosecution. The Government has also proceeded in a mechanical manner based on this recommendation and has issued G.O.Ms.No.360, Public (Law & Order – B) Department, dated 18.03.2008. The learned trial Judge, while considering the application filed by the prosecution, has passed a cryptic order without any reasonings and without applying his judicial mind, has permitted to withdraw the prosecution.
17. At this juncture, this Court feels it relevant to refer to the law laid down by the Hon'ble Apex Court as well as this Court with regard to the withdrawal of prosecution under Section 321 Cr.P.C.
18. In Sheonandan Paswan vs. State of Bihar and others, reported in (1987) 1 SCC 288, the Hon'ble Supreme Court has held as follows:
“78. ... The judicial function implicit in the exercise of the judicial discretion for granting 18/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 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.
79. The court's function is to give consent.
This section does not obligate the court to record reasons before consent is given. However, I should not be taken to hold that consent of the court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines 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 materials available, the order giving consent has necessarily to be upheld.”
19. In Abdul Karim and others vs. State of Karnataka and others, reported in (2000) 8 SCC 710, the Hon'ble 19/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 Supreme Court has held as follows:
“19. The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice.
20. It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its 20/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 permission, in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the 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. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent.
... ... ...
42. The satisfaction for moving an application under Section 321 CrPC has to be of the Public Prosecutor which in the nature of the case in hand has to be based on the material provided by the State. The nature of the power to be exercised by the Court while deciding application under Section 321 is delineated by the decision of this Court in Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]. This decision holds that 21/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 grant of consent by the court is not a matter of course and when such an application is filed by the Public Prosecutor after taking into consideration the material before him, the court exercises its judicial discretion by considering such material and on such consideration either gives consent or declines consent. It also lays down that the court has to see that 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 or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given.
43. True, the power of the court under Section 321 is supervisory but that does not mean that while exercising that power, the consent has to be granted on mere asking. The court has to examine that all relevant aspects have been taken into consideration by the Public Prosecutor and/or by the Government in exercise of its executive function.”
20. In Bairam Muralidhar vs. State of Andhra Pradesh, reported in (2014) 10 SCC 380, the Hon'ble Supreme Court has held as follows:
“18. The central question is whether the public prosecutor has really applied his mind to 22/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 all the relevant materials on record and satisfied himself that the withdrawal from the prosecution would subserve the cause of public interest or not. Be it stated, it is the obligation of the public prosecutor to state what material he has considered. It has to be set out in brief. The Court as has been held in Abdul Karim’s case, is required to give an informed consent. It is obligatory on the part of the Court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the Court to weigh the material. However, it is necessary on the part of the Court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A Court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The Court cannot give such consent on a mere asking. It is expected of the Court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the Court is obliged to see whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes 23/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the Court as well as his duty to the collective.
19. In the case at hand, as the application filed by the public prosecutor would show that he had mechanically stated about the conditions-
precedent. It cannot be construed that he has really perused the materials and applied his independent mind solely because he has so stated. The application must indicate perusal of the materials by stating what are the materials he has perused, may be in brief, and whether such withdrawal of the prosecution would serve public interest and how he has formed his independent opinion. As we perceive, the learned public prosecutor has been totally guided by the order of the Government and really not applied his mind to 24/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 the facts of the case. The learned trial Judge as well as the High Court has observed that it is a case under the Prevention of Corruption Act. They have taken note of the fact that the State Government had already granted sanction. It is also noticeable that the Anti Corruption Bureau has found there was no justification of withdrawal of the prosecution.
... ... ...
22. We have referred to these authorities only to show that in the case at hand, regard being had to the gravity of the offence and the impact on public life apart from the nature of application filed by the public prosecutor, we are of the considered opinion that view expressed by the learned trial Judge as well as the High Court cannot be found fault with. We say so as we are inclined to think that there is no ground to show that such withdrawal would advance the cause of justice and serve the public interest. That apart, there was no independent application of mind on the part of the learned public prosecutor, possibly thinking that the Court would pass an order on a mere asking.
23. The view expressed in Name Dasarath’s case (supra) is not applicable to the case at hand as the two- Judge Bench therein has opined that the law laid down in Sheo Nandan Paswan’s case has not been correctly appreciated by the learned trial 25/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 Judge and the High Court. We have referred to the said authority and the later decisions which are on the basis of Sheo Nandan Paswan’s case have laid down the principles pertaining to the duty of the public prosecutor and the role of the Court and we find the view expressed by the trial Court and the High Court is absolutely impregnable and, therefore, the decision in Name Dasarath (supra) is distinguishable on facts.”
21. In the decision relied upon by the learned Counsel for the petitioner in Abdul Wahab's case (supra), the Hon'ble Supreme Court has held as follows:
“6. To appreciate the controversy, it is necessary to advert to the order passed by the learned Chief Judicial Magistrate. He has referred to the application filed by the Deputy Director of Prosecution wherefrom it is manifest that the Government had no objection in withdrawing the case and the decision of the Government has been filed along with the application. The trial court has observed that it has gone through the petition and is satisfied that the grounds stated therein are sufficient for giving consent to withdraw the case. He has further opined on analyzing materials that there is no possibility of success in the criminal case and, therefore, the withdrawal from 26/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 prosecution is necessary for the better advancement of public justice. ... ... ...
12. In the case at hand, as is evincible, the learned Chief Judicial Magistrate has dwelt upon the merits and expressed an opinion that the case is not likely to end in conviction. It is clearly manifest that the Public Prosecutor had not applied his mind but had only placed the Government notification on record. The High Court has unsuited the petitioners on the ground that they are third parties who are unconnected with the case. They had filed revisions and the High Court has been conferred power to entertain the revisions and rectify the errors which are apparent or totally uncalled for. This is the power of superintendence of the High Court. Thus viewed, the petitioners could not have been treated as strangers, for they had brought it to the notice of the High Court and hence, it should have applied its mind with regard to the correctness of the order. It may be said with certitude that the revision petitions filed before the High Court were not frivolous ones. They were of serious nature. It is a case where the Public Prosecutor had acted like a post office and the learned Chief Judicial Magistrate has passed an order not within the parameters of Section 321 CrPC. He should have applied the real test stipulated under Section 321 CrPC and the 27/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 decisions of this Court but that has not been done. ... ... ...
14. In the case at hand, as the aforestated exercise has not been done, we are compelled to set aside the order passed by the High Court and that of the learned Chief Judicial Magistrate and remit the matter to the file of the Chief Judicial Magistrate to reconsider the application in accordance with law and we so direct.”
22. This Court, in G.Srinivasan vs. State rep. by the Inspector of Police, City General Crime Branch, Tirunelveli City and Others, reported in (2007) 2 MLJ (Crl) 1341, has held as follows:
“20. In the G.O also, there are no reasons found set out on what basis, this case is ordered to be withdrawn. De hors that, the learned Assistant Public Prosecutor is expected as per law to apply his mind and come to the conclusion. Per se and prima facie, the petition does not disclose on what grounds, the case would end in acquittal, if the case is processed further as per law.
21. These are matters which necessarily the learned Magistrate should have considered. Without application of mind of these aspects, the learned Magistrate acted. What actually I could see in this case is that the Government passed the G.O, 28/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 and the learned Assistant Public Prosecutor adopted it and in turn, the learned Magistrate also adopted the same view and permitted withdrawal of the prosecution.
... ... ...
26. The learned Magistrate so far this case is concerned, should have been all the more carefully in dealing with the matter, because the F.I.R as well as the charge sheet would reveal that this is a case emerged out of problem between two private parties and even then, the Government had chosen to intervene and order for withdrawal without citing any perceivable or analysable objective reason. The learned Assistant Public Prosecutor and the lower Court should have adverted to the previous orders of this Court also.
... ... ...
32. Perused the entire records including the G.O, the averments in the petition filed by the learned Assistant Public Prosecutor. The robust common sense would warrant anyone to raise a question as to why the police and the Collector, should approach the Government for obtaining the G.O and why the learned Public Prosecutor who filed the petition for withdrawal, should come forward with a diametrically opposite view from the one taken all along before the High Court in various proceedings as well as while investigating into the matter. It has become all the more 29/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 important to consider in this case that the Government as well as the Prosecution including the police, takes a specific stand as though the entire investigation conducted was fraught with falsity and the charge sheet filed was the outcome of mere political vendetta. Many other questions are bristling up as to what was the conduct of the Prosecution before the High Court earlier and if that would tantamount to perjury, etc.
33. Absolutely, there is no iota or shred of reasons to show on what aspects the detailed investigation conducted earlier is turned out to be a false one, that it would necessarily lead to acquittal only and that the entire further proceedings would be a futile exercise. Mere terminologies used would not be sufficient, but it should be buttressed and supported by at least some reference to the nature of the so called weak, meek, bleak evidence gathered and put in the form of charge sheet / police report, but all those facts are totally missing and the learned Magistrate miserably failed to concentrate on these missing factors. As such, the order of the learned Magistrate fails to satisfy the standard laid down by the Honourable Apex Court in considering the application for withdrawal of prosecution.” 30/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014
23. The offences committed in this case is of serious in nature, where a girl was subjected for eve-teasing and the persons, who objected the same, were brutally assaulted. Five persons sustained injuries and one of the injuries is a grievous injury, where he lost the functioning of his left hand. Their houses were also ransacked. The investigation agency has filed the final report as against 17 persons and the same is also committed to the Court of Sessions and riped for trial. At this stage, the Inspector of Police recommended the case for withdrawal terming it as a group clash / communal clash. Though the recommendations were given by the Inspector of Police, Deputy Superintendent of Police, Assistant Public Prosecutor, District Collector, etc., it appears that no one have applied their mind, but have simply forwarded the recommendations of the others. The Inspector, who has chosen the case as a group clash / communal clash, has not assigned any reasons to substantiate the same. To be noted, there is no counter complaint, but the petitioner and his family is affected, five persons sustained serious injuries and there are five injured eye witnesses in this case.
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24. The Government is the custodian of the people and they are responsible for the life and limb of the people. The victims are at the mercy of the investigation agency. If such unilateral decision can be taken by an Inspector of Police, behind their back, it cannot be sustained under law. This is a blatant case where none of the Officers, from the Inspector of Police to the District Collector, have applied their mind on the issues involved in this case and have erroneously taken a decision as if it is a case of group clash / communal clash and sought permission to withdraw the case under Section 321 Cr.P.C. and the learned trial Judge has also accorded permission, thereby, paved way for a grave injustice to the petitioner.
25. In view of the ratio laid down by the Hon'ble Supreme Court in the aforesaid decisions and on the facts of the case, this Court is inclined to interfere with the impugned order and accordingly, the order passed by the learned Additional Subordinate Judge, Dindigul, in S.C.No. 201 of 2010, dated 04.12.2012, withdrawing the prosecution is set aside. The trial Court is directed to proceed with 32/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 the trial, by issuing summons to the accused and to complete the trial, as expeditiously as possible, in any event, not later than four months from the date of receipt of a copy of this order.
26. In fine, this Criminal Revision Case stands allowed.
Index :Yes/No 28.11.2019
Internet :Yes
gk
To
1.The Additional Subordinate Judge, Dindigul.
2.The Inspector of Police, Sempatti Police Station, Dindigul District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
33/34 http://www.judis.nic.in Crl.R.C.(MD)No.354 of 2014 B.PUGALENDHI, J.
gk Crl.R.C.(MD)No.354 of 2014 28.11.2019 34/34 http://www.judis.nic.in