IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2966 of 2005()
1. KUNNATHU MATHEW, S/O. DEVASSYA,
... Petitioner
2. MURALI KANDATHINKARA, S/O.KRISHNANKUTTY,
3. ANOOP MATHEW, S/O. KUNNATHU MATHEW,
Vs
1. STATION HOUSE OFFICER,
... Respondent
2. STATE OF KERALA,
3. AIPENPARAMBIL SUNNY
For Petitioner :SRI.SURESH KUMAR KODOTH
For Respondent :SRI.C.MURALIKRISHNAN (PAYYANUR)
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :20/03/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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Crl.R.P.No.2966 of 2005 - A
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Dated this the 20th day of March, 2009
O R D E R
This revision is filed by the accused in C.C.No.622/2002 on
the file of the Judicial First Class Magistrate, Thaliparamba,
questioning the legality, propriety and correctness of an order
passed by the learned Magistrate dismissing the application
moved by the Assistant Public Prosecutor for withdrawal of the
case under Section 321 of the Code of Criminal Procedure. The
revision petitioners are accused Nos. 1, 4, and 5 in the above
case, and of the other two accused, one is reported to be no
more and other absconding. Indictment levelled against the
accused is for offences punishable under Section 143, 147, 148,
323 and 324 r/w 149 IPC on a charge laid by the Sub Inspector
of Police, Payyavur. After examination of one of the witnesses,
an attestor to the mahazar as PW1, the Assistant Public
Prosecutor moved an application under Section 321 of the Code
of Criminal Procedure for withdrawal of the case submitting that
such withdrawal is required to serve public interest. Learned
Crl.R.P.No.2966 of 2005 – A
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Magistrate issued notice to the defacto complainant, who is said
to have suffered injuries at the hands of the accused. Appearing
before the court, the defacto complainant filed objections
contending that the application moved by the Assistant Public
Prosecutor is tainted with malafides and if allowed it would cause
miscarriage of justice. Learned Magistrate after examining the
materials and hearing the Assistant Public Prosecutor was not
satisfied with the grounds raised for withdrawal of the case and,
accordingly, the petition moved by the Assistant Public Prosecutor
was dismissed. Impeaching the correctness of the order, as
already indicated, the accused facing the trial, A1, A4 and A5
have moved this revision.
2. I heard the learned counsel for the petitioners/accused.
3. It is submitted that in the consideration of an
application moved by the Assistant Public Prosecutor under
Section 321 of the Code of Criminal Procedure, the court has got
only supervisory jurisdiction and the only question to be looked
into is whether the Assistant Public Prosecutor has applied his
Crl.R.P.No.2966 of 2005 – A
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mind on the materials involved to form a conclusion that the
withdrawal of the case is warranted. I am not impressed by the
submission made by the learned counsel since an order to be
passed by the court under Section 321 of the Code of Criminal
Procedure is not based on the will and pleasure of the Assistant
Public Prosecutor. Prima facie, the court must be satisfied that
the application is moved bona fide and the withdrawal of the case
is necessary in ‘public interest’. If there is any material or
circumstance indicating that the withdrawal is influenced by
extraneous materials and not in public interest, necessarily and
inevitably the request of withdrawal has to be turned down. In
the present case, the defacto complainant-injured has brought to
the notice of the court that there is no change of circumstance
and he wants the prosecution of the case. On the contrary, the
Assistant Public Prosecutor has opined that there is change of
circumstance and no purpose will be served by proceeding with
the trial of the case. On what basis Assistant Public Prosecutor
has formed such an opinion is not borne out by any material. He
has not filed any affidavit as to what was the information to hold
Crl.R.P.No.2966 of 2005 – A
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that the withdrawal case is necessary in ‘public interest’. In this
context, it is worthwhile to take note of the decision of the Apex
Court in Abdul Karim etc. etc. v. State of Karnataka and
others etc. (AIR 2001 SC 116). The Supreme Court has in the
above decision held as follows:
“…..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.
It must therefore 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 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
Crl.R.P.No.2966 of 2005 – A
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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.”
4. After having heard the learned counsel for the revision
petitioners and perusing the materials in the case, I find that the
order passed by the learned Magistrate rejecting the application
moved by the Assistant Public Prosecutor for withdrawal of the
case is proper and valid and it does not call for any interference.
The case has to continue to reach its logical conclusion, and the
accused, if they are innocent, will get sufficient opportunity to
establish their innocence in trial. They cannot have a short cut
method to avoid prosecution by recourse to withdrawal of the
case at the instance of the Assistant Public Prosecutor.
This revision is dismissed.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-