IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Crl.Rev.Pet.No. 3389 of 2008(C) -------------------------------------------- AGAINST THE ORDER DATED 02/07/2008 IN CMP 4096/2007 IN CC.622/2003 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-III, THIRUVANANTHAPURAM. .................... REVISION PETITIONER/ COMPLAINANT: ----------------------------------------------------------- STATE OF KERALA, REP.BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY MR.V.G. GOVINDAN NAIR, DIRECTOR GENERAL OF PROSECUTIONS, PUBLIC PROSECUTORS MR. C.K. SURESH & MR. K.M. FIROZ. RESPONDENTS/ ACCUSED: ---------------------------------------- 1. VARKALA RADHAKRISHNAN, MP. 2. KODIYERI BALAKRISHNAN, MLA. 3. PIRAPPANKODE MURALI, MLA. 4. ANATHALAVATTOM ANANDAN, MLA. 5. KADAKAMPALLY SURENDRAN, EX.MLA. 6. V.SIVANKUTTY, EX. TVM. CORPORATION MAYOR. 7. VENGANNOOR BHASKARAN, KARSHAKA SANGHAM JILLA PRESIDENT. 8. S.K.ASAARI, KARSHAKA SANGHAM JILLA SECRETARY. 9. JAYAN BABU, DYFI LEADER. 10. S.S.RAJALAL, DYFI LEADER. BY THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/01/2009, ALONG WITH CRL.R.P NO.3468/2008 AND CONNECTED CASES, THE COURT ON 03/02/2009 PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =================================== Crl.R.P. NO. 3389, 3468,3609,3615,3505,3351, 3787,3793,3808,3809,3851,3868, 3961,3994,4036,4046,4049,4058 OF 2008 & Crl.R.P.10/2009 =================================== Dated this the 3rd day of February,2009 ORDER What is the role of a Magistrate or a Judge while considering an application filed by the Assistant Public Prosecutor or Public Prosecutor to withdraw the prosecution under section 321 of the Code of Criminal Procedure? Is it adjudicatory or supervisory? Is it for the court to assess the evidence to discover whether the case would end in conviction or acquittal or is it sufficient to see whether 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. 2. All the revision petitions are filed by the State challenging the order passed by Judicial First Class Magistrate-III, Thiruvananthapuram dismissing the applications filed under section 321 CRRP3389/08 & connected cases 2 of the Code of Criminal Procedure by the Assistant Public Prosecutor. All these cases relate to the incidents which occurred during procession by political parties opposing the policy of the Government of the day and do not involve major offences. 3. Section 321 of Code of Criminal Procedure reads:- 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 or more of the offences for which he is tried; and, upon CRRP3389/08 & connected cases 3 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 CRRP3389/08 & connected cases 4 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 has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, CRRP3389/08 & connected cases 5 move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.” Section 321 does not give any guideline regarding the grounds on which a withdrawal application can be made. Such guidelines are settled by various deicisons of the Apex Court. The test to be applied is settled by the majority decision of the Constitution Bench in Sheo Nandan Paswan v. State of Bihar (AIR 1987 SC 877). Comparing the provisions of Section 321 with Section 320 of Code of Criminal Procedure dealing with compounding of offences, it was held that the sub sections of CRRP3389/08 & connected cases 6 Section 321 use the expression “with the permission of the court and with the consent of the court” which are more or less ejusdem generis and on a fair reading of the sub sections it can be safely presumed that Sections confer only a supervisory power on the court in the matter of compounding of offences in the manner indicated therein with the safeguard that the accused does not by unfair or deceitful means, secure a composition of the offences. Since Section 321 finds a place in the same chapter immediately after section 320, it was held that it should take its colour from the immediately preceding section and in holding that this section which is a kindred to S.320 which contemplates consent by the Court only in a supervisory manner and not essentially in an adjudicatory manner and the grant of consent not depending upon a detailed assessment of the weight or volume of evidence to see the degree of success at the end of the trial, their Lordships held:- “All that is necessary for CRRP3389/08 & connected cases 7 the Court to see is to ensure that the application for withdrawal has been properly made, after independent consideration, by the public prosecutor and in furtherance of public interest.” The Constitution Bench held:- “In view of the wide language it uses, enables the public prosecutor to withdraw from the prosecution any accused, the discretion exercisable under which is fettered only by a consent from Court on a consideration of the materials before it and that at any stage of the case. The Section does not insist upon a reasoned order by the CRRP3389/08 & connected cases 8 Magistrate while giving consent. All that is necessary to satisfy the section is to see that the public prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the public prosecutor is proper.” The position has been further clarified in the light of the effect of an order granting permission under section 321, in paragraph 74 as follows:- “Section 321, Cr.P.C. is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by CRRP3389/08 & connected cases 9 the exercise of functions under S.321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis.” 4. The role of the Public Prosecutor in exercising the discretion provided under section 321 of Code of Criminal Procedure was settled by the landmark decision of the Apex Court in State of Bihar v. Ram Naresh Pandey (AIR 1957 SC 389). The relevant observations reads:- “His discretion in such CRRP3389/08 & connected cases 10 matters has necessarily to be exercised with reference to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme than with the provisions of the CRRP3389/08 & connected cases 11 Code relating to inquiries and trials by Court. It cannot be taken to place on the court the responsibility for a prima facie determination of the triable issue. For instance the discharge that results therefrom need not always conform to the standard of “no prima facie case” under sections 209(1) and 253 (1) or of groundlessness” under sections 209(2) and 253 (2). This is not to say that a consent is to be lightly given on the application of the CRRP3389/08 & connected cases 12 public prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made.” The principle was reiterated in M.N. Sankaranarayanan Nair v. P.V.Balakrishnan (AIR 1972 SC 496) as follows:- “...In the State of Bihar v. Ram Naresh Pandey, 1957 SCR 279: (AIR 1957 SC 389) it was pointed out by this Court that though the section does not give any indication as to the ground on which the Public Prosecutor may make an application on CRRP3389/08 & connected cases 13 the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.....” It does not mean that the Public Prosecutor can surrender his discretion in view of the decision of the Government. It is the duty of the prosecutor to exercise the discretion unfettered by the opinion of the Government though the opinion of the Government is also a relevant factor to be considered by the Public Prosecutor. CRRP3389/08 & connected cases 14 If the application for withdrawal is filed by the Public Prosecutor in good faith after careful consideration of the materials placed before him, it would be improper for the court to refuse the sanction sought for. A later three Judges Bench of the Apex Court in Abdul Karim v. State of Karnataka (2000) 8 SCC 710) followed the decision and held:- “18.The law as it stands today in relation to applications under section 321 is laid down by the majority judgment delivered by Khalid,J. In the Constitution Bench decision of this Court in Sheonandan Paswan v. State of Bihar. It is held therein that when an application under section 321 is made, it is not necessary for the court to assess the CRRP3389/08 & connected cases 15 evidence to discover whether the case would end in conviction or acquittal. What the court has to see is whether 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. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material CRRP3389/08 & connected cases 16 before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline 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 material available, the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not CRRP3389/08 & connected cases 17 an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw form the prosecution of any accused. The discretion exercisable under section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public prosecutor has acted in good faith and the exercise of discretion by him is proper. CRRP3389/08 & connected cases 18 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 CRRP3389/08 & connected cases 19 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 avert 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 CRRP3389/08 & connected cases 20 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 CRRP3389/08 & connected cases 21 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.” A learned single Judge of this court in State of Kerala v. Balakrishna Pillai (1993(1) KLT 473) CRRP3389/08 & connected cases 22 following the decision of the Constitution Bench in State of Punjab v. Surjit Singh (AIR 1967 SC 1214) and Rajender Kumar Jain v. State (AIR 1980 SC 1510) had occasion to consider the question in detail and held:- “The Public Prosecutor exercises a power in the nature of a prerogative. In Criminal Law, the State and its instrumentalities enjoy prerogatives, akin to crown prerogatives in England. The power exercised by the Public Prosecutor under Section 321 of the Code of Criminal Procedure is in the nature of such a prerogative. The State may advise him in this regard, but he must exercise his mind independently, and CRRP3389/08 & connected cases 23 he ought not to act under dictation. If he acts honestly, his act cannot be questioned. The limited role of the court is only supervisory, and not adjudicatory or appellate in character.” 5. It is not the law that the Government cannot suggest to the Public Prosecutor that he may withdraw from prosecution. The only restriction is that for the reason that the Government suggested to withdraw from prosecution the Public Prosecutor cannot withdraw the prosecution. No one including the Government can compel the Public Prosecutor to withdraw from prosecution. It is also not the law that prosecution could be withdrawn only for paucity of evidence. The Public Prosecutor is entitled to withdraw from prosecution on all relevant grounds, including in appropriate cases social, economic and political purposes, if it is CRRP3389/08 & connected cases 24 for the public good. Analysing the earlier decisions Apex Court in Rajender Kumar v. State (AIR 1980 SC 1510) held that it shall be the duty of the Public Prosecutor to inform the court to appraise itself of the reasons which prompted 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.” As cautioned by Their Lordships, independence of the judiciary requires 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. Therefore the argument of the Director of Prosecution Sri.V.G. Govindan Nair that the State being the master of the litigation is entitled to withdraw the prosecution, taking into CRRP3389/08 & connected cases 25 consideration all relevant grounds including social, economic and political purposes and court cannot refuse to grant permission cannot be accepted. Eventhough the Government is entitled to suggest the Public Prosecutor that he may withdraw from the prosecution, the Government eventhough the the master of the litigation, is not entitled to compel the Public Prosecutor to withdraw the prosecution. It is absolutely within the province of the Public Prosecutor to act in good faith and exercise the discretion vested in him, to decide even in that case whether the prosecution is to be withdrawn or not. 6.Analysing the earlier proceedings it was held in Rajender Kumar's case. “13. (1) Under the Scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. CRRP3389/08 & connected cases 26 (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 relevant grounds as CRRP3389/08 & connected cases 27 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 Tammany Hall enterprises. 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 CRRP3389/08 & connected cases 28 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.” When the court grants consent to the Public Prosecutor to withdraw the prosecution, it must be satisfied that the withdrawal will serve public interest. At the same time, it is not for the court to weigh the material or decide whether prosecution will end in conviction or acquittal as if it is exercising the appellate jurisdiction over the decision of the Prosecutor. But “the court must CRRP3389/08 & connected cases 29 be satisfied that the Public Prosecutor has considered the materials in good faith, reached the conclusion that his withdrawal from 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. 7. The refusal of the prayer for withdrawal by the learned Magistrate in all these cases is to be considered in the light of the said settled legal position. 8. All these cases relate to the incidents which had taken place during the course of processions where leaders had been identified. But for that reason alone it cannot be presumed that the incidents of violence was at their behest or with their consent or knowledge. Even if the procession was peaceful and there was no intention on the part of the leaders, who led the procession to indulge in violence, it cannot be ruled out that without the knowledge of the leaders who led CRRP3389/08 & connected cases 30 the procession, attempt could be made to indulge in violence. It is possible that when the procession is in progress, attempt could be made by adversaries to pelt stones on the procession and provoke them. In such a situation, it is also possible that in the heat of passion a section of the members of the procession may turn violent. In such an incident, can it be said that the leaders who led the procession, who are unaware of the cause for violence or that a few members of the procession have indulged in violence are responsible for the criminal acts. In such a case can it be said that as the leaders who led the procession alone are identifiable, it is not a case with paucity of evidence to fix the identity of culprits who indulged in violence. It is on this very ground finding that the leaders are identifiable, the learned Magistrate in most of the cases refused to grant permission to the Assistant Public Prosecutor to withdraw from prosecution. 9. On going through the applications filed by CRRP3389/08 & connected cases 31 the Assistant Public Prosecutor and going through the impugned orders passed by the learned Magistrate, it cannot be said that the applications filed by the Assistant Public Prosecutor to withdraw from the prosecution was bereft of bona fides or were filed without exercising the discretion vested in him. The petitions filed by the Assistant Public Prosecutor make it absolutely clear that he had applied his mind to all the relevant materials and in good faith and having satisfied that public interest would be better served by withdrawal from the prosecution it was decided to move the court for sanction. On going through the petitions, it cannot be said that the applications were filed by the Assistant Public Prosecutor at the behest of Government or in tune with the wishes of the political masters without exercising the discretion vested in him. When the jurisdiction of the court in granting or refusing to grant consent for withdrawal is only supervisory and is not either adjudicatory or CRRP3389/08 & connected cases 32 appellate, the orders passed by the learned Magistrate refusing to grant permission are illegal and are to be set aside. I do so. Crl.R.P.3389/2008 is allowed. The order in C.M.P.4096/2007 in C.C.622/2003 on the file of Judicial First Class Magistrate -III, Thiruvananthapuram is set aside. C.M.P.4096/2007 in C.C.622/2003 stands allowed. Sanction is granted to withdraw the prosecution. Crl.R.P.3468/2008 is allowed. The order in C.M.P.5987/2007 in C.C.795/2003 on the file of Judicial First Class Magistrate-III, Thiruvananthapuram is set aside. C.M.P.5987/2007 in C.C.795/2003 stands allowed. Sanction is granted to withdraw the prosecution. Crl.R.P.3609/2008 is allowed. The order in C.M.P.4090/2007 in C.P.58/2003 on the file of Judicial First Class Magistrate-III, Thiruvananthapuram is set aside. C.M.P.4090/2007 in C.P.58/2003 stands allowed. Sanction is granted to withdraw the prosecution. CRRP3389/08 & connected cases 33 Crl.R.P.3615/2008 is allowed. The order in C.M.P.5880/2007 in C.C.793/2003 on the file of Judicial First Class Magistrate-III, Thiruvananthapuram is set aside. C.M.P.5880/2007 in C.C.793/2003 stands allowed. Sanction is granted to withdraw the prosecution. Crl.R.P.3505/2008 is allowed. The order in C.M.P.4272/2007 in C.C.793/2003 on the file of Judicial First Class Magistrate-III, Thiruvananthapuram is set aside. C.M.P.5880/2007 in C.C.793/2003 stands allowed. Sanction is granted to withdraw the prosecution. Crl.R.P.3351/2008 is allowed. The order in C.M.P.6579/2007 in C.C.1086/2003 on the file of Judicial First Class Magistrate-III, Thiruvananthapuram is set aside. C.M.P.6579/2007 in