IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 Crl.Rev.Pet.No. 1610 of 2009() ------------------------------ CMP.13/2009 IN CC NO.604/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY .................... REVN. PETITIONER(S): PETITIONERS/ACCUSED ---------------------------------------- 1. K.NANDAKUMAR,S/O.PAITHAL,KOLOTHU VEEDU, OLAVILAM, CHOKLI, THALASSERY. 2. M.C.RAJEEVAN,S/O. CHATHU, OLAVILAM, CHOKLI, THALASSERY. 3. SIJI,S/O.SREENIVASAN, SREE VIHAR, OLAVILAM, CHOKLI, THALASSERY. 4. V.P. VINOD, S/O. RAGHAVAN, VALIYAPARAMBATH VEEDU, OLAVILAM, CHOKLI, THALASSERY. 5. K.P.RATHEESH,S/O.RAGHAVAN, OLAVILAM, CHOKLI, THALASSERY. 6. JITHEESH,S/O. RAGHAVAN,OLAVILAM, CHOKLI, THALASSERY. 7. K.I.LIJEESH,S/O.PURUSHU, VATHUKKAL PARAMBATH, OLAVILAM, CHOKLI,THALASSERY. 8. M.SIJU,S/O.SREENIVASAN,SREE VIHAR, OLAVILAM, CHOKLI, THALASSERY. BY ADV. SRI.K.S.MADHUSOODANAN SRI.K.VISWAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA 2 RESPONDENT(S): COMPLAINANT & FORMAL PARTY ----------------------------------------- 1. STATE OF KERALA TO BE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. S.H.O.CHOKLI POLICE STATION,CHOKLI, THALASSERY. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1610 of 2009 -------------------------------------- Dated this the 6th day of July, 2009. ORDER This revision is in challenge of order dated 19.1.2009 on C.M.P.No.13 of 2009 in C.C.No.604 of 2007 of the court of learned Judicial First Class Magistrate, Thalassery. Sub Inspector, Chokly Police Station registered Crime No.64 of 2007 for offences punishable under Section 25(1)(a) read with Section 5 of the Arms Act (for short, “the Act”). Case is that on 9.2.2007 at about 11.15 p.m. petitioners were found armed with a bill hook and two swords in the house of petitioner No.1 at Chokly. After investigation final report was filed against the petitioners for the said offence. While so the Assistant Public Prosecutor filed C.M.P.No.13 of 2009 seeking permission of the court to withdraw the prosecution. That petition was dismissed vide the impugned order. That order is challenged by the petitioners who are accused in the case. According to learned counsel, if the court below had allowed C.M.P.No.13 of 2009, that would have resulted in the case against petitioners being withdrawn and thus, petitioners would stand benefited. According to learned counsel, order passed is illegal and hence petitioners being the accused in the case who are to be ultimately benefited by the order if it went in their favour, are entitled to challenge the legality, regularity and propriety of the impugned order. Crl.R.P.No.1610/2009 2 2. Though various grounds are urged in the petition for withdrawal of the case, I am not referring to allthose grounds or the finding entered by the learned magistrate since this revision could be disposed of on another point. It is by now settled that the Law Officer concerned has the discretion to request permission of the court to withdraw from the prosecution though, that discretion has to be exercised properly, and the function of the court is neither adjudicatory nor appellate but only supervisory. In that supervisory capacity court is entitled to look into whether the Law Officer has applied his mind and requested for withdrawal from the prosecution. One of the grounds which might persuade the Law Officer concerned to request for permission to withdraw from the prosecution is dearth of evidence. If there is no possibility of the case ending in conviction that could be a ground for the Law Officer to seek permission for withdrawal from the prosecution. 3. According to the prosecution, petitioners were found possessing one bill hook and two swords in the house of petitioner No.1allegedly for criminal activities. The section with which petitioners are charged is Section 25(1)(a) read with Section 5 of the Act. That provision related to the manufacture, sell, transfer, repair, test or prove, or expose or offer, for sale or transfer or have in his possession for sale, etc. In this case, there is no case for the prosecution that petitioners possessed the arms for the purpose of sale. Hence Section 25 (1)(a) of the Act has no application. On the other hand, what applied to the facts of the case is Section 30 read with Sections 3 and 4 of the Act. For that Crl.R.P.No.1610/2009 3 provision to apply, prosecution has to show that in respect of the area where the alleged incident occurred, a notification had been issued by the Central Government prohibiting possession of such arms. Learned Public Prosecutor submitted after getting instructions that no such notification has been produced in the court below and further, that no such notification has been issued in the area in question by the Central Government. If that be so, it cannot be said that by possessing arms in question, petitioners committed offence punishable under Section 30 read with Sections 3 and 4 of the Act. In other words there is no possibility of the case ending in conviction of the petitioners. That could definitely be a valid ground for the Assistant Public Prosecutor to seek permission for withdrawal from prosecution. Viewed in that line I am inclined to allow C.M.P.No.13 of 2009. Resultantly, this revision is allowed. Order under challenge is set aside and C.M.P.No.13 of 2009 will stand allowed. Crl.M.A.No.4882 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks