IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 Crl.Rev.Pet.No. 3453 of 2008 ------------------------------------ (AGAINST THE ORDER DATED 25/07/2008 IN CMP 3577/2007 IN CC.6/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM) .................... REVN. PETITIONER(S): COMPLAINANT: ------------------------------ STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.TEK CHAND. RESPONDENTS(S): ACCUSED: ------------------------- 1. M.VIJAYAKUMAR, CPM JILLA SECRETARY & EX.SPEAKER, THIRUVANANTHAPURAM. 2. KADAKAMPALLY SURENDRAN, EX.MLA, THIRUVANANTHAPURAM. 3. ANTONY RAJU, EX.MLA, THIRUVANANTHAPURAM. 4. SIVANKUTTY, EX.THIRUVANANTHAPURAM CORPORATION MAYOR, THIRUVANANTHAPURAM. 5. BINU, AGED 26, S/O.PARAMESWARAN, TC.27/124, OPPOSITE GENERAL HOSPITAL, RISHIMANGALAM WARD, VANCHIYOOR VILLAGE. 6. S.S.RAJULAL, DISTRICT PRESIDENT OF DYFI, THIRUVANANTHAPURAM. 7. M.M.BASHEER, DISTRICT SECRETARY OF DYFI, THIRUVANANTHAPURAM. 8. BINUKUMAR, CITY SECRETARY OF AIYF, THIRUVANANTHAPURAM. 9. RAJU, AGED 30, S/O.KUNHUNNI NADAR, VALIYAVILA PUTHEN VEEDU, PANANKARA, VELLAKADAVU DESOM, VATTIYOORKAVU VILLAGE. 10. ANEESH, AGED 18, S/O.LAWRANCE, VILAYIL VEEDU, NEAR SALVATION ARMY CHURCH, KODUNGANOOR DESOM, VATTIYOORKAVU VILLAGE. Crl.R.P.No.3453 of 2008 :-2-: 11. SHIBU, AGED 21, S/O.SHEELAS, JAYA BHAVAN KALIYAKONAM LANE, VAZHOTTUKONAM WARD, VATTIYOORKAVU VILLAGE. 12. PHILIP, AGED 35, S/O.JOSEPH, CHANTHAYIL PUTHEN VEEDU, T.C.7/2004, PANGODE WARD, SASTHAMANGALAM VILLAGE. 13. SUNIL, AGED 24, S/O.BHASKAL, ST.JOSEPH BHAVAN, PANAYARA WARD, PEROORKKADA VILLAGE. 14. RAJESH, AGED 25, S/O.SURENDRAN, RAJESH BHAVAN, PATHIRAPPALLY WARD, PEROORKKADA VILLAGE. 15. SURESHKUMAR, AGED 30, S/O.THANKAPPAN ASSARI, LATHA BHAVAN, NETTAYAM SREENAGAR, METTAYAM WARD, PEROORKKADA VILLAGE. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2011, ALONG WITH CRL.R.P.NO.3611 OF 2009 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------------------------- Crl.R.P. No. 3453/2008, 54/2009, 3611/2009, 1564/2010 & 1565 of 2010 ----------------------------------------------------- Dated the 7th day of April, 2011 ORDER As in all these cases, the question of law involved is identical and the orders impugned are similar in nature, all the above Crl.R.Ps are heard together and being disposed of by this common order. 2. All the above Crl.R.Ps are preferred by the State challenging the orders issued by the trial courts dismissing the petition filed by the Assistant Public Prosecutor of the concerned trial court seeking permission of the court to withdraw the prosecution case, pending before that court, under section 321 Cr.P.C. 3. I have heard Sri V.Tek Chand, the learned Public Prosecutor appearing for the State and Sri M. Rajagopal, the counsel appearing for the respondents 1 to 213 in Crl.R.P.No.54 of 2009 and Sri O.V.Maniprasad appearing for Respondent No.1 in Crl.R.P.Nos. 1564/10 and 1565/10. Though service is complete for respondents in CrlR.P.Nos.3611/09, nobody has turned up to defend the Revision Petition. 4. The learned public Prosecutor strenuously submitted that the approach of the learned Magistrate in the above cases is CRL.R.P3453/08 & co.cases. -:2:- diametrically opposed to the settled position of law under section 321 Cr.P.C. The Public Prosecutor submitted that considering the facts and circumstances involved in each case and after applying the mind, the learned Asst. Public Prosecutor preferred application under section 321 Cr.P.C., but as per the impugned orders, the learned Magistrate, sitting on appeal against such petitions, dismissed those applications inadverting to the settled position of law and thereby exceeded the jurisdiction of the learned Magistrate under section 321 Cr.P.C. On the strength of the decision in State of Kerala v. Varkala Radhakrishnan and others (ILR 2009(1) Ker.721), the learned Public Prosecutor submitted that, on an application from the side of the prosecution under section 321 Cr.P.C, the jurisdiction of the Magistrate concerned is to examine whether the prosecutor who moved the application had applied his mind or not. According to the learned Public Prosecutor, in the present cases, the petitions preferred by the concerned Asst. Public Prosecutors are sufficient to show that such applications were moved after applying their mind particularly, the facts and circumstances involved in each cases. Thus, according to the learned Public Prosecutor, the CRL.R.P3453/08 & co.cases. -:3:- orders impugned are liable to be set aside. 5. Sri M. Rajagopal and Sri O.V.Maniprasad, the counsel appearing for the respondents in the above cases supporting the arguments advanced by the learned Public Prosecutor, submitted that many of the respondents/accused are implicated in the crime only because they had participated in the procession, conducted in exercise of their democratic right and towards the discharge of their responsibilities and to protect the public interest. The counsels appearing for the respondents are unanimous in their submission that even if the respondents are forced to undergo the ordeal of trial, there is no likelihood for any successful prosecution because of the facts and circumstances involved in the cases. Thus, according to the learned counsels, the orders impugned in this Crl.R.Ps are liable to be set aside. 6. I have carefully considered the arguments advanced by the learned Public Prosecutor as well as the counsel appearing for the respondents. I have carefully perused the orders impugned in these Crl.R.Ps and also other documents and materials produced along with these Crl.R.Ps. I have also gone through the decision of this court in State of Kerala v. Varkala Radhakrishnan and others (ILR 2009(1) Ker.721). In the above CRL.R.P3453/08 & co.cases. -:4:- decision a learned Judge of this Court while disposing of a batch of cases granted permission to withdraw the prosecution. In paragraph 4 of the above decision, the learned Judge has held: “The principle was reiterated in M.N.Sankaranarayanan Nair v. P.V. Balakrishnan 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 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 purpose....” 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. 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”. CRL.R.P3453/08 & co.cases. -:5:- In the very same decision, it is further held in paragraph 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 reasons 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, it if is for the public good. Analysing the earlier decisions Apex Court in Rajender Kumar v. State 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 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 CRL.R.P3453/08 & co.cases. -:6:- 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 consideration all relevant grounds including social, economic and political purposes and court cannot refuse to grant permission cannot be accepted. Even though the Government is entitled to suggest the Public Prosecutor that he may withdraw from the prosecution, the Government even though 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”. In the above decision, while discussing the jurisdiction of the trial Court, this court has held: “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 CRL.R.P3453/08 & co.cases. -:7:- court must be satisfied that the Public Prosecutor has considered the materials in good faith, reached the conclusion that this 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.” Finally, after having considered the facts and circumstances involved in those cases, this Court has found : “9. On going through the applications filed by 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 CRL.R.P3453/08 & co.cases. -:8:- discretion vested in him. When the jurisdiction of the court in grating or refusing to grant consent for withdrawal is only supervisory and is not either adjudicatory or appellate, the orders passed by the learned Magistrate refusing to grant permission are illegal and are to be set aside. I do so”. 7. According to me, the facts and circumstances involved in the above case are more or less similar to the facts and circumstances involved in these cases and therefore the dictum laid down therein are squarely applicable in the present Crl.R.Ps. The material facts and circumstances involved in each case, are as follows: Crl.R.P.No.3453 of 2008:- In this case, altogether there are 15 accused who are the respondents herein. In this case, the order under challenge is that of Judicial First Class Magistrate-III, Thiruvananthapuram in CMP No.3577/2007 in C.C.No.5/2005. In this case, the prosecution case is as follows:- On 8.10.2004, the accused formed themselves into an unlawful assembly, in protest against the conduct of MSF workers in showing black flags against the then opposition leader, namely, V.S.Achuthanandan, in furtherance of their common object, at Palayam and from there they proceeded to the Spencer Junction CRL.R.P3453/08 & co.cases. -:9:- side and A5 to 15 bended the flag mast of the political party, namely, Indian Union Muslim League (IUML)and A5 pelted a stone against the office board of the IUML and thereby caused them a loss of Rs.400/- and they also caused obstruction to the traffic. Thus, According to the police, the accused committed offences punishable under sections 143, 147, 148, 283 & 427 read with Section 149 IPC and Section 38 read with Section 52 of the Kerala Police Act. In this case, though the State has not produced the copy of the petition filed by the APP Gr-II, before the Judicial First Class Magistrate-III, Thiruvananthapuram under section 321 Cr.P.C, the learned Public Prosecutor made available to me the copy of the said petition. On a perusal of the said petition, it can be seen that though a number of persons have participated in the protest, only the known leaders who had not actually participated in the procession were arrayed as accused and nobody was arrested from the spot. It is also stated that the case is based on political reasons and at present there exists political harmony and if the case is proceeded further, it is likely to adversely affect the existing harmony. From the impugned order in this Crl.R.P., it can be seen that the attempt of the learned Magistrate is not to find out CRL.R.P3453/08 & co.cases. -:10:- whether the APP had applied his mind while making the application for withdrawal of the case. But the learned Magistrate , after going through the records came to the conclusion that the grounds stated are not satisfactory. The learned Magistrate went to the extent to hold that the accused persons with their joint strength instead of conducting peaceful protest dared to take law into their hands and to attack the property of their opponents. The learned Magistrate has also found that since A1, A2 and A4 are the leaders of political parties, anybody can easily identify them. The above discussions and findings are absolutely unwarranted when considering a petition under section 321 Cr.P.C and the learned Magistrate has miserably failed in finding as to whether the learned APP has applied his mind. Crl.R.P. No.54/2009: The challenge is against the order dated 17.9.2008 in CMP No.978/2008 in CP No.34/2005 pending before the court of the Judicial First Class Magistrate-III, Thiruvananthapuram connected with crime No. 94 of 2003 of Museum Police Station, Thiruvananthapuram wherein the offences alleged are under sections 143, 147, 148, 283, 324, 353, 427, & 307 read with Section 149 IPC and Section 3(2)(e) of the PDPP Act wherein the allegation is that on 17.3.2003 at about 12 CRL.R.P3453/08 & co.cases. -:11:- noon, A1 to A 213 under the leadership of A1 to A3 in furtherance of their common object to cause destruction to public property formed themselves into an unlawful assembly armed with deadly weapons and attacked CWs 15 to 27 and caused damage to certain government vehicles. In the above crime, altogether there are 213 accused who are the respondents in this Crl.R.P. A copy of the application filed by the APP Gr-II, Judicial First Class Magistrate-III, Thiruvananthapuram under section 321 Cr.P.C, produced in this case as Annexure A1. In the said petition, it is stated that the alleged incident was happened all of a sudden while the LDF persons were marching to DGP office and even though 3000 persons were participated , only the known leaders were arrayed as accused. It is also stated by the learned Public Prosecutor that the injured are also unable to identify the particular accused who inflicted injury to them. It is also stated that even though 213 accused were arrayed , only A 172 to 176 and A193 to A213 were arrested and no identification parade is conducted. It is also stated that the case is originated due to political reasons and when LDF workers were conducting march to the DGP office in protest of the incidents at Muthanga, a tribal centre. It is also stated that the issue was settled and harmony CRL.R.P3453/08 & co.cases. -:12:- exists, and after considering the facts and materials, the learned Public Prosecutor came to the conclusion that there is no chance to end the trial in conviction and therefore, the administration of public justice warrants the withdrawal from the prosecution of this case. In this case also, the learned Magistrate miserably failed to consider the question as to whether the APP had applied his mind while preferring the petition under section 321 Cr.P.C. On the other hand, the learned Magistrate, as if he is sitting in appeal, refused to appreciate the grounds taken by the APP after applying his mind. Such an approach is unwarranted. CRL.RP No.3611 of 2009: In this Crl.R.P. also the State has also produced Annexure A1 and Annexure AII. Annexure A1 is the report filed by the police in crime No.488/2007 of Sreekariyam Police Station wherein the offence alleged is under section 332 IPC connected with an incident that took place on 16.12.2007. There is only one accused in the above crime who is the Ist respondent in this Crl.R.P. In the above Crl.R.P., the challenge is against the order dated 26.8.2009 in CMP No.4970/2009 in C.C.No.95/2008 of the Judicial First Class Magistrate-I, Thiruvananthapuram whereby the learned Magistrate CRL.R.P3453/08 & co.cases. -:13:- dismissed Annexure-AII petition filed by the learned APP. In this case, though notice was served on respondents 1 to 3, out of which respondents 2 and 3 are respectively, the de facto complainant and CW2, have not chosen to defend this Crl.R.P. After considering the facts and circumstances involved in this case, the materials and evidence on record, the APP came into the conclusion that since there is lack of prospects of successful prosecution, the continuation of this case will cause huge loss to state ex chequer and moreover, it will adversely affect the administration of justice. On a perusal of the order impugned, it is surprising to note that in paragraph 5 of the impugned order, the learned Magistrate undertook an enquiry to see whether the grounds taken by the APP is sufficient to permit him to withdraw the case from the prosecution. Accordingly, the learned Magistrate assigned seven reasons to come into a conclusion that the grounds taken by the APP are not sufficient to allow the petition. This is not the function and duty of the trial court while dealing with an application under section 321 Cr.P.C. The paramount consideration must be whether the Prosecutor/APP had applied his mind in the facts and circumstances involved in the case and in CRL.R.P3453/08 & co.cases. -:14:- arriving at a conclusion to move an application for withdrawal of the prosecution. So, the jurisdiction vested with the trial court under section 321 Cr.P.C is only supervisory in nature and not an appellate jurisdiction to find out the correctness of the opinion of the Public Prosecutor/APP or satisfaction of the learned Magistrate regarding the grounds taken by the APP. Crl.R.P.No.1564 of 2010: This Crl.R.P is preferred challenging the order dated 19.4.2010 in CMP No.273/2010 in C.C.No.135/2010 of the court of Judicial First Class Magistrate-II, Thiruvananthapuram connected with crime No349/2000 of Peroorkada Police Station, wherein the offences alleged are under sections 324 and 427 by which Annexure 2 petition filed by the APP Gr-I under section 321 Cr.P.C was dismissed rejecting the prayer for withdrawal of C.C.No.135/2010. I have carefully gone through Annexure-II petition. The application of mind by the learned APP is manifest from the 3rd page of the petition. According to the learned Assistant Public Prosecutor, the incident was taken place in a college, due to political rivalry and now the situation is changed and there is no enmity between the accused and the de facto complainant and now the political situation is also changed. According to the CRL.R.P3453/08 & co.cases. -:15:- learned Public Prosecutor, he is of the opinion that this is a case to be withdrawn from prosecution in the interest of administration of justice. In the order impugned in this case, the learned Magistrate has specifically observed that the trial is set in motion. Though in annexure A-II petition, several grounds are taken and several authorities were cited in support of the prayer for withdrawal of prosecution case, the learned Magistrate ignoring the above material facts and the dictum laid down by various courts, simply held that, as the offence alleged are compoundable, the accused can try for a compromise. The above approach of the learned Magistrate is diametrically opposed to the dictum laid down by the various courts cited in Annexure A2 Petition. Here also, the learned Magistrate failed to consider whether the APP had applied his mind while preferring Annexure A-II petition. CRL R.P. No.1565/2010: This Crl.R.P is preferred challenging the order dated 19.4.2010 in CMP No.2931/2009 in C.C.No.391/2003 of the court of Judicial First Class Magistrate-II, Thiruvananthapuram by which the Annexure-II petition filed by the APP Gr-I under section 321 Cr.P.C was dismissed rejecting the prayer for withdrawal of C.C.No.391/2003. In this case also CRL.R.P3453/08 & co.cases. -:16:- the State has produced Annexure-II Petition and copy of the application filed by the APP Gr-I, before the Judicial First Class Magistrate-II, Thiruvananthapuram. There, the incident had taken place on 24.1.2003, 8 years back, when the accused and CW1 were college students. The offences alleged are under sections 341, 324, 326 read with Section 34 IPC. In the said petition also, the learned Public Prosecutor, after application of his mind has stated that the present case is instituted on the ground of political issues. In this case also, the APP has submitted before the court that in order to keep peace and harmony and in the interest of justice, it is essential to withdraw the case. In the impugned order in this case, the learned Magistrate went to the extent in stating that five witnesses have been examined and at that stage the matter cannot be settled. Moreover, the de facto complainant has filed objection against withdrawal from prosecution. On a bare perusal of section 321 Cr.P.C, it can be seen that an application for withdrawal of prosecution can be filed at any stage before the pronouncement of the judgment. So the reason stated by the learned Magistrate is extraneous to the substance of Section 321 Cr.P.C. Nothing said in the impugned order as to whether the APP has failed to apply CRL.R.P3453/08 & co.cases. -:17:- his mind and there is no reference and finding regarding the grounds raised by the learned APP in his Annexure A-II petition. The facts stated by the learned Magistrate to reject the petition is something irrelevant and immaterial. 8. In the light of the facts and circumstances referred to above and the foregone discussions, it can be seen that in each case, the concerned APP had applied his mind independently and having regard to the facts involved in each case, came to the conclusion that in the interest of justice and administration of justice, withdrawal of the prosecution cases are absolutely necessary and accordingly petitions were filed under section 321 Cr.P.C. If that be so, as correctly held in the above decision, the learned Magistrate has no jurisdiction to consider the prospects of the prosecution and the correctness of the application of mind by the learned Public Prosecutor. The trial Court which deals with an application under section 321 Cr.P.C is given only a supervisory jurisdiction and no power is granted to sit in appeal against the petition preferred by the Public Prosecutor/Asst.Public Prosecutor under section 321 Cr.P.C. 9. Thus on a close scrutiny of the facts and circumstances involved in these cases and on the basis of the discussion with respect to the petitions filed under section CRL.R.P3453/08 & co.cases. -:18:- 321 of Cr.P.C. and on evaluation of the orders impugned in these cases, especially in the light of the dictum laid down by this Court in ILR 2009(1)Ker.721 (cited supra), I am of the view that the trial court has exceeded its jurisdiction in dismissing the petitions filed by the APP under section 321 Cr.P.C 10. Therefore, having regard to the facts and particularly in the light of the findings of this court that the Asst.Public Prosecutors of the courts below had applied their mind and in view of the guidelines and dictum