IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 Crl.Rev.Pet.No. 3724 of 2008() ------------------------------ AGAINST THE ORDER DATED 29/09/2008 IN CMP 5207/2008 IN CC.260/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-V, KOZHIKODE .................... REVN. PETITIONERS/INJURED/DEFACTO COMPLAINANT: --------------------- 1. SUNIL KUMAR, S/O.CHANDRAN, AGED 32 YEARS, CHAKKUTHODIKA VEEDU, PALLIKKAL BAZAR POST, MALAPPURAM DISTRICT. 2. SURESH KUMAR, S/O.CHANDRAN, AGED 28 YEARS, DO.DO. 3. CHEENKANARI UNNI S/O.GOPALAN, OLARIPARAMBU HOUSE, PERUMUGAM PO., FEROKE. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENTS/ACCUSED & STATE: --------------- 1. STASTE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REP. S.I. OF POLICE, FEROKE POLICE STATION. 2. BAVEESH.K., S/O.BHARATHAN KILIYANKANDY VEEDU, WEST NELLOOR PO.,FEROKE. 3. HAMSAKOYA, S/O.MOHAMMED, CHERIYAKUNDETHADAM HOUSE, FEROKE PO., NALLOOR, FEROKE. 4. VALAKKADA RAJAN, S/O.GOPALAN, VALASSERY PARAMBA PUTTEKKAD, NALLOOR , FEROKE. PUBLIC PROSECUTOR SRI. SRI.P.J.MATHEW FOR R2 TO 4 SRI.K.B.ARUNKUMAR FOR R2 TO 4 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP.3724/2008 ORDER ON CRL.M.A. 11457 OF 2008 IN CRRP 3724/2008 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 02/01/2009 okb -TRUE COPY- P.A. TO JUDGE M. SASIDHARAN NAMBIAR, JUDGE ------------------------------------------------- CRL. R.P.NO. 3724 OF 2008 -------------------------------------------------- Dated this the 2nd day of January, 2009 O R D E R Petitioners are the defacto complainants in C.C. 260 of 2006 on the file of Judicial First Class Magistrate-V, Kozhikode. Respondents 2 to 4 are the accused. The case against the accused is that they committed offences under sections 341, 323, 506(i) and 325 read with section 34 of Indian Penal Code. When the case was at the trial stage, Assistant Public Prosecutor filed C.M.P.5207 of 2008, an application under section 321 of Code of Criminal Procedure, to withdraw the case. It was allowed by the learned Magistrate as per order dated 29.9.2008. The order is challenged in this revision petition filed by the defacto complainants. 2. Learned counsel appearing for petitioners, learned counsel appearing for respondents 2 to 4 and the learned Public Prosecutor were heard. 3. Learned counsel appearing for revision petitioners pointed out that in respect of the same incident, crime 137 of 2006 was registered by Feroke Police on the basis of the complaint filed by the second respondent, against the petitioners for offences under sections 143, 147, 341 and 323 read with section 149 of Indian Penal Code and CRRP 3724/2008 2 after investigation, police submitted a final report based on which cognizance was taken by the learned Magistrate as C.C. 351 of 2006 and petitioners are arrayed as accused 4 to 6 therein. While granting permission to withdraw the case, learned Magistrate did not consider this aspect at all. It is pointed out that when C.C.351 of 2006 was not withdrawn, prosecution was not justified in filing an application to withdraw C.C. 260 of 2006 and for that sole reason the order is set to be aside. Learned counsel also argued that learned Magistrate did not properly consider the application and failed to note that Assistant Public Prosecutor did not apply his mind on the relevant facts at all. Learned counsel pointed out that as per the application filed by the Assistant Public Prosecutor it is CW1 who sustained the injury, when as per the prosecution records it is CW2 who sustained injury and that itself establishes that Public Prosecutor has not applied his mind. 4. Learned counsel appearing for respondents 2 to 4 submitted that they have no objection for the other case being withdrawn and on that ground the impugned order may not be interfered. 5. While granting permission to withdraw the case under section 321 of Code of Criminal Procedure, Court has to consider whether Public Prosecutor has applied his mind and whether the CRRP 3724/2008 3 withdrawal of the case is in their interest of administration of justice. The petition filed by the Assistant Public Prosecutor itself establish that he has not applied his mind properly, as it is not CW1 who sustained injury but CW2. The order of the learned Magistrate does not show that Magistrate was satisfied that Assistant Public Prosecutor has applied his mind before filing the application. Instead for the sole reason that State has decided to withdraw the prosecution, learned Magistrate granted permission. It is not legal. Hence order dated 29.9.2008 granting permission to withdraw the case is set aside. The Magistrate is directed to reconsider CMP 5207 of 2008 and pass appropriate order in accordance with law after hearing the prosecution and the defence. Respondents 2 to 4 are directed to appear before the Magistrate on 10.2.2009. M. SASIDHARAN NAMBIAR, JUDGE okb