IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 Crl.Rev.Pet.No. 2055 of 2010() ----------------------------- CC.66/2009 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, HOSDRUG ........................................ REVISION PETITIONERS / DEFACTO COMPLAINANT : ------------------------------------------------------------------------- 1. K.M.NAFEER, AGED 22 YEARS, S/O.K.M.MOIDU, KM HOUSE, THRIKKANNAD, KOTTIKULAM, BEKAL P.O., KASARGODE DISTRICT. 2. K.M.BASHEER, AGED 25 YEARS,S/O.K.M.MOIDU K.M.HOUSE, THRIKKANNAD, KOTTIKULAM, BEKAL P.O., KASARGODE DISTRICT. BY ADV. SRI. JAWAHAR JOSE RESPONDENTS / STATE / ACCUSED : --------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MUHAMMAD FAHIM, AGED 29 YEARS, S/O. P.M.ABBAS, MUHARABI HOUSE, JM ROAD, KOTTIKULAM,BEKAL P.O., KASARGODE DISTRICT. 3. RAJIYAS.E.M. AGED 24 YEARS, S/O.A.M.IBRAHIM, SAJINA MANZIL, HOUSE NO.UGP-XIII/849,PALLIKKARA 11ND VILLAGE, JM ROAD, KOTTIKULAM, BAKAL P.O., KASARGODE DISTRICT. 4. MUHAMMAD ASHRAFF, AGED 27 YEARS, S/O.ABRULRAHIMAN, ANNAN COLONY, HOUSE NO.UGP-XVI/148, PALLIKKARA 11ND VILLAGE, KOTTIKULAM BEKAL P.O., KASARGODE DISTRICT. ...2/- Crl.Rev.Pet.No. 2055 of 2010 -2- 5. SHAMSEER,AGED 24 YEARS,S/O.B.M.MUHAMMAD SHAFI, KUNNERIYATH MANZIL, PALLIKKARA 11ND VILLAGE, J.M.ROAD, KOTTIKULAM, BEKAL P.O., KASARGODE DISTRICT. 6. ABDUL ROUF M., AGED 26 YEARS, S/O.MUHAMMADKUNHI METRO, HOUSE NO.UGP-XVI/148 PALLIKKARA 11ND VILLAGE, JM ROAD, KOTTIKULAM BEKAL P.O., KASARGODE DISTRICT. 7. NIYAS K.A.,AGED 22,S/O.ABDUL RAHIMAN, ANDULRAHIMAN'S HOUSE, PALLIKKARA 11ND VILLAGE, JM ROAD, KOTTIKULAM, BEKAL P.O., KASARGODE DISTIRCT. 8. ABDU @ ABDUL MANAF, AGED 25 YEARS, S/O.SATHAR, KAPPANAKKAL HOUSE, PALLIKKARA 11ND VILLAGE JM.ROAD, KOTTIKULAM, BEKAL P.O., KASARGODE DIST. (NOW AT SUB JAIL, CHIKMANGLURE, KARNATAKA STATE) 9. T.T.ASHRAFF, AGED 27 YEARS, S/O.T.T.ABDULKHADER, HAJJUMMA QUARTERS BEARING NO.V/894, KAPPIL, PALLIKKARA 11ND VILLAGE, JM ROAD, KOTTIKULAM, BEKAL P.O., KASARGODE DISTRICT. 10.AMBA @ ABDUL GAFOOR, AGED 26 YEARS, S/O.A.U.ABDULLA, MAKKOD HOUSE, HOUSE NO.V/894, PALLIKKARA 11ND VILLAGE, JM ROAD, KOTTIKULAM, BEKAL P.O., KASARGODE DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2055 OF 2010 ---------------------------------------- Dated the 30th Day of August, 2010 ORDER The revision petitioners herein in are the charge witnesses in C.C.No.66 of 2009 on the file of the Judicial First Class Magistrate court-II, Hosdurg, who are aggrieved by Annexure-D order dated 25.5.2010 of the learned Magistrate by which the learned Magistrate accorded permission under section 321(a) Cr.P.C to withdraw the above case on an application filed by the Assistant Public Prosecutor (APP) concerned. 2. The learned counsel for the revision petitioners vehemently argued that the order impugned is arbitrary and illegal which is liable to be set aside since the learned Magistrate issued the order in violation of the principles to be followed in an application under section 321 of Cr.P.C. The learned counsel took me through the FIR and the final report filed in the above case and also submitted that the revision petitioners sustained heavy financial loss and also Crl.R.P.No.2055/10 -:2:- sustained grievous injury and therefore the learned Magistrate ought not have issued such an order. It is also the submission of the learned counsel that the accused in the present case has already approached this Court by filing application under section 438 Cr.P.C for anticipatory bail but this Court declined the request as per Annexure-F order dated 22.1.2009 and immediately thereafter, the APP in the trial court moved Annexure C petition which was allowed by the learned Magistrate without proper application of mind. Thus, according to the learned counsel, the order is liable to be set aside. 3. The learned Public Prosecutor, on the other hand on instruction submitted that as evidenced by Annexuce C Petition that altogether there were three cases including the cases in which the revision petitioners are accused and all those cases were already withdrawn and the revision petitioners had got an order of acquittal by virtue of the orders passed by the learned Magistrate in those cases. It is the further submission of the learned Public Prosecutor that the APP in the court below filed a detailed petition fully applying his mind, which was properly Crl.R.P.No.2055/10 -:3:- considered by the learned Magistrate and allowed the APP to withdraw the case and therefore no interference is called for. 4. I have carefully considered the arguments advanced by both the counsel for the revision petitioners as well as the Public Prosecutor and I have perused the materials and documents produced by the revision petitioners. 5. The learned counsel invited my attention to a decision of the Apex Court in Rahul Agarwal v. Rakesh Jain (2005(2)SCC 377) and submitted that the withdrawal of the prosecution can be allowed only in the interests of justice and when an application is filed by the Public Prosecutor to withdraw the prosecution, the court has to consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. From the impugned order, it appears that the learned Magistrate, though he has not expressed his opinion in terms of what stated by the Apex court, has specifically expressed his satisfaction that there are sufficient grounds for granting permission and that the prosecutor has applied his mind and accordingly, permission is granted to withdraw from the Crl.R.P.No.2055/10 -:4:- prosecution. It is true that Annexure D order is not an elaborate order so as to assess as to how the learned Magistrate came into such a conclusion. After perusal of Annexure C Petition, the court below has recorded its satisfaction after referring to the grounds. 6. In this juncture it is only just and proper to consider Annexure C Petition filed by APP in the court below. In the first page of the petition, the learned APP has mentioned the details of the incident taken place and also the damage caused to the car and also the injury sustained by CWs 1 and 2. It is also stated that both CWs 1 and 2 were treated for the injuries in Care Well Hospital, Kasaragode and they were discharged on the next day i.e., on 17.10.2009 whereas the incident was on 16.10.2008. It is also stated in the second page of Annexure C that the rival parties to the above cases are belong to the same locality and near the place of occurrence and on the same day, there were two other incidents and connected with those two incidents C.C.No.173 and 67/2009 are also pending in the same court. In the said petition, the details of those cases ere also Crl.R.P.No.2055/10 -:5:- mentioned. In Annexure C Petition, it is also stated that the motive for the incident in all those cases are due to previous enmity between those parties. The circumstances and the other details under which the incident occurred were also stated. It is also stated that as per the case diary, it is seen that all the accused persons are youngsters and the incident happened due to the rivalry between the injured persons and the accused. It is thereafter specifically stated that now the circumstances have changed and it is reported that peaceful atmosphere is prevailing in the locality and if trial is proceeded there is a chance to disturb the present harmony between the parties and it is also recited in Annexure C that Government have examined all these cases and informed that there is no objection to withdraw from the prosecution of all these cases. Accordingly, the learned APP submitted in the following words: “ I feel withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would serve the best interest of justice”. It is the above Petition of the APP Crl.R.P.No.2055/10 -:6:- considered by the learned Magistrate and the Magistrate came into a conclusion that there are sufficient grounds to allow the petition 7. The learned counsel submitted that even as per this Petition, there is nothing to hold that either the court below or the APP has come into a conclusion as held in the decision of the Apex Court in the decision cited above and the learned counsel further submitted that there is no assurance or submission to the effect that the matter has been settled and there is no chance for further dispute or buried the dispute for ever. 8. On a close perusal of the judgment of the Apex Court, it can be seen that the Apex Court has held that withdrawal of the prosecution can be permitted only when valid reasons are made out for the same. In this juncture, it is relevant to note that in Annexure C Petition, sufficient and valid reasons are stated by the APP which was accepted by the court below. It is also relevant to note that in paragraph 10 of the above decision in Rahul Agarwal's case, (cited supra) which reads as: ....”If the withdrawal of prosecution is likely to Crl.R.P.No.2055/10 -:7:- bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution”. On examination of the facts and circumstances involvedin this case, and especially, on perusal of Annexure C Petition filed by the APP in the court below and the impugned order of the learned Magistrate, I am of the view that the impugned order is fully justified, legal and correct and no interference is called for. Thus, there is no merit in this Crl.R.P, and accordingly the same is dismissed. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.No.2055/10 -:8:-