IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 28749 of 2008(V) --------------------------------------- CC.NO.340/2006 JUDICIAL MAGISTRATE OF IST CLASS,VAIKOM. .................... PETITIONERS: --------------------- 1. GEORGE, S/O JOSEPH, PADINJAREKARA, VAIKOM, 2. BINU, S/O. CHANDRAN, AGED 32 YEARS, NIKARTHIL HOUSE, VAIKOM. 3. NAJEEB, S/O MUHAMMED SIDIQUE, AGED 29 YEARS, PARAMBIL HOUSE, KATTIKUNNU KARA, CHEMBU VILLAGE. 4. SANEESH, S/O PADMANABHAN, AGED 22 YEARS ARAKKAL HOUSE, KATTIKUNNU KARA, CHEMBU VILLAGE. 5. MURALI, S/O BHASKARAN NAIR, KOTTARAPARAMBIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 6. DEVAYANI, W/O PURUSHAN, AGED 50 YEARS, ENJANTHARA VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 7. KUMARI, W/O SUNDARAN, AGED 29 YEARS, PUTHENKARAYIL VEEDU, KATTIKARAKUNNU KARA, CHEMBU VILLAGE. 8. BEENA, W/O RAJU, AGED 28 YEARS, PUTHENKARAYIL VEEDU, KATTIKARAKUNNU KARA, CHEMBU VILLAGE. 9. REMA, W/O CHANDRAN, AGED 40 YEARS, PALLIKKARA HOUSE, KATTIKARAKUNNU KARA, CHEMBU VILLAGE, 10. SUDHARMA, W/O MOHANAN, AGED 39 YEARS, KAMBIKKAKAM VEEDU, KATTIKARAKUNNU KARA,. CHEMBU VILLAGE, W.P.(C). NO.28749/2008-V: 11. JAYA, W/O SATHYAN, AGED 30 YEARS, , KAMBIKKAKAM VEEDU, KATTIKARAKUNNU KARA, CHEMBU VILLAGE. 12. SAJINI, W/O SUNI, ENJANTHARAYIL HOUSE, KATTIKARAKUNNU KARA, CHEMBU VILLAGE, 13. BABY, S/O BHASKARAN, AGED 46 YEARS, KUMMANPALLI VEEDU, VADAKKEMURIKARA,, NADUVILE VILLAGE. BY ADVS. MR.P.SANJAY, MR.A.PARVATHI MENON. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VAIKOM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THILOTHAMA, W/O BAHULEYAN, PARAPPIL VEEDU, KATTIKUNNUKARA, CHEMBU VILLAGE. 3. SEEMON, S/O KORA, MANAPPALLIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 4. VIJAYAN, S/O MADHAVAN, NAYITHARA HOUSE, KATTIKUNNUKARA, CHEMBU VILLAGE. 5. PEETHAMBRANA, S/O KRISHNAN, ANIZHAMVEEDU, KATTIKUNU KARA, CHEMBU VILLAGE. 6. MANOHARAN, S/O PADMANABHAN, CHEMTHIKKATTU HOUSE, KATTIKUNNUKARA, CHEMBU VILLAGE. 7. IYSHA BEEVI, W/O ABDUL REHMAN, BABUMANCHIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 8. PURUSHOTHOMAN, S/O RAMANKUTTY, VELIYIPARAMBIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. W.P.(C). NO.28749/2008-V: 9. RAVEENDRAN, S/O KUNJANKUTTY, CHETHIKKATTIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE, VAIKOM. 10. SOMAN, S/O KRISHNAN, MANIMANDIRATHIL, KATTIKUNNU KARA, CHEMBU VILLAGE, VAIKOM. 11. BAHULEYAN, S/O KUNJNA, PARAPPIL HOUSE, KATTIKUNNUKARA, CHEMBU VILLAGE, VAIKOM. 12. LAKSHMIKUTTY, W/O RAVEENDRAN, MALICHIRAYIL HOUSE, KATTIKUNNU KARA, CHEMBU VILLAGE. 13. SUKUMARAN, S/O KRISHNAN, CHETHIKKATTU VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 14. ASOKAN, S/O RAGHAVAN, ITTIKALASSERIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 15. RAMAKRISHNAN, S/O SANKU, MUNDAKKAL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 16. SAIDU MOHAMMED, S/O REHMAN, VAKAYASSERIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. 17. SHIJU, S/O JANARDHAN, MURINJAPUZHAYIL VEEDU, KATTIKUNNU KARA, CHEMBU VILLAGE. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28749/2008-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE INJUNCTION. EXT.P.2: COPY OF THE FIR IN CRIME NO. 291/2006. EXT.P.3: COPY OF THE FIR IN CRIME NO. 307/2006. EXT.P.4: COPY OF THE FIRST INFORMATION STATEMENT. EXT.P.5: COPY OF THE FIR IN CRIME NO. 306/2006. EXT.P.6: COPY OF THE APPLICATION IN C.C. 340/06 MADE BY THE PROSECUTOR. EXT.P.7: COPY OF THE APPLICATION IN C.C. 369/2006 MADE BY THE PROSECUTOR. EXT.P.8: COPY OF THE ORDER PERMITTING WITHDRAWAL OF PROSECUTION IN C.C. 340/06. EXT.P.9: COPY OF THE ORDER PERMITTING WITHDRAWAL OF PROSECUTION IN C.C. 369/2006. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.28749 OF 2008 ------------------------------------------ Dated 12th August 2009 JUDGMENT This petition is filed under Article 226 of Constitution of India to quash Exts.P8 and P9 orders passed by Judicial First Class Magistrate, Vaikom permitting withdrawal of C.C.340/2006 and C.C.369/2006 on the application of Public Prosecutor under Section 321 of Code of Criminal Procedure. Petitioners are the defacto complainants. Their case is that even though prosecution as against accused in C.C.340/2006 and C.C.369/2006 were withdrawn, the prosecution against the defacto complainant, in the counter case was not withdrawn and C.C.362/2006 pending before the same court is not withdrawn. Petitioners would contend that they were not aware of Exts.P8 and P9 orders and came to know about the order only when C.C.362/2006 was posted along with other connected case. 2. Even though notices were served on respondents 2 to 7, the accused in C.C.340/2006 and 369/2006 they did not appear. WPC 28749/08 2 3. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 4. Exts.P8 and P9 orders are identical orders. Order shows that Public Prosecutor requested permission to withdraw the prosecution and having satisfied that there are sufficient grounds for granting permission, Permission is granted to withdraw the prosecutions. 5. Section 321 of Code of Criminal Procedure provides for withdrawal from prosecution. Under Sub Section 1, Public Prosecutor or Assistant Public Prosecutor in charge of a case with the consent of the court is entitled to withdraw prosecution at any time before the judgment is pronounced. But the withdrawal must be to advance public justice and not for any oblique motive. The position is clarified by the Apex court in Nandan Paswan v. State of Bihar (1987 (1) SCC 288) and R.M.Tewari v. State of (NCT of Delhi) & others (1996 (2) SCC 610). When there is a main case and a counter case, withdrawal of one case alone is not at all in public interest injustice. Unfortunately, this aspect was not considered by the learned Magistrate while granting permission to withdraw the WPC 28749/08 3 prosecution in Exts.P8 and P9 orders. As it is evident from Exts.P8 and P9 orders, learned Magistrate granted permission without applying his mind or the principles laid down by the Apex court and this court. 6. Exts.P8 and P9 orders are quashed. Judicial First Class Magistrate, Vaikom is directed to re-consider the application filed by Assistant Public Prosecutor to withdraw from prosecution in the light of the settled legal position. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.