IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.MC.No. 2932 of 2006(B) -------------------------------------- CC.NO.326/2005 OF JUDL.MAGISTRATE OF FIRST CLASS-II, KANJIRAPPALLY. .................... PETITIONERS/RESPONDENTS/ACCUSED: ----------------------------------------------------------- 1. RAJU. C. CHERIAN, S/O.ABRAHAM, PANAMPARAMBIL, PULICKALKAVALA, VAZHOOR. 2. TOMY, S/O.DOMINIC, KARIKKATTUKUNNEL, CHIRAKKADAVU. 3. JAGADISH, S/O.MONY CHETTIAR, NAMPILAYIL, KOORALY, ELAMGULAM VILLAGE. 4. SUJITHPAL, S/O.RAGHAVAN NAIR, PULINTHARAYIL, MANIMALA. 5. JOSEKUTTY @ JOSEMON, S/O.DEVASIA, VAYALIL, MANIMALA. 6. ROY JOSEPH, S/O.JOSEPH JOSEPH, POOVATHUMMOTTIL, VELLAVOOR. 7. MADHU, S/O.KRISHNAN, PARACKAL, KARIKKATTOOR, MANIMALA. 8. MATHEW, S/O.ANTONY, KOCHUMURIYIL, MOOLEPLAVU BHAGOM, CHERUVALLY. 9. JOYS, S/O.CHACKO, ELAMTHOTTATHIL, PARAPPALLITHAZHA, CHIRAKKADAVU. 10. SINOL THOMAS, S/O.THOMAS, KANIYARUSSERIL, PUTHANCHANTHA, MUNDAKKAYAM, ERUMELY VILLAGE. 11. MANOJ, S/O.VELAYUDHAN, KOLLAMPARAMBIL, EDAKKUNNAM KARA, ERUMELY VILLAGE. CRL.M.C. NO. 2932/2006-B: 12. SABEER HUSSAIN, S/O.SHAMSUDEEN, PUTHUPARAMBIL, NEAR CMS HIGH SCHOOL, EDAKKUNNAM. 13. C.K.JALEEL, S/O.KUNJUBAVA, CHALLIYIL, VELANILAMBHAGOM, EDAKKUNNAM KARA, KUNDAKKAYAM. 14. ANISH, S/O.SASIDHARAN, PUTHUPARAMBIL, R.P.C. COLONY, VANDANPATHAL, EDAKKUNNAM. BY ADVS. MR.P.VIJAYA BHANU, SMT.P.MAYA. RESPONDENTS/PETITIONERS/COMPLAINANT: ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2 IMPLEADED: 2. ABDUL RASHEED, S/O. KANI RAWTHER, ASHRAF MANZIL, TOWN BHAGOM, VADAKKUMBHAGOM KARA, CHIRAKKADAVU VILLAGE. *IMPLEADED AS ADDL. R2 AS PER ORDER DATED 09/03/07 IN CRL.M.A. NO. 5225/06. R1 BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 2932 of 2006-B ================== Dated this the 2nd day of June, 2009. O R D E R Petitioners are accused in C.C.No.326/2005 on the file of Judicial First Class Magistrate Court-II, Kanjirappally. The second respondent, who was impleaded in the petition later as directed by this court, is the defacto complainant. Prosecution case is that accused committed offences under Sections 143, 145, 148, 506(ii), 294(b) and 427 read with Section 149 of Indian Penal Code. When the case was pending trial, Assistant Public Prosecutor filed Annexure B application under Section 321 of the Code of Criminal Procedure for permission to withdraw the prosecution stating that he has applied his mind to the case records, facts of the case and attending circumstances and is satisfied that withdrawal of the prosecution is in public interest and is not to stifle or thwart the process of law and it will not cause injustice to anybody and is necessary to Crl.M.C.No.2932/2006-B -2- keep the present harmony existing between the parties in the locality. Under Annexure C order, learned Magistrate dismissed the petition holding that on going through the records it is found that pendency of the case will not affect public interest and will not shake the peace and harmony in the locality and therefore permission cannot be granted. This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure C order contending that when the Prosecutor has applied his mind to the facts and materials and decided to withdraw the case in public interest, learned Magistrate should not have denied the permission sought for. 2. Learned Counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Though notice was issued to the defacto complainant, second respondent, who is actually the affected party, he did not appear or support Annexure C order. Crl.M.C.No.2932/2006-B -3- 4. When the petition for withdrawal of prosecution is filed by the Prosecutor under Section 321 of the Code of Criminal Procedure, Magistrate is not to sit on appeal against the decision of the Prosecutor. What is to be decided is whether Public Prosecutor has applied his mind and was satisfied that withdrawal of the case is in public interest and not to stifle or thwart the process of law. 5. The offences alleged against the petitioner is mainly for the offence under Section 427 though offence under Section 506(ii) and 294(b) along with Section 143, 145 and 148 of Indian Penal Code are also alleged. Annexure B petition filed by Assistant Public Prosecutor establish that he had applied his mind to the facts of the case and was fully satisfied that it is in public interest to withdraw the case and it is not to stifle or thwart the process of law. The fact that Government has informed the Assistant Public Prosecutor that Government has no objection to withdraw the case does not mean that the Crl.M.C.No.2932/2006-B -4- application was filed as dictated by the State Government. When it is clear from Annexure B petition that Assistant Public Prosecutor has filed the petition after applying his mind, learned Magistrate should have allowed the application and granted permission to withdraw prosecution, especially on the facts and circumstances of the case. In such circumstances, Annexure C order is quashed and Judicial First Class Magistrate, Kanjirappally is directed to grant permission to withdraw prosecution as sought for in Annexure B petition, under Section 321 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE dkr