IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Crl.Rev.Pet.No. 3309 of 2008() ------------------------------ AGAINST THE ORDER DATED 10/09/2008 IN CC.666/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKKADA .................... REVISION PETITIONER(S): COMPLAINANT: ---------------------------------------------------------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSCUTION MR.V.G.GOVINDAN NAIR BY PUBLIC PROSECUTOR MR. C.K.SURESH AND MR. K.M.FIROZ RESPONDENT(S): ACCUSED NO.1 TO 5: ------------------------------------------------------------- 1. BIJU, S/O.JAMALUDEEN,K,P,15/336TH NUMBER VEEDU, KILLI CHARUVILAKOM, ETTIRUTHIMURY, KULATHUMMAL VILLAGE. 2. SANTHOSH @ PODIYAN, S/O.SWAMIKANNU, MAILADI, NEAR PNM HOSPITAL, ETTITRUTHIMURY, KULATHUMMAL VILLAGE. 3. SANTHOSH, S/O.SUDHAKARAN,THADATHARIKATHU VEEDU, KADUVAKKUZHI, KULATHUMMAL VILLAGE. 4. SUDHEER, S/O.MUHAMMED SALI, THADATHARIKATHU VEEDU, EDAVAZHI, THALAKKAL, KATTAKADA, ETTIRUTHINMURI,KULATHUMMAL VILLAGE. 5. SHAMMER, S/O.MUHAMMED SALI, THUNDUVILAKOM VEEDU, KATTAKADA, ETTIRHIMURY, KULATHUMMAL VILLAGE. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/01/2009,THE COURT ON 03/02/2009 PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3309 OF 2008 =========================== Dated this the 3rd day of February,2009 ORDER Revision is filed challenging the dismissal of the petition filed by Assistant Public Prosecutor under section 321 of the Code of Criminal Procedure withdrawing prosecution in C.C.666/2004 on the file of Judicial First Class Magistrate, Kattakkada. The Assistant Public Prosecutor filed Annexure I application stating that he had applied his mind judiciously and independently and decided that this is a fit case to be withdrawn. It was also stated that Government has informed that there is no objection for withdrawing the case. The reason shown by the Public Prosecutor is that the incident had taken place four years back and a peaceful atmosphere is in existence in the locality and the employees of the KSRTC are CRRP 3309/2008 2 in good terms with the members of the political group who are the accused in the case and to maintain the peaceful atmosphere it is necessary to withdraw the prosecution in the interest of public justice. Learned Magistrate dismissed the application holding that damage was caused to public property worth Rs.3000/- and charge sheet has already been submitted and granting permission to withdraw the prosecution cannot be allowed. 2. Revision was heard along with the similar revision petitions Crl.R.P.3468, 3609 and 3615 of 2008 and connected cases. In the order in those revision petition the law on this aspect is elaborately discussed and therefore it is not necessary to reiterate the same. When an application under section 321 of Code of Criminal Proceudre is filed,, it is not for the court to assess the evidence and decide whether the case would end in conviction or acquittal. What is to be seen is whether the application is made in good CRRP 3309/2008 3 faith, in public interest and not to thwart or stifle the process of law. It is for the Public Prosecutor to exercise the discretion vested in him and to decide whether the prosecution is to be withdrawn or not. That decision cannot be based on the dictate of the political leaders or the Government. What is to be decided is whether the Public Prosecutor has exercised the discretion bona fide, on the materials and in public interest. Learned Magistrate in the impugned order did not consider the same. It is not the law that if the case would end in conviction, permission cannot be granted for withdrawal. When the application filed by the Assistant Public Prosecutor establish that being a responsible officer of the court he had exercised the discretion bona fide and in furtherance of public order and peace, learned Magistrate is not justified in dismissing the application. Criminal Revision Petition is allowed. The CRRP 3309/2008 4 impugned order passed by the Magistrate in C.C.666/2004 is set aside. Permission is granted to withdraw the prosecution. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006