IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 6TH DAY OF DECEMBER 2011/15TH AGRAHAYANA 1933 CRRP.No. 2496 of 2011 ( ) CC.1145/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT I,KASARAGOD ...... PETITIONER(S)/CW-1 (DEFACTO COMPLAINANT): P.RADHAKRISHNAN,AGED 48 YEARS, S/O.KUNHIKANNAN MANIYANI, PRESIDENT, MAHADMAJI VAYANASHALA, PERADUKKAM,KASARAGOD TALUK AND DISTRICT. BY ADVS.SRI.JAWAHAR JOSE, SMT.CISSY MATHEWS. RESPONDENTS/ACCUSED NOS.1-4 & STATE: 1. GOPALAKRISHNAN.T,AGED 38 YEARS, S/O.DAMODHARAN, RESIDING AT PANDI HOUSE, PERALADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542. 2. BALACHANDRAN.K,AGED 40 YEARS, S/O.NARAYANAN,RESIDING AT KALATHINGAAL HOUSE, PERADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542. 3. CHANDRAN.P.AGED 35 YEARS, S/O.AMBHU, RESIDING AT PANAYATHODE HOUSE, PERADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542. Kss ..2/- ..2.... CRRP.NO.2496/2011 4. MANOJ.P, AGED 27 YEARS, S/O.NARAYANAN, RESIDING AT PERADUKKA HOUSE, PERADUKKA, MULIYAR VILLAGE, KASARAGODE TALUK AND DISTRICT 671 542. 5. THE STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - PIN 682 031. R1-R4 BY ADV. SRI.M.SASINDRAN R5 BY PUBLIC PROSECUTOR SMT.SEENA.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRRP.NO.2496/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF PETITION FILED BY ASSISTANT PUBLIC PROSECUTOR. ANNEX.II: COPY OF THE OBJECTION FILED BY THE PETITIONER. ANNEX.III: COPY OF THE MEMO TOGETHER WITH THE REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE. ANNEX.IV: COPY OF THE ORDER IN CC.NO.1145 OF 2008 ON THE FILES OF JUDICIAL FIRST CLASS-I, KASARGODE. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2496 of 2011 ----------------------------------------------- Dated this the 6th day of December, 2011 O R D E R The de facto complainant in a police charge sheeted case has filed this revision impeaching the propriety, legality and correctness of the order passed by the magistrate allowing an application moved by the prosecutor under Section 321 of the Code of Criminal Procedure {for short “the Code”} for withdrawal of the case. 2. Notice given, respondents 1 to 4 in the above case have entered appearance. I heard the counsel on both sides. 3. Prosecution case imputed against the accused is that on account of political animosity they set fire to an office of a rival political party during the night of 03.11.2008 Crl.R.P.No.2496 of 2011 :: 2 :: and thereby caused damage to the tune of Rs.60,000/-. The crime case registered over the occurrence, after investigation, led to the indictment of respondents 1 to 4 for offences punishable under Sections 143, 147, 148, 3412, 323, 324 read with Section 149 of the Indian Penal Code. After initial formalities were over, and the trial proceeded, on the accused pleading not guilty to the indictment levelled, the Assistant Public Prosecutor in charge of the case moved an application under Section 321 of the Code for withdrawal of the case citing among other grounds that the accused had been implicated falsely on account of political vendetta, there is no eye witness to prove the prosecution case and chances of successful prosecution are remote and Crl.R.P.No.2496 of 2011 :: 3 :: continuation of the proceedings would result only in wastage of time of the court. The court issued notice to the de facto complainant, who, then, filed objections to the withdrawal sought for contending that the application has been moved mala fide. 4. After hearing both sides and considering the materials tendered and being satisfied with the request made by the Public Prosecutor, the court below passed the order impugned allowing withdrawal of the case. 5. Assailing the order, the learned counsel for the petitioner/de facto complainant contended that the application moved by the Public Prosecutor was tainted with oblique motive and it was not at all bona fide. Three witnesses have already been Crl.R.P.No.2496 of 2011 :: 4 :: examined in the case and when the closing of the prosecution evidence with the examination of the investigating officer alone remained to be completed, the application was moved for withdrawal and that itself would show that it was mala fide, is the submission of the counsel. Reliance is placed on Abdul Karim v. State of Karnataka {2000(8) SCC 710} to contend that the application for withdrawal is not an empty formality, but the court has to look into the materials and see whether it has been made for public good and is bona fide. 6. Per contra, the learned counsel appearing for respondents 1 to 4 contended that there is no infirmity whatsoever in the order passed by the court below allowing the withdrawal of the case. There was no evidence Crl.R.P.No.2496 of 2011 :: 5 :: whatsoever to inculpate any of the accused on the materials tendered by the investigating agency and it was under that circumstance the Public Prosecutor with all bona fides moved the application for its withdrawal after applying his mind to the records, according to the counsel. 7. Whether any witness has already been examined at the time when the Public Prosecutor moved the application for withdrawal of the case is not material since Section 321 of the Code itself would indicate that such withdrawal application can be moved at any stage before the judgment is pronounced. What has to be looked into is only whether the application moved by the Public Prosecutor was bona fide or not. The role of Crl.R.P.No.2496 of 2011 :: 6 :: the court when an application is moved is only to see whether it was in public good, and it cannot sit in judgment over the decision taken by the Government or the Public Prosecutor for withdrawal of the case. Where the application has been moved mala fide, then, necessarily, the court has to turn it down. The court must be satisfied that the public prosecutor has considered the material, and, in good faith, reached the conclusion that withdrawal from prosecution will serve the public interest. It is seen the application has been moved by the prosecutor stating reasons that there is no evidence to bring home the guilt of the accused in respect of the indictment charged against them. It is also stated that the occurrence which happened Crl.R.P.No.2496 of 2011 :: 7 :: during night cannot be substantiated as there is no eye witness to prove the same. Further more, it is also stated that the case has been foisted on account of the political vendetta. When that be the case stated by the Public Prosecutor and that remains unchallenged, the challenge now canvassed by the de facto complainant that the application has been made prosecutor is tainted with mala fides for the reason that some prosecution witnesses had already been examined is devoid of any merit. 8. Going through the order passed by the magistrate, I find that he has applied his mind and was satisfied that the application moved by the Public Prosecutor has to be allowed in the interest of the public. Crl.R.P.No.2496 of 2011 :: 8 :: There is no merit in the revision, and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.