IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1954 of 2009() ------------------------------ CC.439/2007 of JUDL. MAGISTRATE OF FIRST CLASS-I, KASARAGOD .................... REVN. PETITIONER/DEFACTO COMPLAINANT(CW1): ------------------------------------------------------ K.M. MUHAMMED HANEEFA, S/O. MOIDU, AGED 30 YEARS K.M HOUSE, THRIKKANNAD, PALLIKARA IIND VILLAGE, KASARAGOD DISTRICT. BY MR.JAWAHAR JOSE, ADVOCATE RESPONDENT/COMPLAINANT: -------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (*ADDL.RESPONDENTS 2 TO 4) 2. MUHAMMED SHAMEER, AGED 36 YEARS, S/o. ABDUL KHADER, M.A.HOUSE, HOUSE No.XVII/254-A, THAYALANGADI,KASABA VILLAGE, KASARAGOD DISTRICT. 3. MUHAMMED SUNNEER,AGED 30 YEARS, S/o. ABDUL KHADER, M.A.HOUSE, HOUSE No.XVII/254-A,THAYALANGADI, KASABA VILLAGE,KASARAGOD DISTRICT. 4. MUHAMMED SHAYIR @ SHANU,AGED 24 YEARS, S/o.ABDUL KHADER,M.A.HOUSE, HOUSE No.XVII/254-A, THAYALANGADI, KASABA VILLAGE,KASARAGOD DISTRICT. (* ADDL. RESPONDENTS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 9/12/2009, IN Crl.M.A.No.8824/2009). BY PUBLIC PROSECUTOR MR.P.R.JAYAKRISHNAN MR.K.SHRIHARI RAO, ADVOCATE FOR R2 SMT.N.SHOBHA, ADVOCATE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ========================== Crl.R.P.No.1954 of 2009 ========================== Dated this the 9th day of December, 2009 ORDER The revision petitioner is the defacto complainant in C.C.No.439/2007 on the file of the Judicial Magistrate of First Class-I, Kasaragode. Upon the basis of a statement given by the revision petitioner, the Station House Officer, Kasaragod registered a case as Crime No.147/2007 for the offence under Sections 341, 323 and 427 r/w Section 34 IPC. After the investigation, the Station House Officer filed a charge sheet against respondents 2 to 4 for the above offences with an allegation that respondents 2 to 4, because of the previous enmity restrained the revision petitioner and assaulted him by beating with hands and also damaged the Innova car bearing registration No.KL.14.G.1165 whereby the wife of the revision petitioner, to whom the vehicle belonged, sustained damage to the tune of Rs.35,000/-. 2. The learned Magistrate took cognizance and issued process. It is submitted that respondents 2 to 4 did not appear in response to the summons and coercive steps were in progress. Crl.R.P.No.1954/2009 2 While so, the Assistant Public Prosecutor filed an application under Section 321 of the Code of Criminal Procedure, a copy of which is produced as Annexure-C for according sanction to withdraw the prosecution in the interest of justice. 3. The learned Magistrate by the impugned order dated 06.11.2008 allowed the petition and respondents 2 to 4 were discharged under Section 321 of the Code of Criminal Procedure by a single lined order which reads as follows: “The Assistant Public Prosecutor has requested permission to withdraw from the prosecution of the case against the accused in respect of the offence u/s.341, 323, 427 r/w 34 IPC and having satisfied this Court that there are sufficient grounds for granting permission and hereby permitted to withdraw from the prosecution as aforesaid of the accused who are discharged u/s.321 Cr.P.C.” 4. Assailing the legality, correctness and propriety of the above order, this revision petition was preferred. 5. Going through the petition filed by the learned Assistant Public Prosecutor, the following are the reasons stated in his application to withdraw the prosecution. Crl.R.P.No.1954/2009 3 (i) The accused and the complainant are relatives and to maintain good relationship in family, the pending of criminal case is an impediment. (ii) The Government of Kerala has recorded 'no objection' to withdraw from prosecution. (iii) The defacto complainant has given a false statement before the Investigating Officer, that he was examined by the Government doctor which is factually not correct. (iv) The defacto complainant had no external injury and that the pain could be pretended. (v) The defacto complainant and the Motor Vehicle Inspector had not explained the details regarding the paint scratching and Dicky denting. (vi) Only one person alone was cited as a witness, though there was a possibility for many persons to witness the incident. 6. The learned counsel for the revision petitioner disputes all the grounds urged by the learned Assistant Public Prosecutor. According to the learned counsel for the revision petitioner, respondents 2 to 4 are not at all members of the Crl.R.P.No.1954/2009 4 family but distant relations. There was no false statement given by the revision petitioner regarding the examination by the government doctor. The Motor Vehicle Inspector had given details of the damage, which were quantified at Rs.35,000/-. It was further submitted that though there were possibility for having other persons witnessing, there need not be witnesses to the occurrence in all cases. According to the learned counsel, the question is whether the witnesses cited by the prosecution is believable or not and that the prosecutor has not considered that aspect. Since I find that the matter requires a reconsideration by the trial court, I find it not necessary to go deep into the merits of the allegation. 7. In Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288] = (AIR 1987 SC 877) at paragraph 67 it is held: “All that the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court after considering the three facts of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given”. Crl.R.P.No.1954/2009 5 8. The learned counsel had also canvased my attention to the ratio of the decision in Rahul Agarwal v. Rakesh Jain (2005(2) SCC 377) at paragraph 10. It is held as follows: “From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to 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. The discretion under Section 321, Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an Crl.R.P.No.1954/2009 6 essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.” 9. The important aspects to be considered before granting withdrawal of prosecution is the interest of justice and according to the counsel neither the Public Prosecutor nor the trial court had considered that aspect. It was also argued that though the trial court had stated in the order impugned that there are sufficient grounds for granting permission, no grounds are mentioned in the order impugned. 10. In contra, the learned Public Prosecutor submitted that the Assistant Public Prosecutor on satisfying the materials, sought for permission to withdraw the prosecution and there is no reason to interfere with. 11. Learned counsel appearing for the second respondent submitted that the trial court on application of the Assistant Public Prosecutor and perusing the report of the Investigating Officer, satisfied that there are grounds to accord sanction for withdrawing prosecution and the order impugned is no way be vitiated so as to interfere in exercise of the revisional powers. Crl.R.P.No.1954/2009 7 12. Going by the ratio of the dictum laid down by the Apex Court in Sheonandan's and Rahul Agarwal's cases while dealing with a petition u/s.321 Cr.P.C, the important aspects to be considered are whether it is in good faith, in the interest of public policy and justice, not to thwart or stifle the process of law, the case is likely to end in an acquittal, the continuance of the case is only causing severe harassment to the accused and whether the withdrawal of the prosecution is likely to bury the dispute and bring harmony between the parties. Going through the impugned order it is seen that the trial court had not considered the merits of the petition for the withdrawal of prosecution in the light of the dictum laid down by the Apex Court in the above cases. In the above circumstances, I find that the order impugned is not sustainable and that the matter requires reconsideration by the trial court in the light of the dictum laid down by the Apex Court in the above cases. In the result, the revision petition is allowed. The order impugned is set side and the matter is remitted back to the trial court for fresh disposal in the light of the dictum laid down by the Apex Court in Sheonandan's and Rahul Agarwal's cases Crl.R.P.No.1954/2009 8 (supra). In the event the revision petitioner files any objection or chooses to advance arguments the trial court shall consider that also. P.S.GOPINATHAN, JUDGE. dvs