IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 Crl.Rev.Pet.No. 373 of 2009() ----------------------------- CC.181/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... REVN. PETITIONER(S): COMPLAINANT ------------------------------------------- STATE OF KERALA, REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR RESPONDENT(S): ACCUSED ------------------------------- 1. SHIBU @ SHAJI, S/O. BADARUDEEN, SHAJI MANZIL, PEZHUMOODU PUTHENPALLY, KUZHAKKADUMURIYIL, PERUMKULAM VILLAGE. 2. BADARUDEEN, S/O. PEERUMUHAMMED SHAJI MANZIL, PEZHUMOODU PUTHENPALLY, KUZHAKKADAUMURIYIL,PERUMKULAM VILLAGE. 3. SHARMIN, S/O. PEERUMUHAMMED AYIRA PANNAYIL MELE PUTHEN VEEDU, PACHALLOOR DESOM, THIRUVALLAM VILLAGE. 4. SIDIKK, S/O. ABDUL VAHEED, CHILANTHIVILA VEEDU, AYIRA, PAMBALLOOR DESOM, THIRUVALLAM VILLAGE. 5. LATHEEF, S/O. MUHAMMED ABDUL KADER, CHILANTHIVILA VEEDU,AYIRA PAMBALLOOR DESOM, THIRUVALLAM VILLAGE. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/01/2009 ALONG WITHCRRP 375/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:- M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.373 & 375 OF 2009 =========================== Dated this the 30th day of January,2009 ORDER The State is challenging the orders passed by the Judicial First Class Magistrate, Kattakkada rejecting the permission sought for withdrawal of prosecution in C.C.181/2006 and C.C.321/2005. Crl.R.P.373/2009 is filed challenging the order in C.C.181/2006 and Crl.R.P.375/2009 challenging the order in C.C.321/2005. Both these cases were sought to be withdrawn by the Assistant Public Prosecutor. He filed separate applications under section 321 of Code of Criminal Procedure stating that one is the main case and the other is the counter case and he had applied his mind independently and decided to withdraw the prosecution so that a peaceful atmosphere is created in the locality. Learned Magistrate CRRP 373 & 375/ of2009 2 dismissed the applications in both the cases by separate orders for the reason that the case is posted for framing charges and on going through the entire records he is of the opinion that the Assistant Public Prosecutor has not applied his mind and is only obeying the orders of the Government. 2. Learned Public prosecutor was heard. 3. Learned counsel submitted that learned Magistrate did not apply his mind in the light of the settled legal position and therefore the order is illegal and it is to be set aside. It was argued that when the Public Prosecutor has applied his mind and stated the reasons for withdrawal of the case, learned Magistrate should not have dismissed the application for the reason that the charge sheet is submitted, as the jurisdiction under section 321 is only supervisory and not an appellate jurisdiction. 4. When a petition is filed under section 321 CRRP 373 & 375/ of2009 3 of Code of Criminal Procedure what is to be decided by the Magistrate is whether the Assistant Public Prosecutor has applied his mind bona fide and the withdrawal of the prosecution is in public interest. As held by the Apex Court in Rajender kumar v. State (AIR 1980 SC 1510) prosecutor can withdraw from prosecution not merely on the ground of paucity of evidence but other relevant grounds to further the broad ends of public justice including social, economic and political purposes. If the application is filed by the Prosecutor after careful consideration of materials it is not for the Magistrate to consider as if in appeal. Unfortunately learned Magistrate did not consider the application in the proper perspective. Out of the two cases one is the main case and the other is the countercase. Both the cases are sought to be withdrawn on the ground that to maintain the peaceful harmony in the locality it is necessary to withdraw the prosecution. It cannot be said that CRRP 373 & 375/ of2009 4 the Assistant Public Prosecutor has not applied his mind independently or bona fide or that it is not in public interest to withdraw the prosecution. In such circumstance the orders passed in C.C.181/2006 and 321/2005 are set aside. Permission is granted as sought for to withdraw the prosecution. Criminal Revision Petitions are allowed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006