IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 Crl.Rev.Pet.No. 2966 of 2005() ----------------------------------------- AGAINST THE ORDER DATED / / IN CMP 6419 2005 IN CC.622/2002 of JUDL. MAGISTRATE OF FIRST CLASS, TALIPARAMBA .................... REVN. PETITIONER(S): ACCUSED 1, 4 AND 5: ---------------------------------------- 1. KUNNATHU MATHEW, S/O. DEVASSYA, AGED 55 YEARS, MANNANKUNDU, CHEMPERI, NADUVIL AMSOM, DESOM, TALIPARAMBA TALUK. 2. MURALI KANDATHINKARA, S/O.KRISHNANKUTTY, AGED 35 YEARS, MANNANKUNDU, CHEMPERI,NADUVIL AMSOM DESOM, TALIPARAMBA TALUK. 3. ANOOP MATHEW, S/O. KUNNATHU MATHEW, AGED 28 YEARS, MANNANKUNDU, CHEMPERI,NADUVIL AMSOM DESOM, TALIPARAMBA TALUK. BY ADV. MR.SURESH KUMAR KODOTH RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. STATION HOUSE OFFICER, PAYYAVOOR POLICE STATION, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. AIPENPARAMBIL SUNNY (VILLAGE EXTENSION OFFICER), S/O. DEVASYA, AGED 45 YEARS, RESIDING AT ETTUPARA, PAYYAVOOR, NELLIKUTTY POST, KANNUR DISTRICT. BY ADV. MR.C.MURALIKRISHNAN (PAYYANUR) FOR R3 PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON Crl.M.A. NO.19846/2005 IN Crl.R.P. NO.2966/2005 Dismissed 20/03/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE TRUE COPY P.A. TO JUDGE TSS S.S.SATHEESACHANDRAN, J. --------------------------- Crl.R.P.No.2966 of 2005 - A ----------------------------- Dated this the 20th day of March, 2009 O R D E R This revision is filed by the accused in C.C.No.622/2002 on the file of the Judicial First Class Magistrate, Thaliparamba, questioning the legality, propriety and correctness of an order passed by the learned Magistrate dismissing the application moved by the Assistant Public Prosecutor for withdrawal of the case under Section 321 of the Code of Criminal Procedure. The revision petitioners are accused Nos. 1, 4, and 5 in the above case, and of the other two accused, one is reported to be no more and other absconding. Indictment levelled against the accused is for offences punishable under Section 143, 147, 148, 323 and 324 r/w 149 IPC on a charge laid by the Sub Inspector of Police, Payyavur. After examination of one of the witnesses, an attestor to the mahazar as PW1, the Assistant Public Prosecutor moved an application under Section 321 of the Code of Criminal Procedure for withdrawal of the case submitting that such withdrawal is required to serve public interest. Learned Crl.R.P.No.2966 of 2005 - A 2 Magistrate issued notice to the defacto complainant, who is said to have suffered injuries at the hands of the accused. Appearing before the court, the defacto complainant filed objections contending that the application moved by the Assistant Public Prosecutor is tainted with malafides and if allowed it would cause miscarriage of justice. Learned Magistrate after examining the materials and hearing the Assistant Public Prosecutor was not satisfied with the grounds raised for withdrawal of the case and, accordingly, the petition moved by the Assistant Public Prosecutor was dismissed. Impeaching the correctness of the order, as already indicated, the accused facing the trial, A1, A4 and A5 have moved this revision. 2. I heard the learned counsel for the petitioners/accused. 3. It is submitted that in the consideration of an application moved by the Assistant Public Prosecutor under Section 321 of the Code of Criminal Procedure, the court has got only supervisory jurisdiction and the only question to be looked into is whether the Assistant Public Prosecutor has applied his Crl.R.P.No.2966 of 2005 - A 3 mind on the materials involved to form a conclusion that the withdrawal of the case is warranted. I am not impressed by the submission made by the learned counsel since an order to be passed by the court under Section 321 of the Code of Criminal Procedure is not based on the will and pleasure of the Assistant Public Prosecutor. Prima facie, the court must be satisfied that the application is moved bona fide and the withdrawal of the case is necessary in 'public interest'. If there is any material or circumstance indicating that the withdrawal is influenced by extraneous materials and not in public interest, necessarily and inevitably the request of withdrawal has to be turned down. In the present case, the defacto complainant-injured has brought to the notice of the court that there is no change of circumstance and he wants the prosecution of the case. On the contrary, the Assistant Public Prosecutor has opined that there is change of circumstance and no purpose will be served by proceeding with the trial of the case. On what basis Assistant Public Prosecutor has formed such an opinion is not borne out by any material. He has not filed any affidavit as to what was the information to hold Crl.R.P.No.2966 of 2005 - A 4 that the withdrawal case is necessary in 'public interest'. In this context, it is worthwhile to take note of the decision of the Apex Court in Abdul Karim etc. etc. v. State of Karnataka and others etc. (AIR 2001 SC 116). The Supreme Court has in the above decision held as follows: “.....it is for the public prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. It must therefore follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the Court, with its permission, in a sealed envelope. The Court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the Court to weigh the material. The Court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The Court must also consider whether the grant of Crl.R.P.No.2966 of 2005 - A 5 consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the Court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent.” 4. After having heard the learned counsel for the revision petitioners and perusing the materials in the case, I find that the order passed by the learned Magistrate rejecting the application moved by the Assistant Public Prosecutor for withdrawal of the case is proper and valid and it does not call for any interference. The case has to continue to reach its logical conclusion, and the accused, if they are innocent, will get sufficient opportunity to establish their innocence in trial. They cannot have a short cut method to avoid prosecution by recourse to withdrawal of the case at the instance of the Assistant Public Prosecutor. This revision is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-