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. 3753 of 2008() ------------------------------ AGAINST THE ORDER DATED 10/08/08 IN CMP 4329/08 OF CC.97/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM ......................................... REVISION PETITIONER(S): COMPLAINANT: ---------------------------------------------------------------- STATE OF KERALA, REP.BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION MR.V.G.GOVINDAN NAIR BY PUBLIC PROSECUTOR MR. C.K.SURESH AND MR. K.M.FIROZ RESPONDENT(S): ACCUSED: --------------------------------------------- 1. ARAVINDAN @ CHIKKU, AGED 19, S/O.BALAKRISHNAN, E.B.N.V, BHAGAVATHY NAGAR, IDAKKULAM, MANNAMOOLA WARD, VATTIYOORKAVU VILLAGE. 2. MANOJ D.MATHEW, S/O.BENJAMIN MATHEW, PRIM ROSE, TC 14/4951, PARIS LANE, PALAYAM WARD, THYCAUD VILLAGE. 3. HARILAL, AGED 20, S/O.RAJAPPAN, TC.14/1413,VIGHNESWARA NAGAR, PALAYAM WARD, THYCAUD VILLAGE. 4. ARUN, AGED 20, S/O.RAVEENDRAN, RESHMI HOUSE, H.NO.2/241, RANI LANE, VATTIYOORKAVU PANCHAYAT, PEROORKKADA VILLAGE. 5. VIPINLAL, S/O.SIVANKUTTY, M.R.A.81, TC 22/1677, MELETHUMELE, KANJIRAPPARA WARD, PEROORKKADA VILLAGE. 6. VIPINKUMAR, AGED 20, S/O.VIJAYAKUMAR, PUNNAMOODU VIMAL BHAVAN, KALLIYOOR WARD, KALLIYOOR 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. 3753 OF 2008 =========================== Dated this the 3rd day of February,2009 ORDER This revision petition is filed challenging the order in Crl.M.P.4329/2008 in C.C.97/2004 by Judicial First Class Magistrate, Thiruvananthapuram. It was a petition filed under section 321 of Code of Criminal Procedure. 2.CMP 4329/2008 in C.C.97/2004 was dismissed by the learned Magistrate on the ground that from the First Information Statement it is seen that CW1 and others were attacked by persons who could be identified by sight and in the wound certificate of CW3 it is mentioned that injury was inflicted by 20 known persons and therefore the statement of the Assistant Public Prosecutor that the accused are not known to the witness is not correct CRRP 3753/2008 2 and therefore withdrawal of the prosecution is not in the interest of public administration of justice. 3. Prosecution case was that on 14.10.2003 at about 9.30 a.m six accused formed themselves into an unlawfully assembly and attacked Cws. 1 to 4 in furtherance of their common object and committed the offences by breaking glasses of the bus, under sections 143,147,148,323,324 and 427 read with section 149 IPC. Assistant Public Prosecutor in his application for withdrawal from prosecution stated that on perusal of the records some passengers sustained injury due to the negligence of the driver and some others manhandled them and accused are not known to the witnesses earlier to the incident and it happened all of a sudden and subsequent to the incident harmony exists and if the prosecution is continued it would adversely affect the peaceful atmosphere and he had applied his mind and decided to withdraw from prosecution CRRP 3753/2008 3 for better administration of public justice. As rightly pointed out by learned Director of Prosecutions from the petition filed by the Assistant Public Prosecutor it cannot be said that the application was not filed bona fide or without application of mind or to thwart or stifle the process of law. Considering the fact that the jurisdiction of the Magistrate under section 321 of Code of Criminal Procedure is neither adjudicatory nor appellate and only supervisory it is not for the court to decide whether the prosecution would end in conviction or acquittal. Learned Magistrate was not justified in refusing to grant permission sought for in the light of the materials available in the case. The application filed by the Assistant Public Prosecutor establish that he has applied the discretion on proper and valid grounds. It is not for the court to consider the exercise of that discretion by the Assistant Public Prosecutor as if it is considering the application as an appeal CRRP 3753/2008 4 against the order where for maintaining the harmony and peace in the community it is necessary for withdrawal the prosecution it cannot be stated that the ground is extraneous. On the facts and circumstances Magistrate should have granted sanction to withdraw the offence. Crl.R.P.3753/2008 is allowed. The order in CMP 4329/2008 in C.C.97/2004 on the file of Judicial First Class Magistrate, Thiruvananthapuram is set aside. CMP 4329/2008 in C.C.97/2004 stands allowed and Assistant Public Prosecutor is permitted to withdraw the prosecution. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006