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. 2355 of 2008() ------------------------------ AGAINST THE ORDER DATD 11/06/2008 IN CMP.633/2008 of CC 13/07 OF CHIEF JUDICIAL MAGISTRATE COURT, MUTTOM,THODUPUZHA .................... REVISION PETITIONER(S): COMPLAINANT: ---------------------------------------------------------------- STATE OF KERALA ,REPRESENTED BY THE PUBLIC PROSECUTOR. 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 NOS. 1 TO 25: ----------------------------------------------------------------- 1. SHAJI, S/O. GEORGE, ARACKAL VEEDU, AREEKUZHA KARA,MANAKKADU VILLAGE. 2. JOJO, S/O.THOMAS, CHAKINIYANKAL VEEDU, EDAMARUKU KARA, UDUMBANNUR VILLAGE. 3. NAVAS, S/O. KONTHALAM, KUNNATHU VEETTIL, DO..VILLAGE. 4. TOMY, S/O. GEORGE, MUTTETHAZHATHU VEETTIL, DO..VILLAGE 5. THOMSON, S/O. JOSE, MANIKUNNEL VEETTIL, NEYYASSERI KARA, NEYYASSERI VILLAGE. 6. SONY, S/O. JOSEPH, CHALACKAL VEEDU, KODIKULAM KARA, KODIKULAM VILLAGE. 7. SAJU, S/O. KURIAN, KUMBATU VEETTIL, KARIMANNOOR KARA, KARIMANNOOR VILLAGE. Kss ..2/- ...2... CRRP.NO.2355/2008 8. SINU, S/O. VARKEY, VALUMMEL VEETTIL, VAZHAVARA KARA, KATTAPPANA VILLAGE. 9. VINOJ, S/O. BABY, POOTHOTTA VEETTIL, EDAMARUKU KARA, UDUMBANNOOR VILLAGE. 10. BIBY, S/O. BARAHAM, PYMBILLIL VEETTIL OTTALLOOR KARA, KARIMKUNNAM VILLAGE. 11. SUNNY, S/O.THOMAS VADAKEKUTTU VEETTIL, EDAMARAKU KARA, UDUMBANNOOR VILLAGE. 12. SAJEEVU, S/O. JOSE, VELUTHEDATHUPARAMBIL, EZHALLOOR KARA, KUMARAMANGALAM VILLAGE. 13. JIMMI SAMUEL, S/O. SAMUEL, MATTAPLACKAL VEETTIL, ELLUMPURAM KARA, MUTTOM VILLAGE. 14. SHAJI MATHEW, S/O. MATHEW, PULLIKYAMKUNNEL VEEDU, KOOVAPPALLY KARA, KUDAYATHUR VILLAGE. 15. MATHEW JOSEPH, S/O. JOSEPH VALUMMAL, NEDIYASALA KARA, PURAPUZHA VILLAGE. 16. JACOB, S/O. JAMES, KONICKAL VEEDU, MUTHALAKODAM KARA, THODUPUZHA. 17. SEBASTIAN, S/O. KURIAN, PEEDIKATHADATHIL, VAZHITHALA KARA, MANAKADU VILLAGE. 18. PRADEEP, S/O. GEORGE, VELLOOKKUNNEL, MURIKKASSERI KARA, VATHIKUDI VILLAGE. 19. EASA, S/O. HYDROSE, THUMARASSERIYIL, MUTTOM KARA, MUTTOM VILLAGE. 20. CLEMENT,S/O. EMMANUEL, MANGALATHU VEETTIL, VENGANNOOR KARA, MANAKADU VILLAGE. Kss ..3/- ..3.... CRRP.NO.2355/2008 21. PAULOSE, S/O. GEORGE, POOCHAKUZHIYIL VEEDU, MUTTOM KARA, MUTTOM VILLAGE 22. SALIM, S/O. HAMEED, KARICKANPARAMBIL KARIKODE KARA, THODUPUZHA VILLAGE 23. MONICHAN, S/O. MATHEW PULIMOOTTIL, KEETTILA KARA VELLIYAMATTOM VILLAGE. 24. BLAISE, S/O. VARGHESE, VAZHAYIL VENGALLOOR KARA, KUMARAMANGALAM VILLAGE. 25. JAIMON, S/O. MATHEW, KUNNEL VEEDU, UDUMBANNOOR VILLAGE. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/01/2009 ALONG WITH CRRP NO.2892 OF 2008, THE COURT ON 03/02/2009 PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.2355 & 2892 OF 2008 =========================== Dated this the 3rd day of February,2009 ORDER The State has preferred these revisions challenging the dismissal of CMP 633/2008 in C.C.13/2007 and CMP 3680/2007 in C.C.253/2005 on the file of Chief Judicial Magistrate, Thodupuzha. In C.C.13/2007 the Deputy Director of Prosecution, Thodupuzha filed CMP 633/2008 under section 321 of Code of Criminal Procedure seeking permission of the court to withdraw the prosecution stating that as per prosecution case on 7.2.2006 about 200 followers of Kerala Congress Joseph group assembled and prevented the labourers of Thodupuzha Revenue Tower, which was under construction from work and knowing this about 20 followers of the Indian National Congress came there and there was clash between the two groups and the crime was CRRP 2355 & 2892 of 2008 2 registered as against the 25 accused therein for the offence under sections 143,144,147,148,447 and 332 read with section 149 IPC which is pending trial before the Chief Judicial Magistrate. It is stated that though in the First Information Report the case is that two hundred members of an unlawful assembly committed the offences, only 25 persons were implicated and there was no proper identification of the accused and the gathering was in fact to protest the State policy and the incident occurred all of a sudden due to sudden provocation and to establish peaceful harmony in the society and among the people it is better to withdraw the prosecution and if prosecution is continued, it would effect public peace. Chief Judicial Magistrate dismissed the application holding that as 25 persons were arrested from the spot, there cannot be any problem for identification and though public has a right to protest any policy of the government, they have no CRRP 2355 & 2892 of 2008 3 right to take law into their hands and withdrawal of the case is not in public interest. 2. As rightly pointed out by the learned Director of Prosecutions it is clear from the order of the learned Magistrate that learned Magistrate has considered the application as if he is exercising the appellate jurisdiction on the decision of the Public Prosecutor and was not exercising a supervisory jurisdiction. As settled by the Constitution Bench of the Apex Court in Sheo Nandan Paswan v. State of Bihar (AIR 1987 SC 877) the jurisdiction under Section 321 of the Code is only a supervisory jurisdiction and the question to be decided is whether Public Prosecutor has exercised his jurisdiction bona fide and in public interest. If the Public Prosecutor has properly exercised the discretion and withdrawal is not for any unlawful reasons or purposes and instead is for the public interest, it is not for the court to refuse the permission. From the materials it is CRRP 2355 & 2892 of 2008 4 clear that learned Magistrate was not justified in refusing to grant the permission sought for. Crl.R.P.2355/2008 is therefore allowed and permission is granted to the Deputy Director of Prosecution to withdraw the prosecution in C.C.13/2007. 3. The case against accused in C.C.253/2005 is that they committed the offences under section 143,144,147,148,188,332 read with section 149 IPC and 3(1) of PDPP Act. The Deputy Director of Prosecution sought withdrawal of prosecution stating that there is no sufficient material for proper identification and as it was a mob of about 350 workers who were involved in the incident and the gathering was to protest against the State policy, to maintain the peaceful harmony in the society it is necessary to withdraw the prosecution. Learned Chief Judicial Magistrate dismissed the application stating that it is not in the public interest to withdraw the prosecution as CRRP 2355 & 2892 of 2008 5 it would convey the wrong message. The order itself shows that learned Chief Judicial Magistrate issued notice to all the injured in the prosecution case and none of them appeared before the court or objected to the application for withdrawal which is evidently, because of the peaceful atmosphere which is sought to be preserved by withdrawing the prosecution. As the Chief Judicial Magistrate cannot exercise the jurisdiction as if it is an appeal and when materials show that the Public Prosecutor has applied the discretion properly, bona fide and in public interest and not to stifle the process of law, Chief Judicial Magistrate was not justified in refusing the permission sought for. Crl.R.P.2892/2008 is allowed. Permission is granted to Deputy Director of Prosecution to withdraw the prosecution in C.C.253/2005. M.SASIDHARAN NAMBIAR JUDGE tpl/- CRRP 2355 & 2892 of 2008 6 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006