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. 3681 of 2008() ------------------------------ AGAINST THE ORDER DATED 07/08/2008 IN CRMP 4029/2008 IN CC.1073/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... REVISION PETITIONER(S): COMPLAINANT: ---------------------------------------------------------------- STATE REPRESENTED BY THE 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 NO. 1 TO 6: -------------------------------------------------------------- 1. HARI @ HARILAL, S/O.RAJAPPAN, FLAT NO.178, CHENKALCHOOLA, SECRETARIAT WARD, THYCADU VILLAGE, THIRUVANANTHAPURAM. 2. VIPINLAL, S/O.SIVANKUTTY, PALLITHURA VEETTIL, MELATHUMELAMURI, VATTIYURKAVU VILLAGE, THIRUVANANTHAPURAM. 3. ARUN, S/O.RAVINDRAN, VAZHAYILARANI LINE, PERURKADA VILLAGE, THIRUVANANTHAPURAM. 4. RATHEESH, S/O.MANIYAN, TC 26/880, PANAVILA, SECRETARIAT WARD, THYCAUD VILLAGE, THIRUVANANTHAPURAM. 5. PRASAD @ MANOJ, S/O.ANILKUMAR, FLAT NO.164, CHENKALCHOOLA, THYCAUD VILLAGE, THIRUVANANTHAPURAM. 6. APPUNNI @ SHINTO, S/O.PUSHPARAJAN, CHENKALCHOOLA, FLAT NO.110, SECRETARIAT WARD, THYCAUD VILLAGE, THIRUVANANTHAPURAM. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/01/2009 ALONG WITH CRRP NO. 3743 OF 2008, THE COURT ON 03/02/2009 PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.3681 & 3743 OF 2008 =========================== Dated this the 3rd day of February,2009 ORDER Crl.R.P.3681/2008 is filed challenging the dismissal of CMP 4029/2008 in C.C.1073/2003 and Crl.R.P.3743/2008 is filed challenging the dismissal of CMP 3841/2007 in C.C.432/2004 on the file of Judicial First Class Magistrate III, Thiruvananthapuram. All the petitions were filed before the Magistrate by Assistant Public Prosecutor under section 321 of the Code of Criminal Procedure for permission to withdraw the prosecution. As per separate orders learned Magistrate dismissed the applications. CMP 3841/2007 in C.C.432/2004 was dismissed stating that on going through the petition it is found that the Assistant Public Prosecutor, though applied his mind has not applied to all relevant matters and the only CRRP 3681 & 3743 of2008 2 ground urged for withdrawal is want of test identification parade and as per the records of the case the assailants were known to the de facto complainant being the College meets and therefore failure to conduct test identification parade is not a ground to grant permission to withdraw the case. The application filed by the Assistant Public Prosecutor shows that the incident occurred on 21.7.2004 at about 10.45 a.m and the accused persons approached CW1 and questioned him whether he will work for another Students Organisation and thereafter inflicted the injuries and Government has informed that they have no objection in withdrawing the case and no test identification parade was conducted in the case. It is thereafter stated that he has applied his mind and came to the conclusion that it is a fit case to be withdrawn. As rightly found by the learned Magistrate the order does not show that the Assistant Public Prosecutor has applied his mind and satisfied that for public interest the prosecution is being withdrawn. In such circumstance, I find no reason to interfere with the dismissal of CMP 3841/2007. CRRP 3681 & 3743 of2008 3 Hence Crl.R.P.3743/2008 is dismissed. 2. CMP 4029/2008 in C.C.1073/2008 was dismissed by the learned Magistrate for the reason that though one of the reasons stated is that Deepu whose name was mentioned in the First Information Statement was not arrayed as an accused. It was found that it is not a reason to withdraw from prosecution and if Deepu was actually involved in committing the offence he could be proceeded against under section 319 of Code of Criminal Procedure at the time when evidence is recorded. It was also found that Assistant Public Prosecutor has not applied his mind and the withdrawal is not in public interest as withdrawal of the prosecution will cause loss of faith on administration of criminal justice system. The case against the accused was that they are workers of DYFI and on 13.8.2003 in furtherance of their common object they wrongfully restrained CW1 and inflicted injury on him. Case was that a perusal of the records show that Deepu who was named in the First Information Statement was not implicated in the case and all persons whose names were mentioned in CRRP 3681 & 3743 of2008 4 the wound certificate are not arrayed as accused and no test identification parade was conducted and CW1 sustained only trivial injuries and after lapse of five years it is not in public interest to further prosecute the accused. Though it is for the Assistant Public Prosecutor to apply his mind bona fide and decide whether the prosecution is to be withdrawn or not, on the grounds stated in the statement of the Assistant Public Prosecutor, it cannot be said that withdrawal of the prosecution is in public interest. In such circumstance, I find no illegality in the order of the Magistrate dismissing the application. Crl.R.P.3681/2008 and 3743/2008 are dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006