Surjith vs State Of Kerala
2022 Latest Caselaw 343 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
   THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                       CRL.MC NO. 5290 OF 2018
AGAINST THE ORDER/JUDGMENT IN SC 731/2016 OF ADDITIONAL DISTRICT
        COURT KOZHIKODE-III / II ADDITIONAL MACT, KOZHIKODE
PETITIONERS/ACCUSED:

    1      SURJITH,
           AGED 29 YEARS, S/O.RAJEEVAN, KOTTAYEENTAVIDA HOUSE,
           PUTHUR, KOZHIKODE DISTRICT.

    2      SANALKUMAR,
           AGED 30 YEARS, S/O.NARAYANAN,
           ARAYAKKOOLTHAZHAKKUNI HOUSE,
           VATAKARA, KOZHIKODE DISTRICT.

    3      ABHIN,
           AGED 21 YEARS, S/O.VIJAYAN, KUZHICHALIL HOUSE,
           PUTHUR, KOZHIKODE DISTRICT.

    4      AMALKRISHNAN,
           AGED 22 YEARS, S/O. BABU, KUNNATH HOUSE, PUTHUR,
           KOZHIKODE DISTRICT.

    5      ABHIJITH O.K,
           AGED 26 YEARS, S/O. BHASKARAN,
           KOTTAYEENTAVIDA HOUSE, ABHI NIVAS,
           PUTHUR P.O, KOZHIKODE DISTRICT.

    6      ANUVIND,
           AGED 21 YEARS, S/O.PRADEEPAN, KUNIYIL HOUSE,
           PUTHUR P.O, VATAKARA, KOZHIKODE DISTRICT.

    7      RAJUL K.P,
           AGED 21 YEARS, S/O. MOHANAN,
           KUZHICHALPUTHUKKUDIPUTHIYAPURAYIL HOUSE,
           PUTHUR P.O, VATAKARA, KOZHIKODE DISTRICT.

    8      AKSHAY,
           AGED 21 YEARS, S/O. SASIKUMAR,
           PANDIYOTTUTHAZHAKUNIYIL HOUSE, PUTHUR P.O,
           VATAKARA, KOZHIKODE DISTRICT.
 Crl.M.C.No.5290/2018             2

            BY ADVS.
            SRI.P.VENUGOPAL (1086/92)
            SRI.M.REVIKRISHNAN


RESPONDENT/COMPLAINANT:

            STATE OF KERALA,
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM - 682 031.

            PP- ADV. SUDHEER GOPALAKRISHNAN


     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
    13.01.2022, THE COURT ON 13.01.2022 PASSED THE FOLLOWING:
 Crl.M.C.No.5290/2018                       3

                         ZIYAD RAHMAN A.A, J.
               --------------------------------------------------------
                        Crl.M.C.No.5290 of 2018
                    ----------------------------------------------
              Dated this the 13th day of January, 2022

                                  ORDER

The petitioners are the accused in S.C.No.731 of 2016

on the file of the Additional District & Sessions Court-III,

Kozhikode. The offences alleged against the petitioners are

punishable under Sections 143, 147, 148, 323, 324, 283,

332, 308 read with Section 149 IPC.

2. This Crl.M.C. is filed by the petitioners

challenging Annexure-D order passed by the IIIrd Additional

District and Sessions Court, Kozhikode, by which an

application submitted by the prosecutor to withdraw the

prosecution against the accused persons was dismissed.

3. The prosecution case against the petitioners is as

follows: On 24.12.2015 at about 10.45 pm, while the Sub

Inspector of Police, Vatakara Police Station along with his

police party were returning after conducting investigation

in Crime No.1272 of 2015 of Vatakara Police Station and

when they reached at the place of occurrence, the accused

who were eight in numbers, along with some other

unidentified persons were seen obstructing the vehicles

and other passengers. In such circumstances, the Sub

Inspector of Police intervened and directed the accused

persons to disperse themselves. But they did not agree to

do so, instead, they formed into an unlawful assembly and

assaulted the police party with wooden sticks. Three police

officers sustained injuries. The crime was registered on the

basis of the aforesaid allegations and after completing the

investigation, final report was submitted by the police for

the offences mentioned above. Annexure-A is the aforesaid

final report

4. Later, an application was submitted by the Public

Prosecutor before the Sessions Court, seeking to withdraw

the prosecution, under Section 321 of Cr.P.C. However, as

the aforesaid application did not contain any ground on

which the withdrawal is sought, same was later withdrawn

by the learned Public Prosecutor. Subsequently, Annexure-B

petition was submitted by the Public Prosecutor seeking

the same relief by highlighting the reasons such as;

materials revealed from the investigation are not sufficient

to ensure conviction of the accused persons, the accused

persons are youngsters and the prosecution is likely to

affect their future, withdrawal of the prosecution is

absolutely necessary for ensuring the harmony among the

people of the locality, injuries sustained by the police

officers were not serious in nature, documents available on

record are not sufficient to establish that the police officers

were on duty on the relevant time and withdrawal of the

case will not sent any bad message to the society.

5. As there were three injured persons, notices were

issued by the Sessions Court to the said persons. They

submitted written objections and thereby opposed the

prayer for withdrawal of the prosecution. After considering

all the relevant aspects, the Sessions Court dismissed the

petition submitted by the Public Prosecutor as per

Annexure-D order, specifically highlighting the reasons for

such dismissal. This Crl.M.C is filed in the above

circumstances.

6. Heard Sri.M.Revikrishnan, learned counsel for

the petitioners and Sri.Sudheer Gopalakrishnan, learned

Public Prosecutor for the State.

7. The specific case of the learned counsel for the

petitioners is that, the decision in the matter of withdrawal

of prosecution is the prerogative of the Public Prosecutor.

He is supposed to examine the materials available on

record and arrive at a conclusion as to whether it is

necessary to withdraw the prosecution, in the interest of

administration of justice. It is pointed out that, it is

evident from the averments contained in Annexure-B

application submitted by the prosecutor that, he has

applied his mind. It was also pointed out that, in the light

of the judgment rendered by the Constitution Bench

of the Honourable Supreme Court in Sheo Nandan

Paswan v. State of Bihar [(1987) 1 SCC 288], the court is

not supposed to sit in appeal, on the decision taken by the

prosecutor to withdraw the prosecution. The role of the court

while granting consent to withdraw the prosecution is to ensure

whether the Public Prosecutor has properly applied his mind to

the facts and circumstances of the case and also to ensure that

the submission of such an application was not with any

extraneous reasons. In this case, going by the reasons stated in

Annexure-B application, it is evident that there was proper

application of mind by the Public Prosecutor and reasons stated

therein are legally sustainable, justifying withdrawal of

prosecution. Therefore, it is contended that the rejection of the

said prayer by the learned Sessions Judge is against spirit of

Section 321 Cr.P.C and the same is to be set aside.

8. On the other hand, the learned Public Prosecutor

would seriously oppose the said contentions. According to him,

the order passed by the Sessions Court, contains detailed

discussion and evaluation of the merits of the prayer sought for

and in the facts of the case, it was found that, there is no

justification in allowing the prosecution to be withdrawn.

Hence, dismissal of Crl.M.C. is sought.

9. The only question that arises for consideration is

whether there exists any sustainable grounds warranting

withdrawal of prosecution or not. The relevant provision in this

regard is Section 321 of Cr.P.C. which reads as follows:

"321. Withdrawal from prosecution.- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: ........."

10. On going through the aforesaid provision, it is

evident that the Public Prosecutor or Assistant Public

Prosecutor, who is in charge of the case is entitled to withdraw

the prosecution with the consent of the court. Thus, it is

evident that even tough the decision as to the withdrawal is the

prerogative to the prosecution, the same can be exercised only

with the consent of the court. Since the statute specifically

conferred the power upon the court to grant consent for the

purpose of withdrawal of the prosecution, it cannot be treated

as an empty formality. It insists application of judicial mind to

the facts and circumstances, which ultimately lead the Public

Prosecutor to take a decision to withdraw the said case. Even

though, the scope of inquiry as contemplated under Section 321

Cr.P.C. is not very wide, the court has to necessarily take into

consideration whether the power exercised by the Public

Prosecutor is justified and is intended for advancing the cause

of justice.

11. In Sheo Nandan's case (supra) the basic

principles relating to the consideration of an application

under Section 321 Cr.P.C was considered. After referring

to Section 321 Cr.P.C., it was observed in paragraph No.77

onwards in the manner as follows:

          "77.      ******       ******       ******

            *****        *****        *****

This Section enables the Public prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the Judgment is pronounced, but this application for withdrawal has to get the consent of the Court and if the Court gives consent for such withdrawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is required to be framed. It clothes the public prosecutor to withdraw from the prosecution of any person, accused of an offence both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is "at any time before the Judgment is pronounced".

78. The Section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. The judicial function implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or

that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.

79. The Court's function is to give consent. This Section does not obligate the Court to record reasons before consent is given. However, I should not be taken to hold that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him, the Court exercises its judicial discretion by considering such materials and on such consideration, either gives consent or declines consent. The section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. If on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the materials available, the order giving consent has necessarily to be upheld."

12. In Rajendar kumar Jain v. State through

Spl.Police Establishment and Others [(1980) 3 SCC

435], the Honourable Supreme Court was pleased to lay

down the principles to be followed while considering the

application under Section 321 Cr.P.C, which reads thus:

"14. Thus, from the precedents of this Court, we gather:

"1. Under the scheme of the Code, prosecution of an offender for a serious offence is primarily the responsibility of the executive.

2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.

3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammary Hall enterprises.

6. The Public Prosecutor is an officer of the court and responsible to the court.

7. The court performs a supervisory function in granting its consent to the withdrawal.

8. The court's duty is not to re-appreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied

his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.

13. The judgment in Rajendar kumar Jain (supra)

was considered by the Constitution Bench of the

Honourable Supreme Court in Shionandan Paswan's case

(supra).

14. In Rahul Agarwal v. Rakesh Jain [(2005) 2

SCC 377], after referring to various decisions of the

Honourable Supreme Court including that of the

Contitution Bench in Shionandan's case, it was observed

as follows:

"From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the

withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."

15. From examination of the aforesaid decisions, it

is evident that the basic principle to be applied while

considering an application under Section 321 Cr.P.C, is that

the Court has an obligation to ensure that the withdrawal

of the prosecution is submitted for securing the interests of

administration of justice. When the aforesaid principles are

applied to the facts and circumstances of this case, the

following aspects are to be noticed. On going through

Annexure-D complaint, it can be seen that the Public

Prosecutor has taken several grounds in support of her

decisions to withdraw the prosecution. One of the reasons

for the same was that the accused persons are youngsters

and the continuation of prosecution would affect their

future. They were celebrating Christmas festival at the

relevant time. However, as observed by the learned

Sessions Judge, the aforesaid reasons cannot be cited as

proper justifiable reasons to support an application for

withdrawal of prosecution. The status of the accused

persons and the impact which it would cause upon their

future on account of the prosecution, is not a matter of

concern. As observed by the Honourable Supreme Court in

Rahul Agarwal's case (supra) every crime is an offence

against the society and society demands that the offender

should be punished. Therefore, ensuring punishment to a

person who has committed offence is in the interest of the

society and such interest has to prevail over the individual

interest of the person accused of the crime. Once a person

is accused of an offence, the personal interest of the

accused is confined to the rights guaranteed to him as an

accused, such as, reasonable opportunity to defend the

accusation, fair trial, in accordance with the statutory

procedure, etc. Withdrawal of prosecution is not a right

which he can claim. The possible adverse impact of trial on

the future of accused person, is the personal interest of the

accused, and it has to concede to the interests of the

society. Therefore, such criterion cannot be adopted for

taking a decision on the question of continuation of the

prosecution.

16. Another ground on which the prayer sought is

that, the injured persons and the witnesses are also police

officers, and this may create an impression that the case is

manipulated by the police to satisfy their needs. However,

on this question also, the learned Sessions Judge

specifically observed that even though the injured persons

were police officers, CWs 7 to 10 are independent eye

witnesses who have given statements in support of the

prosecution. They have clearly mentioned the incident and

also identified the accused persons. In such circumstances,

merely because of the reason that the injured persons were

police officers, no conclusion as to the possibility of

manipulation of the case cannot be arrived at this stage. It

is also the case of the learned Public Prosecutor that the

materials available on record are not sufficient to ensure

conviction of the accused persons. However, I am of the

view that it is not for the learned Public Prosecutor to

judge the outcome of the case, unless it is evident from the

materials on record that, it is so improbable to result in the

conviction of the accused. In this case, several witnesses

are cited in support of the prosecution who have stated

about the incident as well as involvement of the accused

persons. In such circumstances, the assessment made by

the learned Public Prosecutor as to the possible outcome of

the case is not a proper ground for the decision taken to

withdraw the prosecution.

17. Another ground highlighted by the learned Public

Prosecutor is that, the aforesaid decision was taken to

ensure public harmony in the locality and it is the policy of

the Government to ensure harmony among the people.

However, the facts of this case do not justify the said

ground. It is evident from the records that, this is a case of

assault made by accused persons who belong to particular

locality, to a police party and it is not a dispute between

two factions of people in a particular area. The withdrawal

or continuation of the prosecution will not have any effect

on the public harmony in the area. If the Public Prosecutor

was referring to the harmony between the accused persons

and the injured, then also, the aforesaid ground would not

be applicable in the facts and circumstances of the case.

This is particularly because, the injured persons have

already submitted written objections to the application for

withdrawal of the prosecution and they have stoutly

opposed the said prayer. In such circumstances,

withdrawal of the prosecution will not result in harmony

between the accused and the injured persons. Therefore,

the observations made by the learned Sessions Judge on

that ground are legally sustainable and no interference is

warranted.

18. Thus, when we examine the aforesaid aspects in

the light of the principles laid down by the Honourable

Supreme Court in the decisions referred above, it can be

seen that, the learned Public Prosecutor has not applied his

mind properly, while submitting an application for

withdrawal of the prosecution. The learned Sessions Judge

specifically considered the aforesaid aspects and arrived at

a logical and reasonable conclusion as to the manner in

which the power under Section 321 Cr.P.C was exercised by

the Public Prosecutor. I do not find any legal infirmity in

exercise of the discretion vested with the learned Sessions

Judge.

In such circumstances, I do not find any justifiable

reason to interfere with Annexure-D order and accordingly

this Crl.M.C. is dismissed by confirming the order passed

by the 3rd Additional Sessions Judge, Kozhikode in

Crl.M.P.No.1677 of 2017 in S.C.No.731 of 2016.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG

APPENDIX OF CRL.MC 5290/2018

PETITIONER ANNEXURES:

ANNEXURE A THE TRUE COPY OF THE FINAL REPORT IN CRIME NO. 1337/2015 OF VATAKARA POLICE STATION, KOZHIKODE DISTRICT.

ANNEXURE B TRUE COPY OF THE APPLICATION DATED 09.08.2017 PREFERRED BY THE LEARNED ADDITIONAL PUBLIC PROSECUTOR UNDER SECTION 321 CR.P.C BEFORE THE COURT OF THE IIIRD ADDITIONAL DISTRICT & SESSIONS JUDGE, KOZHIKODE.

ANNEXURE C TRUE COPY OF THE COMMUNICATION DATED 29.03.2017 ISSUED BY THE GOVERNMENT OF KERALA SPECIFYING NO OBJECTION TO WITHDRAW FROM THE PROSECUTION IN THE INSTANT CASE, WITH THE LEAVE OF THE COURT.

ANNEXURE D TRUE COPY OF THE ORDER DATED 31.08.2017 IN CRIMINAL M.P NO. 1677 OF 2017 IN S.C NO.731 OF 2016 PASSED BY THE IIIRD ADDITIONAL DISTRICT AND SESSIONS COURT, KOZHIKODE.