Kerala High Court
Binoy vs State Of Kerala on 20 June, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA,
1946
CRL.MC NO. 8725 OF 2023
CRIME NO.1737/2017 OF ANCHAL POLICE STATION, KOLLAM
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.537 OF 2018
OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR
................
PETITIONER:
1 BINOY
AGED 39 YEARS
S/O. SUNNY, CHRIST COTTAGE,
CHEMPAKARAMANALLOOR, EDAMULACKAL-VILLAGE,
ANCHAL-POST, KOLLAM-DIST, PIN - 691 306.
2 SAJU CHARNDRAN
AGED 34 YEARS
S/O. CHANDRAN, CHANDRAGEETHAM,
NEAR CHILLING PLANT,
YEROOR- POST,
KOLLAM-DIST, PIN - 691 312.
3 ABY C. SUNNY
AGED 42 YEARS
S/O. SUNNY, CHRIST COTTAGE,
CHEMPAKARAMANALLOOR,
EDAMULACKAL-VILLAGE,
ANCHAL-POST, KOLLAM-DIST, PIN - 691 306
BY ADVS.
BIJU ANTONY ALOOR
ARCHANA SURESH
K.P.PRASANTH
SAMEEKSHA P.R.
HARITHA HARIHARAN
THUSHARA T.A.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031.
2 THE STATION HOUSE OFFICER
ANCHAL POLICE STATION,
KOLLAM-DIST, PIN - 691 306.
CRL.MC 8725/2023
2
3 ADDL.R3 & R4 IMPLEADED
DEEPAK
CPO 6553, ANCHAL POLICE STATION,
KOLLAM DISTRICT - 691 306.
4 AJITH PRASAD
H/G. 61, ANCHAL POLICE STATION,
KOLLAM DISTRICT - 691 306.
ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 AND 4 AS PER
ORDER DATED 07.03.2024 IN CRL.M.A.NO.1/2024.
ASHI M.C (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC 8725/2023
3
CR
BECHU KURIAN THOMAS, J
......................................................
Crl.M.C.No.8725 of 2023
...................................................
Dated this the 20th day of June, 2024
ORDER
Three accused who face indictment for obstructing the official duty of
policemen felt relieved when the Assistant Public Prosecutor filed an
application to withdraw the prosecution. However, their relief was short
lived as the Court refused to grant sanction. Petitioners are those three
accused who have approached this Court under Section 482 Cr.P.C
challenging the order refusing to grant consent for withdrawal.
2. Petitioners are the accused in C.C.No.537/2018 on the files of the
Judicial First Class Magistrate Court-I, Punalur, alleging commission of
offences punishable under Sections 323, 353, and 332 r/w Section 34 of
the Indian Penal Code, 1860 apart from Section 117(e) of the Kerala
Police Act, 2011. While the case was pending before the trial court, the
Assistant Public Prosecutor sought permission to withdraw the
prosecution as contemplated under Section 321 of Cr.P.C. By the
impugned order in C.M.P.No.459/2021, the learned Magistrate dismissed
the said application. The prosecution did not challenge the said order
but the three accused have challenged the said order.
3. The prosecution alleges that on 29.08.2017, the accused obstructed the
official duty of CW1 to CW3, who were policemen on duty, by catching
hold of CW1's uniform and fisting him on his back. The accused also
pushed down CW2, and thereby committed the offences alleged.
4. I have heard Sri. Biju Antony Aloor, the learned counsel for petitioners,
and Sri. Ashi M.C., the learned Public Prosecutor.
5. Section 321 Cr.P.C., which provides for a premature termination of a
criminal proceeding stipulates that the Public Prosecutor or the Assistant
Public Prosecutor as the case may be, can withdraw from the
prosecution of any person. In doing so, the consent of the Court is
necessary. A reading of the said provision indicates two main ingredients
for withdrawing from the prosecution: (i) that the application must be
moved by the prosecutor, and (ii) that the consent of the court must be
obtained. In the instant case, though the application was filed before the
trial court by the prosecutor, the court refused to grant consent for
specific reasons mentioned in the impugned order.
6. In the decision in State of Kerala v. K. Ajith and Others (AIR 2021 SC
3954), the Supreme Court had culled out the broad principles that
govern the grant or refusal of consent to terminate a prosecution. It was
observed as follows:
" 23. The principles which emerge from the decisions of this Court
on the withdrawal of a prosecution under S.321 of the CrPC can now
be formulated:
(i) S.321 entrusts the decision to withdraw from a prosecution to the
Public Prosecutor but the consent of the Court is required for a
withdrawal of the prosecution;
(ii) The Public Prosecutor may withdraw from a prosecution not
merely on the ground of paucity of evidence but also to further the
broad ends of public justice;
(iii) The Public Prosecutor must formulate an independent opinion
before seeking the consent of the Court to withdraw from the
prosecution;
(iv) While the mere fact that the initiative has come from the
government will not vitiate an application for withdrawal, the court
must make an effort to elicit the reasons for withdrawal so as to
ensure that the Public Prosecutor was satisfied that the withdrawal of
the prosecution is necessary for good and relevant reasons;
(v) In deciding whether to grant its consent to a withdrawal, the
court exercises a judicial function but it has been described to be
supervisory in nature. Before deciding whether to grant its consent
the court must be satisfied that:
(a) The 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;
(b) The application has been made in good faith, in the interest of
public policy and justice, and not to thwart or stifle the process of
law
(c) The application does not suffer from such improprieties or
illegalities as would cause manifest injustice if consent were to be
given;
(d) The grant of consent sub-serves the administration of justice; and
(e) The permission has not been sought with an ulterior purpose
unconnected with the vindication of the law which the Public
Prosecutor is duty bound to maintain;
(vi) While determining whether the withdrawal of the prosecution
subserves the administration of justice, the court would be justified
in scrutinizing the nature and gravity of the offence and its impact
upon public life especially where matters involving public funds and
the discharge of a public trust are implicated; and
(vii) In a situation where both the trial judge and the revisional court
have concurred in granting or refusing consent, this Court while
exercising its jurisdiction under Art.136 of the Constitution would
exercise caution before disturbing concurrent findings. The Court may
in exercise of the well - settled principles attached to the exercise of
this jurisdiction, interfere in a case where there has been a failure of
the Trial Judge or of the High Court to apply the correct principles
in deciding whether to grant or withhold consent."
7. After noticing that the accused are alleged to have obstructed the official
duties of three policemen and even attacked them while they were in
their uniform with one of the accused tearing the uniform of CW1, the
trial court refused to grant consent having regard to the interest of
public justice. The policemen, while discharging their official duties,
have a burden to maintain law and order. No member of the public can
take law into their own hands and obstruct the policemen from
performing their duties. If such instances recur, there will be chaos in
the society leading to anarchy. Therefore, the reasoning given by the
learned Magistrate that there is an element of public interest in
continuing the prosecution cannot be said to be perverse warranting any
interference. Continuance of the prosecution advances the cause of public
justice and granting consent would stifle and thwart the process of law.
8. Apart from the above, of the two requirements of Section 321 Cr.P.C
mentioned earlier, the first one is that the application must be filed by
the Public Prosecutor or the Assistant Public Prosecutor. The said
decision to withdraw from prosecution must of necessity continue
throughout until the culmination of the proceedings. If the Prosecutor
backtracks from such a decision, the application for withdrawal will lose
its validity. The decision to withdraw from prosecution must also
continue, to enable any challenge against an order refusing consent. If
the prosecutor does not challenge an order refusing consent to withdraw,
it is indicative of his decision not to pursue the withdrawal. Thereafter,
it is not open for an accused to challenge the order by refusing consent
to withdraw.
9. In the instant case, after the trial court dismissed the application filed by
the Assistant Public Prosecutor, the State did not challenge the said
order. Failure to challenge the order refusing consent to withdraw is
indicative of the fact that the State and the Prosecutor are not interested
in withdrawing from the prosecution any further and have accepted the
order of refusal of consent. When the State has backtracked its decision
to withdraw from the prosecution, it is not open for the accused to
challenge the order refusing to grant consent to withdraw from the
prosecution. On that score, this petition under Section 482 Cr.P.C. is not
even maintainable.
In the above circumstances, there is no merit in this petition and it is
dismissed.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/20/06/2024
PETITIONER ANNEXURES
ANNEXURE 1 TRUE COPY OF THE F ORDER IN CRL. M. P.
459/2021 DATED 29/11/2021.
ANNEXURE A2 TRUE COPY OF THE CHARGE SHEET DATED
29/08/2017.
ANNEXURE A3 TRUE COPY OF THE CIRCULAR U/VIDE NO.
L2/383/2019 DATED 02/02/2021.
TRUE COPY
