Kerala High Court
Muhammed Ashraf K.A vs The Sub Inspector Of Police on 17 October, 2024
Author: K.Babu
Bench: K. Babu
2024:KER:77219
Crl.R.P.No.1195 of 2012
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.REV.PET NO. 1195 OF 2012
AGAINST THE ORDER DATED 23.04.2012 IN CMP NO.3778 OF
2012 IN CC NO.959/2007 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -I,HOSDRUG
REVISION PETITIONER/ACCUSED:
MUHAMMED ASHRAF K.A.,
S/O.ABDLLA B.C., B.C.HOUSE,
NEAR PADNE U.P.SCHOOL,
PADNE VILLAGE, KASARAGOD DISTRICT.
BY ADV
SRI.SUNNY MATHEW
RESPONDENTS/COMPLAINANT AND STATE:
1 THE SUB INSPECTOR OF POLICE,
CHANDERA POLICE STATION,
KASARAGOD DISTRICT.
*2 P.V.NIRMALA
WOMEN SUB INSPECTOR,
PAZHAYANNUR POLICE STATION.
* ADDRESS OF R2 IS CHANGED AS
NIRMALA P.V., W/O.BHASKARAN,
WEAVERS STREET, KARIVELLUR, PIN - 670521,
KANNUR DISTRICT, KERALA, MOB:9495458755 AS PER
ORDER DATED 06.09.2024 IN CRL.R.P.NO.1195/2012
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Crl.R.P.No.1195 of 2012
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3 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
COCHI-682031.
BY ADVS.
SMT.NEEMA JACOB, R1 AND R3
SMT.SHAHNA KARTHIKEYAN, R2
THIS CRIMINAL REVISION PETITION HAVING BEEN
FINALLY HEARD ON 17.10.2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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Crl.R.P.No.1195 of 2012
3
K.BABU, J.
-------------------------------------------
Crl.R.P. No.1195 of 2012
---------------------------------------------
Dated this the 17th day of October, 2024
ORDER
The revision is at the instance of the accused in
C.C.No.959/2007. The challenge in this revision is to the
order dated 23.04.2012 in CMP No.3778 of 2012, a petition
seeking withdrawal of the prosecution under Section 321 of
Cr.P.C.
2. The prosecution case is as follows:-
Smt.P.V.Nirmala was the Sub Inspector Police,
Payyanoor Police Station. On 25.06.2007, Smt. Sameera a
native of Punchakad filed a petition (Petition No.374/2007)
before the Principal Sub Inspector against one Sri.Rafeeq, a
native of Padanna. The Principal Sub Inspector authorised
Smt.P.V. Nirmala (PW1) to conduct a preliminary enquiry
into the allegations in the petition. Around 5.30 p.m., on
25.06.2007, PW1 went to the residence of Sri.Rafeeq. He
was not there. His brother Sri. Mohammed Ashraf (revision
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petitioner/accused) was there. PW1 enquired about
Sri.Rafeeq. The accused threatened her and showered
abusive words upon her. He used criminal force with intent
to outrage her modesty. He retorted that he was a political
leader of the locality. He stated to her that no police could
do anything against him. He again used criminal force
against PW1. She was pushed out by the accused using
force. He threatened PW1 with fear of death. He also
threatened that he will set fire after putting her in the
vehicle.
3. PW1 gave a statement to the SHO, Payyanoor
police Station narrating the incident and the overt acts
alleged. Based on her statement, the police registered
Crime No.175/2007 alleging offences punishable under
Sections 353, 354, 295(b) and 506(ii) of the IPC.
4. The police conducted investigation and submitted
final report as early as on 29.07.2007.
5. The Court took cognizance of the offences on
17.08.2007. The revision petitioner/accused appeared on
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summons. Charges were framed against him on 13.03.2008.
The learned Magistrate proceeded with the trial. On
06.06.2008, the Court issued summons to CW1(PW1). She
gave evidence as PW1 on 22.07.2008. The trial of the case
continued till 23.04.2012. By that time, the prosecution had
completed the evidence. The Court examined the accused
under Section 313 of Cr.P.C. On 23.04.2012, the learned
Public Prosecutor submitted an application under Section
321 Cr.P.C. The application reads thus:-
"It is humbly submitted that the above case is charge
sheeted u/s 353, 354, 294(b) & 506(ii) of IPC. The
evidence of prosecution is over in this case. 313 of
the accused also over.
Now I have received an order from the Govt.
stating that the Govt is having no objection to
withdraw the case with the permission of the Hon'ble
Court.
So I am filing this application. Appropriate
orders may be passed in the interest of justice."
6. The learned Magistrate on 23.04.2012 passed the
following order on the application seeking withdrawal of the
prosecution:-
"This is a petition filed by the Asst. Public Prosecutor
u/s. 321 Cr.P.C.
2. Heard. Considering the nature of the
offence committed, this application cannot be allowed.
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A lady police officer was insulted and assaulted by the
accused while discharging her official duty. Therefore,
this petition is dismissed."
7. I have heard the learned counsel for the revision
petitioner, the learned counsel appearing for the victim and
the learned Public Prosecutor.
8. The learned counsel for the revision petitioner
submitted that the learned Magistrate mechanically passed
the impugned order. It is submitted that the District Police
Chief also had recommended for the withdrawal of the
prosecution. The learned counsel for the revision petitioner
further submitted that it was after a full fledged enquiry, the
District Police Chief recommended the withdrawal of the
prosecution. The learned counsel submitted that the State
has the right to decide whether the prosecution is to be
continued or not. The learned counsel relied on State of
Kerala v. Balakrishna Pillai (1993 KHC 79) to contend that
the powers exercised by the Public Prosecutor under Section
321 of the Cr.P.C. is in the nature of a prerogative and the
role of the Court is only limited in the sense that it is
supervisory, and not adjudicatory or appellate in character.
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9. The learned counsel for the victim submitted that
the plea of the revision petitioner that the District Police
Chief conducted an enquiry and submitted a
recommendation to the Government to withdraw the
prosecution is baseless. It is submitted that the victim had
no idea about the enquiry stated to have been conducted
by the District Police Chief. The learned counsel for the
victim submitted that the Assistant Public Prosecutor had
failed to discharge his duty as provided under Section 321
of Cr.P.C.
10. The learned Public Prosecution submitted that the
woman Police Sub Inspector (PW1) was on official duty as
part of a preliminary enquiry on a petition filed in the police
station. On the date of occurrence itself she lodged a
complaint before the police. The police conducted a
thorough investigation and submitted a final report against
the revision petitioner.
11. The learned Public Prosecutor submitted that the
withdrawal application was filed at a stage when the Court
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had completed the examination of all the witnesses and
after examining the accused under Section 313 Cr.P.C. The
learned Public Prosecutor on perusal of the records and the
proceedings before the Court below submitted that the
prosecution could lead credible evidence against the
revision petitioner/accused.
12. The relevant statutory provision is Section 321 of
Cr.P.C., which reads thus:-
"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;
Provided that where such offence--
(i) was against any law relating to a matter to
which the executive power of the Union extends,
or
(ii)was investigated by the Delhi Special Police
Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or
(iii)involved the misappropriation or destruction
of, or damage to, any property belonging to the
Central Government, or
(iv)was committed by a person in the service of
the Central Government while acting or
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purporting to act in the discharge of his official
duty,
and the Prosecutor in charge of the case has not
been appointed by the Central Government he
shall not, unless he has been permitted by the
Central Government to do so, move the Court
for its consent to withdraw from the prosecution
and the Court shall, before according consent,
direct the Prosecutor to produce before it the
permission granted by the Central Government
to withdraw from the prosecution. "
13. The 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
the application for withdrawal has to get the consent of the
court. The outer limit for the exercise of this power is "at
any time before the judgment is pronounced". 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
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purposes. However, the consent of the court is not 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. It
is necessary for the public prosecutor to satisfy himself in
each case that the case is fit for withdrawal from
prosecution. Though the Government may have ordered,
directed or asked a Public Prosecutor to withdraw from a
prosecution, it is for the Public Prosecutor to apply his mind
to all the relevant material and, in good faith, to be
satisfied thereon that the public interest will be served by
his withdrawal from the prosecution. The application under
Section 321 must aver that the Public Prosecutor is, in good
faith, satisfied, on consideration of all relevant material,
that his withdrawal from the prosecution is in the public
interest and it will not stifle or thwart the process of law or
cause injustice. The material that the Public Prosecutor has
considered must be set out, briefly but concisely, in the
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application or in an affidavit annexed to the application or,
in a given case, placed before the court, with its
permission, in a sealed envelope. The court has to give an
informed consent. The central question is whether the
Public Prosecutor has really applied his mind to all the
relevant materials on record and satisfied himself that the
withdrawal from the prosecution would subserve the cause
of public interest or not. {Vide : Sheonandan Paswan v.
State of Bihar [(1987) 1 SCC 288], R.M.Tewari v.
State (NCT of Delhi) [(1996) 2 SCC 610], Abdul Karim
v. State of Karnataka [(2000) 8 SCC 710] and Bairam
Muralidhar v. State of Andhra Pradesh [(2014) 10
SCC 380]}.
14. In Abdul Wahab K. v. State of Kerala and
others [(2018) 18 SCC 448], the Supreme Court held that
the Public Prosecutor or an Assistant Public Prosecutor, as
the case may be, has a vital role under the statutory
scheme and is expected to act as an independent person.
He/she has to apply his/her mind and consider the effect of
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withdrawal on society in the event such permission is
granted.
15. In State of Kerala v. K.Ajith [(2021) 17 SCC
318], the Supreme Court observed thus:-
"67. The test which has been laid down in the decisions of
this Court commencing with Ram Naresh Pandey [State of
Bihar v. Ram Naresh Pandey, 1957 SCC OnLine SC 22 : AIR
1957 SC 389] in 1957, spanning decisions over the last 65
years is consistent. The true function of the court when an
application under Section 321 is filed is to ensure 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. The court will grant its consent if it is satisfied that
it subserves the administration of justice and the purpose of
seeking it is not extraneous to the vindication of the law. It is
the broad ends of public justice that must guide the decision.
The Public Prosecutor is duty-bound to act independently and
ensure that they have applied their minds to the essential
purpose which governs the exercise of the powers. Whether
the Public Prosecutor has acted in good faith is not in itself
dispositive of the issue as to whether consent should be
given. This is clear from the judgment in Sheonandan Paswan
[Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 :
1987 SCC (Cri) 82] . In para 73 of the judgment, V. Khalid, J.
has specifically observed that the court must scrutinise
"whether the application is made in good faith, in the interest
of public policy and justice and not to thwart or stifle the
process of law". Good faith is one and not the only
consideration. The court must also scrutinise whether an
application suffers from such improprieties or illegalities as to
cause manifest injustice if consent is given."
16. The learned Public Prosecutor has a solemn duty
while making an application under Section 321 of Cr.P.C. A
perusal of the application submitted by the learned Public
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Prosecutor in the present case shows that he had not
applied his mind on any of the materials. But, he simply
acted as per the directions of the Government. It is evident
that the learned Public Prosecutor had been totally guided
by the order of the Government and there is nothing to
show that he had applied his mind to the facts of the case.
The submission of the learned counsel for the victim that
extraneous factors influenced the Government in taking a
decision to withdraw the prosecution has some force. I must
say that the learned Assistant Public Prosecutor has failed in
the discharge of his duties.
This is a case where the modesty of a Woman Police
Sub Inspector was outraged by the accused. The Woman
Police Sub Inspector reached the residence of the accused
as part of her official duty. The materials placed before the
Court would reveal that the withdrawal of the prosecution
would not serve public interest rather it would go against
the public interest. The learned Trial Judge rightly held that
the withdrawal of the prosecution would not serve public
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interest. The revision lacks merits and it stands dismissed.
The Registry shall forthwith transmit the trial court
records. The Court below shall proceed with the trial of the
matter, as expeditiously as possible. It shall dispose of the
mater within three months from the date of receipt of a
certified copy of this order.
As the victim retired from the service and settled in a
far away place in Kannur District, this Court directed the
High Court Legal Services Committee to nominate a lawyer
from its panel to appear on behalf of her. The High
Court Legal Services Committee nominated Advocate
Smt. Shahana Karthikeyan, to defend the matter for the
victim. She has effectively defended the victim. She is
entitled to get maximum remuneration as per the existing
norms.
Sd/-
K.BABU
JUDGE
VPK
