State of Kerala Vs. K.Thankappan Unnithan and Others - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE9H DAY OF JANUARY201419TH POUSHA, 1935 Crl.Rev.Pet.No. 166 of 2011 -------------------------------------- AGAINST THE ORDER

IN CC13712009 ofJUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM, DATED0212-2010 ---------- REVISION PETITIONER(S)/COMPLAINANT: ------------------------------------------------------------- STATE OF KERALA, REP.BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ROY THOMAS RESPONDENT(S)/ACCUSED: ----------------------------------------- 1. K.THANKAPPAN UNNITHAN, S/O.KRISHNA PILLAI, KAROTTUPILLAI VEEDU, KODAVILA P.O., EAST KALLADA.

2. SHIBU @ SHIBU THAMBAN, S/O. MURALEEDHARAN, THOTTINPURAYIL VEEDU, KODAVILA P.O., EAST KALLADA.

3. AJITH PRASAD, S/O. NARAYANAN, AARAAMAM, CHITTUMAALA, SOUTH MURI, EAST KALLADA.

4. SHAJI, S/O. CLETUS, ANUGRAHA, -DO- -DO- 5. SADANANDAN, S/O. PATTAUIL KUNJU KUNJU, CONTRACTOR, AAMBADI, ADOOR, PATHANAMTHITTA.

6. SUBIN, (DRIVER OF JCB, BEARING NO.KL-3/Q6116 AT THE TIME OF OCCURRENCE). * ADDL.7TH RESPONDENT IMPLEADED7 SASIDHARAN, AGED59YEARS, S/O.NARAYANAN, VADAKKEBHAGATHU PUTHENVEETTIL, NEAR KODIYATTUMUKKU, KODUVILLA MURI, KIZHAKKE KALLADA VILLAGE IS IMPLEADED AS ADDL.7TH RESPONDENT AS PER ORDER

DATED39/13 IN CRL.MA.6440/2013 IN CRLRP.166/2011. RADDL7 BY ADV. SRI.V.V.RAJA R1-R4 BY ADVS. SMT.A.G.ANEETHA SMT.M.KABANI DINESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON0901-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PJ Crl.Rev.Pet.No. 166 of 2011 -------------------------------------- APPENDIX PETITIONERS' ANNEXURES ---------------------------------------- A1: COPY OF THE FINAL REPORT FILED BEFORE THE JFMC-III, THIRUVANANTHAPURAM AII: COPY OF THE321CR.PC APPLICATION FILED BY APP AIII: COPY OF THE JUDGMENT

DATED212/2010 OF JFMC-I, KOLLAM. RESPONDENTS' ANNEXURES ------------------------------------------- R4(1): COPY OF MEMORANDUM OF CRIMINAL MISCELLANEOUS CASE NO.4369/2010 R4(2): COPY OF JUDGMENT

DT.18/11/2010 IN CR.MC.NO.4369/2010. / TRUE COPY / P.S. TO JUDGE PJ K. HARILAL, J.

-------------------- Crl.R.P. No.166 of 2011 ------------------------------ Dated this the 9th day of January, 2014 ORDER

The State of Kerala filed this revision petition challenging the order passed in CMP. No.10769/2010 in C.C.No.1371/2009 on the files of Judicial First Class Magistrate's Court-I, Kollam. The above CMP was filed by the Assistant Public Prosecutor under Section 321 of the Code of Criminal Procedure (for short the 'Cr.P.C.') seeking withdrawal of the prosecution of the accused. The respondents 1 to 6 in this revision petition are accused Nos. 1 to 6. The de facto complainant is impleaded as additional 7th respondent. The de facto complainant strongly object the following petition. The learned Magistrate after considering the rival contentions, refused to grant consent to withdraw from prosecution and consequently, the petition was dismissed. The legality, propriety and correctness of the above order is under challenge in this revision petition. Crl.R.P.No.166 of 2011 2 2. The prosecution case in brief is that all the accused persons formed themselves into an unlawful assembly armed with deadly weapons and in prosecution of their common object of demolishing the western boundary wall of the property belonging to CW1. They demolish the said boundary wall with a JCB and as a result, the CW1 sustained a loss of 25,000/-. Later on 03/11/2008, the accused Nos. 1 to 4 trespassed into the courtyard of the house of CW1 at 9.30 p.m. and threatened him with dare consequences so as to prevent him from filing any complaint against them alleging above mentioned offences. At that time A3 and A4 were in possession of weapons resembles sword etc. On the basis of information, the police registered crime No. 58/2009 against the responders 1 to 6 for the above said offences. Final report was filed before the Judicial First Class Magistrate's Court -I, Kollam under Sections 143, 147, 148, 427, 447, 506(i) read with Section 149 of IPC against the accused. The trial court took Crl.R.P.No.166 of 2011 3 cognizance of the offences and proceeded further. The trial is yet to be started. While so, the Assistant Public Prosecutor filed the above petition under Section 321 of the Cr.P.C. seeking consent of the court for withdrawing from prosecution of the accused. In the above petition, the reasons for withdrawing from prosecution are stated below.

1. The de facto complainant was not an eye witness to the occurrence.

2. From among the three witnesses cited to prove the occurrences one, that is, CW2 is the sister of the de facto complainant.

3. As per statement under Section 161 of Cr.P.C. of CW2, the second incident occurred inside their house, whereas the de facto complainant stated that the incident happened at the road in front of their house.

4. As per the statement of CW3 under Section 161 of Cr.P.C, it is not seen that all the accused persons were present at the seen of occurrence at 3.45 PM on 29/10/2008.

5. The statement of CW4 is silent about the commission of any offence by A2 and A3 against CW2 and CW3, A2 and A3 used to threaten him and CW2. Here he failed to explain the mode in which they were threatened.

6. CW3 did not see the second incident alleged in the charge.

7. There is a patent defect in the charge by misjoinder of charges. Here the two separate incidents were charged together and it is against the mandates under section 218 of the Cr.P.C. The Crl.R.P.No.166 of 2011 4 time, place of occurrence, nature of offence and the persons participated in the two incidents were different. Hence in these two distinct offences, there should be two distinct charges also.

8. The inordinate delay in putting the law in motion was also not properly explained.

9. The narration of the case filed by the de fcto complainant is different from his version in the criminal case. Certain persons, who were made parties in the civil suit, were not included in the party array in the criminal rules. 10.As a result, there is paucity of evidence. The de facto complainant is having no consistency of case.

3. The de facto complainant strongly objected to withdrawal of the prosecution. The main objection raised by the de facto complainant was that the withdrawal of prosecution was motivated by political interest. The accused persons are politically very influential in the locality. They have considerable influence in the police force also. That is the reason why the de facto complainant was denied justice while he approached the police for proceeding against the accused immediately after the commission of the offence. He again and again approached the police requesting to proceed against the accused in accordance Crl.R.P.No.166 of 2011 5 with the law. According to the de facto complainant, the accused No.1 who is politically very influential person in the locality with the help of the accused Nos.2 to 4 made his life in the locality much difficult and if the withdrawal is allowed, it will cause mis- carriage of justice to him who worked for the country for several years in the military force as a soldier. Moreover, withdrawal of prosecution may affect peace in the locality. In short, his objection is that the withdrawal is not sought for public interest or public justice. The learned Public Prosecutor advanced arguments on the basis of the grounds stated in the application for withdrawal.

4. Per contra, the learned counsel for the respondents 1 to 4 also advanced arguments assailing the findings in the impugned order. The learned counsel for the de facto complainant advanced arguments to justify the impugned order under challenge. I have given my anxious consideration to the rival submissions advanced at the Bar. Crl.R.P.No.166 of 2011 6 The question to be considered in this revision petition is whether there is any illegality, impropriety or incorrectness in the impugned order refusing to grant consent for withdrawing from prosecution and dismissing the petition thereunder.

5. The nature and extend of jurisdiction of the court on an application under Section 321 of Cr.P.C was considered by the Apex Court from 1957 onwards repeatedly. Though Section 321 of the Cr.P.C. does not prescribe any specific ground for granting consent of the court for withdrawing from prosecution, the scope and extent of jurisdiction under Section 321 of the Cr.P.C. Particularly, the role of the court and the role of the Public Prosecutor are well delineated by judicial precedents from the decisions in State of Bihar V. Ram Naresh Pandey [AIR1957(SC) 389] to Abdul Karim V. State of Karnataka [2000 (8) SC710.

6. In State of Bihar Vs. Ram Naresh Pandey (AIR1957SC389, the Supreme Court held that: Crl.R.P.No.166 of 2011 7 "The judicial functions, therefore, 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. In this context it is right to remember that the Public Prosecutor though an executive officer is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly-considered view and the Court is entitled to have the benefit of the fair exercise of his function." 7. In the decision in Subhash Chander v. State, (1980)2 SCR44 (AIR1980SC423, the Supreme Court held as follows: "The even course of criminal justice cannot be thwarted by the Executive however high the accused, however sure the Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle Court justice because of hubris, affection or other noble or ignoble consideration. Once the prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. The Court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor. The Public Prosecutor cannot therefore Crl.R.P.No.166 of 2011 8 withdraw from the prosecution unless the Court before which the prosecution is pending gives its consent for such withdrawal. This is a provision calculated to ensure non- arbitrariness on the part of the Public Prosecutor and compliance with the equality clause of the Constitution." 8. Later, relying on the above decision, in Sheo Nandan Paswan Vs. State of Bihar (AIR1987(SC) 877), the Constitution Bench of the Supreme Court settled the nature and extent of Jurisdiction of the court under Section 321 of the Cr.PC. In the above decision, Supreme Court held that: " All that is necessary for the Court to see is to ensure that the application for withdrawal has been properly made, after independent consideration, by the Public Prosecutor and in furtherance of public interest. In view of the wide language it uses, enables the Public Prosecutor to withdraw from the prosecution any accused, the discretion exercisable under which is fettered only by a consent from Court on a consideration of the materials before it and that at any stage of the case. The Section does not insist upon a reasoned order by the Magistrate while giving consent. All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper." Crl.R.P.No.166 of 2011 9 9. In Rajender Kumar Vs. State (AIR1980SC1510 the Supreme Court relying on the earlier decisions settled and enumerated the guidelines for the exercise of Jurisdiction under Section 321 as follows: (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. (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 Crl.R.P.No.166 of 2011 10 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 consideration. "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." 10. Later, relying on the earlier decisions three Judges Bench of the Apex Court in Abdul Karim Vs. State of Karnataka (2000(8) SC710 held as follows: "What the court has to see is 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. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline 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 material available, the order giving Crl.R.P.No.166 of 2011 11 consent has necessarily to be upheld." 11. In Vinod Vs. State of Kerala and Another (2013 (2) KHC895, this Court held that: "13. How can the court find out bona fides of a decision taken by the Prosecutor at the request of the Government to withdraw from prosecution? Certainly, the decision taken by the Prosecutor is the outcome of a thinking process wherein the facts of the Prosecution case and the reasons for seeking consent to withdraw from prosecution are the inputs. Mere assertion of the Public Prosecutor that he had independently applied his mind in good faith uninfluenced by any extraneous consideration or mere adoption of certain expressions like 'Public Interest' or 'Public Policy' apparently incompatible with facts of the prosecution case, in the application seeking consent for withdrawal from prosecution is neither sufficient nor satisfactory to grant consent. The bona fides and independence of the decision taken by Public Prosecutor at the request of the Government could have manifested in the decision itself, in view of fact of the prosecution case and reasons relied on for withdrawal from prosecution. As the ultimate repository under Section 321 of the Cr.P.C., it is for the court to verify the veracity and credibility of the said averments in view of the decision taken thereon. The said verification and granting or declining of consent will come under judicial function. It follows that the court can exercise judicial discretion either granting or declining consent. The decision taken by the Public Crl.R.P.No.166 of 2011 12 Prosecutor at the request of the Government to withdraw from prosecution must be logical, rationale and compatible with the facts of the prosecution case and reasons for withdrawal from prosecution. It is needless to say that where the decision appears otherwise, it can be held that the decision taken by the Public Prosecutor is improper and sans bona fides and independence." 12. The substratum of the principles enunciated in the above decisions can be summarised as follows: The basic principle underlying all the grounds for withdrawal must be that the withdrawal can be sought only for furthering the cause of public justice. The main question to be considered is whether the Public Prosecutor has applied his mind independently in good faith, uninfluenced by irrelevant and extraneous consideration. It must be satisfied that withdrawal will serve public interest. "At the same time, it is not for the court to weigh the material or decide whether prosecution will end in conviction or acquittal as if it is exercising the appellate jurisdiction over the decision of the Prosecutor. But "the court must be Crl.R.P.No.166 of 2011 13 satisfied that the Public Prosecutor has considered the materials in good faith, reached the conclusion that his withdrawal from prosecution will serve the public interest". The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice.

13. Coming to the instant case, on an analysis of the reasons enumerated from one to ten in the impugned order under challenge as well as in paragraph 5 to 8 in the application, it could be seen that the basic reason underlying in all ground is one and the same, that is, the paucity of evidence. According to the prosecution, there is no sufficient evidence to make sure that the prosecution would end in conviction.

14. In view of the above principle enunciated by plethora of decisions laid down by the Supreme Court, let us examine the legality and propriety of the findings in the impugned order. In the above decisions also, the Apex Court has specifically stated that the question whether the Crl.R.P.No.166 of 2011 14 prosecution will end in conviction or acquittal cannot be looked into while taking a decision to withdraw from prosecution. But, here apparently, the said aspect, which cannot be taken as a ground alone has been taken as a ground for withdrawal. At this stage, there cannot be a mini-trial for a scrutiny as to whether there can be a successful prosecution or not. It is interesting to note that the very same Prosecutor had applied his mind while approving the charge at the time of filing the final report. After sometime, the very same Prosecutor has turned round and filed application stating the defects in the investigation and lack of evidence and also on a finding that a successful prosecution is not possible. I am unable to find any provisions in the Code of Criminal Procedure enabling the Prosecutor to conduct such a mini-trial in his own mind after filing the final report and before the commencement of trial. In the above context, the submission of the counsel appearing for the de facto complainant/ 7th respondent that the accused are influential persons in the locality and the Crl.R.P.No.166 of 2011 15 Public Prosecutor has not applied his mind independently in good faith and he applied his mind under the influence of the accused who are power full persons in the locality assumes significance, and such a possibility cannot be brushed aside.

15. The learned counsel for the respondents 1 to 4 submits that the alleged act was committed for widening a road in the locality and the accused are social workers in the locality. Therefore, there lies a public interest in encroaching and causing damages in the property of the de facto complainant and others. I am afraid and unable to countenance the arguments advanced by the learned counsel for the respondents 1 to 4. Whatever be the aim and object of the trespass and encroachment and whoever be the person trespassed and encroached the property of another person, that act cannot be treated as an act in furtherance of the public interest. For widening of a road, there is a procedure established under law. If that be so, encroaching the property of another person by taking law Crl.R.P.No.166 of 2011 16 into their own hands cannot be taken as an act committed for public interest. As noted by the learned Magistrate in the instant case in the application seeking withdrawal, the Public Prosecutor has no case that the withdrawal is for public interest or public justice. The paramount consideration in an application seeking consent for withdrawing prosecution is, whether the consent for withdrawing prosecution is sought for public interest or public justice Here, undoubtedly, this question can be answered negatively. The prosecution also has no such case of public interest. But, per contra, the alleged act committed by the accused is against the interest of the persons who own property on both sides of the road. In fact, withdrawing from prosecution of the accused is against public interest and public peace. So, I am of the opinion that if the court grants consent for withdrawing the prosecution of the accused, the common man will loose their confidence in Rule of law. As rightly held by the learned Magistrate withdrawal of the prosecution will Crl.R.P.No.166 of 2011 17 definitely result in more serious consequences, which will adversely affect public peace. Therefore, I also concur with the findings of the court below that the Public Prosecutor has not applied his mind in good faith uninfluenced by any extraneous consideration independently. Consequently, I confirm the impugned order under challenge. The court below is directed to proceed with the case in accordance with law. This revision petition is dismissed accordingly. K.HARILAL, JUDGE. Mjl/stu //True copy// P.A to Judge