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2002 DIGILAW 465 (KER)

M. Chandran v. State

2002-07-15

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The question posed in this case, having some political importance, is as to the limitations governing the power of a Prosecutor in seeking withdrawal of prosecution under Sec. 321 of the Cr.P.C. 2. S.C.No. 169 of 1996 of the Sessions Court, Manjeri arose from a public strike (Bunch) organised by some political parties on 26.11.1994. At about 10.30 a.m. on that day, the accused, 17 in number, marched towards the auditorium by name ‘Panampilly National Youth Centre’ situated at Chamravattam junction, broke open the same and gained entry into the store room. Thereafter they set fire to the carpets, furnitures and office records and damaged the other articles kept there. 3. On 4-3-1997, the Additional Public Prosecutor, Tirur, moved an application under Sec. 321 of the Cr.P.C. in the above case involving offences under Secs. 143, 147,148, 427 and 436 read with Sec.149 of the I.P.C. stating that the incident arose from dispute between the two political factions; that the atmosphere has changed by now and things have come to normal situation. Trial in the case it was stated, was most likely to lead to further polical violence and disharmony. Not only that the prosecution might not be able to substantiate its case by proving the guilt of the accused, but also withdrawal would advance ends of justice. He stated that the Government of Kerala also expressed the view that it had no objection in withdrawing the case vide Government letter dated 18-2-1997. He also produced before court that letter as also a letter from the District Collector, Malapuram to the same effect. 4. The learned Asst. Sessions Judge, on a consideration of the matter observed that the contention that there was a change of atmosphere is only a myth; that if the persons, who indulge in indiscriminate violence are able to pull strings and secure order for withdrawal from prosecution on the administrative side, there will be simmering frustration in the mind of rival group which in turn would cause eruption of a further bout of violence. According to the learned judge, withdrawal from the prosecution as desired by the Public prosecutor would be counter productive and it would mar the social and political balance. According to the learned judge, withdrawal from the prosecution as desired by the Public prosecutor would be counter productive and it would mar the social and political balance. The grant of the petition, according to the learned trial judge, would encourage criminals wearing polical masks to repeat criminal acts with impunity which, in turn, would jeopardize the smooth functioning of administration and affect the safety of life and property of the common man. That will lead to growth of private armies which is the very antithesis of democratic society. So saying, the learned Sessions Judge dismissed the petition. 5. Sri. Alan Papali, who appeared for the revision petitioners (accused) before me submitted that the views of the learned Sessions Judge are not in conformity with the principles governing Sec. 321 of the Cr.P.C. and that the law relating to withdrawal has not been properly understood or applied by the learned Sessions Judge. He also placed reliance on relevant case law. 6. Mr. Madhavan Nambiar, Director General of Prosecution, who appeared for the State submitted that the case has to be decided by applying the correct law. The court has always the jurisdiction to go in to the propriety of the demand for withdrawal and viewed from that perspective, he does not find any irregularity or impropriety in the order of the trial court. The court has always the jurisdiction to go in to the propriety of the demand for withdrawal and viewed from that perspective, he does not find any irregularity or impropriety in the order of the trial court. Sec. 321 of the Cr.P.C. reads as follows: 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 offences- (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 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. As evident from the Sec. itself, a wide discretion is available to the court in the matter of granting of rejecting the petition ad nature of cases in which it should be allowed or disallowed are not at all specified in detail the Section. However, judicial precedents go to show that the following principles governing the grant or rejection of such petitions are well settled. 7. The Public Prosecutor has a major role to play in the matter of such applications. However, judicial precedents go to show that the following principles governing the grant or rejection of such petitions are well settled. 7. The Public Prosecutor has a major role to play in the matter of such applications. He has to act forthright and honestly and convince the court that the real purpose is to ultimately facilitate advancement of justice. The court has also wide discretion. It cannot grant the request as a matter of course and has to exercise the judicial discretion vested in it by considering the materials on record and ensuring that the application is made in good faith, in the interest of public policy and cause of justice, and not to intended or stifile the process of law. It has also to ensure that the consequence of granting the petition would not be perpetuation of manifest injustice. 8. The learned counsel for the revision petitions placed reliance on the decision in Ayub v. State of U.P. (2002 (3) SCC 510), where the request of the prosecutor to withdraw from a charge based on TADA Act was allowed. That was a case where the Designated Judge under the TADA Act rejected the application under Sec. 321 by stating that the State Government had not given any reason for withdrawal and that mere use of the expression ‘janahit’ (public opinion) was not sufficient for granting consent in a mechanical manner. There the Government gave consent stating that after proper discussion of the facts of the case and the evidence/reports/letters available on record, Government decided to waive the TADA Section from the charge sheet. The Apex Court held that when the government, in its order, has specified that it had perused the records and considered the matter, the Designated Judge was not justified in rejecting the application. However, the fact to be taken note of in that case is that the request for withdrawal pertained only to offences coming under the TADA Act and not for other relevant offences involved there arising under the Indian penal Code. 9. However, the fact to be taken note of in that case is that the request for withdrawal pertained only to offences coming under the TADA Act and not for other relevant offences involved there arising under the Indian penal Code. 9. The Apex Court on a consideration of the relevant aspects, ultimately held that the appellants had committed offences punishable under Sec. 302 read with Sec. 34 of the I.P.C.; that there was clear evidence to show that they came to the picketing place, threw bombs on the police personnel present there and caused the death of one Sarma besides serious injuries to others and therefore upheld the conviction under Sec. 302 read with Sec. 34 of the I.P.C. as also under Sec. 307 read with Sec. 34 of the I.P.C. entered against the accused. Likewise, sentences against them under the Prevention of Damage to Public Property Act was also confirmed. It can therefore be seen that, that was a case where the convictions and sentences on the aforesaid counts were found sufficient to advance the ends of justice and that pursuance of the charge under the TADA Act was not essential to mete out justice. The observations of the Apex Court have therefore to be appreciated in the light of the said factual scenario. 10. During hearing, the learned Director of Public Prosecutions brought to my notice the decision in Abdul Karim v. State of Karnataka (AIR 2001 SC116) (popularly known as Veerappan’s case), which was rendered by a Bench of three Judges of the Honourable Supreme Court. There also various charges including those under the TADA Act were sought to be withdrawn and the learned Special Judge observed that on the materials placed before him he was satisfied that the grant of permission would subserve the administration of justice and had allowed it. The Apex Court, however, interfered stating that though the court’s power under Sec. 321 is supervisory, it does not mean that while exercising that power, the consent has to be granted for the mere asking. The court has to examine and ensure that all relevant aspects have been taken into consideration by the Public Prosecutor. It is useful to quote here the relevant observations: “The Governments have to consider and balance the choice between maintenance of law and order and anarchy. It does not appear that anyone considered this aspect. The court has to examine and ensure that all relevant aspects have been taken into consideration by the Public Prosecutor. It is useful to quote here the relevant observations: “The Governments have to consider and balance the choice between maintenance of law and order and anarchy. It does not appear that anyone considered this aspect. It yielded to the pressure tactics of those who, according to the Government, are out to terrorise the Police force and to overawe the elected Governments. It does not appear that anyone considered that with their action people may lose faith in the democratic process, when they see public authority flouted and the helplessness of the Government. The aspect of paralysing and discrediting the democratic authority has to be taken into consideration. It is the executive function to decide in public interest to withdraw from prosecution as claimed. But it is also for the Government to maintain its existence, Self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision. In the present case, without consideration of these aspects the decision was taken to withdraw the TADA charges. 11. The court ultimately found that the application for withdrawal did not meet the requirements of Sec. 321 and was bad in law. 12. On a perusal of the impugned order in the light of the legal principles aforementioned, I am of the view that the learned Asst. Sessions Judge was right in taking the view that he took. Serious offences are charged against the accused, who allegedly engaged themselves in vandalism under the cover of a public strike. Allowing petitions of the present nature will only encourage such elements to engage in more nefarious activities which would seriously affect maintenance of law and order and also mar the faith of the people in the administration of justice. The revision in these circumstances, is found to be without merit and is dismissed.