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2006 DIGILAW 529 (KER)

Rev FrM D Thomas v. State of Kerala

2006-08-11

R.BASANT

body2006
ORDER R. Basant, J. 1. This revision petition is filed by the petitioner against an order passed by the learned Magistrate refusing consent for withdrawal from prosecution under S.321 of the Cr. P.C. 2. Instead of attempting a synoptic resume of the events which led to the impugned order, I am of opinion that it will be sufficient to extract the report filed by the Assistant Public Prosecutor seeking withdrawal with consent under S.321 of the Cr. P.C. Though it is a long report, I am of opinion that the extraction of the said report will effectively convey the precise nature of the case and the nature of application of mind that was undertaken by the Assistant Public Prosecutor. It reads as follows : "The above mentioned case has arisen out of an incident on 28/08/2002 at about 07.30 hrs in Train No. 2626 New Delhi - Thiruvananthapuram Kerala Express when it reached Mankara Railway Station. The CW 3 is working as Ticket examiner in squad duty asked the accused to give ticket for examination. The accused refused to show the ticket to CW 3. CW 1, 2 and 4 who were also in the duty enquire the matter, and CW 1 and 2 tried to remove the accused from the compartment as per the memo issued by CW 3 and 4. There arose exchange of words and accused on sudden provocation assaulted CW 1 and 2 and thereby deter CW 1 to 4 who are public servants from discharging their duty and thereby committed offence punishable under S.332 of Indian Penal Code. The accused is a clergy who obtained doctorate in Hindi and working a Head of the Hindi department in Alighed University, Uttar Pradesh, who started journey from New Delhi after reserving the berth No. 36 in S1 coach, and going to Ernakulam. In railways there is announcement in railway station not to give tickets to unauthorised persons because it is usual practice of cheating by unauthorised persons. Keeping in mind the accused told CW 3 who was not in uniform, that his name is in the chart and asked to show the identity card. This made some exchange of words and CW 1, 2 and 4 came there and a scuffle taken place. On perusal of the case records, it is found that the incident was happened due to misunderstanding and on sudden provocation. This made some exchange of words and CW 1, 2 and 4 came there and a scuffle taken place. On perusal of the case records, it is found that the incident was happened due to misunderstanding and on sudden provocation. The accused was brought arrested before this Hon'ble court and on the statement given by the accused, this Hon'ble court has Suo moto registered a case against the CW 1 to 4 as ST 3516 of 2002 under S.341, 323 read with 34 of Indian Penal Code. The cases between the accused and CW 1 to 4 were settled. Since the matter was settled the accused who was the complainant in ST 3516 of 2002 was not present and ST 3516 of 2002 was acquitted under S.256 of CrPC. As such there is no counter case pending. The accused is a clergy who obtained doctorate in Hindi and working as Head of the Hindi department in Alighed University, Uttarpradesh, has no other crime or case pending against him. Apart from the above referred incident on 28/08/2002 no other untoward incidents or any other frictions had occurred till date. According to prosecution continuance of proceedings in the above case would affect the present crucial and friendly atmosphere and relationship. So the prosecution demands withdrawn of the above mentioned case. Both case and counter case has settled by the officials and the accused, so the prosecution case will not improve. More over the Government of Kerala has reported that they have no objection to withdraw the case as per letter No. 21460/L3/05 Home dated 28/01/2006 by the Principal Secretary to Government (Home L Department) and the proceedings of Additional District Magistrate, Palakkad as per No. K.Dis.2006/8014/9/D1 dated 21/02/2006. Hence I am of the opinion that this the best case to be withdrawn. Hence it is humbly prayed that this Honourable Court may be pleased to permit the prosecution to withdraw this case." 3. The learned Magistrate considered the application. No one had entered appearance to raise objections against the proposed withdrawal. The specific statement that the complaint filed by the petitioner herein was dismissed for non prosecution is not controverted. That was a case registered by the learned Magistrate on the basis of the grievance aired by the petitioner when he was produced after arrest before him. No one had entered appearance to raise objections against the proposed withdrawal. The specific statement that the complaint filed by the petitioner herein was dismissed for non prosecution is not controverted. That was a case registered by the learned Magistrate on the basis of the grievance aired by the petitioner when he was produced after arrest before him. CWs 1 to 4 or the Railways did not raise any objections against the withdrawal of the case. But the learned Magistrate, by the impugned order, which again is a very short order and I choose to extract the order below, came to the conclusion that the learned Assistant Public Prosecutor has not properly applied his mind in filing the petition: "This is a petition filed by the learned A. P. P. seeking permission to withdraw the case. The offence alleged under S.332 IPC. The reason stated for withdrawal of the case in that the matter is settled between the parties and the pendency of the case would adversely affect the cordial and friendly relation between the parties and also the prosecution case will not improve on trial. Unsuccessful prosecution is not a ground for withdrawal of a case. The prosecution case is that accused assaulted CW 1-4 who are public servants while they were on duty and caused obstruction to their duty. It appears that learned A. P. P. has not properly applied his mind in filing this petition. Hence in the interest of Justice this petition is dismissed." 4. The learned counsel for the petitioner submits that the court below has not applied its mind correctly and has not informed itself the relevant provisions of law and the quality of consideration which such a report filed by the A. P. P. deserves to be given by the court. The learned counsel for the petitioner points out that the nature and quality of consideration which a court should bestow on such an application by the Prosecutor has been vividly explained in the decision reported in Abdul Karim v. State of Karnataka ( 2000 (8) SCC 710 ). 5. On the question of law, there can be no semblance of doubt now. The Prosecutor is to apply his mind independently. He is to consider the same uninfluenced by any other consideration except consideration of the interest of justice. He is to exercise that function as a Minister of Justice of the State. 5. On the question of law, there can be no semblance of doubt now. The Prosecutor is to apply his mind independently. He is to consider the same uninfluenced by any other consideration except consideration of the interest of justice. He is to exercise that function as a Minister of Justice of the State. The executive commits no error in reporting to the Prosecutor that it has no objection against the withdrawal and the Prosecutor may consider withdrawal. Act of the Prosecutor is an executive conduct of business of the State. The courts do not sit in appeal over such decision of the Prosecutor in his executive function. But the courts do have a supervisory jurisdiction over such exercise of the executive duty of the Prosecutor. The court will not lightly interfere with the executive decision of the Prosecutor; but it has a duty to ensure that the Prosecutor did advert to the relevant aspects and took the decision bona fide in his own judgment and discretion in the interests of and in aid of justice. If the Prosecutor succumbs to pressure from any one that conduct shall not be approved and consent will not be granted by the court under S.321 of the CrPC. It has often been repeated that the function of the court under S.321 of the CrPC is not appellate in nature at all; but is only supervisory. The range of discretion which the Prosecutor has in the performance of his executive duty must be respected by the court. But if the court is satisfied in exercise of its judicial supervisory powers that the Prosecutor has not exercised his functions properly and in aid of justice, the court can withheld the consent. As stated earlier; there is no dispute about the legal principles involved. The short question is whether the Prosecutor had applied his mind to the relevant inputs and had acted in aid of justice and whether the learned Magistrate had exceeded the scope of the function of the Magistrate in refusing to grant the requisite consent. 6. As stated earlier; there is no dispute about the legal principles involved. The short question is whether the Prosecutor had applied his mind to the relevant inputs and had acted in aid of justice and whether the learned Magistrate had exceeded the scope of the function of the Magistrate in refusing to grant the requisite consent. 6. Having considered all the relevant inputs which are eloquently revealed from the report of the Prosecutor which has already been extracted above in extenso, I have no hesitation to come to the conclusion that the court below was obviously and grossly in error in taking the view that the learned Prosecutor had not properly applied his mind in filing the petition. The reasons urged by the Prosecutor in his report are eminently reasonable and there is nothing to indicate that the court followed by the Prosecutor was not in the interests of justice. The learned Magistrate should have accorded the requisite sanction. I am certainly of opinion that this is a fit case where the revisional jurisdiction of superintendence and correction must and deserve to be invoked. The challenge succeeds. 7. In the result: a) This revision petition is allowed. b) The impugned order is set aside. c) It is held that the consent deserves to be granted to the Prosecutor under S.321 of the CrPC to withdraw from the prosecution. The proceedings against the petitioner / accused shall, in these circumstances, stand terminated.