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2009 DIGILAW 701 (KER)

Muhammed v. Sub Inspector of Police, Chevayur

2009-07-29

K.HEMA

body2009
ORDER : K. Hema, J. The short question for consideration in this revision is whether a reasoned order is necessary, while granting permission to withdraw prosecution under section 321 of the Code of Criminal Procedure ('the Code' for short). 2. This revision is filed against the order passed by the Magistrate Court, on a report filed under Section 321 of the Code by the learned Assistant Public Prosecutor. As per the report, a request is made to allow him to withdraw the prosecution of CC No. 251 of 1998. The Court passed the following order in the report: "Report accepted and the Public Prosecutor is allowed to withdraw the case as prayed for." 3. The above order is challenged by the de facto complainant on various grounds. According to learned counsel for de facto complainant (revision petitioner), the order under challenge is a non-speaking order and hence it is illegal. It is argued that once a petition is filed, it cannot be mechanically withdrawn, but the Court must be satisfied that it is a fit case to give consent to withdraw prosecution. He cited the decision reported in Shereef Babu v. S.I. of Police, 1996 KHC 289 : 1996 (2) KLT 200 : 1996 (1) KLJ 849 : ILR 1997 (1) Ker. 700 in support of his argument. 4. Learned Public Prosecutor argued that the order will show that the report filed by the Assistant Public Prosecutor is accepted by the Court and hence there was application of mind. It is also argued that a detailed order is not necessary while giving consent under Section 321 Cr.P.C. as held in Abdul Karim v. State of Karnataka, 2001 KHC 228 : 2000 (8) SCC 710 : 2001 (1) KLT SN 8 : AIR 2001 SC 116 : 2001 CriLJ 148 and in Rahul Agaml v. Rakesh Jain and Another, 2005 KHC 656 : 2005 (2) SCC 377 : 2005 (2) KLT SN 55 : AIR 2005 SC 910 : 2005 CriLJ 963. It was also pointed out that in Rahul Agarwals case, it was held the Court need not give a detailed reasoned order when it gives consent. Therefore, the impugned order cannot be set aside on the ground urged, it is argued. 5. It was also pointed out that in Rahul Agarwals case, it was held the Court need not give a detailed reasoned order when it gives consent. Therefore, the impugned order cannot be set aside on the ground urged, it is argued. 5. Learned counsel for accused-respondent submitted that on the facts of this case, is a fit case to grant permission to withdraw prosecution since, the incident is alleged to occurred pursuant to a dispute between the Panchayat and accused regarding widening pathway and construction of staircase in the pathway. Interest of justice demands that the readings are not continued and hence order under challenge may not be interfered with, it submitted. 6. On hearing both sides and on perusing the order under challenge and the report of learned Assistant Public Prosecutor and the decisions cited by both sides, I find that the under challenge is not a speaking order. Though in Rahul Agarwal's case referred above, 'field that a detailed reasoned order may not be necessary while giving consent, in Abdul ''s case (relying on the earlier decision of the Constitution Bench of the Supreme Court in Sheonandan Paswan v. State of Bihar, 1987 KHC 844 : 1987 (1) SCC 288 : 1987 SCC (Cri) 82 : AIR 1987 SC 877 : 1987 CriLJ 793 it was held thus: "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 consent has necessarily to be upheld." 7. It is also held in Rahul Agarwal's case that the discretion under Section 321 is to be carefully exercised by the Court, "having due regard to all relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance." Thus, to give consent for withdrawing of prosecution, the Court (have regard to all relevant facts and it shall not mechanically give consent. Withdrawal of prosecution under Section 321 of the Code can be permitted only if valid reasons exist. 8. Whether the Court has given due regard to all relevant facts or not or whether there any valid reasons for giving consent for withdrawal have to be reflected in the order. Withdrawal of prosecution under Section 321 of the Code can be permitted only if valid reasons exist. 8. Whether the Court has given due regard to all relevant facts or not or whether there any valid reasons for giving consent for withdrawal have to be reflected in the order. It is not enough that those facts are kept locked in the mind of the Court. It is true that a detailed reasoned order may not be necessary while giving consent to withdraw prosecution, but that does not mean that an order without reason or a non-speaking order can be passed. The ordered under Section 321 of the Code must show reasons why consent is given. The facts which weighed with the mind of the Court to grant permission must be at least, briefly referred in the order under Section 321 of the Code. 9. Giving of reasons for a decision is an essential attribute of judicial disposal of a Her. Reason is the heart beat of every judicial decision. Without reason, a decision cannot survive. The party affected by the decision must know why his application is allowed or rejected, the impugned order is bereft of reasons and hence unsustainable. 10. The order under challenge only shows that the Court accepted the report of the Asst. Public Prosecutor and allowed to withdraw prosecution, as prayed for. It is not clear from impugned order whether the report is read by the Court before accepting the same. There nothing in the impugned order to show that the Court applied its mind to the relevant facts circumstances of the case. 11. Every crime is an offence against society and society demands that a person who committed an offence shall be punished for the offence. Law and order and peace in the society can be maintained by punishing persons who perpetrate crime. Therefore, before granting permission to withdraw prosecution all these facts must be borne in mind and the Court shall apply its mind to all relevant facts and materials placed before it and pass a brief reasoned order which would show that consent is given, in the interest of administration of justice. 12. The order challenge, which is not a reasoned order is to be set aside. Hence, the following order is passed: (i) The order under challenge is set aside. 12. The order challenge, which is not a reasoned order is to be set aside. Hence, the following order is passed: (i) The order under challenge is set aside. (ii) The Trial Court shall take the case on file and dispose of the same, in accordance with law. (iii) The parties shall appear before the Magistrate Court on receipt of notice to the respective counsel appearing for them in the Trial Court. This petition is allowed.