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2013 DIGILAW 289 (KER)

VINOD v. STATE OF KERALA

2013-03-25

K.HARILAL

body2013
ORDER : K. HARILAL, J. 1. The Revision Petitioner is the Accused in CC No. 192/2009 on the files of the judicial First Class Magistrate Court-III, Thiruvananthapuram. He is accused of the offer punishable under Sections 294(b) and 332 of the Indian Penal Code and final report has been filed for prosecuting him for the said offences. While so, the Assistant Public Prosecutor filed CMP No. 116/2011 u/s 321 of the Cr.P.C. seeking consent to withdraw", the prosecution of Revision Petitioner. The learned Magistrate refused to grant consent a rejected the petition by the impugned order. This order is under challenge in this Revision Petition. The Prosecution case against the Revision Petitioner is as follows. The Revision Petitioner is working as Selection Grade Assistant in Finance Department, Government Secretariat Thiruvananthapuram. On 26/02/2009 at about 5 PM, he showered abusive words towards CW 1, who is his colleague, working in the same Department, thereafter beat him on his left cheek and thereby committed the offences punishable under Sections 294(b) and 332 of the IPC. 2. While so, the Government have expressed their no objection to withdraw the case from prosecution with the leave of the Court vide letter No. 69271/L4/10/Home dated 15/11/2010. Subsequently the learned Asst. Public Prosecutor, who is in charge of the case, has filed Annexure-II petition before the Judicial First Class Magistrate Court-III, Thiruvananthapuram seeking consent to withdraw from the prosecution of the Revision Petitioner. In Annexure-II petition, the learned Assistant Public Prosecutor has stated four reasons to withdraw the case, which reads as follows: (a) lack of prospects of successful prosecution in the light of the available evidence. (b) Inexpediency of the prosecution for reasons of the State and public policy. (c) The adverse effects that the continuance of prosecution will bring on public interest in the light of the changed situation. (d) On going through the case records it is seen that the alleged incident has occurred due to some misunderstanding between accused and CW 1 during that time. There is no documentary evidence to show that CW 1 was on duty at the alleged time of occurrence. As per the wound certificate CW 1 has no external injuries. It is seen that both CW 1 & accused are working in the same office and a cordial relationship between them is necessary for the smooth functioning of the office. There is no documentary evidence to show that CW 1 was on duty at the alleged time of occurrence. As per the wound certificate CW 1 has no external injuries. It is seen that both CW 1 & accused are working in the same office and a cordial relationship between them is necessary for the smooth functioning of the office. The de facto complainant appeared and filed objections to the above petition. He strongly opposed the prayer to withdraw from the prosecution. After considering the rival contentions, the learned Magistrate refused to grant consent to withdraw from the prosecution on the finding that he is unable to find out that the learned Assistant Public Prosecutor has applied his mind to relevant materials independent of extraneous influences and decided to withdraw from the prosecution, in furtherance of public interest. 3. The learned counsel for the Revision Petitioner submits that the order passed by the Court below is illegal, improper and against the law. The Court below failed to appreciate the fact that the Doctor did not note any external injury. It is also relevant to note that the prosecution did not produce any document to adduce evidence u/s 332 Cr.P.C. to attract the alleged against the Revision Petitioner. In short, according to the learned counsel, the learned Magistrate failed to appreciate the reasons for withdrawing a case u/s 321, and erroneously determined the question whether the Assistant Public Prosecutor has applied his mind properly. The learned counsel cited a decision in State of Kerala Vs. Varkala Radhakrishnan and Others. 4. The learned Public prosecutor also supported the arguments of the Revision Petitioner. The learned Public Prosecutor also submits that the prosecution case is that both are employed in the same office. So it is desirable to withdraw from the prosecution, for the public interest. There is no material to attract the offence u/s 332 of the IPC. Therefore, the learned Assistant Public Prosecutor can be justified in seeking permission to withdraw from the prosecution in furtherance of public interest. 5. Per contra, the learned counsel appearing for CW 1, the victim of the said offence opposed the arguments advanced by the counsel for the Revision Petitioner. The learned counsel submits that the Prosecutor has not applied his mind independently or without extraneous consideration. 5. Per contra, the learned counsel appearing for CW 1, the victim of the said offence opposed the arguments advanced by the counsel for the Revision Petitioner. The learned counsel submits that the Prosecutor has not applied his mind independently or without extraneous consideration. The application to withdraw from the prosecution is filed under the influence of the Revision Petitioner for the sole purpose of protecting his personal interest only and not for public interest. 6. In this Revision, the question to be considered is whether there is any illegality or impropriety in refusing consent to withdraw from prosecution of the Revision Petitioner. Put it differently, the question is, whether the executive function of the Public Prosecutor in applying for, and supervisory function of the Court in granting Consent to, the withdrawal have been properly performed or not. Before coming to this question, let us see the law enunciated by judicial precedents on the point it is true that Section 321 does not provide any ground under which an application to withdraw from prosecution can be filed. The role of Public Prosecutor u/s 321 was considered at first in The State of Bihar Vs. Ram Naresh Pandey. The Supreme Court held that: 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 Vs. State (Chandigarh Administration) and Others, the Supreme Court held as follow: 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 Pubic Prosecutor. The Public Prosecutor cannot therefore withdraw from the prosecution unless the Court before which the prosecution is pending gives its consent for such withdraw. 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. Relying on the said decision, latter in Sheonandan Paswan Vs. State of Bihar and Others, Constitution Bench of the Supreme Court settled the nature and extent of Jurisdiction the Court u/s 321 of the Cr.P.C. 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 the 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 in good faith and that the Magistrate is satisfied that the exercise of discretion by the Prosecutor is proper. 9. In Rajender Kumar Jain and Others Vs. State Through Special Police Establishment and Others, the Supreme Court relying on the earlier decisions settled and enumerated the guidelines for the exercise of Jurisdiction u/s 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. (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 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 and Others Etc. Etc., 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 consent has necessarily to be upheld. 11. 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 consent has necessarily to be upheld. 11. 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 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. 12. 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. 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 u/s 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 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. 13. Let us consider the impugned order in the light of the legal position referred above, and well settled by the Judicial precedents. In the instant case, the main reason for withdrawal from prosecution are the sake of "public interest" and "paucity of evidence" Here, the allegation against the Revision Petitioner is that he physically attacked the 1st Respondent, while he was in discharge of his official duty as public servant. What is the nature of Public Interest involved in the withdrawal from prosecution? The averments in the application seeking consent for withdrawing from prosecution filed by the Asst. Public Prosecutor do not disclose the nature of Public Interest involved in this personal attack I allegedly occurred inside the four walls of a Public Office or the way in which it gives rise to a matter of public interest. None other than Revision Petitioner and 1st respondent are involved in the alleged commission of the offence. I am also unable to find out any element of Public Interest or Public Policy either in continuance of prosecution or withdrawal from prosecution of such a personal attack by one public servant on another while they were on duty. Where the Public Prosecutor fails to establish 'Public Interest' which makes withdrawal from prosecution inevitable, it could be reasonably presumed that the withdrawal is intended to save 'personal or private interest' only. 14. Where the Public Prosecutor fails to establish 'Public Interest' which makes withdrawal from prosecution inevitable, it could be reasonably presumed that the withdrawal is intended to save 'personal or private interest' only. 14. Interestingly, it is to be noticed that the first three grounds for withdrawal from prosecution, which are referred to as (a) to (c) under paragraph 3 herein are the verbatim adoption of the grounds for withdrawal raised in the case referred to in the decision in Sheonandan Paswan Vs. State of Bihar and Others. Coming to the facts of both cases, it is a surprising to note that the facts of that case are entirely distinct and different from the facts of the case on hand. That is a case, wherein a Former Chief Minister of Bihar was facing prosecution for the offence of corruption. While so, he was again elected and has become the Chief Minister. Then the Prosecutor had filed an application projecting his victory as indication of public interest, faith and confidence on him and so also change of circumstances for seeking consent to withdraw from prosecution. But here the allegation is only a physical personal attack by one on another. The non-application of mind over facts of the case grounds for withdrawal is evident from verbatim adoption of the grounds of a reported decision which is having no similarity with, instant case. 15. The nature of public interest, and the common circumstances in which the Government would be constrained to seek withdrawal of prosecution in furtherance of public interest are discussed in the decision in Rajender Kumar Jain and Others Vs. State Through Special Police Establishment and Others, the Supreme Court held that: Of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. For instance, communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which, might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution. Other instances also may be given. Labour disputes which, might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution. Other instances also may be given. The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, of order in a disorderly situation or harmony in a faction milieu, or halting a false and vexatious prosecution in a Court, persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the Public Prosecutor, not the District Magistrate or Minister. The concurrence of the Court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal. For the Court should not be misused to continue a case conclusively proved to be a counterfeit. This statement of the law is not exhaustive but is enough for the present purpose and indeed, is well grounded on precedents. In the past, we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. At last the Supreme Court, cautioned the Courts below as follows: So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. At last the Supreme Court, cautioned the Courts below as follows: So we insist that Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the Government and thereafter apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should he allow himself to become anyone's stooge. 16. Though not exhaustive, the above decision gives a probable account of the matter where public interest or Public Policy could be surfaced on the way of Criminal Prosecution, so as to compel the Govt. to seek consent of the Court to withdraw from prosecution. 17. In view of the above decision, I am of the opinion that the prosecution of the Revision Petitioner is in no way connected with 'Public Interest' or 'public policy' and the said reason is made, not in good faith. 18. Coming to the other ground the paucity of evidence, it is to be remembered that this is a case wherein final report has been just filed. Is it the right time to weigh evidence. I am afraid that, State, the master of litigation in Criminal cases, who is responsible and liable to collect and adduce evidence through the prosecuting agency himself is complaining of the paucity of evidence at an initial stage of prosecution. It is also surprising to note that the State who is in possession of the documents pertaining to an offence allegedly occurred in the seat of the State Government is complaining of the paucity of documentary evidence to prove an offence u/s 332 IPC, that the victim (CW 1) was on official duty. Whether the prosecution will end in conviction for all the offences charged against him or acquittal is not a relevant point to be considered meticulously, before trial as a ground for withdrawal of prosecution. Moreover, the remedy u/s 239 of the Cr.P.C. still remains open to the Revision Petitioner. Thus the 'paucity of evidence' is seen raised as a reason without bona fides. 19. Moreover, the remedy u/s 239 of the Cr.P.C. still remains open to the Revision Petitioner. Thus the 'paucity of evidence' is seen raised as a reason without bona fides. 19. The next question is, whether there is any change of circumstance or settlement which makes withdrawal from prosecution more desirable than proceeding with prosecution. The averment in the application that the incident occurred due to some misunderstanding between accused and victim (CW 1) and adverse effect will bring on public interest in the light of changed circumstance would stand falsified by the stiff opposition raised by the victim before the Magistrate Court and this Court. Therefore I find that the said reason was not made in good faith. Thus all the reasons stated for consent to withdraw from prosecution are absolutely irrelevant incompatible with prosecution case. The move for withdrawal from prosecution is not aimed at public interest. Consequently, the decision to move the Court for consent to withdraw from prosecution, taken by the Asst. Public Prosecutor on such reasons stands as one without bona fides. I find that the Asst. Public Prosecutor has not independently applied his mind in good faith, uninfluenced by irrelevant and extraneous consideration, at the request of the Government. I find that the learned Magistrate rightly refused to grant consent to withdraw from prosecution. There is no illegality or impropriety in the order under challenge. The Revision Petition is devoid of merits. In the result, this Revision Petition is dismissed.