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2013 DIGILAW 481 (KER)

Dineshan v. State of Kerala

2013-06-13

K.HARILAL

body2013
ORDER : K.Harilal, J. The revision petitioners, along with 13 others, are the accused in C.C.No.771/09 on the files of the Judicial First Class Magistrate's Court-IV, Kozhikode. Now they are being prosecuted for the offences punishable under Sections 143, 144, 145, 147, 148, 151, 152, 332, 353 read with section .149 of the Indian Penal Code and section 3(2)(e) of the Prevention of Damages to Public Properties Act, 1982 (for short 'the PDPP Act'). While so, the learned Assistant Public Prosecutor has filed an application under Section 321 of the Code of Criminal Procedure seeking permission to withdraw from prosecution. The learned Magistrate, after considering the reasons stated in the application, dismissed the said application. The order passed by the learned Magistrate is under challenge in this Revision Petition. 2. The allegation raised in the above case is that on 15.7.2000 at about 1.15 PM., after the Collectorate march organised by the United Democratic Front (UDF) was over, the accused, who had participated in the march, formed themselves into an unlawful assembly, committed rioting armed with weapons like sticks, reapers and stones and caused disturbance to the public peace, voluntarily caused hurt to policemen and thus deterred them from doing their official duty as public servants. It is further alleged that they had pelted stones to a police Jeep bearing Registration No.KED 2793 and caused damages to the public property. 3. The learned counsel for the revision petitioners submits that the the learned Magistrate cannot be justified in considering the allegations in the case on merits and dismissing the petition. The learned Magistrate erroneously found that there is no sufficient averment in the application to indicate that there was application of mind on the part of the Prosecutor and there was no material to indicate that withdrawal from prosecution will save public interest. The learned counsel drew my attention to the third paragraph of the application filed by the learned Public Prosecutor and pointed out that the averments in the said paragraph is more than sufficient to maintain such an application, in view of the Supreme Court decisions. The learned counsel drew my attention to the third paragraph of the application filed by the learned Public Prosecutor and pointed out that the averments in the said paragraph is more than sufficient to maintain such an application, in view of the Supreme Court decisions. The learned Public Prosecutor again pointed out the proposition laid down in the decision reported in Rajender Kumar Jain v. State through Spl Police Establishment and Others ( AIR 1980 SC 1510 ), and argued that Public Prosecutor may withdraw from prosecution not merely on the ground of paucity of evidence; but on other level of grounds as well in order to further the broad ends of public justice, public order and peace. So also, the broad ends of public justice will certainly include appropriate social, economic and political purposes sans Tammany Hall enterprises. The learned counsel again points out that the Public Prosecutor has power to withdraw from prosecution arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc. Therefore, in view of the decision laid down by the Supreme Court, the impugned order cannot be sustained. The learned Public Prosecutor also submitted the arguments advanced by the learned counsel for the revision petitioners and he placed reliance on the decision laid down by the Delhi High Court. Going by the impugned order, it could be seen that the application was moved pursuant to a decision taken by the Government as per letter No.80583/L3/11/Home dated 3.3.2012 and by that letter, the Government had informed that the Government had no objection to withdraw the case with the leave of the Court. The District Collector, who received the same, had informed the Public Prosecutor by a letter about this fact. Apparently, it could be found that the said application was filed on the basis of the letter sent by the Government. 4. I have bestowed my anxious consideration to the arguments advanced by the learned counsel appearing for the revision petitioners and the learned Public Prosecutor. In this Revision Petition, the only question to be considered is whether there is any illegality or impropriety in refusing consent for withdrawing from prosecution of the revision petitioners. 4. I have bestowed my anxious consideration to the arguments advanced by the learned counsel appearing for the revision petitioners and the learned Public Prosecutor. In this Revision Petition, the only question to be considered is whether there is any illegality or impropriety in refusing consent for withdrawing from prosecution of the revision petitioners. Put it differently, in view of the legal position well settled by the Constitution Bench of the Apex Court, in Sheo Nandan Paswan v. State of Bihar ( AIR 1987 SC 877 ), the question is whether the Public Prosecutor has applied his mind in good faith uninfluenced by any extraneous consideration. The said question can be considered in a different view also as to whether the executive function of the Public Prosecutor in applying for, and supervisory function of the court in granting consent to, withdrawal have been properly performed or not. Though section 321 of the Cr.P.C. does not provide any guidelines or grounds under which application to withdraw from prosecution can be considered, the role of the Public Prosecutor and the court have been considered at times by the Apex Court as well as this Court and stand well settled. 5. The role of Public Prosecutor: What is the role of the Public Prosecutor in the matter of withdrawal from prosecution? The role of the Public Prosecutor in seeking consent of the court for withdrawal from prosecution was firstly considered in State of Bihar v. Ram Naresh Pandey, (1957 KLT SN 23(C.No. 56)SC :( AIR 1957 SC 389 ), In this decision the Court held 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 hiss function. In Rajender Kumar v. State ( AIR 1980 SC 1510 ), the Supreme Court held that the withdrawal from prosecution is an executive function of the Public Prosecutor. The discretion to withdrawn from prosecution is that of the Public Prosecutor and none else and so he cannot surrender that discretion to some one else. The Public Prosecutor must apply his mind as free agent, uninfluenced by irrelevant and extraneous consideration. The discretion to withdrawn from prosecution is that of the Public Prosecutor and none else and so he cannot surrender that discretion to some one else. The Public Prosecutor must apply his mind as free agent, uninfluenced by irrelevant and extraneous consideration. In Balwant Singh v. State of Bihar, (1977 KLT SN 27(C.No. 69) SC : (AIR 1977 Supreme Court 2265), the Supreme Court held that the statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may above him on administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to the Code of Criminal Procedure only. So guided, the consideration which must weigh with him is whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of prosecution. In State of Kerala v. Bvalakrishna Pillai ( 1993(1) KLT 473 ), this Court held that the Public Prosecutor exercises a power in the nature of a prerogative. In Criminal Law, the State and its instrumentalities enjoy prerogatives, akin to crown prerogatives in England. The power exercised by the Public Prosecutor under section .321 of the Code of Criminal Procedure is in the nature of such a prerogative. The State may advise him in this regard, but he must exercise his mind independently, and he ought not to act under dictation. If he acts honestly, his act cannot be questioned. 6. The Role of the Court: What is the nature and extent of jurisdiction of the Court on an application under section 321 of the Cr.P.C.? In Sheo Nandan Paswan v. State of Bihar ( AIR 1987 SC 877 ), the Constitution Bench of the Supreme Court well described the role of court on an application under section 321 of the Cr.P.C. and held that when an application under Section 321 Cr.P.C. is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. 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. 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. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 of the Cr.P.C. is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. 7. In State of Bihar v. Ram Naresh Pandey, (1957 KLT SN 23(C.No. 56)SC : ( AIR 1957 SC 389 ), the Supreme Court held that the Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 of the Cr.P.C. requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue. Section 494 of the Cr.P.C. requiring the consent of the Court for withdrawal by the Public Prosecutor is more in line with this scheme than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results therefrom need not always conform to the standard of 'no prima facie case' under sections 209 (1) and 253 (1) or of 'groundlessness' under sections . 209(2) and 253 (2) Cr.P.C. This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made. 8. In the decision in M.N. Sankaranarayanan Nair v. P. V. Balakrishnan and others ( AIR 1972 SC 496 ), the above principle was reiterated like this: Though the section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. 9. In State of Bihar v. Ram Naresh Pandey, (1957 KLT SN 23(C.N. 56) SC :( AIR 1957 SC 389 ), 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. 10. 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. 10. In the decision in Subhash Chander v. The State, (1980) 2 SCR 44 : ( AIR 1980 SC 423 ), the Supreme Court held that 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 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. 11. In Rajender Kumar v. State ( AIR 1980 SC 1510 ), the Supreme Court enumerated the guidelines for the exercise of jurisdiction under section .321 of the Cr.P.C. In that decision the Supreme Court held that 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. 12. In the decision in Abdul Karim v. State of Karnataka, (2001(1) KLT SN 7(C.No. 8) SC :(2000(8) SC 710), the Supreme Court held that 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 materials before him, the court must exercise its judicial discretion by considering such materials and, on such consideration, must either give consent or decline consent. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the materials before him, the court must exercise its judicial discretion by considering such materials 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. Though the roles of Public Prosecutor and court were focused from various angles, the principle enunciated in the above said decisions is the same and 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. In short, it must be satisfied that withdrawal will serve public interest and withdrawal must be that the withdrawal can be sought only for furthering the cause of public justice. 13. Resolution: Keeping in mind the above principle, let us examine the question in the instant case whether the Public Prosecutor has applied his mind in good faith, uninfluenced by extraneous consideration in taking the decision to move the court seeking permission to withdraw from prosecution consequent on the receipt of instruction to that effect from the Government. Firstly, look at the sole reason stated by the Public Prosecutor for withdrawing from prosecution. "The said incident occurred during a political agitation. Firstly, look at the sole reason stated by the Public Prosecutor for withdrawing from prosecution. "The said incident occurred during a political agitation. I am of the view that it is not necessary to continue the prosecution of the accused in the above matter in the interest of promoting peace and harmony". 14. Coming to the facts of the case the allegation is that the accused more than five in numbers formed themselves into an unlawful assembly and in prosecution of the common object of that assembly committed rioting, being armed with deadly weapons and caused disturbance to the public peace, voluntarily caused hurt to policemen and deterred them from during their official duty as public servants, pelted stones to police jeep and caused damages to the public property. Thus, they have committed the offences punishable under Sections 143, 144, 145, 147, 148, 151, 332 and 353 read with section .149 of the Indian Penal Code and section 3(2)(e) of the Prevention of Damages to Public Properties Act. In short, the attack is against the public peace, public property and the public servants acting in discharge of public duty. So indeed, the aggrieved victims are the general public as well as the public servants, as the act committed is a public wrong. 15. It is a matter of common knowledge as well as a reasonable presumption that the commission of any offence causing mischief or damages to the public property under the PDPP Act or by attacking public servants while acting in discharge of their public duty is against the public interest and public peace. Necessarily, it follows that the withdrawal from prosecution of such offences is also against public interest and public peace and consent for withdrawing prosecution of such offences cannot be granted. How the continuance of prosecution of the offences causing damages to the public property under the PDPP Act or the offences attacking public servants on public duty would adversely affect the public interest or public peace or how the withdrawal of such prosecution would promote public interest or public peace? How the continuance of prosecution of the offences causing damages to the public property under the PDPP Act or the offences attacking public servants on public duty would adversely affect the public interest or public peace or how the withdrawal of such prosecution would promote public interest or public peace? I am also unable to accept the contention that withdrawal of prosecution of offences causing damages to public property under the PDPP Act and attacking the public servants while acting in discharge of their duty is for 'public interest' or 'public justice', the essential causes for which consent to withdraw from prosecution can be granted, in view of the principle laid down by the Apex Court in the decisions referred above. So, the withdrawal of such prosecutions under the guise of public interest, public policy or public justice is also impermissible. I remind myself that all the decisions referred above would say that Public Prosecutor may withdraw from prosecution of the accused in order to further broad ends of public interest, public order and peace. 16. If there is any other reason overruling the above said common knowledge and presumption involved in the withdrawal of such prosecution, it is for the Public Prosecutor to satisfy the court with sufficient reasons overruling the public interest or public justice. Unless the court is fully satisfied with such reasons overruling the common knowledge and presumption as stated above, the court is not inclined to grant consent to withdraw from prosecution of the accused who have allegedly committed the offences under the PDPP Act or offences attacking servants on duty in view of the decisions referred above. 17. At this juncture, this Court notices the fact that a large number of revision petitions arose from orders refusing consent to withdraw from prosecution of the accused who have allegedly committed the offences under the PDPP Act are pending before this Court. I am afraid of the situation wherein the Public Prosecutors are indiscriminately moving the court seeking permission for withdrawing from prosecution to such offences under a preventive legislation to protect public property. The object of the PDPP Act says that "it is an Act to provide for prevention of damages to public property and for the matters connected with it". I hasten to alert the inferior courts reminding the recurring mandate given by the Supreme Court in various decisions. The object of the PDPP Act says that "it is an Act to provide for prevention of damages to public property and for the matters connected with it". I hasten to alert the inferior courts reminding the recurring mandate given by the Supreme Court in various decisions. In State of Bihar v. Ram Nant Pandey, (1957 KLT SN 23(C.No.56) SC : ( AIR 1957 SC 389 ), the Apex Court held that "the Court has to satisfy itself that executive function of the Public Prosecutor has not been improperly exercised or that is not an attempt to interfere with the normal course of justice for illegitimate reason or purpose". In Subhash Chander v. State ( AIR 1980 SC 423 ), the Apex Court held that this is a provision calculated to ensure non-arbitrariness on the part of the Public Prosecutor and compliance with equality clause of the Constitution. In Rejenderkumar v. State ( AIR 1980 SC 1510 ), the Apex Court cautioned the inferior court thus: 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 withdraw from the prosecution. In Abdul Karim v. State of Karnataka, (2001(1) KLT SN 7(C.No.8) :(2000(8) SC 710), "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". 18. Another reason for withdrawing from prosecution is that the offences allegedly committed during political agitation. In common parlance, no person would dare for causing mischief or damage to public property in protest of his personal grievance however graver, it may be. Obviously, such incidents causing damages to public property would occur in political agitations or any kind of collective bargaining of a group of people. The aim and object implied in the legislation of Prevention of Damages to Public Properties Act itself is to prevent offences causing damages or mischief to public property during the course of political agitations or collective bargaining of a group of people. The aim and object implied in the legislation of Prevention of Damages to Public Properties Act itself is to prevent offences causing damages or mischief to public property during the course of political agitations or collective bargaining of a group of people. Therefore, I am of the opinion that consent for withdrawal of prosecution of the accused who is alleged to have committed the offences under the Prevention of Damages to Public Properties Act cannot be granted on the reason that such offences committed during the course of political agitations or collective bargaining of a group of people. Moreover, neither the Penal Code nor the PDPP Act nor any other Penal Statute gives exceptions to any act which constitutes an offence, if it is done during political agitations. In short, the offences committed during political agitations is not exempted from prosecution. Consequently, I reject the above contention also. 19. Before parting with this judgment, I may remind the State, the complainant in all complaints on police report from whom usually the move to withdraw the prosecution of offences under the PDPP originates, the dictum laid down by the Supreme Court in the decision in Subhash Chander v. The State, (1980) 2 SCR 44 : ( AIR 1980 SC 423 ), which reads 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". 20. In the instant case, nothing stated as to how the continuance of prosecution of the offences causing damages to public property under the PDPP Act would adversely affect public interest or public justice or how the withdrawl of such cases would promote public justice or public interest. So, I am inclined to hold the presumption that the withdrawal of prosecution of the accused who have committed the offences under the PDPP Act is against public interest and public peace and the application is filed without good faith and also under external influence. 21. So, I am inclined to hold the presumption that the withdrawal of prosecution of the accused who have committed the offences under the PDPP Act is against public interest and public peace and the application is filed without good faith and also under external influence. 21. In the result of the discussions in the light of the decisions referred above, I find that there is no illegality or impropriety in the impugned order refusing to grant consent to withdraw from prosecution of the revision petitioners and others. Consequently, this revision petition is dismissed.