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2022 DIGILAW 394 (KER)

POULOSE A. A. S/O AUGUSTINE v. STATE OF KERALA

2022-05-19

MARY JOSEPH

body2022
JUDGMENT : MARY JOSEPH, J. 1. This Original Petition is filed challenging a common order passed by the Judicial First Class Magistrate Court-III, Perumbavoor (for short the Court below) in C.M.P. Nos. 707/2020 and 708/2020 in C.M.P No. 628/2020 in C.C. No. 358/2019. C.M.P. No. 628/2020 is an application filed by the Assistant Public Prosecutor before the Court below under Section 321 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) seeking to withdraw from prosecution. C.M.P. Nos. 707/2020 and 708/2020 are applications filed seeking for permission to intervene in the proceedings proposed by the APP under Section 321 Cr.P.C. for withdrawing from prosecution. Said applications have been dismissed by the Court below on the basis of Section 55 of the Wild Life (Protection) Act, 1972 (for short ‘the Act’) which is contained in paragraph 7 of the impugned order. The court below has observed that the petitioner has no locus-standi to be heard in a petition seeking withdrawal from prosecution filed under Section 321 Cr.P.C. and accordingly dismissed the application. The above reasoning of the Court below is incorrect. The Apex Court has in Sheo Nandan Paswan vs. State of Bihar and Others, 1987 KHC 844, laid the dictum in paragraph 14 of the judgment which is extracted hereunder: “14........We do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiation of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated.” 2. The above dictum has been laid down by the Apex court based on its another judgment in A.R. Antulay vs. R.S. Nayak, 1984 (2) SCC 500 which reads thus: “Punishment of the offender in the interests of the society being one of the objects behind penal statute enacted for larger good of society, the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus-standi.” 3. In the case on hand, petitioners who had filed C.M.P. Nos. In the case on hand, petitioners who had filed C.M.P. Nos. 707 and 708 of 2020 are members of the society and they have got a right to see that the prosecution launched for an offence affecting the society is withdrawn by the prosecution based on a valid reason. The offence involved in the case is relating to wild life. Therefore public interest cannot be said to have been not involved and members of the society cannot be denied with opportunity to intervene in the proceedings initiated for withdrawal of prosecution. The court below has gone wrong in dismissing the applications filed by the petitioners and the impugned order is only to be set aside. 4. In the result, petition is allowed. The impugned order is set aside. C.M.P. Nos. 707/2020 and 708/2020 filed by the petitioners in C.M.P. No. 628/2020 in C.C. No. 358/2019 pending on the files of the court below is allowed and the petitioners are permitted to participate in the proceedings proposed to be initiated in C.M.P. No. 628/2020. The court below shall proceed with the proceedings in C.M.P. No. 628/2020 with the participation of the petitioners and pass appropriate orders within a period of three weeks from this day.