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2024 DIGILAW 687 (KER)

Binoy, S/o. Sunny v. State Of Kerala

2024-06-20

BECHU KURIAN THOMAS

body2024
ORDER : Three accused who face indictment for obstructing the official duty of policemen felt relieved when the Assistant Public Prosecutor filed an application to withdraw the prosecution. However, their relief was short lived as the Court refused to grant sanction. Petitioners are those three accused who have approached this Court under Section 482 Cr.P.C challenging the order refusing to grant consent for withdrawal. 2. Petitioners are the accused in C.C.No.537/2018 on the files of the Judicial First Class Magistrate Court-I, Punalur, alleging commission of offences punishable under Sections 323, 353, and 332 r/w Section 34 of the Indian Penal Code, 1860 apart from Section 117(e) of the Kerala Police Act, 2011. While the case was pending before the trial court, the Assistant Public Prosecutor sought permission to withdraw the prosecution as contemplated under Section 321 of Cr.P.C. By the impugned order in C.M.P.No.459/2021, the learned Magistrate dismissed the said application. The prosecution did not challenge the said order but the three accused have challenged the said order. 3. The prosecution alleges that on 29.08.2017, the accused obstructed the official duty of CW1 to CW3, who were policemen on duty, by catching hold of CW1's uniform and fisting him on his back. The accused also pushed down CW2, and thereby committed the offences alleged. 4. I have heard Sri. Biju Antony Aloor, the learned counsel for petitioners, and Sri. Ashi M.C., the learned Public Prosecutor. 5. Section 321 Cr.P.C., which provides for a premature termination of a criminal proceeding stipulates that the Public Prosecutor or the Assistant Public Prosecutor as the case may be, can withdraw from the prosecution of any person. In doing so, the consent of the Court is necessary. A reading of the said provision indicates two main ingredients for withdrawing from the prosecution: (i) that the application must be moved by the prosecutor, and (ii) that the consent of the court must be obtained. In the instant case, though the application was filed before the trial court by the prosecutor, the court refused to grant consent for specific reasons mentioned in the impugned order. 6. In the decision in State of Kerala v. K. Ajith and Others ( AIR 2021 SC 3954 ), the Supreme Court had culled out the broad principles that govern the grant or refusal of consent to terminate a prosecution. It was observed as follows: “23. 6. In the decision in State of Kerala v. K. Ajith and Others ( AIR 2021 SC 3954 ), the Supreme Court had culled out the broad principles that govern the grant or refusal of consent to terminate a prosecution. It was observed as follows: “23. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under S.321 of the CrPC can now be formulated: (i) S.321 entrusts the decision to withdraw from a prosecution to the Public Prosecutor but the consent of the Court is required for a withdrawal of the prosecution; (ii) The Public Prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice; (iii) The Public Prosecutor must formulate an independent opinion before seeking the consent of the Court to withdraw from the prosecution; (iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons; (v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that: (a) The 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; (b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law (c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given; (d) The grant of consent sub-serves the administration of justice; and (e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the Public Prosecutor is duty bound to maintain; (vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and (vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Art.136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well -settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the Trial Judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.” 7. After noticing that the accused are alleged to have obstructed the official duties of three policemen and even attacked them while they were in their uniform with one of the accused tearing the uniform of CW1, the trial court refused to grant consent having regard to the interest of public justice. The policemen, while discharging their official duties, have a burden to maintain law and order. No member of the public can take law into their own hands and obstruct the policemen from performing their duties. If such instances recur, there will be chaos in the society leading to anarchy. Therefore, the reasoning given by the learned Magistrate that there is an element of public interest in continuing the prosecution cannot be said to be perverse warranting any interference. If such instances recur, there will be chaos in the society leading to anarchy. Therefore, the reasoning given by the learned Magistrate that there is an element of public interest in continuing the prosecution cannot be said to be perverse warranting any interference. Continuance of the prosecution advances the cause of public justice and granting consent would stifle and thwart the process of law. 8. Apart from the above, of the two requirements of Section 321 Cr.P.C mentioned earlier, the first one is that the application must be filed by the Public Prosecutor or the Assistant Public Prosecutor. The said decision to withdraw from prosecution must of necessity continue throughout until the culmination of the proceedings. If the Prosecutor backtracks from such a decision, the application for withdrawal will lose its validity. The decision to withdraw from prosecution must also continue, to enable any challenge against an order refusing consent. If the prosecutor does not challenge an order refusing consent to withdraw, it is indicative of his decision not to pursue the withdrawal. Thereafter, it is not open for an accused to challenge the order by refusing consent to withdraw. 9. In the instant case, after the trial court dismissed the application filed by the Assistant Public Prosecutor, the State did not challenge the said order. Failure to challenge the order refusing consent to withdraw is indicative of the fact that the State and the Prosecutor are not interested in withdrawing from the prosecution any further and have accepted the order of refusal of consent. When the State has backtracked its decision to withdraw from the prosecution, it is not open for the accused to challenge the order refusing to grant consent to withdraw from the prosecution. On that score, this petition under Section 482 Cr.P.C. is not even maintainable. In the above circumstances, there is no merit in this petition and it is dismissed.