VINOD Vs. STATE OF KERALA

JUDGEMENT

(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 under Section 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:

(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 under Section 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 under Section 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 v. Varkala Radhakrishnan, MP and Others, 2009 1 ILR(Ker) 721