DINESHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 Sec. 149 of the Indian Penal Code and Sec. 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. The allegation raised in the above case is that on 15.7.2000 at about 1.15 P.M., 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.

(2.) The learned counsel for the revision petitioners submits that 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 Public Prosecutor again pointed out the proposition laid down in the decision reported in Rajender Kumar Jain Vs. State through Spl. Police Establishment and Others (: 1980 KHC 715) 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 dt. 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.

(3.) 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 Vs. State of Bihar, 1987 AIR(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 Sec. 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.