MAMOO Vs. A P P MALAPPURAM AND OTHBRS

JUDGEMENT

(1.) THE revision is against the rejection by the court below of an application filed by the Assistant Public Prosecutor under S. 321 of the Code of Criminal Procedure, 1973, hereinafter referred to as the Code, for withdrawal from prosecution of the petitioners-accused; and the miscellaneous petition is one under S. 482 of the Code for the quashing of the proceedings in a case pending against the petitioners therein in that court. As it is averred by the petitioners in the miscellaneous petition that the case giving rise to the petition is foisted against them by the petitioners in the Criminal revision Petition on account of the fact that they are assisting the 2nd respondent therein, the revision petition and the miscellaneous petition were heard together and are being disposed of by this common order.

(2.) WE will take up the revision in the first instance. The facts briefly stated are as follows:- Crime No. 63/ 78 of the Malappuram police Station was registered on the basis of the information (complaint) given by the second respondent, in the revision, a Harijan agricultural labourer, on 20-1-1978 stating inter alia that the petitioners formed themselves into an unlawful assembly at about 5 O'clock in the evening that day, attacked him at ponmala, and in furtherance of their common object they inflicted injuries on his person by beating him with hands and also with sticks, and the 3rd petitioner (3rd accused) Mullappally Alikutty stabbing him with a knife and thereby causing incised wound on his forehead. After investigation the Sub inspector of Police, Malappuram, laid charge sheet before the court against all the accused (petitioners) under S. 143, 341, 323 and 324 read with S. 149 of the indian Penal Code; after hearing both sides, the Magistrate took the case on his file on 23-3-1978 as C. C. No. 126 of 1978; on 27-3-1978 all the accused surrendered themselves before the court and they were enlarged on bail; and after ensuring that copies of the relevant records were furnished to the accused (petitioners), the case was posted to 11-5-1978 for framing charges. In the meanwhile, on 19-4-1978, the Superintendent of Police, Malappuram, informed the Magistrate that he proposed to have further investigation of the case conducted by another officer, since the investigation already made by the Sub inspector of Police, Malappuram, was one-sided and perfunctory; he therefore, requested the court that 'further proceedings in the case might be stopped in the interest of justice'. The case was thereafter adjourned from time to time awaiting the report of further investigation. At last, on 13-11-1978, with a lost hope of the report, the Magistrate framed charge under S. 143, 341, 323 and 324 read with S. 149 of the Indian Penal Code against the accused (petitioners)and read out and explained it in Malayalam. All the accused pleaded not guilty to the charge and demanded trial.

(3.) THE counsel for the petitioners submitted that the magistrate has exceeded his jurisdiction in attempting to find out whether there was ground for withdrawal in as much as no judicial decision on that aspect of the matter was called for when the Public Prosecutor in charge of the case submitted the report for withdrawal of the case. Reliance was placed on the decision of the Supreme Court in State of Bihar v. Ram Nasesh Pandey and others (AIR. 1957 SC. 389) wherein, speaking for the Bench, Jagannadhadas J. observed in Para. 5 as follows: "if this argument means anything it must mean that in such a situation the Court before granting consent must hold a kind of preliminary inquiry into the relevant evidence in much the same way as, for instance, when a Magistrate acting under S. 202, Criminal P. C. , may direct or it must mean that no consent can at all be given on such a ground and that the court must proceed with the prosecution, and either discharge or acquit under one or other of the other sections in the Code enabling thereunto. It appears to us that this would be engrafting on the wide terms of S. 494 Criminal P. C. an exception or a proviso limited to such a case. In our opinion, this would not be a permissible construction of the section. We are, therefore, unable, with great respect, to subscribe to the view taken by the learned Chief Justice whose judgment is under appeal, that where the application is on the ground of inadequacy of evidence requiring judicial consideration, it would be manifestly improper for the Court to consent to withdrawal before recording the evidence and taking it into consideration. "' It may, however, be noted that in the very same decision it has been laid down (in Para. 3): "this is not to say that a consent is to be lightly given on the application of the Public Prosecutor, with out a careful and proper scrutiny of the grounds on which the application for consent is made. "