M. KANNAPPAN Vs. STATE

JUDGEMENT

(1.) PETITIONER is P.W.1 in Sessions Case No. 113 of 1985 on the file of the Principal Assistant Sessions Judge, Coimbatore, and he challenges in this revision an order of the learned Sessions Judge dated 10.12.1997 passed on a petition filed by the first respondent under Section 321 Cr.P.C. seeking permission of the court to withdraw the case filed against respondents 2 to 28 in this revision.

(2.) THE prosecution came to be initiated against respondents 2 to 28 by way of a police report filed under Section 173 Cr.P.C. by the first respondent with an allegation that at about 8.00 p.m. on 12.8.1982, respondents 2 to 28 formed themselves into an unlawful assembly with a common object of committing trespass, mischief and setting fire to a theatre belonging to the son -in -law of the petitioner and in pursuance of the said unlawful assembly, all the respondents committed offences punishable under Sections 148, 450, 436, 436 r/w 149 and 427 IPC. The case was taken on file and committed to the Sessions Court in P.R.C. No. 10/1988 and thereafter, charges were framed by the learned Sessions Judge against respondents 2 to 28 for the offences punishable under Sections 148, 450, 436, 436 r/w 149 and 427 IPC. Later, a charge under Section 307 IPC was also framed on a petition filed by the Public Prosecutor.

(3.) LEARNED Counsel for the petitioner challenges the order inter alia, contending that the Additional Public Prosecutor when filed the petition under Section 321 Cr.P.C. for withdrawal of the case, did not apply his mind, but simply followed the direction issued by the Government in the G.O. referred to above and the word "satisfied" used by him in the petition does not show that he was actually satisfied that the case had to be withdrawn. It is the submission of the learned Counsel that if the Additional Public Prosecutor was really satisfied about the grounds on which the case has to be withdrawn, he would not have filed a petition earlier praying the court to frame an additional charge under Section 307 IPC and the very fact that the Additional Public Prosecutor at an earlier stage requested the court to frame a charge, on the materials, under Section 307 IPC indicates that the Additional Public Prosecutor applied his mind on the materials collected by the investigating agency and thought that a charge under Section 307 is also made out which the learned Sessions Judge has failed to notice, and requested the court to frame a charge and this request was also acceded to by the trial court which framed a charge under Section 307 IPC. It is the further contention of the learned Counsel that the learned Sessions Judge cannot simply act upon the petition and should independently go into the averments made in the petition and satisfy himself whether the case had to be permitted to be withdrawn in the interest of justice and in the absence of any satisfaction on the part of the court, which could be seen only on reasons recorded by it, the court cannot simply permit the prosecution to withdraw the case.