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Pichan Cheerath Mamoo and ors. Vs. A.P.P. Malappuram and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1980CriLJ901
AppellantPichan Cheerath Mamoo and ors.
RespondentA.P.P. Malappuram and ors.
Cases ReferredM.N. Sankaranarayanan Nair v. P.V. Balakrishnan
Excerpt:
.....vindication of the law which the executive organs are in duty bound to further and maintain. the public prosecutors will do well to bear in mind that to allow the continuation of the prosecution to reach its normal end is the rule and withdrawal is an exception to that rule which could be resorted to very sparingly, lest the confidence of the public in the efficacy of the administration of justice be shaken. he has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or..........charge and demanded trial.3. on 24-1-1979, nearly 13 months after the occurrence, the assistant public prosecutor submitted a report stating inter alia that on going through the case diary and connected records available in the case, he was of the opinion that it was a fit case in which permission was to be sought to withdraw the accused from prosecution; the withdrawal of the case would satisfy the object of law, and it would not in any way tend to further the mischief the law sought to prevent; it would not also be conducive to the interest of justice to continue the prosecution against the accused since the prosecution with remote possibility of their conviction would rouse bitterness and antagonism between the parties; and on the ground of inexpediency of continuing prosecution.....
Judgment:
ORDER

K. Bhaskaran, J.

1. The revision is against the rejection by the court below of an application filed by the Assistant Public Prosecutor under Section 321 Cr.P.C. 1973, hereinafter referred to as the Code, for withdrawal from prosecution of the petitioners-accused; and the miscellaneous petition is one under Section 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 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 aboue 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 Sections 143, 341, 323 and 324 read with Section 149 of the I.P.C. 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 Sections 143, 341, 323 and 324 read with Section 149 of the I.P.C. 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. On 24-1-1979, nearly 13 months after the occurrence, the Assistant Public Prosecutor submitted a report stating inter alia that on going through the case diary and connected records available in the case, he was of the opinion that it was a fit case in which permission was to be sought to withdraw the accused from prosecution; the withdrawal of the case would satisfy the object of law, and it would not in any way tend to further the mischief the law sought to prevent; it would not also be conducive to the interest of justice to continue the prosecution against the accused since the prosecution with remote possibility of their conviction would rouse bitterness and antagonism between the parties; and on the ground of inexpediency of continuing prosecution for reasons of State and public policy, it was only just and fair that the court exercised its discretion in favour of the withdrawal of the accused from prosecution. The Magistrate issued notice to the 2nd respondent herein, who was the de-facto complainant. In his objections the second respondent stated inter alia that the consent for the withdrawal from prosecution of the petitioners sought was without bona fides; no ground was made out for the withdrawal; inasmuch as the parties had no complaint about the fairness of the investigation made by the Sub-Inspector of Police, it was not known why and at whose instance the Superintendent of Police perused the file and wanted a reinvestigation; 'the reinvestigation and application to withdraw the case are actions amounting to naked interference in the administration of justice by the executive which is being influenced by the powerful and arrogant accused; granting permission to withdraw the case, of course, would be an encouragement to the accused to commit severe offence against the poor complainant';

justice can be got only by a trial before the court... if the accused are innocent they can prove it before the Court; judicial consideration of the case would not cause any harm to anyone.

4. The Magistrate after having considered all aspects of the matter came to the conclusion that grounds were not made out for granting the consent, sought.

5. The counsel for the petitioners submitted that the Magistrate has exceeded his jurisdiction in attempting to find out whether there was ground for withdrawal inasmuch 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 Naresh Pandey : 1957CriLJ567 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 Section 202, Cr.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 Section 494 Cr.P.C. an exception or a proviso limited to such a case. In our opinioa, this would not be a permissible construction of the section. We are, therefore, unable, with great respect, to sub-scribe 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, without a careful and proper scrutiny of the grounds on which the application for consent is made.

6. The question that falls for decision is whether the order of the court below in exercise of its discretion declining consent to the Assistant Public Prosecutor to withdraw from prosecution of the accused, is liable to be disturbed by this Court in revision. The law as to when consent to withdrawal of prosecution should be accorded under Section 321 of the Code, which in essential features corresponds to Section 404 of the Code of 1898, is by now well-settled as a result of several decisions of the Supreme Court and this Court. The decisions of the Supreme Court in State of Bihar v. Ram Naresh Pandey : 1957CriLJ567 , in M.N. Sankaranarayanan Nair v. P.V. Balakrishnan : 1972CriLJ301 , in State of Orissa v. Chandrika Mohanatra 1977 Cri LJ 773 (SC) and Balwant Singh v. State of Bihar : 1977CriLJ1935 and a Full Bench of this Court in Accountant General, Kerala v. State of Kerala : AIR1970Ker158 provide sufficient guidelines for the courts for dealing with applications under Section 321 of the Code. The power contained in the section gives a general executive direction to withdraw from prosecution subject to the consent of the court which may be determined on many possible grounds. A reading of the section would show that it is the Public Prosecutor who is in charge of the case that must ask for permission of the court to withdraw from prosecution of any person, either generally or in respect of one or more of the offences for which he is tried. The section does not, however, indicate the reason which should weigh with the Public Prosecutor to move the Court for permission, nor the grounds on which the Court shall grant or refuse the permission. There could, all the same, be no doubt that though the section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution, the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that sub-sequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. The court has a duty to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice. The Public Prosecutor has to exercise the wide and general powers under the section in furtherance of justice, rather then as a hindrance to the object of law, and the exercise of such power should be justified on the materials in the case which sub-stantiate the grounds alleged, not necessarily that gathered by the judicial method, but on the materials which may not be strictly legal or admissible in evidence. The court also is not supposed to act mechanically in the sense that permission would automatically follow when an application under the section is made by the Public Prosecutor. The consent ought not to be granted unless the court is satisfied on the materials placed before it that the grant of it would sub-serve administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain. The Public Prosecutors will do well to bear in mind that to allow the continuation of the prosecution to reach its normal end is the rule and withdrawal is an exception to that rule which could be resorted to very sparingly, lest the confidence of the public in the efficacy of the administration of justice be shaken. As Krishna Iyer, J. would put it-

For justice ordinarily demands that every case must reach its destination, not interrupted en route...' (Balwant Singh's case : 1977CriLJ1935 ).

It has been pointed out that if some policy consideration bearing on the administration of justice justifies the Withdrawal, the court may accord permission; not if no public policy bearing on the administration of justice is involved. Instances of cases where permission could be granted are given as illustrations in that case:

For instance, communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution.

In State of Orissa v. Chandrika Mohapatra 1977 Cri LJ 773 (SC) in para 6, at page 776, Bhagwati, J. has observed as follows:

It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touch-stone on which the question must be determined whether the prosecution should be allowed to be withdrawn.

The example of a case where permission for withdrawal ought not to be given is contained in para 9 of the judgment of Jaganmohan Reddy, J. in M.N. Sankaranarayanan Nair v. P.V. Balakrishnan : 1972CriLJ301 :

What then are the circumstances in which the permission has been sought in this case and the considerations that weighed with the Courts in granting that permission. The Public Prosecutor as we have seen thought that the matter was of a civil nature, that the subject matter of the case before the Magistrate had been decided in a civil suit, that witnesses are from far off places and their evidence will incur huge expenses for the State; that the case was registered as early as 1968 and the trial has not yet begun. It is clear that prima facie none of these grounds or even the cumulative effect of all these grounds would justify the withdrawal from the prosecution. It may be that the acts of the Respondent may make them both liable under the civil law as well as under the criminal law but it does not justify either the seeking of the pemission to withdraw from the prosecution or granting of it unless the matter before the Criminal Court is of a purely civil nature.

It has to be remembered that this was a case where the decision of the High Court upholding the order of the Sessions Court granting permission to withdraw was reversed by the Supreme Court.

7. Tested in the light of the norms mentioned above, I find no ground to interfere with the order under challenge. The court below has considered the question whether the Assistant Public Prosecutor has made out a case for the withdrawal; and has given good reasons for withholding its consent. Except for the vague statement that it was a fit case an which permission to withdraw the accused from prosecution was to be granted the Assistant Public Prosecutor did not give any basis for his opinion, either factual or legal. The 2nd respondent expressed his apprehension that the granting of permission to withdraw the case from prosecution would amount to an encouragement to the accused to commit severe offences against the complainant who is a Harijan agricultural labourer. Most of the accused are stated to be rich and powerful and are accused in two or more criminal cases. The Assistant Public Prosecutor has not stated how public justice would suffer or the prosecution prove to be inexpedient. There appears to be something deeper then what was apparent in the averments in the application for withdrawal. There is reason to believe that the report by the Superintendent of Police dated 19-4-1978 itself was designed to pave the way for the withdrawal application. What made the Superintendent of Police to go through the case diary when neither the prosecution nor the accused had raised any protest regarding the fairness of the investigation made by the Sub-Inspector of Police, is shrouded in mystery. The report to the court contemplated under Sub-section (2) of Section 173 of the Code is to be made toy the officer in charge of the Police Station; the further report or reports in accordance with the provision under Sub-section (8) of that section also is to be made by the officer in charge of the Police Station. There is nothing on record to show that the State Government by any general or special order under Section 158 of the Code had directed the officer in charge of the Police Station to send the report in this case to the Magistrate under Section 157 through the Superintendent of Police of Mslappuram; or that he (the Superintendent of Police) had been acting under the provisions of Sub-section (3) of Section 173 of the Code. The locus standi of the Superintendent of Police to file a report in Court for stay of further proceedings pending reinvestigation proposed, itself is not free from doubt, and. to crown everything, the impugned order shows that though his report was filed as early as on 19-4-1978, till 12-4-1979 no further report as contemplated under Sub-section (8) of Section 173 was filed in Court; and the bona fides of the withdrawal application has to be tested in the light of this fact also. Even assuming that the Superintendent of Police was acting as per orders under Sections. 158 and 173(3) of the Code, it seems that it is the report of the officer in charge of the Police Station that has to reach the Magistrate. Taking all these facts and circumstances into account I have no hesitation in upholding the decision of the court below to allow the prosecution to proceed, declining consent for the withdrawal sought.

8. The facts of the case on hand are almost identical to the facts of the case in Balwant Singh's case : 1977CriLJ1935 except that it has not been made explicit that the withdrawal application was at the instance of any higher authorities. Krishna Iyer, J., who observed in the above case that 'the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation', has added as follows:

The court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal with a bunch of papers tacked on. The State should not stultify the court by first stating that there is a true case to be tried and then make a volte-face to the effect that on a second investigation the case has been discovered to be false.

9. In the case involved in the Criminal Miscellaneous Petition also the normal rule to proceed with the prosecution till its natural termination should apply in the absence of any exceptional circumstance warranting the quashing of the proceedings. It was urged by the counsel for the petitioners that the prosecution against the petitioners was launched on account of the enmity entertained by the petitioners in the criminal revision petition against the second respondent therein who is being helped by the petitioners in the miscellaneous petition. These, however, are all matters to be gone into by the trial court at the proper stage. I am satisfied that any ground for quashing the proceedings has not been made out in the Criminal Miscellaneous Petition.

The result, therefore, is that the revision petition as well as the criminal miscellaneous petition are dismissed. The trial court will proceed with the cases according to law expeditiously in view of the fact that the matters were pending for a long time.


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