Yohanan vs State of Kerala and Another

N. Dhinakar, J.—This revision is against the orders of the Judicial First Class Magistrate, Changanacherry refusing permission to the prosecution to withdraw a case u/s 321 Code of Criminal Procedure in C.C. No. 464/92. The said C.C. was instituted against the Petitioner and Ors. on a police report on an allegation that on 18th April 1992 at about 6.30 p.m. the Petitioner along with Ors., in furtherance of their common intention, assembled at the road in front of R.K. Vilasom House and caused injuries to the victim by beating, fisting and kicking. A case in Crime No. 69/92 was registered in the Karukachal Police Station, which ultimately resulted in filing of a final report against the Petitioner and Ors. for offences punishable under Sections 341, 323 and 324 I.P.C. Strangely on 17th July 1993 the Deputy Superintendent of Police, Kanjirappally filed a petition u/s 173(8) Code of Criminal Procedure for permitting him to conduct further investigation and on 2nd December 1993 the said Deputy Superintendent of Police filed Anr. report stating that only a verbal quarrel had taken place and the case was falsely charge-sheeted and requested for removal of the case from file. This report of the Deputy Superintendent of Police was rejected by the Court and the trial was allowed to be proceeded.

The de facto complainant apprehending that there will be no fair trial at the hands of the then Assistant Public Prosecutor, filed a Criminal Miscellaneous Petition u/s 302(2) Code of Criminal Procedure requesting permission of the Court to conduct prosecution by a private advocate, which was dismissed on the undertaking given by the then Assistant Public Prosecutor that he will conduct the prosecution in a just and fair manner. Thereafter the trial proceeded and witnesses were examined. On the evidence adduced the learned Magistrate posted the case for questioning the accused u/s 313 Code of Criminal Procedure. At this stage the Assistant Public Prosecutor, who succeeded the earlier Assistant Public Prosecutor, filed a petition u/s 321 Code of Criminal Procedure requesting for withdrawal of the case stating that he has received a copy of letter from the Secretary, Home (C) Department, to the District Collector, Kottayam, informing that the Government has no objection in withdrawing the case u/s 321 Code of Criminal Procedure. In the said petition the Assistant Public Prosecutor has further stated that the further investigation conducted by the Deputy Superintendent of Police is true and as such no offence could be made out against the accused in the case. It is to be stated at this stage that the second report was filed u/s 173(8), Code of Criminal Procedure by the Deputy Superintendent of Police and when the same was rejected by the trial Magistrate and the trial proceeded the prosecution did not choose to question the said order of the Magistrate and hence that order of the Magistrate became final.

In my view, on the facts, the learned Magistrate was justified in refusing to grant permission to withdraw the case. This Court and the Supreme Court have time and again held that consent for withdrawal cannot be granted mechanically unless the Court is satisfied that on the materials placed before it, such withdrawal is necessary for the proper administration of justice. The public prosecutor, while filing a petition u/s 321 Code of Criminal Procedure must apply his mind and if he is satisfied, can file a petition giving out his reasons and the trial Court, if convinced on the reasons mentioned in the petition, can grant the permission sought for. A case once filed cannot be mechanically withdrawn and it is a well settled principle that continuation of prosecution to its logical end is the rule and withdrawal of a case is an exception, which could be resorted to only sparingly. If withdrawals are allowed in a routine manner, the confidence of the public in the judicial system will be lost. In this case it is seen that the Assistant Public Prosecutor has filed a petition for withdrawal of the prosecution only on two grounds namely the Government had no objection in withdrawing the case and that the report submitted by the Deputy Superintendent of police on 2nd December 1993 after investigation is convincing and impartial. It is to be noted as stated earlier, that the report of the Deputy Superintendent was filed u/s 173(8) Code of Criminal Procedure was not accepted by the trial Court and the same was rejected. In fact this Court in State v. Gopakumar, 1983 (1) KLT 924, held that the further investigation contemplated u/s 173(8) Code of Criminal Procedure is not intended for substituting an earlier report with a later one and such a course will place the Courts at the mercy of police officers who will go on submitting reports contrary to the original one on the same materials inspite of cognizance taken and trial begun. It is also not in dispute that against the orders of the Magistrate rejecting the second report of the Deputy Superintendent of Police, the prosecution did not go on revision and hence the order of the Magistrate had become final. If that be the case, it is ununderstandable as to how the Assistant Public Prosecutor, that too after the examination of witnesses, decided that the second report of the Deputy Superintendent of Police is impartial and true and filed a petition u/s 321 Code of Criminal Procedure.

On the discussion made above, I feel that the Judicial First Class Magistrate was justified in refusing to grant permission to withdraw the case u/s 321 Code of Criminal Procedure.

This petition, in my view, deserves to be dismissed and accordingly it is dismissed.