Dismissed

M.N.Giri v. State of Kerala

Kerala HC1 Jul 2013Crl.Rev.Pet/2020/2012

Case brief

AI extract

What is this about?

Division Bench dismissed criminal revision petitions filed by third-party activists challenging a Magistrate's order permitting withdrawal of prosecution. Court held petitioners lacked locus standi and analyzed Section 321 Cr.P.C. standards for such withdrawals.

What did the court decide?

The Criminal Revision Petitions were dismissed; the order permitting withdrawal of prosecution was upheld.

M.N.Giri Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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MONDAY, THE 1ST DAY OF JULY 2013/10TH ASHADHA, 1935

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Crl.Rev.Pet.No. 2020 of 2012

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AGAINST THE ORDER IN CC 135/2009 of C.J.M.,MANJERI DATED 04-01-2012 .................

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REVISION PETITIONER/THIRD PARTY :

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M.N.GIRI, S/O.P.K.NARAYANAN NAIR, MADATHUKODY HOUSE, KAKKANAD P.O., ERNAKULAM DIST

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BY ADVS.SRI.SEBASTIAN PAUL SRI.M.I.JOHNSON

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SRI.RON BASTIAN

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RESPONDENTS/COMPLAINANTS & ACCUSED :

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STATE OF KERALA, REP.BY HOME SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682 031.

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SUB INSPECTOR OF POLICE, EDAVANNA POLICE STATION MALAPPURAM DIST-676 541.

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P.K.BASHEER, MLA, FIRDOUS HOUSE, EDAVANNA MALAPPURAM DIST-676 123.

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R1 TO R3 BY SRI.T.ASAF ALI, DIRECTOR GENERAL OF PROSECUTION R4 BY ADV. SRI.K.M.SATHYANATHA MENON

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SMT.KAVERY S THAMPI

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-01-2013, ALONG WITH CRRP. 2021/2012, THE COURT ON 01-07-2013 PASSED THE FOLLOWING:

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE-I : TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME 286/08 DATED 27.11.2008.

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ANNEXURE II : TRUE COPY OF THE FINAL REPORT IN CRIME 286/08 ALONG WITH THE STATEMENT RECORDED UNDER SECTION 161(3) Cr.P.C. DATED 29.03.2009.

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ANNEXURE III : TRUE COPY OF THE WITNESS SCHEDULE PRODUCED BY THE PROSECUTION DATED 20L03.2009.

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ANNEXURE IV : TRUE COPY OF THE PETITION DATED 04.01.2012 SUBMITTED BY THE DY.DIRECTOR OF PROSECUTION.

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/TRUE COPY/

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PA TO JUDGE

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Manjula Chellur, C.J. & K. Vinod Chandran, J.

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Crl.R.P. Nos. 2020 & 2021 OF 2012

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- - - - Dated this the 1^st day of July, 2013

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O R D E R

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Manjula Chellur, C.J.

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These two Criminal Revision Petitions are filed by third parties unconnected with the issue on hand but claims to be public spirited persons. In other words, they are not personally affected by the impugned order of the Magistrate. The learned Single Judge placed the matter before the Bench hearing Public Interest Litigation as it could only be entertained by a Division Bench. The brief facts that led to filing of these two Criminal Revision Petitions are as under.

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A suo motu complaint came to be registered by the Sub Inspector of Police of Edavanna Police Station in Malappuram District resulting in registration of Crime No.286/2008 on 27.11.2008 for offences punishable under Sections 195A and Section 506 IPC. As a matter of fact, FIR indicates that a secret enquiry came to be conducted as per the source report No.260/Camp/08/M.M. District Police Officer, Malappuram, at 13.30 hours received from District Police

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Superintendent which became the basis for registering the above crime. The Case Diary and original secret enquiry report along with FIR were sent to the Magistrate concerned.

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As per the said report, on 20.11.2008 between 20.45 and 21.15 hours, the accused, during a public meeting conducted in connection with the closing ceremony of the Conference of Eastern Region of Indian Union Muslim League (for short IUML) held at Edavanna Poothuruthy Ground is said to have declared that, “if they stand as witness in the court against the workers of IUML, they would not come out of the court with their legs with which they had gone inside and will ultimately be eradicated from the earth once and for all”. Subsequently, final report came to be filed along with 161 statements on 29.03.2009. After taking cognizance, CC No.135 of 2009 on the file of the Chief Judicial Magistrate's Court, Manjeri came to be registered.

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During the pendency of the above case, the Deputy Director of Prosecution submitted an application under Section 321 Cr.P.C., expressing his intention to withdraw from the prosecution. The Magistrate on 04.01.2001 granted permission

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to withdraw from the prosecution. This is the subject of controversy in the present Revision Petitions.

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According to the petitioners, the order of the Magistrate dated 04.01.2001 is opposed to law so also facts and circumstances of the case. When inflammatory speech came to be made by 4^th respondent (accused), it is nothing but a threat to the witnesses which ultimately persuaded the witnesses not to depose against the accused in a sensational political murder case. The dispute was not in the nature of private one or a petty one. It was nothing but a sabotage of investigation and preventing prosecution in a case of brutal murder. No legally acceptable ground whatsoever was put forth for withdrawal from the prosecution. After Union Democratic Front (UDF) came to power with IUML support, the case came to be withdrawn as the same was launched while Left Democratic Front (LDF) was in power. Contending that the decision of the Magistrate is perverse and illegal, they further urge that the said decision is nothing but abdication of court's authority. The Court, totally ignoring the sensitivity involved in the case where one James Augustine Master was murdered, proceeded to pass the impugned order

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without any valid reasons. The Magistrate ought to have considered the executive function to be performed by the Prosecutor which ought to be exercised independently. Except for the purpose of furthering the cause of public justice, no complaint could be withdrawn. The impugned order results in destruction of public justice and public policy as observed in Sheo Nandan Paswan v. State of Bihar [AIR 1987 SC 877] and so also in State of Kerala v. Varkala Radhakrishnan [ILR 2009(1) Kerala 721] is the contention of the petitioners.

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As against this, the contention of the State as well as the 4^th respondent(accused before the trial court) is as under. The Criminal Revision Petitions are filed by persons who have no locus standi to file the same as the said persons are neither aggrieved nor parties to the proceedings on the file of the Magistrate concerned. They are strangers and third parties before this Court questioning the correctness of an order passed by a court of law. Except the intention to seek publicity, no other valid ground is made to substantiate their right to file these petitions. On more than one occasion the Supreme Court has laid down the dictum that the State is the master of litigation

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controlling the proceedings particularly in cases where prosecution is launched at the instance of the State, therefore, seeking withdrawal of prosecution from the case is within the domain of the executive, is the contention of the State prosecutor and learned counsel for the 4^th respondent. Learned State Prosecutor submits, when the Public Prosecutor applies for withdrawal from Prosecution under Section 321 Cr.P.C, even a complainant or charge sheet witness has no locus standi in the exercise of discretion by the Public Prosecutor. From the application for withdrawal it is very clear that the Public Prosecutor has applied his mind and then only came to a conclusion that withdrawal of prosecution was necessary for better advancement of public justice. This is based on the assessment of the probability of successful prosecution of the accused persons in the murder case of James Augustine. Magistrate after considering all the above material aspects was justified in saying, as per the final report that alleged threat of injury was made against persons who gave false evidence against the IUML. Therefore, the alleged threat cannot lead in

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proving the offence under Section 195A IPC. None of the persons against whom alleged threat was held out were seen questioned.

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Points for consideration are: 1) whether Magistrate was justified in allowing prosecution to be withdrawn? 2) whether the Revision Petitioners have locus standi to challenge the impugned judgment of the Magistrate?

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Learned State Prosecutor appearing for respondents 1 to 3 relies on the following decisions: The State of Bihar v. Ram Naresh Pandey and another [AIR 1957 SC 389]; Razack and others v. State of Kerala [2001 Crl.LJ 275] and Sheo Nandan Paswan v. State of Bihar [AIR 1987 SC 877]. The gist of the principles enunciated in the above decisions are in brief as under.

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A Public Prosecutor has to initiate proceedings for withdrawal from prosecution and the Court has to give its consent and not to determine any matter judicially. However, though the provision is in the nature of a general executive discretion to the Public Prosecutor to withdraw from prosecution it is subject to the consent of the Court which may be determined on many possible grounds depending on the facts and

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circumstances of each case. Therefore, the judicial function is implicit in the exercise of judicial discretion. The Court only has to satisfy itself whether the executive function of the prosecutor was properly exercised or not exercised and always must bear in mind whether it is an attempt to interfere with the normal course of justice. It is not at all required on the part of the Magistrate to

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assess evidence to discover whether the case would end in conviction or acquittal. There is no obligation on the part of the Court to record reasons before consent is given. However, it does not mean that the consent of the Court is a matter of course, and not a mechanical one. There is no straight jacket formula upon which the Public Prosecutor may make an application or upon which the Court can consider granting of permission. Though there is no obligation to record reasons for consent, the Court is not expected to exercise its judicial discretion by looking into all the matters placed before the Magistrate while granting or refusing the consent. One of the grounds for withdrawal from prosecution could be that the evidence collected during the investigation was mistaken or insufficient and no useful purpose would be served by proceeding

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with the case against the accused. The involvement of unnecessary expenditure and waste of public time could also be considered as genuine reasons. Court also has to look at the political rivalry between the parties to ensure that it is not mere political vendetta leading to arraying of accused belonging to one or the other political parties.

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Mr.S.Rajeev, learned counsel appearing for the petitioner in Crl.R.P. No.2021 of 2012 relies upon the following citations: Bansilal v. Chandanan & another [AIR 1976 SC 370], Balwant Singh & others v. State of Bihar [AIR 1977 SC 2265], Subhash Chander v. The State(Chandigarh Admn.) & others [AIR 1980 SC 423], Rajendra Kumar Jain V. State Through Spl.Police Establishment and others [AIR 1980 SC 1510] and Achuthanandan v. R. Balakrishna Pillai [1994 (2) KLT 325]. The gist of the principles enunciated in the above decisions in brief is as under.

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No permission could be granted for mere asking but the Court must be satisfied on the materials placed before it that the grant of permission would serve the administration of justice. If it involves some policy consideration bearing on the

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administration of justice, justifying withdrawal, the Court may accord permission; and decline if no public policy bearing on the administration of justice is involved. The Court is not supposed to act mechanically, in the sense that permission would not automatically follow an application under Section 321 made by the Prosecutor. A Public Prosecutor 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. The consent of Court under Section 321 application is a condition for withdrawal and is nothing but a check on the exercise of power given to the Public Prosecutor under the Statute. The larger public justice cannot be subverted by such withdrawal. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its “Minister of Justice”. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resorting to the provisions of Section 321 Criminal Procedure Code. The Court must be vigilant and

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inform itself fully before granting consent. The Prosecutor has to exercise the power conferred on him under Section 321 Cr.P.C. in the light of his own judgment and no other authority can dictate.

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Mr.P.Vijayabhanu, learned Senior counsel appearing for the party respondent relies on the following decisions. Fertilizer Corporation Kamagar Union v. Union of India [AIR 1981 (SC) 344], Sheo Nandan Paswan v. State of Bihar [AIR 1987 SC 877], Janata Dal v. H.S. Chowdhary [1991(3) SCC 756], Rajiv Ranjan Singh Lalan v. Union of India [2006(6) SCC 613] & Vijayakumar Baldev Mishra @ Sharma v. State of Maharashtra [2007(12) SCC 687]. So far as Section 321 Cr.P.C the gist of the above decisions are as under.

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No reasoned order need be passed by assessing the evidence to discover whether the case would end in conviction or not while granting permission for withdrawal from prosecution. In a case under Section 321 Court should not express its opinion on merits of the case and Public Prosecutor is required to apply his mind and assess the effect of withdrawal from prosecution on society. So far as Section 321, apart from

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placing reliance on Sheo Nandan Paswan 's case (supra) reference is also made to three cases, i.e. Peoples Union for Civil Liberties (Delhi) v. Central Bureau of Investigation and others [1997 Cr.L.J 3242, State of Kerala v. Vijayakumar [Crl.R.P. No.3453 of 2008 (not reported)] and Rajender Kumar Jain v. State of Bihar [AIR 1980 SC 1510] wherein their Lordships held that to maintain independent judiciary the Court and the Officer who assist the Court must have control over the case depending upon the facts and circumstances of each case. It is not the duty of the Court to appraise itself on the facts or evidence placed before it in order to proceed with an application filed under Section 321 Cr.P.C. It only has to see whether the consent to withdraw from prosecution would jeopardise the public interest and public policy.

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Sri.K.M.Sathyanatha Menon, learned counsel appearing for the 4^th respondent in Crl.R.P. No.2020 of 2012 places reliance on the following citations to substantiate his contentions and the facts of the present case has to be analysed based on the law laid down in the judgments. The following cases are on the issue of locus standi. Nandakumar v. State of

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Kerala (2008 (2) ILR 663), Thakur Ram v. State of Bihar (AIR 1966 SC 911), Sheo Nandan v. State of Bihar (AIR 1983 SC 194), Sheo Nandan v. State of Bihar (AIR 1987 SC 877), Abdul Karim v. State of Karnataka (2000 (8) SCC 710), V.S.Achuthanandan v. R.Balakrishna Pillai and others (1994 (4) SCC 299), A.R.Antulay v. R.S.Nayak and others (AIR 1984 SC 718), Vinoy Kumar v. State of U.P and others (2001 SCC (Cri) 806), Simranjit Singh Mann v. Union of India and another (AIR 1993 SC 280), P.V.Narashimharao v. State (1997 CriLJ 3117), All India Democratic Women's Assn. v. State (1998 CriLJ 2629), P.Velusamy Gounder v. Ramakrishnan & others [(2006)2 MLJ (Cri) 709].

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The dictum laid down in the above cases is as under. Criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. The objective being maintenance of stability and orderliness in society and private interest will not come into picture. Punishment of the offender in the interest of the society is one of the objects behind the penal statute enacted for larger good of the society. So also

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with regard to the Revision Petitions filed under Section 397 Cr.P.C, the law gives discretion to the revising authority and that discretion has to be exercised judiciously. So far as the successive applications by a private party, one has to understand that, the criminal law is not to be used as an instrument of wrecking vengeance by the alleged aggrieved party.

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The judgments relied upon so far as the locus standi indicates the following gist. The concept of locus standi is a concept available in the criminal jurisdiction, as punishment to the offender is in the interest of the society. If the offence for which prosecution is being launched is an offence against the society and not merely against an individual, anyone can set or put the criminal law into motion, except where the statute enacting or creating an offence indicates to the contrary. Even for the most serious offence of murder, a private complaint can be entertained. A total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of conviction recorded against them. If such exercise is permitted, any and every person can challenge the same, day in and day out in courts. Unless an aggrieved party is under some

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disability recognised by law, it would be unsafe and hazardous to allow any third party to question the decision against him. There is no provision in the Code of Criminal Procedure analogous to Order I Rule 10 of Civil Procedure Code. In a petition moved under Section 482 Cr.P.C, it deals with inherent powers of the Court. It would be applicable only in those deserving few cases where there is no provision to give effect to the orders passed by the Apex Court or to prevent the abuse of process of the Court or otherwise to secure the ends of justice. A private party has got no role to play in a case instituted by the State and a private party has nothing to do with that. A third party is given only a right to assist the prosecution under Section 301(2) Cr.P.C. If third parties are permitted to intervene, then there will be number of associations to represent one party or other in criminal proceedings and it will give rise to confusion and chaos. When the case is not initiated on the basis of a private complaint, the private complainant as a revision petitioner has no locus standi to file the revision. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its

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officers alone must have control over the case and decide what is to be done in each case.

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Mr. Sebastian Paul appearing for the party respondent relies upon several decisions on the question of locus standi. Subramanian Swamy v. Manmohan Singh [(2012) 3 SCC 101], Ashish Chadha v. Asha Kumari [(2012) 1 SCC 680], State v. Parameshwaran Subramani [(2009) 9 SCC 729]. In these cases Supreme Court held that the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straitjacket formula of locus standi. So far as Section 321 Cr.P.C., he again refers to Nandakumar v. State [2008 (2) KLT 913], Abdul Karim v. State of Karnataka [2000 (8) SCC 710] and Sheo Nandan Paswan v. State of Bihar [1987(1) SCC 288]. We have gone through the said citations above.

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From the above discussion one has to analyse the material on record. Section 321 Cr.P.C deals with permission that could be granted by the Court when the Public Prosecutor or Assistant Public Prosecutor in charge of criminal case seeks withdrawal from the prosecution of any person either generally or

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in respect of anyone or more of the offences for which he is tried. The entire provision revolves round the discretion of the Public Prosecutor in approaching the Court seeking sanction to withdraw the prosecution. The Public Prosecutor is expected to act after applying his mind to all the relevant factors which gave rise to the incident. As he has a wide discretion under this provision, he is expected to act in a bonafide manner and not to act at the commands of higher ups. Dominant factors underlying the provision are public policy and public interest. Therefore, consent of the Court is a pivotal factor under Section 321 Cr.P.C. It indicates that the entire process is the result of a complaint and variety of consideration; such as gravity of the crime, the effect of withdrawal from prosecution is on the public confidence in the entire system. The public interest and the public policy are dominant features as the objectivity displayed by the prosecution in making such application has serious impact on the society.

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Though the nature of offence cannot be a valid ground for rejecting the application for withdrawal from prosecution, it is the duty of the Court to appreciate all the grounds which prompted

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the prosecution to seek withdrawal of the case. Holistic approach is required rather than adherence to a particular reason. The application for withdrawal expresses the independent mind of the public prosecutor who acts as a government servant. The broad perspective is, that public justice underlines the entire philosophy contemplated under Section 321 Cr.P.C. The action of the Public Prosecutor in applying the mind is not only to expose its just nature but there must be reasonableness also, as the Prosecutor has to keep in mind the interest of the society against which the wrong is alleged to have been committed. It is a nonnegotiable exercise and the statutory responsibility is on the Public Prosecutor. It cannot be bargained and watered away in favour of influential people on the administrative side. The consideration involves an exercise to weigh the material before the Court, and determine whether the better course of public justice will be advanced and enhanced or damaged by the withdrawal or continuation of the prosecution. Similarly perception of the society on account of political favourtism should weigh with the court in deciding such an issue. The paramount consideration is always public justice and Court should never

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become a slave or should never apprehend the criticism across the society.

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On account of involvement of public policy in public justice, there has to be fair assessment of material both on the part of the Public Prosecutor and also the Court. When Public Prosecutor applies his mind to the facts of the case and when Court exercises its authority, it is expected to apply not only its mind but it must satisfy its conscience while giving consent. The consent of the Court is in the nature of a check against the executive orders. In this process the Court has to perform its duty in ascertaining the real object behind such application. It is well settled that political rivalries cannot and should not spoil the future of political workers and their cordial relations in a democratic set up. The material on record indicates that no purpose would be served even if the trial commenced in right earnest, in the absence of any ulterior motive. If the consent of

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the court in withdrawing from prosecution is only to sub-serve the administration of justice, any amount of submission based on surmises and conjectures is of no assistance as it would be in the

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interest of public policy and public interest alone, such withdrawal will be considered. If decision of the Prosecutor was not to prosecute the offenders or not to proceed further with the prosecution already launched, it is an outcome of sensible and responsible assessment of Prosecutor, such consent deserved to be granted. One reason could be whether the impugned order

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would perpetuate enmity between the rival groups instead of maintaining the peace and resorting the cordial relationship in the society.

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In Abdul Karim v. State of Karnataka [2000(8)

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SCC 710] the broad principles governing the refusal or grant of application under Section 321 Cr.P.C were reiterated as laid down in Sheo Nandan Paswan v. State of Bihar [1987(1) SCC 288] which read as under:

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“(i) When an application under Section 321 is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. What the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law.

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(ii) The Court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given.

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(iii) When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the Court must exercise its judicial discretion by considering such material and on such consideration, must either give consent or decline consent.

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(iv) Section 321 contemplates consent by the Court in a supervisory and not an adjudicatory manner. What the Court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest.

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(v) Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent from the Court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor had acted in good faith and the exercise of discretion by him is proper.

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(vi) Though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In

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turn, the Court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice.

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(vii) The Section should not be construed to mean that the Court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher Court is satisfied that such consent was given on an overall consideration of the material available, the order giving consent has necessarily to be upheld.”

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The principles laid down in various decisions referred to by the learned State Prosecutor and also on behalf of the Revision Petitioners are in nut shell as referred to above. Ultimately the Court has to look into the facts and circumstances of each case while granting or sanctioning the consent for withdrawal from prosecution. In the present case the offences for which the accused were booked are Section 195A and Section 506 IPC. The correct translation of the complaint indicates, on 20.11.2008 evening, Sri.P.K. Basheer, who delivered the

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presidential speech in connection with the valedictory meeting marking the conclusion of the protest march of the Eastern Region of the IUML, in the presence of Central Foreign Minister Sri.E.Ahammed M.P., Sri.Abdul Wahab, Sri.P.K. Kunjalikutty, Sri.M.K.Muneer, and Sri.Abdul Samad Samadani on the dais, spoke that it is because of the threat that the legs of those who give false evidence against workers of the League will be cut by League workers and the threat that the legs of those who falsely depose in the case of James master who died during the cluster meeting, will be cut by League workers of this country, that the witness did not identify the accused during the test identification parade and it was welcomed by the cadres with applause. Does it mean that by speaking so in a public place it amounts to questioning the judicial system and restraining of those who come to Court as truthful witnesses and the accused has committed the above mentioned offences?.

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Section 195 IPC deals with punishment when a witness gives or fabricates false evidence with an intention to procure conviction of accused punishable with imprisonment for life or imprisonment. Section 195A IPC reads as under:

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“195A. Threatening any person to give false evidence .- Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;

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and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.”

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Reading of entire Section quoted above indicates, in an incident where accused held threat against another, either with injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, only with the intention to persuade that person to give false evidence, the accused in such offence will be punished with imprisonment which may extend to 7 years or with fine, or with both. If an innocent person is convicted on account of a witness giving false evidence, on account of threat held by the accused, and if such conviction leads to a punishment of death or imprisonment for

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more than seven years, the person who threatens shall be

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punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.

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The charges made against the accused person here are far away from the nature of offence alleged in the criminal case filed against accused. Even if the entire material is read it could only indicate that no false evidence be given against the workers of League pertaining to the murder case of James Master, if so they would be dealt accordingly. This would not amount to holding threat against any witness to give false evidence with the intention to see that an innocent person is convicted based on a false evidence. Therefore, Section 195A IPC is not at all attracted in order to opine that the consent sought by the prosecution would go against the public policy and public interest. Then coming to Section 506 IPC, it reads as under:

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“ 506 . Punishment for criminal intimidation .-

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Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

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If threat be to cause death or grievous hurt, etc .- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

¶143

So far as the allegation, definitely there has to be a threat held against life of a person only if false evidence is given, in the case of murder of James Master. In the public meeting who were present and that the threat was against any particular person is not forthcoming. It is a omnibus statement, not against any particular individual. Apparently, the murder of James Master is in Crime No.486 of 2008 registered on 19.07.2008. The 4^th respondent herein is a local leader. Apparently, name of no particular person is mentioned, therefore, Section 506 IPC is also not applicable.

¶144

Annexure IV in Crl.R.P. No.2020 of 2012 is the application filed by Deputy Director of Prosecution, Manjeri which says at paragraph 3 as under:

¶145

Crl.R.P. Nos. 2020 and 2021 of 2012.

¶146

-:26:-

¶147

“3. The prosecution case in brief is that the accused person in the course of his speech in public threatens to cause death to those person who gives false evidence. This is a politically motivated case against the workers of IUML, and the accused person has no criminal antecedent and he is a sitting M.L.A in the Assembly.”

¶148

In the above case neither an offence under Section 195 nor an offence under Section 506 IPC is made out. If the material on record upon which the prosecution was based reveals that no purpose would be served even if the trial commenced in the right direction, such prosecution could be allowed to withdraw provided no other ulterior motive is pointed out. As a matter of fact, in the process of administration of criminal justice it is said; withdrawing from prosecution can also be treated as to sub serve administration of justice. The decision of the prosecutor not to prosecute the offenders or not to proceed further with the prosecution already launched, is a decision after thorough examination of material leading to such responsible decision. The court has to see whether application is made in good faith in the interest of public policy and justice while doing this exercise it has to see it would lead to manifestation of injustice by

¶149

Crl.R.P. Nos. 2020 and 2021 of 2012.

¶150

-:27:-

¶151

granting such consent. Once court concludes that the application is properly made and there is independent consideration of the matter by the public prosecutor and he has acted in good faith in exercising discretion vested on him, the court should allow from such withdrawal.

¶152

As already stated above, in a case where political rivalries are involved, in order to have smooth functioning of the administration, if there is a withdrawal from prosecution, it will not be against public policy or public interest.

¶153

Neither complainant nor charge sheet witness has any locus standi in the exercise of discretion of the Public Prosecutor to withdraw from the prosecution. If a citizen who has some concern deeper than that of a busybody, the door of the Court will be kept ajar for him. He cannot be turned away at the gates. If the issue raised by him is justifiable, may still remain to be considered. However if it is merely a question to be gone into and examined in criminal case, registered against accused persons, it is for them and they alone to raise such questions and challenge the proceedings initiated against them at the

¶154

Crl.R.P. Nos. 2020 and 2021 of 2012. -:28:-

¶155

appropriate time before the proper forum and not for third parties under the garb of public interest litigant. A person who is acting bonafide and having sufficient interest in the proceedings alone can initiate Public Interest Litigation and that the Court must not allow its process to be abused for oblique consideration. Criminal law should not be allowed to be used as a weapon of vendetta between private individuals. Therefore, though an appeal or revision by private individual can be entertained but it should be on due diligence. No dogmatic prescription of leave under Article 136 to a non-party applicant can be laid down inflexibly. In both the Revision Petitions, no whisper is made against the Prosecutor. The petitioners are not defacto complainants, they are only third parties. In both the petitions, petitioners have nothing to do with the complaint, as the complaint is not a private complaint. When defacto complainant is not questioning, how a third party can question and what is their interest is not forthcoming. From reading of the entire material as stated above, it is crystal clear that there was justification on the part of the court below in permitting the prosecutor to withdraw from the prosecution and

¶156

Crl.R.P. Nos. 2020 and 2021 of 2012.

¶157

-:29:-

¶158

so far as the revision petitioners, they are totally strangers to the litigation and have no locus standi to question the same.

¶159

In view of the above discussion and reasoning, both

¶160

Criminal Revision Petitions are dismissed.

¶161

Manjula Chellur, Chief Justice.