Point of Law: Criminal Law - Seeking permission to withdraw from prosecution - Legality of impugned order and justifying request for withdrawal - When the prosecution is allowed to be withdrawn there is always an uneasy feeling in the public mind that the case has not been allowed to be agitated before the court and the court has not given a judicial verdict - Since the guiding consideration in all these cases is the imperative of public justice and it is absolutely essential that justice must not only be done but also appear to be done, we would hold that in a warrant case instituted on a police report — which the present case against Dr. Jagannath Mishra and others admittedly is — it should not be a legitimate ground for the Public Prosecutor to urge in support of the application for withdrawal that there is insufficient or no evidence in support of the prosecution. The court in such a case should be left to decide under Section 239 whether the accused should be discharged or a charge should be framed against him.

ORDER :

These criminal revision petitions are filed by the State of Kerala and the accused in C.C.No.73 of 2019, pending on the files of the Chief Judicial Magistrate's Court, Thiruvananthapuram. The common grievance of the revision petitioners is against the order dismissing the application filed by the Public Prosecutor, seeking permission to withdraw from the prosecution against the accused.

2. The essential facts are as follows;

On 13.3.2015, at about 8.55 a.m., while the Finance Minister of the State was presenting the Budget for the financial year 2015-2016 in the Kerala Legislative Assembly Hall, the accused, who, at that time were opposition MLAs, disrupted the budget presentation, climbed over to the Honourable Speaker's dais, damaged articles like the Speaker's chair, computer, mike, emergency lamp etc. and thereby caused a loss of Rs.2,20,093/- to the Government. On receipt of information regarding the incident from the Legislature Secretary, Crime No.236 of 2015 was registered at the Museum Police Station, Thiruvananthapuram for offences punishable under Sections 447, 427 read with 34 of IPC and Section 3(1) of the Prevention of Damage to Public Property Act. Investigation of the crime was later entrusted with the Deputy Superintendent of Police, E.O.Wing-I, Crime Branch CID, Thiruvananthapuram. On completion of investigation and submission of the final report, cognizance was taken for the aforementioned offences. Later, the Public Prosecutor sought permission to withdraw from the prosecution by filing Crl.M.P.No.2577 of 2019 under Section 321 Cr.P.C. The learned Chief Judicial Magistrate refused to accept the reasons highlighted in the petition like, immunity provided under Article 194(3) of the Constitution of India, illegality in having registered the crime without prior sanction from the Speaker, insufficiency of evidence, irreparable injury that will be caused to the Legislative Assembly by dragging its proceedings to the criminal court, thereby adversely affecting public interest and public order and most importantly, the decision to withdraw from the prosecution being the absolute prerogative of the Public Prosecutor and the very limited role of the court while considering the application. Further, the allegations were found to be serious in nature and that being participants in the lawmaking process, the accused were expected to obey the laws. According to the learned CJM, granting permission to withdraw from the prosecution will give a wrong message to society.

3. Assailing the legality of the impugned order and justifying the request for withdrawal, Sri. K.K. Ravindranath, learned Additional Advocate General put forth elaborate and persuasive arguments, which were ably supported and supplemented by Sri. B. Raman Pillai, learned Senior Counsel appearing for the accused. Sri. T. Asaf Ali, learned counsel appearing for the Leader of the Opposition, who was heard by the trial court while considering the petition seeking withdrawal, refuted the grounds of challenge and argued in support of the findings in the impugned order. Advocate Sri. R.V. Sreejith, appearing for the additional 7th respondent in Crl. R.P. No.641 0f 2020, an interested third party, contended that the findings in the impugned order being well founded, warrants no interference.

4. Briefly put, the contentions urged on behalf of the petitioners are as under;

The 2015-2016 Budget Session of the Kerala Legislative Assembly was being conducted in a charged atmosphere, the opposition having raised serious allegations of corruption and nepotism against the Finance Minister. Within the house, the opposition members had been protesting against presentation of the budget by a tainted person, while the treasury members came out in support of the Finance Minister. This led to a melee and slogan shouting between members of the treasury and opposition benches. The alleged incident occurred during this ruckus. The members of the ruling party were equally at faul