Reformed Growth Of Accused Is A Positive Factor While Considering Withdrawal Of Prosecution: Kerala High Court
The Kerala High Court held that a public prosecutor can consider the nature of the offence, lack of mens rea and the reformation of the accused as positive factors while deciding withdrawal of prosecution.
The Single Bench of Justice K. Babu made this observation in a petition filed by the State challenging the Magistrate's order disallowing an application for withdrawal of prosecution filed by the State.
The 4 accused are alleged to have committed criminal trespass into the compound of Treasury Office Kattakada and destroyed the window glass of the Treasury building causing a loss of Rs. 250. They are alleged to have committed offences under Section 447 (criminal trespass) r/w Section 34 (common intention) of IPC and Section 3(2)(c) (mischief causing damage to public property) of the Prevention of Damage to Public Property Act.
When the Magistrate Court posted the case for framing of charges, the Assistant Public Prosecutor filed an application under Section 321 of Cr.P.C for withdrawal of the case. The Magistrate dismissed the application on the observation that the Assistant Public Prosecutor had filed the petition only in obedience to the government order and had not applied his mind. Against this order, the State approached the High Court.
The State submitted before the High Court that the accused who were students at the time was protesting the death of another student who committed suicide because she was denied a bank loan for higher studies. This procession was obstructed by local people. A scuffle ensued. Some threw stones at the building which caused damage to the window glass.
The Public Prosecutor submitted that there is a lack of evidence to show that the accused committed the offence. He further submitted that that it is doubtful whether the accused had the mens rea to commit the offence. The State argued that the accused only had the intention of sitting in a dharna. It was after the interference of the local people that the issue went out of hand. The State also submitted that the accused had no criminal antecedents. They protested for a genuine cause. Furthermore, the State said that the loss caused is of Rs. 250 only.
The incident happened in 2004. The Public Prosecutor submitted that the accused have finished their education. Most of them are political and social leaders, some of them engaged in social work.
The Court agreed to the submissions made by the State. It observed:
“The trivial nature of the offence, the lack of mensrea on the part of the accused in the commission of the offence and the reformed growth of the accused, transforming himself into as dedicated social worker are some of the positive factors the Court can consider for granting consent to withdraw prosecution.”
The Court concluded that the accused are reformed from the fact that most of them are engaged in social work now. The Court observed that the withdrawal of case will benefit the society, the community or the public as whole.
Accordingly, the petition was allowed.
Case No: Crl.Rev.Pet. 437 of 2009
Case Title: State of Kerala v Sreenath and Others
Citation: 2024 LiveLaw (Ker) 698