Ivory Case Against Mohanlal : Kerala High Court Asks Magistrate To Decide Afresh State's Plea To Withdraw

The Kerala High Court on Wednesday dismissed the plea filed by actor Mohanlal seeking to quash the JFCM Court, Perumbavoor order which dismissed the plea to withdraw the prosecution case against him pertaining to illegal possession of ivory.

However, the Court has allowed the revision petition filed by the State Government against the order of the Magistrate Court, and remanded the matter for fresh consideration. 

Finding merit in the submission made by the counsels for the intervenors that the law ought to be equal for all, without any discrimination, the Single Judge Bench of Justice A. Badharudeen observed:

"...it has to be held that Law must be uniform to all, irrespective of their status as peasant, poor, middle class or higher class. Going by the settled principles as discussed in detail herein above, I don't think that the trial court addressed this question following the above principles and the trial court ventured the legality of the declaration as the sole basis, while dismissing the petition, which is the subject matter of dispute before the Division Bench of this Court".

The case relates to the alleged illegal possession of ivory by the actor, due to which he was charged under the provisions of the Wildlife (Protection) Act, 1972, which, the actor/1st accused had however denied, and had averred in his petition as having been obtained legally. It was alleged that the actor, at the time of the seizure, did not have a certificate of possession as mandated under the Wildlife (Protection) Act, 1972, and that the act of the accused persons were sufficient to invoke penal consequences since they had contravened the provisions of the Act. 

During the pendency of the case before the JFCM Court, Perumbavoor, the Assistant Public Prosecutor filed a petition under Section 321 of Cr.P.C, to accord sanction to withdraw the case as against all the accused persons in the interest of justice. The application was however, rejected by the court below. 

The actor as well as the 2nd accused person, P.N. Krishnakumar had thus, approached the High Court challenging the order of the JFCM, Perumbavoor, which had dismissed the State Government's plea to withdraw prosecution proceedings against him in the alleged illegal possession of ivory case against him. The actor sought to set aside the impugned judgment passed by the Magistrate, citing that the only ground relied upon by the Magistrate was that the validity of the certificate of ownership issued by the Government as per declaration made under Section 40(4) of the Wildlife Protection Act is still pending before the Kerala High Court in a Public Interest Litigation. It is noted that the 1st accused had approached the State Government by offering his willingness to declare possession of the two elephant tusks. Subsequently, in exercise of the special powers under Section 40(4) of the Act, 1972, the State Government issued notification and granted sanction after complying with the mandatory provisions under the Act, 1972. Thereafter, the legality of possession of the tusks had been accepted by the competent authority by issuing a certificate of ownership, and that the accused had claimed that the State Government could thus, not be allowed to revert from its promises.

The impugned order order passed by the Magistrate in June 2022, had dismissed the application by the Assistant Public Prosecutor for withdrawal of the prosecution case against the petitioner-accused.

The State Government had also filed a revision petition challenging the order of the JFCM Court, Perumbavoor. 

It was contended before the High Court by Senior Advocate S.Sreekumar, that since the trial court dismissed the application based on the observation that the legality of the ownership certificate subsequently issued was a matter under consideration before the Division Bench in W.P.(C) 27187/2019, Court ought await disposal of the Writ Petition or to remand back the petition to the trial court for fresh consideration. 

On the other hand, it was argued by Dr.Abraham P.Meachinkara that the petition for withdrawal of the case filed by the ADGP revealed no grounds as stated by the Apex Court to do so, in terms of Section 321 Cr.P.C. It was further argued that the point of law pertaining tothis case is confined to Section 40 of the Wild Life (Protection) Act, 1972.

The Court was thus concerned with the question as to whether the court below went wrong in dismissing the application filed by the Public Prosecutor to withdraw the case by invoking the power under Section 321 Cr.P.C.

The Court in this case perused Section 321, and ascertained that while the said provision does not provide any grounds for seeking withdrawal, the principles set out in the judicial pronouncements such as State of Kerala v. K. Ajit & Ors. (2021) would govern the issue. 

"Therefore, valid grounds for seeking withdrawal shall be public policy, interest of administration, expediency to proceed with the prosecution for reasons of State and paucity of evidence," it was observed. 

The Court went on to add, 

"The mere fact that permission was given by the Government to proceed for withdrawal and the Court must take effort to elicit reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied with the withdrawal of prosecution for good and relevant reasons. Similarly, while granting consent, the Court must be satisfied that the Public Prosecutor has not improperly exercised his power or the same is not an attempt to interfere with the normal course of justice. Further the Court has to see that the Public Prosecutor made application in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law. That apart, the court has to see that the permission has not been sought with an ulterior motive concocted with the vindication of the law that the Public Prosecutor is duty bound to maintain and the Court would be justified in its scrutinizing the nature and gravity of the offence and its impact upon public life, especially where matters involving public fund and public trust are implicated".

The Court noted that as grant of ownership certificate was the main challenge in W.P(c).No.27187/2019 pending before the Division Bench, the decision of that Bench would be decisive as regards the said question. It thus noted that the vital question in the present case was to ascertain as to whether the prosecution sought permission to withdraw from prosecution as per the settled propositions of law. 

It is in this context that the Court noted that the law ought to be equal for all persons. 

"Therefore, the prayer for withdrawal of prosecution of the present case sought for by the Government requires reconsideration by the trial court within the ambit of the settled principles discussed in detail herein above, for which the order required to be set aside. Accordingly, Crl.R.P.No.754/2022 at the instance of the State stands allowed by setting aside the order in CMP.628/2020 dated 09.06.2022 with direction to reconsider the same by the trial court afresh following the ratio of the decisions referred herein above. Crl.R.P.No.591/2022 and 593/2022 stand dismissed, since the petitioners who are accused in this case, have no right to challenge an order refusing withdrawal of prosecution, since the said procedure is the prerogative of the prosecution," it declared.

The parties were thus directed to appear before the trial court on March 3, 2023. The trial court was directed to o hear and pass fresh orders expeditiously, from the date of receipt of copy of the order, within a period of 6 months. 

Case Title: V. Mohanlal v. State of Kerala & Ors. and other connected cases

Citation: 2023 LiveLaw (Ker) 97

Click Here To Read/Download The Order