O.P.(Crl.) No. 315 of 2024 ..1.. 2025:KER:26775 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947 OP(CRL.) NO. 315 OF 2024 CRIME NO.417/2012 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM AGAINST THE ORDER DATED 31.05.2017 IN CMP NO.865 OF 2016 IN C.C.NO.1061 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS- III, THIRUVANANTHAPURAM PETITIONER/DEFACTO COMPLAINANT: KUTTAPPAN AGED 53 YEARS, S/O. CHACKO MATHAI, CHIRAYIL HOUSE, KOIPURAM VILLAGE, PATHANAMTHITTA, PIN - 689531 BY ADV T.M.ABDUL LATHEEF RESPONDENTS/STATE/ACCUSED: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 EBENEZER SAJI AGED 56 YEARS, S/O. ELIYASAR, OLIV VEEDU, PALACE LANE, PAPPANAMCODE WARD, NEMOM VILLAGE, PAPPANAMCODE, THIRUVANANTHAPURAM DISTRICT, PIN - 695018 O.P.(Crl.) No. 315 of 2024 ..2.. 2025:KER:26775 BY ADVS. PIRAPPANCODE V.S.SUDHIR AKASH S.(K/980/2008) GIRISH KUMAR M S(K/001593/2018) SMT.SREEJA V., SR. PP THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(Crl.) No. 315 of 2024 ..3.. 2025:KER:26775 J U D G M E N T This original petition has been filed challenging Annexure A1 order allowing a petition filed by the Assistant Public Prosecutor for withdrawal of prosecution under Section 321 of Cr.P.C. 2. The petitioner is the de facto complainant and the 2nd respondent is the accused in C.C.No.1061 of 2012 on the files of Judicial First Class Magistrate Court-III, Thiruvananthapuram. The offences alleged are punishable under Sections 447 and 427 of IPC. 3. The prosecution case is that on 04.04.2012, the accused trespassed into the property of the de facto complainant and caused mischief to the tune of Rs.5,00,000/- by demolishing compound wall and wall of his house and destroying the cages maintained for fowl and rabbit. 4. The 2nd respondent entered appearance. Thereafter, the Assistant Public Prosecutor filed a petition under Section O.P.(Crl.) No. 315 of 2024 ..4.. 2025:KER:26775 321 of Cr.P.C as CMP No.865 of 2016 for withdrawal from the prosecution. The learned Magistrate allowed the application as per Annexure A1 order and acquitted the 2nd respondent. Challenging the said order, this original petition has been filed. 5. I have heard Smt.Meenu Asokan, the learned counsel for the petitioner, Smt.Richu Theresa Robert, the learned counsel for the 2nd respondent and Smt.Sreeja V., the learned Senior Public Prosecutor. 6. The learned counsel for the petitioner submitted that the impugned order is not sustainable inasmuch as the trial court failed to exercise the discretion under Section 321 of Cr.P.C without taking note of all the relevant facts. The learned counsel further submitted that the impugned order was passed without hearing the petitioner. The learned counsel also submitted that no valid reason has been shown in the petition for withdrawal to exercise the power under Section 321 of Cr.P.C. O.P.(Crl.) No. 315 of 2024 ..5.. 2025:KER:26775 7. On the other hand, the learned counsel for the 2nd respondent submitted that even though the petitioner received notice in the petition, he did not file any objection. The learned counsel further submitted that there are valid grounds to allow the petition for withdrawal of the prosecution and hence this court, under the exercise of jurisdiction vested with it under Article 227 of the Constitution of India, should not interfere with the impugned order. The learned counsel also submitted that there are no materials to prove the prosecution case and even if the case is proceeded with, it is most likely to end in an acquittal and the continuance of the case would only cause severe harassment to the accused. 8. In the petition for withdrawal of prosecution filed by the learned Assistant Public Prosecutor, it is alleged that there is no eyewitness to the incident to prove the incident and there is an unexplained delay of 15 days in lodging the FIS and hence there is no chance for successful prosecution of O.P.(Crl.) No. 315 of 2024 ..6.. 2025:KER:26775 the case. It is also alleged that by the withdrawal of the case, the peace and harmony in the locality will be maintained. The trial court rightly found that paucity of evidence is not a ground for withdrawal of the case under Section 321 of Cr.P.C. However, it observed that though the petitioner initially appeared before the court and sought time for filing objection, subsequently he did not turn up and that may be due to the settlement of the dispute between the petitioner and the 2nd respondent. The trial court thereafter proceeded to presume that the withdrawal of the case would promote the peace and harmony between the parties and thereby keep public order in the locality. The trial court came to the conclusion that the parties might have settled the dispute without any material before it. It is a case where the petition was allowed without hearing the petitioner. The petitioner has asserted in this original petition that the matter has not been settled at all. There was no material before the trial court to show that the withdrawal of the case would promote the O.P.(Crl.) No. 315 of 2024 ..7.. 2025:KER:26775 peace and harmony between the petitioner and the 2nd respondent and thereby keep public order in the locality. 9. It is settled that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 of Cr.P.C. is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution O.P.(Crl.) No. 315 of 2024 ..8.. 2025:KER:26775 which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same (See Rahul Agarwal v. Rahul Jain and ors. [AIR 2005 SC 910]). 10. A perusal of the impugned order would show that the trial court did not exercise the discretion vested with it under Section 321 of Cr.P.C. carefully having due regard to all the relevant facts and circumstances of the case. The petitioner was also not heard before allowing the petition. Hence, the impugned order cannot be sustained and accordingly, it is set aside. The trial court is directed to reconsider the petition for withdrawal of prosecution afresh in O.P.(Crl.) No. 315 of 2024 ..9.. 2025:KER:26775 accordance with law, after hearing both sides within a period of three months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. Sd/- DR. KAUSER EDAPPAGATH JUDGE AS/APA O.P.(Crl.) No. 315 of 2024 ..10.. 2025:KER:26775 APPENDIX OF OP(CRL.) 315/2024 PETITIONER ANNEXURES ANNEXURE A1 THE ORDER PASSED BY JUDICIAL MAGISTRATE OF FIRST CLASS III THIRUVANANTHAPURAM IN CMP NO 865/2016 DATED 31-05-2017 ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CRIME NO 417/2012 DATED 18-04-2012