Abdul Kader Barami and Kunji Mohammed v. State of Kerala, Abdul Jabbar and Anas N.P.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936** **Crl.MC.No. 3241 of 2014** **-----------------------------------** ## **CC 1516/2013 IN CC 969/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - V, KOZHIKODE** **CRIME NO. 532/2011 OF FEROKE POLICE STATION , KOZHIKODE DISTRICT** **------------** ## **PETITIONERS / ACCUSED 1 AND 2 ( 1 & 4 IN CRIME NO.532/2011) :** **-----------------------------------------------------------------------------------------------** ## **1. ABDUL KADER BARAMI, AGED 23 YEARS,** - **S/O.MOHAMMED BARAMI, ADARSH HOUSE, CHERUMANGALASSERI, KALLAI P.O., KOZHIKODE.** ## **2. KUNJIMOHAMMED, AGED 24 YEARS,** **S/O.KUNJALIKUTTY, OORAKA P.O., MALAPPURAM DISTRICT.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENTS/COMPLAINANT :** **-------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (IN CRIME NO.532/2011 OF FEROKE POLICE STATION, KOZHIKODE DISTRICT.)** **2. ABDUL JABBAR, AGED 26 YEARS, S/O.MOHAMED.K, JAMEELA MANZIL, IRIKKOOR, P.O.KOORARI-670 364, KANNUR DISTRICT.** **3. ANAS N.P, AGED 24 YEARS, S/O.ABDUL AZEEZ, NALUPURAPPATTIL HOUSE, KARAMUTTOM, PAYYANUR - 670 301, KANNUR DISTRICT.** **R1 BY PUBLIC PROSECUTOR SMT.SAREENA.P.GEORGE R2 & R3 BY ADV. SMT.NIMA JACOB** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 3241 of 2014** ## **----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE FINAL REPORT IN CRIME NO.532/2011 OF FEROKE POLICE STATION.** **ANNEXURE A2: TRUE COPY OF THE ORDER DATED 19.11.2013 IN CC 969/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT V KOZHIKODE.** **ANNEXURE A3: TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE 2ND RESPONDENT.** **ANNEXURE A4: TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE 3RD RESPONDENT.** **RESPONDENT(S)' ANNEXURES:** ## **NIL** ## **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.3241 of 2014 .................................................. Dated this the 19[th] day of August, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioners, who are accused 1 and 4 in Crime No.532/2011 of Feroke police station, to quash the proceedings on the basis of the settlement and also on the basis of acquittal of other accused persons under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioners are arrayed as accused 1 and 4 in Crime No.532/2011 of Feroke police station registered on the basis of a statement given by the second respondent as defacto complainant alleging the offences under Sections 143, 147, 148, 341, 323 and 324 read with Section 149 of the Indian Penal Code and after investigation, final report was filed and it was originally taken on file as C.C.No.969/2011 before the Judicial First Class Magistrate-V, Kozhikode. Since the petitioners did not appear, case against them was split up and others were tried and acquitted by the court below as per Annexure-A2 judgment. The petitioners were studying in London at that time. Now the matter has been settled between the petitioners and the defacto Crl.M.C.No.3241 of 2014 2 complainant as well. In view of the acquittal of other accused persons and also on account of the settlement, no purpose will be served by proceeding with the case. Since some of the offences are non bailable in nature, they could not file application before the court below for compounding the case. So the petitioners have no other remedy except to approach this Court seeking the following relief: For these and other grounds to be urged at the time of hearing it is most humbly prayed that this Hon'ble Court be pleased to quash all further proceedings against the petitioners/accused in C.C.No.1516/2013 in C.C.No.969/2011 on the files of Judicial First Class Magistrate Court-V, Kozhikode in Crime No.532/2011 of Feroke Police Station, in the interest of justice. 3. Respondents 2 and 3, who are the defacto complainant and the injured, appeared before this Court through counsel and submitted that the matter has been settled between the parties and the case against other accused persons have been ended in acquittal and they have no grievance against the petitioners and they filed Annexures-A3 and A4 affidavits stating these facts. The counsel for the petitioners submitted that in view of the settlement and also in Crl.M.C.No.3241 of 2014 3 view of the acquittal of other accused persons, there is no possibility of conviction even if it is allowed to continue. So he prayed for allowing the petition. 4. The learned Public Prosecutor, on instructions as directed by this Court, submitted that the is no other case against the petitioners, but opposed the petition on the ground that they can very well face the trial and they are absconding accused earlier. 5. Since, the petitioners are absconding and non bailable warrants were pending against them, this Court has directed the petitioners to surrender before the court below and sought bail. Accordingly they surrendered before the court on 12.8.2014 and they were released on bail. 7. It is an admitted fact that on the basis of the statement given by the second respondent as defacto complainant, Crime No.532/2011 of Feroke police station was registered against the petitioners and others alleging offences under Sections 143, 147, 148, 341, 323 and 324 read with Section 149 of the Indian Penal Code and after investigation, final report was filed and it was originally taken on file as C.C.No.969/2011 before the Judicial First Class Magistrate Court-V, Kozhikode and since Crl.M.C.No.3241 of 2014 4 the present petitioners did not appear, case against them was split up and other accursed persons was proceeded with and as per Annexure A2 judgment, they were acquitted. It is seen from the judgment that none of the witnesses have supported the case of the prosecution and it was on the basis of the settlement and also on the basis that witnesses have turned hostile, the case against them was ended in acquittal. Now the petitioners have settled their claim with the second respondent, who is the defacto complainant and the third respondent, who is the injured in the case. On account of the settlement, there is no possibility of conviction as well. Further in the decision reported in **Moosa v. Sub Inspector of police** (2006 (1) KLT 552), a Full Bench of this court has held that normally acquittal of some of the accused is not a ground for acquitting the accused, who did not face trial. But at the time, if the substratum of the prosecution has been shattered in the previous case, then that benefit should be given to the accused, who did not face trial and he will be entitled to get acquittal on that ground. In this case, it is seen from Annexure A2 judgment that since none of the prosecution cases have supported the case against the accused, who faced trial, had Crl.M.C.No.3241 of 2014 5 ended in acquittal. Similarly, now the petitioners have settled their claim with the defacto complainant and the injured as well. Hence, there is no possibility of conviction in such cases. So under the circumstances, there is no purpose will be served by proceeding with the case as it will be only amount to wastage of judicial time. So under the circumstances, this Court feels that it is a fit case where power under Section 482 can be invoked to quash the proceedings as against the petitioners as well giving them the benefit of acquittal of other accused persons and also the settlement that has been arrived between the parties. 8. So the application allowed and further proceedings in C.C.No.1516/2013 (Crime No.532/2011 of Feroke police station) pending before the Judicial First Class Magistrate Court-V, Kozhikode as against the petitioners is quashed. Office is directed to communicate this order to the concerned court immediately. ## **Sd/-** ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.3241 of 2014 6