Abdul Samad and K.M. Haris v. State of Kerala and N. Krishna Prasad and Chandrahasa Acharya

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936 Crl.MC.No.4543 of 2014 (G) --------------------------SC 379/2012 of SUB COURT, KASARAGOD CRIME NO.290/2008 OF KASARAGOD POLICE STATION PETITIONER(S)/ACCUSED 1 & 2: ------------------------------------- 1. ABDUL SAMAD, AGED 29 YEARS - S/O.MALIKE ABDULLA, KALLUMKAI HOUSE, KUDLU VILLAGE KASARAGOD DISTRICT. 2. K.M.HARIS, AGED 34 YEARS S/O.MUHAMMED, KALLUMKAI HOUSE, KUDLU VILLAGE KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT(S)/STATE & DEFACTO COMPLAINT (WITNESS CW'S.1 & 2): ---------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. N.KRISHNA PRASAD,, AGED 37 YEARS S/O.NAGESH ACHARYA, SRIRAMA NILAYAM, MADHURA NAGAR KOIPADY, KUMBLA, KASARAGOD DISTRICT - 671 321. 3. CHANDRAHASA ACHARYA, S/O.ANANDA ACHARYA, KALA NILAYAM, NEAR CONVENT SCHOOL KUMBLA, KASARAGOD DISTRICT - 671 321. R2,3 BY ADV. SRI.AJEESH K.SASI R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4543 of 2014 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS: ------------------------------- ANNEXURE A1: TRUE COPY OF THE FINAL REPORT DATED 7/6/2010 IN CRIME NO.290/2008 AS NUMBERED AS C.P NO.200/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KASARAGOD ANNEXURE A1(A): THE TRUE COPY OF THE DOCKET SHEET IN S.C NO.379/2012 OF THE SESSIONS JUDGE, KASARAGOD. ANNEXURE A2: THE DEPOSITION OF PW1 (CW1) ANNEXURE A2(A): THE DEPOSITION OF PW2 (CW2) ANNEXURE A3: THE TRUE COPY OF THE AFFIDAVIT DATED 5/8/2014 SIGNED BEFORE AN ADVOCATE NOTARY BY THE RESPONDENT NO.2(CW1) ANNEXURE A3(A): THE TRUE COPY OF THE AFFIDAVIT DATED 5/8/2014 SIGNED BEFORE AN ADVOCATE NOTARY BY THE RESPONDENT NO.3(CW2) RESPONDENT(S)' EXHIBITS: NIL -------------------------------- // TRUE COPY // P.A TO JUDGE. ## **ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.4543 Of 2014** ## **--------------------------------Dated this the 19[th] day of December, 2014.** ## **O R D E R** The petitioners herein are the two accused in S.C.No.379/2012 on the file of the Assistant Sessions Court, Kasaragod. The above case arose out of Crime No.290/2008 of Kasaragod Police Station registered for offences alleged under Secs. 143, 147, 148, 341, 307, 153(A) r/w 149 IPC. The police after investigation filed the impugned Annexure-A1 Final Report/Charge Sheet in Crime No.290/2008 of Kasaragod Police Station and the case was re-numbered as C.P.No.200/2010 on the file of the Judicial First Class Magistrate Court-I, Kasaragod. The prosecution case is that on 15.4.2008 at about 8:20 p.m., while CW1 was travelling in a motor cycle with CW2 and when they reached at Eriyal NH Road near bridge at Kasaragod, they were attacked by culprits and CWs 1 & 2 (respondents 2 & 3 herein) sustained grievous injuries and thus the accused have committed the aforementioned offences. It is stated by the petitioners that they are innocent of the above allegations and that they are law abiding citizens and that they were regularly appearing before the committal court and the against against them were committed to the Sessions Court, Kasaragod as S.C.No.379/2012 and the ::2:: ## **Crl.M.C.No.4543 Of 2014** Sessions Court made over the case to the Assistant Sessions Court, Kasaragod for trial and disposal as evidence from Annexure-A1(a). It is stated that in the meanwhile, the 2[nd] petitioner has got a fresh employment in the overseas and that now he is in Gulf , that later the 1[st] petitioner entered appearance and trial commenced against him before the Assistant Sessions Court, Kasaragod and during the course of examination, the defacto complainant (CW1) and CW2 (injured) deposed that the petitioners were not the assailants and they never stated before the police that the petitioners herein are the accused. Petitioners have produced the depositions of contesting respondents 2 & 3 herein (CW1 & CW2) as Annexures 2 and 2(a) respectively in this Crl.M.C, whereby they have deposed before the court below in the instant sessions case, S.C.No.379/2012, that the accused persons in that sessions case were not involved in the alleged crime etc. It is further stated that the misunderstanding between the petitioners herein and contesting respondents 2 & 3 have been resolved. Respondents 2 & 3 (CW1 & CW2) have sworn to separate affidavits on 5.8.2014 produced as Annexures 3 & 3(a) respectively in this Crl.M.C, whereby they have stated that police after investigation has submitted Final Report/Charge Sheet against accused Nos.1 to 5 in Crime ::3:: ## **Crl.M.C.No.4543 Of 2014** No.290/2008 of Kasaragode Police Station and that the petitioners herein were arrayed as accused Nos.2 & 4 in the Final Report/Charge Sheet. That as the other accused in the above Crime have absconded, the case against the petitioners herein, who are accused Nos.2 & 4 in the Final Report/Charge Sheet were committed to the sessions court and pending as S.C.No.379/2012 of Assistant Sessions Court, Kasaragod. That they do not have any grievances against the petitioners and since the incident occurred during night, due to darkness he could not identify the persons, that the petitioners have not attacked them and that petitioners were not present there with those who attacked them and the petitioners are known to them and that they have no complaint against them and these aspects have been deposed before the Sessions Court in S.C.No.379/2012 and that they do not have any objection to quash the impugned criminal proceedings against the petitioners in respect of S.C.No.379/2012 and that the impugned criminal proceedings arising out of S.C.No.379/2012 on the file of the Assistant Sessions Court, Kasaragod in Crime No.290/2008 of Kasaragode Police Station may be quashed in the interest of justice etc. It is in the background of these facts and circumstances that the petitioners have approached this Court by invoking the powers under Sec. 482 ::4:: ## **Crl.M.C.No.4543 Of 2014** Cr.P.C with the prayer to quash all further proceedings pending against the petitioners in S.C.No.379/2012 on the file of the Assistant Sessions Court, Kasaragod. 2. The Crl.M.C has been admitted and Sri.Ajeesh K.Sasi, Advocate, has taken notice for respondents 2 & 3 and the learned Public Prosecutor has taken notice for the 1[st] respondent-State of Kerala. 3. Heard Sri.K.P.Harish, learned counsel appearing for the petitioners, Sri.Ajeesh K.Sasi, learned counsel appearing for respondent Nos.2 & 3 and the learned Public Prosecutor appearing for the 1[st] respondent. 4. The learned counsel for the petitioners has submitted that during the pendency of the aforementioned criminal proceedings, the matter has been settled amicably between the parties, and that the continuation of the proceedings in the above case/crime will cause miscarriage of justice to both parties as the real disputants to the controversy have arrived at an amicable settlement and any further continuation of the criminal proceedings will amount to sheer wastage of time and money and would unnecessarily strain the judicial, administrative and financial resources of the State. ::5:: ## **Crl.M.C.No.4543 Of 2014** 5. Sri.Ajeesh K.Sasi, learned counsel appearing for respondent Nos.2 & 3 has submitted on the basis of the specific instructions furnished by the respondent Nos.2 & 3 that respondent Nos.2 & 3 have amicably settled the disputes with the petitioners and that they have no objection in the quashment of the impugned criminal proceedings and that the complainant/victim/injured does not intend to proceed any further against the petitioners as they have no grievance against them and that they will not raise any dispute/complaint in future if the prayer for quashing the impugned final report is allowed. 6. The learned Public Prosecutor also was heard and submitted that this Court may consider the prayer in this case in the light of the law well settled by the Apex Court in that regard. 7. After having carefully considered the submissions of the parties and after having perused the pleadings as well as the documents and materials placed in this matter, it can be seen that the chances of conviction in this case is extremely remote. The crucial aspect of the matter is that though such offences are involved, CWs 1 & 2 (respondents 2 & 3 herein) have deposed that the petitioners herein are not involved in the crime etc. From the submissions made by the learned counsel for respondent Nos.2 & 3, ::6:: ## **Crl.M.C.No.4543 Of 2014** it is clear to the Court that the injured/victim/defacto complainant has no further grievance against the petitioners/accused in the light of the aforementioned aspects. 8. In this connection, it is relevant to note the decision of the Apex Court in the case between _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160, para 61 = (2012) 10 SCC 303 = 2012(4) KLT 108(SC), wherein the Supreme Court has held as follows in para 61 thereof [ See SCC (Cri)]: _“61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz;(i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R. may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed.._ In the decision reported in the case _**Yogendra Yadav & others v.**_ _**The State of Jharkhand & another**_ reported in 2014 (8) Scale 634 = III (2014) Current Criminal Reports CCR 426 (SC), the Apex Court has held as follows: _“When the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring_ ::7:: ## **Crl.M.C.No.4543 Of 2014** _about peace and would secure ends of justice, it should not hesitate to quash them”._ The Apex Court in the above case was dealing with a case involving offences under Sections 341, 323, 324, 504 & 307 r/w Section 34 Indian Penal Code. 9. Considering the facts and circumstances of this case, it is seen that there is no point in continuance of the impugned criminal proceedings, due to the aforestated aspects. It is also to be noted that CWs 1 & 2 in S.C.No.290/2008 on the file of the Assistant Sessions Court, Kasaragod, who are impleaded as respondents 2 & 3 herein, have deposed in the said sessions case as evident from Annexure-A2 & A2 (a). CW1 (2[nd] respondent herein) have deposed as per Annexure-2 that five persons had approached them for the attack and three persons had beat them with stick and that one Ajeer had stabbed him with a knife on the back and it was Ajeer who had beat him with stick and except Ajeer, no one else have attacked them. That the 1[st] petitioner herein is a person who has frequently come to the shop of PW1 and that he used to entrust work relating to gold jewellery to him and that he (CW1) has prior acquaintance with both the petitioners herein and that both petitioners herein were not ::8:: ## **Crl.M.C.No.4543 Of 2014** involved in the Crime and he does not have any complaint against them etc. CW2 (3[rd] respondent herein) has deposed as per Annexure-2(a) herein that five persons had approached them for the attack and one Ajeer had stabbed him on his back near to the right shoulder and that he had stabbed CW1 also and that one Rasheed had stabbed and beaten him. In the crossexamination, CW2 (3[rd] respondent herein) has clearly deposed that he has prior acquaintance with both the petitioners herein and that they have not attacked them and that CW2 has not given any statement to the police that the petitioners herein were involve din the Crime and that they have not identified the petitioners herein before the police etc. CWs 1 & 2, who are impleaded as respondents 2 & 3 herein have also sworn to affidavit as per Annexures 3 & 3(a) whereby they have stated that neither the petitioners attacked them nor were they present with those who attacked them and that both the petitioners were known to them and they do not have any complaint or grievance against them and they have correctly deposed all these details before the Sessions Court in S.C.No.379/2012 and that the impugned criminal proceedings arising out of S.C.No.379/2012 on the file of the Assistant Sessions Court, Kasaragode in Crime ::9:: ## **Crl.M.C.No.4543 Of 2014** No.290/2008 of Kasaragod Police Station may be quashed in the interest of justice etc. Accordingly, this Court is inclined to hold that in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived at between the parties, the principles laid down in the aforementioned decisions of the Apex Court will be squarely applicable in the present case. It is also pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there may not be any fruitful prosecution and the chances of conviction of the accused is rather negligible and therefore, the net result of continuance of criminal proceedings would be sheer waste of judicial time rather meaningless and therefore would amount to abuse of the process of court proceedings in the larger sense. Hence following decisions of the Apex Court cited supra, this Court is inclined to hold that the Crl.M.C. can be allowed by granting the prayers sought for. In the result, Crl.M.C is allowed and all further proceedings pending against the petitioners in S.C.No.379/2012 on the file of the Assistant Sessions Court, Kasaragod and all further ::10:: ## **Crl.M.C.No.4543 Of 2014** proceedings arising therefrom against the petitioners herein stand quashed. Petitioners shall produce certified copies of this order before the Station House Officer concerned as well as before the court below concerned. **ALEXANDER THOMAS, Judge.** bkn/-