Abdul Samad @ Samad v. State of Kerala and Sajeer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 4TH DAY OF AUGUST 2014/13TH SRAVANA, 1936** ## **Crl.MC.No. 4088 of 2014 ()** **--------------------------CC.NO.261/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- I, OTTAPPALAM CRIME NO. 713/2009 OF OTTAPALAM POLICE STATION ,PALAKKAD DISTRICT ----------------------** ## **PETITIONER/ACCUSED :** **---------------------------------------** **ABDUL SAMAD @ SAMAD, S/O.KHADERKUTTY @ KUNJIKKA,AGED 33 YEARS, KALINGAMPARAMBIL THEKKUMPURAM VEEDU, CHERUMUNDASSERI, AMBALAPPARA POST, OTTAPALAM TALUK.** **BY ADV. SRI.R.SREEHARI** ## **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH THE SUB INSPECTOR OF POLICE, OTTAPALAM POLICE STATION, OTTAPALAM- 679 101** **2. SAJEER, S/O.MOHAMMEDKUTTY,AGED 31 YEARS, MANKUNNATH VEEDU, CHERUMUNDASSERI, AMBALAPPARA POST, OTTAPALAM TALUK, PIN-679 512** **R1 BY PUBLIC PROSECUTOR SMT. S.HYMA R2 BY ADV. SRI.K.RAJESH SUKUMARAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 4088 of 2014 ()** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **--------------------------------------------** - **ANNEX.A1 - CERTIFIED COPY OF FIR IN CRIME NO.713/2009 OF OTTAPALAM POLICE STATION** **ANNEX.A2 - CERTIFIED COPY OF FINAL REPORT IN CRIME NO.713/2009 OF OTTAPALAM POLICE STATION FILED BEFORE THE JFCM COURT, OTTAPALAM.** **ANNEX.A3 - CERTIFIED COPY OF DEPOSITION OF PW1 IN CC 935/2009 OF JFCM COURT, OTTAPALAM.** **ANNEX.A4 - CERTIFIED COPY OF DEPOSITION OF PW2 IN CC 935/2009 OF JFCM COURT, OTTAPALAM.** **ANNEX.A5 - CERTIFIED COPY OF DEPOSITION OF PW3 IN CC 935/2009 OF JFCM COURT, OTTAPALAM. ANNEX.A6 - CERTIFIED COPY OF DEPOSITION OF PW4 IN CC 935/2009 OF JFCM COURT, OTTAPALAM.** - **ANNEX.A7 - CERTIFIED COPY OF JUDGMENT IN CC 935/2009 DT. 20-7-2011 OF JFCM COURT OTTAPALAM.** ## **RESPONDENT(S)' ANNEXURES: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** ## **sts** ## **K. RAMAKRISHNAN, J. -----------------------------------Crl.M.C No.4088 of 2014 ---------------------------------------------------** Dated this the 04[th] day of August, 2014 ## **O R D E R** This is an application filed by the first accused in Crime No.713/2009 of Ottapalam Police Station and the sole accused in C.C No. 261/2012 on the file of the Judicial First Class Magistrate Court, Ottapalam to quash the proceedings on the basis of settlement and also on the basis of the acquittal of the other accused persons under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioner was implicated as first accused in Crime No. 713/2009 of Ottapalam Police Station along with others alleging offences under Sections 143, 147, 148, 324, 326 r/w Sec.149 of the Indian Penal Code, which was registered on the basis of the statement given by the second respondent as de facto complainant and after investigation final report was filed and it was originally taken on file as C.C 935/2009. Another crime was also registered in respect of **Crl.M.C No.4088 of 2014** **2** the same incident on the basis of the statement given by the present petitioner against the de facto complainant and others and after investigation, final report was filed and it was taken on file as C.C 933/2009 and that case was disposed of on the basis of settlement which was mentioned in Annexure-A7 judgment. The present petitioner could not appear and accused Nos. 2, 3 and 5 in C.C 935/2009 appeared and faced trial and that was ended in acquittal as per Annexure-A7 judgment. The case against the present petitioner was refiled as C.C No.261/2012. He had enforced appearance and released on bail. Now, the matter between the petitioner and the de facto complainant are also settled. Since some of the offences are non-compoundable in nature, they could not file an application before the court below for recording compounding. In view of the settlement and also acquittal of other accused persons, no purpose will be served by proceeding of the case as well. So the petitioner has no other remedy except to approach this Court seeking the following relief: **Crl.M.C No.4088 of 2014** **3** “to quash the prosecution proceedings against the petitioner in C.C No. 261/2012 pending before the Judicial First Class Magistrate Court, Ottapalam in Crime No. 713/2009 of Ottapalam Police Station pursuant to Annexure-A1 First Information Report and Annexure-A2 final report, prematurally as the disputes between the parties has been settled out of court as evidenced by the judgment Annexure-A7.” 3. The second respondent appeared through the counsel and submitted that the matter has been settled between the parties and some of the other accused persons were already acquitted and the case against the de facto complainant which was registered on the basis of settlement given by the present petitioner was also compounded and settled between the parties and he was acquitted in that case on the basis of settlement and he does not want to prosecute the petitioner and he had filed the affidavit in the facts as well. 4. The counsel for the petitioner submitted that in view of the settlement, no purpose would be served in keeping the case. So he prayed for allowing the application. **Crl.M.C No.4088 of 2014** **4** 5. The learned Public Prosecutor, on instructions as directed by this Court submitted that there is no other case against the petitioner but opposed the application on the ground that grave offences have been incorporated and it is not a fit case to quash the proceedings at this stage. 6. it is an admitted fact that on the basis of the statement given by the second respondent Crime No. 713/2009 of Ottapalam Police Station was registered against the petitioner and four others alleging offences under Sections 143, 147, 148, 324, 326 r/w Sec.149 of the Indian Penal Code and after investigation, final report was filed and case was originally taken on file as C.C No. 935/2009 on the file of the Judicial First Class Magistrate Court, Ottapalam. It is also an admitted fact that on the basis of the statement given by the present petitioner against the de facto complainant in respect of the same incident, another crime was registered and after investigation, final report was filed in that case and it was taken on file as C.C No. 933/2009 against the second respondent and it is alleged in the petition that since **Crl.M.C No.4088 of 2014** **5** offences alleged in that case were compoundable in nature, on settling the dispute, that was compounded between the parties and on that basis the de facto complainant was acquitted. 7. It is also an admitted fact that the accused Nos. 2, 3 and 5 appeared and faced the trial in C.C No. 935/2009 and since the matter was settled between the parties, it was ended in acquittal. It is evident from Annexure-A7 judgment. It is also mentioned in Annexure-A7 judgment that counter case viz., C.C 933/09 was settled and compounded and the accused in that case was acquitted on the basis of compounding. It is also seen from Annexure-A7 judgment that the case against the accused Nos.1 and 4 was split up and refiled as C.C 332/2011 and thereafter it was transferred to the register of long pending cases and since the present petitioner surrendered before the court below, it was refiled as C.C No. 261/2012 and that is pending before that court as against the present petitioner. In the meantime, the matter has been settled between the petitioner and the de facto complainant /second **Crl.M.C No.4088 of 2014** **6** respondent as well. In view of the settlement there is no possibility of conviction. Further, some of the other accused persons who faced trial were acquitted on the basis of the settlement which is evident from AnnexureA7 judgment and also the counter case registered in respect of the same incident was also compounded and disposed of on the basis of the compounding which is evident from Annexure-A7 judgment itself. It is also in a way admitted that the parties are known to each other and on account of settlement their old relationship has been restored. Further, in view of the acquittal of other accused persons on the basis of settlement and also this case was also settled between the parties, no purpose will be served by allowing the case to continue as well. 8. In the decision reported in **Moosa v. Sub Inspector of Police, 2006(1)KLT 552,** this Court has held that normally the acquittal of some of the accused persons is not a ground for acquitting the accused who did not face trial. But in the same decision, it has been held that if the substratum of the prosecution case has been shattered and no purpose will be served by **Crl.M.C No.4088 of 2014** **7** proceeding with the case against the other accused who did not face the trial, then the benefit of the acquittal of co-accused who faced the trial can be given to the accused who did not participate in the case as allowing the case to continue against him will only amount to wastage of judicial time and the case against the accused who did not face the trial can be quashed invoking the power under Section 482 of the Code. 9. Further in the decision reported in **Gian Singh** **v. State of Punjab, 2012(4) KLT 108** the honourable Supreme Court has held that if a private dispute has resulted in registration of a crime and filing a final report and ultimately that dispute is resolved by settlement and there is no public interest involved in that crime, then Court must invoke the power under Section 482 of the Code to quash the proceedings to promote settlement and restoration of harmony between the parties. 10. In view of the dictums laid down in above decisions and also considering the fact that the matter has been settled between the parties and there is no public interest involved and some of the accused have **8** ## **Crl.M.C No.4088 of 2014** already been acquitted on the basis of settlement and the counter case also disposed of on the basis of settlement and continuing the case will only amount to the wastage of judicial time, this Court feels that it is a fit case where the power under Section 482 of the Code can be invoked to quash the proceedings in orde to promote the settlement and restoration of harmony between the parties. So the petition is allowed and further proceedings in C.C No. 261/12 (Crime No. 713/09 of Ottapalam Police Station) pending before the Judicial First Class Magistrate Court, Ottapalam as against the petitioner is quashed. Office is directed to communicate this order to the concerned court immediately. Sd/-K. RAMAKRISHNAN, Judge lsn