ALSHAD v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 1ST DAY OF AUGUST 2014/10TH SRAVANA, 1936** ## **Crl.MC.No. 3454 of 2014 ()** **--------------------------SC 763/2013 of SESSIONS COURT, PALAKKAD -----------------** ## **PETITIONER/ACCUSED :** - **--------------------------------** **ALSHAD, AGED 21 YEARS S/O.SIDHIQUE, PALLATHUKIZHAKKETHIL VEEDU, VATTOLLI, NELLIKKATTIRI, PALAKKAD.** **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENTS/DEFACTO COMPLAINANT/CWS.2-5 AND STATE :** **------------------------------------------------------------------------------------------** **1. MANOJ, AGED 32 YEARS, S/O.SANKARAN, PLAKKATTIRI PARAMBIL VEEDU, CHATHANOOR MANAPPADI, OTTAPALAM, PALAKKAD DISTRICT - 679 101.** **2. SANKARAN, AGED 54 YEARS, S/O.CHATHA, PLAKKATTIRI PARAMBIL VEEDU, CHATHANOOR, MANAPPADI, OTTAPALAM, PALAKKAD DISTRICT - 679 101.** **3. MANIKANDAN, AGED 33 YEARS, S/O.SANKARAN, PLAKKATTIRI PARAMBIL VEEDU, CHATHANOOR, MANAPPADI, OTTAPALAM, PALAKKAD DISTRICT - 679 101.** **4. VINEESH, AGED 24 YEARS, S/O.VELAYUDHAN, ELIKKOTTU PARAMBIL HOUSE, CHERIPPOOR OTTAPALAM, PALAKKAD - 679 101.** **5. SATHEESH, AGED 32 YEARS,** - **S/O.RAGHAVAN, KOZHIPPURATHU VEEDU, CHATHANOOR, MANAPPADI, OTTAPALAM, PALAKKAD DISTRICT 679 101.** **6. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT OF KERALA ERNAKULAM - 682 031.** **R1 TO R5 BY ADV. SRI.AJEESH K.SASI R6 BY PUBLIC PROSECUTOR SMT. S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 3454 of 2014 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **ANNEXURE A: TRUE COPY OF THE FINAL REPORT IN CRIME NO.40/2009 OF CHALISSERY POLICE STATION IN PALAKKAD DISTRICT IN S.C. NO.763/2013 ON THE FILE OF THE COURT OF SESSION, PALAKKAD DIVISION. ANNEXURE B: AFFIDAVIT SWORN BY THE 1ST RESPONDENT HEREIN EVIDENCING THE AFORESAID SETTLEMENT. ANNEXURE C: AFFIDAVIT SWORN BY THE 2ND RESPONDENT HEREIN EVIDENCING THE AFORESAID SETTLEMENT. ANNEXURE D: AFFIDAVIT SWORN BY THE 3RD RESPONDENT HEREIN EVIDENCING THE AFORESAID SETTLEMENT. ANNEXURE E: AFFIDAVIT SWORN BY THE 4TH RESPONDENT HEREIN EVIDENCING THE AFORESAID SETTLEMENT. ANNEXURE F: AFFIDAVIT SWORN BY THE 5TH RESPONDENT HEREIN EVIDENCING THE AFORESAID SETTLEMENT.** **RESPONDENT(S)' EXHIBITS : NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **BP** ## **K. RAMAKRISHNAN, J. -----------------------------------Crl.M.C No.3454 of 2014 ---------------------------------------------------** Dated this the 01[st] day of August, 2014 ## **O R D E R** This is an application filed by the accused in S.C No. 763/2013 on the file of Sessions Court, Palakkad to quash the proceedings on the basis of settlement and also on the basis of acquittal of other accused persons involved in the same crime under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. The petitioner was arrayed as 9[th] accused in Crime No.40/2009 of Chalissery Police Station along with others alleging offences under Sections 143, 147, 148, 324, 326 and 307 of Indian Penal Code and 3(2)(v) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989. After investigation, final report was filed and after committal it was taken on file as S.C Nos. 53/2012 and 399/2013 on two occasions and thereafter, both these cases were clubbed together and posted for trial. At that time, the present petitioner did not appear. **Crl.M.C No.3454 of 2014** **2** So the case against him was split up and refiled as S.C No.763/2013. All other accused persons were tried and acquitted by the learned Sessions Judge, Palakkad by judgment dated 26.11.2013. The matter has been now settled between the parties. No purpose will be served by proceeding the case, as matter has been settled and other accused persons have already been acquitted on the ground of settlement and it will only amount to wastage of judicial time. Since, the offences alleged are non-compoundable in nature, they could not file the application for compounding before the court below. So, the petitioner has no other remedy except to approach this Court seeking the following relief: “To allow this criminal miscellaneous case and quash Annexure A final report and all further proceedings pursuant thereto in S.C No.763/2013 on the file of the Court of Session, Palakkad Division against the petitioner/Accused, so as to secure the ends of justice.” 3. As directed by this Court, the petitioner surrendered before the Sessions Court, Palakkad in S.C **Crl.M.C No.3454 of 2014** **3** No. 763/2013 and he was released on bail, which is evident from the report of the Sessions Judge dated 30.07.2014. 4. The respondents 1 to 5 appeared through counsel and submitted that the matter has been settled between the parties and other accused persons have been acquitted on the basis of settlement and on account of the settlement, they do not want to prosecute the petitioner as well. They also submitted that they have filed affidavits stating these fact as Annexure B to F. 5. The counsel for the petitioner submitted that in view of the settlement and also on account of the fact that other accused persons have been acquitted, no purpose will be served by allowing the case to continue and he prayed for allowing the application. 6. The learned Public Prosecutor, on instructions as directed by this Court, submitted that there are no other cases against the petitioner but opposed the application on the ground that he was an absconding accused and Section 307 of Indian Penal Code has been incorporated. **Crl.M.C No.3454 of 2014** **4** 7. It is an admitted fact that on the basis of the statement given by the defacto complainant, the first respondent, the case was registered as Crime No. 40/2009 of Chalissery Police Station against the petitioner and others alleging offences under Sections 143, 147, 148, 324, 326 and 307 of Indian Penal Code and 3(2)(v) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989. It is also an admitted fact that after investigation Annexure-A final report was filed and the case against the accused persons were committed the Court of Sessions on two occasions and it was taken on file as S.C 53/12 and 399/13 on the file of Principal Sessions Court, Palakkad and at the time of trial the present petitioner who has been arrayed as 9[th] accused did not participate in the trial. So case against him was split up and accused Nos.1 to 8 and 10 to 12 were tried and acquitted by the Sessions Judge, Palakkad. The counsel for the petitioner produced the judgment in the above case for perusal of this Court, which shows that the injured as well as the other witnesses have turned hostile and they did not support the case of the prosecution and **Crl.M.C No.3454 of 2014** **5** it appears that even at that time the matter was settled and that was the reason why they did not support the case of the prosecution. Now, the present petitioner also surrendered before the court below as directed by this Court and he was released on bail. The injured as well as the de facto complainant have filed affidavits stating that the matter has been settled between the parties and they have no grievance against the petitioner and no objection for quashing the proceedings. In view of the settlement the possibility of conviction will be remote as they will not support the case of the prosecution. Further, it is seen from the judgment produced for perusal by the counsel for the petitioner that all the other accused persons except the present petitioner and 13[th] accused were acquitted on the ground that the prosecution witnesses did not support the case of the prosecution. 8. It is true that offence under Section 307 of Indian Penal Code is a grave offence and even if the victim had compromised the matter with the accused, the court cannot normally invoke Section 482 of the Code for quashing the proceedings. In the decision reported in **Crl.M.C No.3454 of 2014** **6** **Gian Singh v. State of Punjab, 2012(4)KLT 108** and also **Narinder Singh and Others v. State of Punjab and Another, 2014(4) SCALE 195,** the Honourable Supreme Court held that any grave offences like 307, robbery and where public interest is also involved, even if there is settlement the same could not be quashed. At the same time, if ultimately the court feels that proceeding with the case will be of no use and the witnesses are likely not to support the case of the prosecution, then, in exceptional circumstances court can invoke 482 of the Code and quash the proceedings even in such cases in order to avoid wastage of judicial time. 9. In this case, the case against other accused persons have been ended in acquittal on account of the settlement. Even if the case is allowed to be proceeded with, the fate will be the same as the de facto complainant and the witness will not support the case of the prosecution as well and it will end in acquittal. Further, the decision in **Moosa v. Sub Inspector of Police, 2006(1) KLT 552** this Court had held that if the substratum of the prosecution case has been shattered in **Crl.M.C No.3454 of 2014** **7** the earlier case in which other accused persons were acquitted, then that benefit can be given to the accused who did not participate in the proceedings and quash the case against him as well, instead of allowing the case to continue the usual process of trial so as to get the order of acquittal of accused on account of non-support of the prosecution case by the witnesses. So under the circumstances, this Court feels that it is a fit case were the power under Section 482 of the Code has to be invoked to quash the proceedings as against the petitioner as well as allowing the case to continue in view of the discussions made above, will only amount to wastage of judicial time. So the application is allowed and further proceedings in S.C 763/2013 on the file of the Sessions Court, Palakkad as against the petitioner is quashed. Office is directed to communicate this direction to concern court immediately. ## **Sd/- K. RAMAKRISHNAN, Judge** lsn