A.N. Ummer v. State & Complainant

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.MC.No. 3499 of 2008() ------------------------CC.674/2008 of JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD .................... PETITIONER(S): 3RD ACCUSED -------------------------- A.N.UMMER, S/O.MOIDEEN, AGED 28 YEARS, RESIDING AT NADUKAN, PRIYADARSHANA NAGAR, ADHUR VILLAGE, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU ## RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. THE STATION HOUSE OFFICER, ADHUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## 2. BASHEER HAJI, S/O.IBRAHIM MUSALIYAR, AGED 60 YEARS, RESIDING AT KUKKAMKAI, ADHUR VILLAGE, KASARGOD TALUK, KASARAGOD DISTRICT. PUBLIC PROSECUTOR SRI.S.U.NAZER SRI.PAULY MATHEW MURICKEN FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.3499 of 2008 ---------------------------------------Dated this the 23[rd] day of September 2008 ## **O R D E R** The petitioner faced indictment as the third accused in a prosecution under Section 379 read with 34 I.P.C. Altogether there were three accused persons. The crux of the allegations is that the accused persons in furtherance of their common intention had trespassed into the property of the de facto complainant and had committed theft of 32 banana bunches which were stated to be of the value of about Rs.2390/-. Final report was filed. Cognizance was taken and the case was registered before the learned J.F.C.M-I, Kasaragod. The petitioner was not available for trial. The other two accused were available for trial before the learned Magistrate. Application for composition was filed by the de facto complainant and the two accused persons who asserted that the actual value of the stolen articles would be less than Rs.2,000/-. They, therefore, prayed that composition may be accepted under Section 320 Cr.P.C. Crl.M.C.No.3499/08 2 2. The learned Magistrate did not accept the composition obviously because the F.I.R and the final report had shown the value of the property stolen to be Rs.2,390/-. The de facto complainant asserted on oath that the value was only less than Rs.2,000/-. The co-accused were found not guilty and acquitted on merits. But the case against the petitioner was split up. 3. The petitioner apprehends that the matter may be posted for trial forthwith. He has come to this court along with the complainant now to apprise the court of the fact that the disputes have been settled and that as a matter of fact the offence is compoundable, the value of the property stolen being less than Rs.2,000/- actually. Alternatively, he raises a contention that even assuming that the offence is not compoundable, the dispute is one which is purely private and personal between the parties. There is no criminal antecedents for any of the accused. It is not a case of real theft; but of only a property dispute between the parties. In any view of the matter, the parties having wholly and completely settled their disputes and the de facto complainant and the second respondent having Crl.M.C.No.3499/08 3 compounded the offence allegedly committed by the petitioner herein, powers under Section 482 Cr.P.C as enabled by the dictum in **Madan Mohan Abbot v. State of Punjab [2008 AIR SCW 2287]** may be pressed into service to bring to premature termination the prosecution against the petitioner also. No useful purpose is likely to be served by continuing with the prosecution. Actually the value of the property is less than Rs.2,000/-, technicalities may not be adhered to. The ground realities may be taken into account, it is submitted by the learned counsel for the petitioner as well as the second respondent. 4. Notice given to the learned Public Prosecutor. The learned Public Prosecutor submits that in the totality of the facts and circumstances of this case the State does not also want to oppose the application. 5. I shall assume that the offence is non-compoundable. I am satisfied that there has been a harmonious settlement of the dispute between the parties and composition of the noncompoundable offence by the second respondent. I am satisfied, in these circumstances that this is an eminently fit case where Crl.M.C.No.3499/08 4 powers under Section 482 Cr.P.C as enabled by the dictum in **Madan Mohan** (Supra) can be pressed into service to bring to premature termination the prosecution against the petitioner. 6. In the result, a) This petition is allowed. b) C.C No.674/2008 pending before the J.F.C.M-I, Kasaragod in crime No.195/2007 of Adhur police station against the petitioner herein is hereby quashed. c) Needless to say, the proceedings under Section 446 Cr.P.C, if any, pending against the petitioner and his sureties shall be disposed of by the learned Magistrate, in accordance with law. **(R.BASANT, JUDGE)** jsr Crl.M.C.No.3499/08 5 Crl.M.C.No.3499/08 6 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008