Ashraf v. Chathu and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **THURSDAY, THE 27TH DAY OF JUNE 2013/6TH ASHADHA, 1935** ## **Crl.MC.No. 2619 of 2013 ()** **------------------------------------CRIME NO. 959/2001 OF NADAPURAM POLICE STATION , KOZHIKODE. ........** ## **PETITIONER/ACCUSED NO. 2:** **------------------------------------------** **ASHRAF , AGED 32 YEARS S/O. SOOPPY, MEETHALE KULAMULLATHIL HOUSE, VALAYAM VATAKARA.** **BY ADVS.SRI.ZUBAIR PULIKKOOL SRI.P.S.BINU** ## **RESPONDENT/COMPLAINANT:** **------------------------------- --------------** ## **1. CHATHU, AGED 61 YEARS** - **S/O. POKKAN, VANNARKANDY HOUSE, VALAYAM AMSOM DESOM, VATAKARA- 673 101.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-0 682 031.** **R1 BY ADV. SMT.P.A.ANEESHA R2 BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **Crl.MC.No. 2619 of 2013 ()** **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **ANNEXURE 1: FINAL REPORT IN CRIME NO.959/2001 OF NADAPURAM POLICE STATION.** **ANNEXURE II: JUDGMENT DATED 24/7/2001 OF ASSISTANT SESSIONS JUDGE, VATAKARA.** ## **ANNEXURE III: SWORN AFFIDAVIT OF 1ST RESPONDENT** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.M.C.No. 2619 of 2013** **----------------------------------------** Dated this the 27[th] day of June, 2013 ## **O R D E R** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioner, who is the second accused in Crime No.959 of 2001 of the Nadapuram Police Station where the offences alleged are under Sections 143, 147,148.447,427 read with Section 149 of I.P.C. and Sections 3 and 5 of the Explosive Substances Act. 2. According to the petitioner, altogether there are five accused. Out of five, accused Nos.1 and 3 faced prosecution in S.C.No.599/2005 and S.C.No.715 of 2005 and they were acquitted by a common judgment dated 24.7.2008 of the court of Sessions, Kozhikode Division in the above Sessions Cases. According to the petitioner, who is the second accused, in the above circumstances, even though he is prepared to face the trial, there Crl.M.C.No.2619 of 2013 :-2-: will not be any fruitful turn out. It is also the further case of the petitioner that the the dispute between himself and the de facto complainant is settled. Therefore, he preferred the above Crl.M.C. with a prayer to quash Annexure I final report and all further proceedings pending against him in L.P.No.7 of 2013. 3. The prosecution allegation is that on 16.12.2001 at about 16.00 hours, the accused persons 1 to 5, unlawfully assembled and in furtherance of their common intention, trespassed into the house of the de facto complainant/first respondent hurled stones and bomb towards the house and there was loss of `500/- to the house and thereby committed the offences punishable under Sections 143, 147,148.447,427 read with Section 149 of I.P.C. and Sections 3 and 5 of the Explosive Substances Act. Now, the case of the petitioner is that the matter is settled out of court between the de facto complainant and himself. 4. Heard the learned counsel for the petitioner as well Crl.M.C.No.2619 of 2013 :-3-: as the first respondent. I have also heard the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that in view of Annexure II judgment, the prosecution has failed to prove its allegation against the accused and therefore, the petitioner is entitled to get the same treatment. It is also submitted that during the pendency of the above crime, the matter is settled amicably between the parties to the dispute which is the subject matter of the above crime. Therefore, the continuation of the proceedings in the above crime is abuse of process of law and proceedings. 6. The learned counsel for the first respondent, who on the basis of specific instruction received from the respondent, submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and he has no grievance against him. 7. I have carefully considered the above submissions of Crl.M.C.No.2619 of 2013 **==> picture [22 x 9] intentionally omitted <==** the respective counsel. I have verified the documents and materials produced along with the above petition. I have perused Annexure-II judgment and in paragraph 13, the learned Judge, who undertook the trial, has found that the charge witnesses who are examined as Pws.1 and 2 have not spoken a single word against the accused persons and Cws.3 and 4 were not examined and it is concluded that there is not an iota of evidence against the accused and accordingly, even the questioning under Section 313 of Cr.P.C. , is dispensed with. If that be so, according to me, sending of the petitioner to face the trial will amount to sheer abuse of process of the court and the same will be against the interest of justice. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition. 8. Having regard to the facts and circumstances Crl.M.C.No.2619 of 2013 :-5-: involved in the case, it can be seen that the offences involved in the above case are only Sections 143, 147,148.447,427 read with Section 149 of I.P.C. and Sections 3 and 5 of the Explosive Substances Act, which are more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for the first respondent, it appears to me that the de facto complainant has no further grievance against the petitioner/accused in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in v. **Gian Singh State of Punjab** [2012(4) KLT 108(SC)], in which case, the Supreme Court has held as follows:- _“57. 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_ Crl.M.C.No.2619 of 2013 :-6-: _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.._ ## It is further held as follows:- “...... _... But the criminal cases having overwhelmingly and_ _pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial,mercandile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal_ Crl.M.C.No.2619 of 2013 **==> picture [22 x 9] intentionally omitted <==** _case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim........”_ According to me, in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived in the present case, the dictum laid in the above decision is applicable in the present case. Thus, I am of the view that as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such settlement, instead of compelling the parties to go on with the dispute. It is pertinent to note that since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, according to me, following the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for. Crl.M.C.No.2619 of 2013 :-8-: In the result, this Crl.M.C. is allowed, quashing Annexure - I final report against the petitioner and all further proceedings in L.P.No.7 of 2013 pending before the Assistant Sessions Court, Vatakara. **V.K.MOHANAN, Judge** MBS/ ## Crl.M.C.No.2619 of 2013 :-9-: