E.K. Ashraf v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 1ST DAY OF JULY 2013/10TH ASHADHA, 1935** ## **Crl.MC.No. 2667 of 2013** ## **---------------------------** ## **(L.P.NO.2/2011 IN SC.NO.183/2008 OF ASSISTANT SESSIONS COURT, KOZHIKODE)** **...... CRIME NO. 96/2002 OF KOZHIKODE TOWN POLICE STATION , KOZHIKODE** **.....** ## **PETITIONER(S):ACCUSED:** **----------------------------------------** **E.K.ASHRAF,AGED 48 YEARS, S/O.MOOSKKUTTYM, ILLICKEL HOUSE, NADUVATTAM, BEYPOOR, KOZHIKODE DISTRICT.** **BY ADV. SRI.P.SHAMSUDIN** ## **RESPONDENTS/STATE AND DEFACTO - COMPLAINANT(S):** **---------------------------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM - 682 031, (IN CRIME NO.96/2002 OF TOWN POLICE STATION, KOZHIKODE).** **2. BENNY MATHEW, AGED 40 YEARS, S/O.MATHEW, PALATHINGAL HOUSE, MANAKKADAVU PO - 670 571, KANNUR DISTRICT.** **3. T.K.ANEESH KUMAR, S/O. KARTHIKEYAN, AGED 31 YEARS, EENGATHIL HOUSE, VELIYAMMANA - 685 588, THODUPUZHA TALUK, IDUKKI DISTRICT.** **4. JYOMON DEVASYA, AGED 31 YEARS, S/O.DEVASYA, KAIPPANAKKAL, IRUTTI, NOW RESIDING AT ARALAM PO - 670 578 IN THALASSERI TALUK.** **R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN R2 TO R4 BY ADV. SMT.NIMA JACOB** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRMC.NO.2667/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.A1: COPY OF FINAL REPORT IN FIR NO.96/2002 OF TOWN POLICE STATION IN KOZHIKODE.** **ANNEX.A2: COPY OF THE ORDER DTD. 26/02/2008 IN S.C.NO.824/2003 OF THE PRINCIPAL ASSISTANT SESSIONS JUDGE,KOZHIKODE.** **ANNEX.A3: COPY OF THE AFFIDAVIT SIGNED BY THE 2ND RESPONDENT DTD. 2/06/2013.** **ANNEX.A4: COPY OF THE AFFIDAVIT SIGNED BY THE 3RD RESPONDENT DTD. 2/06/2013.** **ANNEX.A5: COPY OF THE AFFIDAVIT SIGNED BY THE 4TH RESPONDENT DTD. 12/06/2013.** ## **RESPONDENT'S ANNEXURES:** ## **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.M.C.No.2667 of 2013** ## **----------------------------------------** Dated this the 1[st] day of July, 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 accused in L.P.No.2 of 2011 in S.C.No.183 of 2008 of the Principal Assistance Sessions court, Kozhikode which is a case instituted upon the police report [in Crime No.96 of 2002 of Town Police Station, Kozhikode] for the offences punishable under Sections 143, 147, 148, 452, 341, 506(ii), 307 r/w 149 of I.P.C with a prayer to quash all further proceedings against the petitioner/accused in L.P.No.2 of 2011 in S.C.No.183 of 2008 on the files of Principal Assistance Sessions Court, Kozhikode in Crime No.96 of 2002 of Town Police Station, Kozhikode as the matter is settled out of court. 2. The allegation in the above case is that on 09.05.2002 at 3 p.m the accused persons 6 in number formed themselves into an unlawful assembly armed with deadly weapons and trespassed into the Queens Bar at Kozhikode, and wrongly restrained the prosecution witnesses and assaulted them and attempted to commit murder and thus the 2 **Crl.M.C.No.2667 of 2013** accused has committed the offences punishable under Sections 143, 147, 148 452, 341, 506(ii), 307 r/w 149 of IPC. Now the case of the petitioner is that the matter is settled out of court between himself and the de facto complainant who is the second respondent herein and other injured namely respondents 3 and 4. It is also the case of the petitioner that the other accused in the very same case of prosecution i.e., in S.C.No.824 of 2003 of the court of Sessions, Kozhikode Division faced the trial but by judgment dated 26.02.2008 in the above Sessions Case they were acquitted as the all injured witness including the de facto complainant are turned hostile. Therefore, the counsel seeks an order quashing of proceedings pending against him in L.P.2/11 in S.C.No.183 of 2008 of the Prl.Asst.Sessions Court, Kozhikode. In the light of the above submission of the learned counsel for the petitioner, I have perused Annexure-2 judgment and in paragraph 9 of the same the learned Sessions Judge has found that Pws.1 to 16 who are the injured turned hostile stating that they do not know who attacked them and those witnesses failed to identify the accused. The independent witnesses also do not support the prosecution case. If that be so, no purpose would be served in 3 **Crl.M.C.No.2667 of 2013** sending the petitioner to face the trial. The de facto complainant and the injured have filed Annexure A-3, A4 and A5 affidavits respectively before this Court and now, the case of the petitioner/s is that the matter is settled out of court. 3. Heard the learned counsel for the petitioner as well as respondents 2 to 4. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that during the pendency of the above case the matter is settled amicably between the parties to the dispute which is the subject matter of the above case. Therefore, the continuation of the proceedings in the above case is abuse of process of law and proceedings. 5. The learned counsel for the respondents 2 to 4 who on the basis of specific instruction received from the respondent submitted that the above respondents, who are the de facto complainant/victim/injured do not intend to proceed any further against the petitioner and they have no grievance against him. 6. I have carefully considered the above submissions of the respective counsel. I have verified the documents and 4 **Crl.M.C.No.2667 of 2013** materials produced along with the above petition. 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. 7. Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only Sections 143, 147, 148, 452, 341, 506(ii), 307 r/w 149 of I.P.C 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 respondents 2 to 4, it appears to me that the injured/the victim/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 **Gian Singh** v. **State of Punjab** [2012(4) KLT 108(SC)]. In Gian Singh's case, the Supreme Court has held as follows:- 5 **Crl.M.C.No.2667 of 2013** _“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 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 case would put accused to great oppression and prejudice_ 6 **Crl.M.C.No.2667 of 2013** _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. According to me, 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. In the result, this Crl.M.C. is allowed, quashing all further proceedings pending against the petitioners in L.P.No.2 of 2011 in S.C.No.183 of 2008 of the Principal Asst. Sessions **Crl.M.C.No.2667 of 2013** 7 court, Kozhikode in Crime No.96 of 2002 of Town Police Station, Kozhikode and all further proceedings thereto. **V.K.MOHANAN Judge** mns/