Fahad v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 3RD DAY OF MAY 2016/13TH VAISAKHA, 1938 ## Crl.MC.No. 2649 of 2016 --------------------------CRIME NO. 208/2012 OF VENGARA POLICE STATION , MALAPPURAM PETITIONER(S)/ACCUSED NO.2: -------------------------- FAHAD, S/O MUHAMMED KUTTY, CHEMBAKASSERY HOUSE, KIZHAKKEKUNDU, PARAPPUR, MALAPPURAM. ## BY ADV. SRI.P.K.NIJOY ## RESPONDENT(S)/STATE, COMPLAINANT AND VICTIM: -------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. FATHIMA SUHRA W/O MOIDEEN KUTTY, THRUMBATH EDAPPANAD HOUSE, KIZHAKKEKUNDU, PARAPPUR P.O., MALAPPURAM-676503. 3. MOIDEEN KUTTY S/O MUHAMMED, THRUMBATH EDAPPANAD HOUSE, KIZHAKKEKUNDU, PARAPPUR P.O., MALAPPURAM-676503. ## R2 & 3 BY ADV. SRI.MAHESH V.MENON BY PUBLIC PROSECUTOR SRI.N. SURESH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-052016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2649 of 2016 () --------------------------- ## APPENDIX ## ANNEXURES ----------------------- - AI: CERTIFIED COPY OF THE FIR IN CRIME NO.208 OF 2012 DATED 9.6.2012. A2: CERTIFIED COPY OF FINAL REPORT IN CRIME NO.208 OF 2012 SUBMITTED BEFORE THE JFCM COURT, MALAPPURAM. - A3: CERTIFIED COPY OF THE JUDGMENT DATED 2.3.2016 IN C.C.NO.733 OF 2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM. - A4: TRUE COPY OF THE AFFIDAVIT DATED 16.2.2016 OF THE 2ND RESPONDENT. A5: TRUE COPY OF THE AFFIDAVIT DATED 16.2.2016 OF THE 3RD RESPONENT. //True Copy// P.S.To Judge ## **RAJA VIJAYARAGHAVAN.V. J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. 2649 of 2016 - - - - - - - - - - - - - - - - Dated 3[rd] May, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** 1. The petitioner herein is the 2[nd] accused in Crime No.208 of 2012 of Vengara police station, Malappuram, which is registered for offences punishable under sections 448, 341, 323, 354 r/w S.34 of the Indian Penal Code. After investigation final report was laid before the learned Judicial Magistrate of First Class, Malappuram, who took cognizance of the case as C.C.733 of 2012. 2. The petitioner went abroad in search of an employment and therefore, did not appear before the learned magistrate. The trial was proceeded against the 1[st] accused who is the father of the petitioner herein and as per judgment dated 2.3.2016 which is produced as Annexure-3, the 1[st] **Crl.M.C.2649/16** 2 accused was acquitted u/s 255(1) of the Cr.P.C. 3. According to the learned counsel for the petitioner, the petitioner was unable to face trial as he was abroad. The de facto complainant and the injured have been arrayed as respondents 2 and 3 in this petition. It is submitted that after the acquittal of the 1[st] accused, there were mediation talks at the instance of well wishers and the matter has been settled. It was submitted by the counsel for the respondents 2 and 3 that separate affidavits have been filed asserting that they are not inclined to proceed with the matter as against the petitioner herein. 4. I have heard the learned counsel for the petitioner, the learned Counsel for the respondents 2 and 3 and the learned Public Prosecutor. **Crl.M.C.2649/16** 3 5 . I have anxiously gone through Annexure - A3 judgment rendered by the learned Magistrate. Before the learned Magistrate, none of the witnesses supported the case of the prosecution. They had deposed before the Court that the matter had been settled and that they had no complaints whatsoever as against the accused. The learned Magistrate after evaluation of the evidence came to the conclusion that the evidence available was totally insufficient to connect the accused with the crime. In **Moosa v. Sub Inspector of Police (2006 (1) KLT 552)** and also **Ashraf Kancheriyil v. State of Kerala (2011 (2) KHC 812)** it has been held that when substratum of the case is destroyed , there is no point in pursuing with the prosecution as against the other accused. In the instant case, the injured witness and the de facto complainant have filed **Crl.M.C.2649/16** 4 separate affidavits asserting that they have entered into an amicable settlement with the petitioner and they do not wish to proceed with the criminal prosecution. The counsel who entered appearance for and on behalf of respondents 2 and 3 have also asserted that the assertions in the affidavit are true. 6. After hearing the counsel for the petitioner and also the learned Public prosecutor and the learned counsel for the respondents 1 and 2, I am of the considered opinion that this is one of those exceptional cases where prayer for invocation of the extraordinary inherent jurisdiction can be justifiably invoked to serve the ends of justice. The bona fides of the petitioner in approaching this court with the prayer cannot be doubted as the substratum of the case has been destroyed. It has been held by the Apex Court, that the High Court, while exercising **Crl.M.C.2649/16** 5 powers under S. 482 will be justified in quashing cases involving even non-compoundable offence if the disputes are really private in nature and no public interests are involved provided that the offenses are not of the gravely objectionable variety. I am convinced that the extraordinary powers under S. 482 can be invoked as the case falls within the matrix of guidelines laid down by the Apex Court in **Gian Singh v. State of Punjab ( 2012 (4) KLT 108) and Narinder Singh and others v. State of Punjab and anr. reported in (2014) 6 SCC 466)** and other cases. 7. It is also felt that quashing of the instant proceeding would bring about peace and secure ends of justice. No purpose will be served in subjecting the parties to the ordeal of a protracted trial in view of the settlement. It will only enure to waste **Crl.M.C.2649/16** 6 valuable judicial hours. I am, therefore, of the view that the criminal proceedings pending as against the petitioner can be quashed by invoking the inherent powers of this Court under S. 482 of the Code of Criminal Procedure. 8. This Criminal Miscellaneous case is allowed. The proceedings as against the petitioner in crime No.208 of 2012 of Vengara police station and all further proceedings pursuant thereto including Annexure-2 final report on the files of the Judicial Magistrate of First Class, Malappuram, is hereby quashed. Sd/- ## **RAJA VIJAYARAGHAVAN.V. Judge** Mrcs/4.5.2016 //True Copy// P.S.To Judge