Farooq v. Ismail and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 28TH DAY OF MAY 2014/7TH JYAISHTA, 1936** ## **Crl.MC.No. 2322 of 2014** ## **------------------------------------** ## **C.C.NO. 1076/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THAMARASSERY CRIME NO. 534/2010 OF THAMARASSERY POLICE STATION , KOZHIKODE -------------------** **PETITIONER/IST ACCUSED:** **----------------------------------------** **FAROOQ, AGED 26 YEARS, S/O.IBRAHIM, VATTIKUNNUMMEL HOUSE, EERPPONA-DESOM, KEDAVOOR AMSOM, THACHAPOYIL P.O., KOZHIKODE - 673 573.** **BY ADV. SRI.M.H.HANIL KUMAR** ## **respondents/complainant/state:** **----------------------------------------------------------** ## **1. ISMAIL,** - **S/O.MOOSAHAJI, ABOOBACKER, POOTHOTTAM POYIL HOUSE, KODAVOOR AMSOM, IRPONA DESOM, THACHAPOYIL P.O., KOZHIKODE - 673 573. (DEFACTO COMPLAINANT)** **2. SUB INSPECTOR OF POLICE,** - **THAMARASSERY POLICE STATION, THRISSUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031.** **3. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031.** - **R1 BY ADV. SRI.C.D.DILEEP R2 & R3 BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28-05-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 2322 of 2014** ## **----------------------------------** ## **APPENDIX ---------------** ## **PETITIONER(S)' ANNEXURES:** **ANNEXURE A1: A CERTIFIED COPY OF THE STATEMENT OF THE 1ST RESPONDENT IN CRIME NO.534/2010 ON THE FILES OF THE THAMARASSERY POLICE STATION DATED 01.09.2010.** **ANNEXURE A2: A CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.534/2010 ON THE FILES OF THE THAMARASSERY POLICE STATION DATED 01.09.2010.** **ANNEXURE A3: A CERTIFIED COPY OF THE STATEMENT OF WITNESSES RECORDED BY THE POLICE.** **ANNEXURE A4: A CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, THAMARASSERY IN CRIME NO.534/2010 DATED 05.10.2010.** **ANNEXURE A5: A CERTIFIED COPY OF THE ORDER IN C.C.NO.598/2010 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THAMARASSERY IN CRIME NO.534/2010 DATED 11.12.2013.** **ANNEXURE A6: THE ORIGINAL AFFIDAVIT SWORN BY THE FIRST RESPONDENT DATED 30.03.2014.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** **//TRUE COPY//** ## **P.S.TO JUDGE.** Msd. ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.2322 of 2014 .................................................. Dated this the 28[th] day of May, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the first accused in Crime No.534/2010 of Thamarassery police station, Kozhikode district and the sole accused in C.C.No.1076/2013 of Judicial First Class Magistrate Court, Thamarassery to quash the proceedings on the basis of a settlement under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was originally arrayed as the first accused in Crime No.534/2010 of Thamarassery police station which was registered on the basis of a statement given by the defacto complainant - the first respondent herein along with other accused persons alleging offences under Sections 143,147,148, 341, 506 (ii) and 427 read with Section 149 of the Indian Penal Code. Subsequently, after investigation final report was filed against two accused persons alone but showing the offences under Sections 143,147,148, 341, 506 (ii) and 427 read with Section 149 of the Indian Penal Code and the case was originally taken on file Crl.M.C.No.2322 of 2014 2 as C.C.No.598/2010 and since the present petitioner did not appear, the case against the second accused in that case was proceeded with and he was acquitted as per judgment dated 11.12.2013. The case against the present petitioner was split up and refiled as C.C.No.1076/2013. 3. Now the matter has been settled between the parties and the defacto complainant has no grievance against the petitioner. In view of the settlement, no purpose will be served by proceeding with the case. Since some of the offences are non compoundable in nature, he could not file application before the court below. So he has no other remedy except to approach this Court seeking the following relief: In the above circumstances, it is most humbly prayed that this Honourable Court may be pleased to quash the Annexure -A1 FIR and Annexure-A4 final report in Crime No.534/2010 pin Thamarassery police station now pending as C.C.No.1076/2013 and all further proceedings in the above case pending on the files of Judicial First Class Magistrate Court, Thamarassery. 4. The first respondent appeared through counsel and submitted that in view of the settlement, he does not want to proceed against the petitioner and he has no objection in 3 Crl.M.C.No.2322 of 2014 quashing the proceedings. 5. The counsel for the petitioner also submitted that in view of the settlement, there is no possibility of any conviction and he prayed for allowing the application. 6. The learned Public Prosecutor, on instructions, as directed by this Court submitted that there is no other case against the petitioner and the case against the second accused has already been ended in acquittal, but opposed the application. 7. It is an admitted fact that on the basis of the statement given by the petitioner, Crime No. 534/2010 of Thamarassery police station was registered against two named persons including the petitioner and three identifiable persons alleging offences under Sections 143,147,148, 341, 506 (ii) and 427 read with Section 149 of the Indian Penal Code and after investigation, final report was filed alleging some offences, but against the present petitioner and the second accused who were also named in the First Information Report. It is also an admitted fact that as per Annexure-A5 judgment, the case against the second accused was tried and ended in acquittal. Now the matter has been settled between the defacto Crl.M.C.No.2322 of 2014 4 complainant and the petitioner. This fact was mentioned in Annexure-A6 affidavit filed by the first respondent as well. It is also mentioned in the affidavit that there was some dispute regarding the running of quarry and crusher unit and the incident occurred in connection with the same and now the entire dispute has been settled as well. In view of the settlement, there is no possibility of any conviction as neither the defacto complainant nor his witnesses will likely to support the case of the prosecution as well. ## 8. Further in the decision reported in **Gian Singh v. State** **of Punjab** (2012 (4) KLT 108 (SC), the Hon'ble Supreme Court has held that: “But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial mercantile, 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 5 Crl.M.C.No.2322 of 2014 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 and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of the criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 9. In view of the dictum laid down in the above decision and also considering the fact that the case against the second accused has already been ended in acquittal after trial and in view of the settlement, possibility of conviction as against the petitioner is remote and the entire incident happened in connection with the functioning of crusher unit in the locality 6 Crl.M.C.No.2322 of 2014 which has been settled between the parties on account of intervention of members of the locality, this Court feels that this is a fit case where the power under Section 482 of the Code of Criminal Procedure has to be invoked to quash the proceedings. 10. So, the application is allowed and further proceedings in C.C.No.1076/2013 (Crime No.534/2010 of Thamarassery police station) pending before the Judicial First Class Magistrate, Thamarassery as against the petitioner is quashed. Office is directed to communicate this order to the concerned court immediately. ## **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.2322 of 2014 7