Hashim Shaji and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938** **Crl.MC.No. 5751 of 2016 ()** ## **---------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 328/2007 of J.M.F.C.-II, ERNAKULAM DATED CRIME NO. 378/2007 OF ERNAKULAM CENTRAL POLICE STATION , ERNAKULAM** **PETITIONER(S)/ACCUSED: ---------------------** ## **1. HASHIM SHAJI** - **S/O.ABDUL RAHMAN, BONANZA HOUSE, ARANGATHU CROSS ROAD, ERNAKULAM** **2. YOOSUF S/O.ALAVY, PAPPARATHU HOUSE, CHAKKARAPARAMBU, EDAPPALLY, ERNAKULAM** **3. RAYEES S/O.HASHIM HAJI, BONANZA HOUSE, ARANGATHU CROSS ROAD, ERNAKULAM** **4. SALAM** - **S/O.EBRAHIM, PARAKKAT HOUSE, NEAR CITY GYMNASIUM, PULLEPADY, CP UMMER ROAD, ERNAKULAM** **5. ABDUL SATHAR** - **S/O.ABOOBACKAR, PUTHUVANA HOUSE, ELOOR KARA, KADUNGALLOOR** **contd...** **:2:** ## **Crl.MC.No. 5751 of 2016 () ---------------------------** **BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA SMT.CHITHRA CHANDRASEKHARAN** **RESPONDENT(S):** ## **--------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SI OF POLICE, CENTRAL POLICE STATION, ERNAKULAM** **2. FAISAL S/O.KHADER, OTHALAKUDI HOUSE, CHAKKARAPARAMBU, POONITHURA VILLAGE, ERNAKULAM 682038** ## **3. BASHEER** **S/O.MOIDU MAULAVI, KORATH HOUSE, VISHNUMANGALAM KARA, KALLACHI VILLAGE, KOZHIKODE DISTRICT 673506** ## **4. P.H. ASHRAF** **S/O.HASSAN HAJI, KALLOOPARAMBIL HOUSE, NEARA BSNL, DESHABHIMANI ROAD, KALOOR, ERNAKULAM 682017** ## **5. ABDUL AZEEZ** **S/O.MUHAMMED, VALLIJNALIL HOUSE, PALAPRASSERI KARA, CHENGAMANADU VILLAGE, ERNAKULAM 683578** ## **6. AZIM MUTHAFA** **S/O.MUSHTAFA, ILAMTHOTTAM HOUSE, CHAKKINGAL ROAD, PALARIVATTOM, EDAPALLY SOUTH VILLAGE, ERNAKULAM 682025** **CONTD...** **==> picture [22 x 9] intentionally omitted <==** **Crl.MC.No. 5751 of 2016 ()** ## **---------------------------** ## **7. ABDUL MAJEED** **S/O.AHMED, KOLLAMPARAMBIL HOUSE, THUYKAVU JUNCTION, VENNALA, EDAPPALLY VILLAGE 682028** ## **8. MOOZA** **S/O.ABDUL RAHMAN, MUKKADA HOUSE, MUDICAKAL KARA, MARAMPILLY VILLAGE, PERUMBAVOOR 683107** ## **9. HANEEFA** **S/O.PAREEKUTTY, UZHINJOORIL HOUSE, VAZHAKKALA VILLAGE, ERNAKULAM 682030** **R2-R9 BY ADV. SRI.GEO PAUL R BY PUBLIC PROSECUTOR, SRI.T.R.RENJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CONTD..** ## **:4:** ## **Crl.MC.No. 5751 of 2016 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE AI TRUE COPY OF THE FIR IN CRIME NO. 378/2007 OF CENTRAL POLICE STATION, ERNAKULAM DATED 09.03.2007** **ANNEXURE A2 TRUE COPY OF THE FINAL REPORT IN CC.NO. 328/2007 DATED 16.05.2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT II, ERNAKULAM** **ANNEXURE A3 TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 30.06.2016** **ANNEXURE A4 TRUE COPY OF THE AFFIDAVIT FILED BY THE 3RD RESPONDENT DATED 30.06.2016** **ANNEXURE A5 TRUE COPY OF THE AFFIDAVIT FILED BY THE 4TH RESPONDENT DATED 30.06.2016** **ANNEXURE A6 TRUE COPY OF THE AFFIDAVIT FILED BY THE 5TH RESPONDENT DATED 30.06.2016** **ANNEXURE A7 TRUE COPY OF THE AFFIDAVIT FILED BY THE 6TH RESPONDENT DATED 30.06.2016** **ANNEXURE A8 TRUE COPY OF THE AFFIDAVIT FILED BY THE 7TH RESPONDENT DATED 30.06.2016** **ANNEXURE A9 TRUE COPY OF THE AFFIDAVIT FILED BY THE 8TH RESPONDENT DATED 30.06.2016** **ANNEXURE A10 TRUE COPY OF THE AFFIDAVIT FILED BY THE 9TH RESPONDENT DATED 30.06.2016** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------** **//TRUE COPY//** **P.A. TO JUDGE** **SKS** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 5751 of 2016 - - - - - - - - - - - - - - - - Dated 27[th] September, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This petition under Section 482 of the Code of Criminal Procedure (for short 'Code') has been preferred by the petitioners herein for quashing the proceedings pending against them as C.C.No.328 of 2007 on the file of the Judicial Magistrate of the First Class-II, Ernakulam. In the said case, they stand indicted for offences punishable under Sections 143, 147, 341, 323 read with Section 149 of the IPC. - 2.The prosecution allegation against the petitioners who are the accused Nos. 1 to 5 in the said case is that on is that on 9.3.2007 at 12 noon, the petitioners formed themselves into an unlawful assembly and thereafater in furtherance of their common object, wrongfully restrained the respondents 2 to 9 and thereafter assaulted them. - 3.It is also borne out from the records that a cross case has Crl.M.C. No. 5751 of 2016 2 been registered against the respondents 2 to 9 in respect of a rival version of the same incident as Crime No. 377 of 2007 of the Central Police Station, Ernakulam. Both the cases were settled and it is thereafter that the instant petition has been preferred seeking to quash the proceedings. - 4.The respondents 2 to 9 have entered appearance through their counsel and they have filed separate affidavits before this Court, wherein it is stated that the incident had occurred between rival groups in connection with the administration of a mosque and in order to maintain peace and tranquility in the area the parties have mediated the matter and have decided to settle all the disputes between them and to live in harmony. They assert that they do not wish that the criminal proceedings against the petitioners should continue. - 5.The learned counsel appearing for the petitioners submits that in view of the settlement arrived at between the Crl.M.C. No. 5751 of 2016 3 parties, this Court will be justified in quashing the proceedings. - 6.The learned Public Prosecutor after getting instructions has expressed his reservations in the matter of quashing the proceedings on the basis of settlement. It is submitted that the invocation of powers under Section 482 of the Code in a case of this nature is not warranted. However, it is submitted that no other cases are reported against the petitioners. 7.In **Gian Singh v. State of Punjab and Another** [2012 (10)SCC 303], the Apex Court has crystalised the position in respect of the powers vested in the High Court under S.482 of the Criminal Procedure Code, to quash criminal proceedings. It was held that the power vested in the High Court under Section 482 of the Criminal Procedure Code, is not limited to quashing proceedings within the ambit and scope of Section 320 of the Criminal Procedure Code. The three - Judge Bench in the above case, clearly Crl.M.C. No. 5751 of 2016 4 expounded, that quashing of criminal proceedings under S.482 of the Criminal Procedure Code, could also be based on settlements between private parties, and could also on a compromise between the offender and the victim. Only that, the above power did not extend to crimes against the society. It is also relevant to mention, that the jurisdiction vested in the High Court under Section 482 of the Criminal Procedure Code, for quashing criminal proceedings, was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particularly offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions. Or even offences arising out of matrimony relating to dowry etc. or family disputes where the wrong is basically private or personal. In all such cases, the parties should have resolved their entire dispute by themselves, mutually. Further, guidelines were issued by the Apex Court in **Narinder Singh v. State of Punjab** [2014 (6) Crl.M.C. No. 5751 of 2016 5 SCC 466] and recently in **Rajesh Kamath J. and Others v. Mohana Kurup and Others** [AIR 2016 SC 2452]. 8.I have considered the rival submissions and I have gone through the materials on record. The offence committed by the petitioners cannot be said to be grave and serious having ingredients of extreme mental depravity. It also does not appear that the offence in this case will have a serious impact on the society. More over, when the party respondents have settled the matter, the possibility of conviction is remote and bleak and the continuation of the criminal case against the petitioners would be a futile exercise. It would also put the petitioners and the party respondents to great oppression and prejudice - 9.Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. Crl.M.C. No. 5751 of 2016 6 In the result, this petition will stand allowed. AnnexureA2, final report and all proceedings pursuant thereto against the petitioners now pending as C.C.No.328 of 2007 on the file of Judicial Magistrate of the First Class-II, Ernakulam are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** SKS //TRUE COPY// P.A. TO JUDGE