Hemant P.K. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938** ## **Crl.MC.No. 1297 of 2016** **--------------------------------------** ## **CRIME NO. 1075/2013 OF IRITTY POLICE STATION , KANNUR** **--------------------** ## **PETITIONER(S)/ACCUSED NO.2 :** **-------------------------------------------------** **HEMANATH P.K, AGED 21 YEARS, S/O. MOHANAN C., RESIDING AT PULLIYIL HOUSE, MADAPPURA ROAD, KEEZHUR P.O., KEEZHUR, KANNUR DISTRICT.** ## **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT(S)/COMPLAINANT, STATE AND INJURED :** **------------------------------------------------------------------------------------** **1. THE SUB INSPECTOR OF POLICE, IRITTY POLICE STATION, THALASSERY, KANNUR-670 101.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **3. YASIR C.K., AGED 23 YEARS, S/O. HASHIM, SUHARAS, NARAYAMPARA, ULIYIL P.O., KANNUR DISTRICT-670 702.** **4. ARSHAD P.P., AGED 26 YEARS, NAZEERA MANZIL, KULATHINTAVIDA HOUSE, PUNNAD P.O., IRITTY, KANNUR DISTRICT-670 703.** **5. ABDUL SAMAD M., AGED 19 YEARS, FINAZ, NARAYAMPARA, ULIYIL P.O., KANNUR DISTRICT-670 702.** - **R1 & R2 BY PUBLIC PROSECUTOR SRI. AMJAD ALI R3 TO R5 BY ADV. SRI.K.PRAVEEN KUMAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 1297 of 2016** ## **------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE I: TRUE COPY OF THE CHARGE IN CRIME NO. 1075 OF 2013 OF IRITTY POLICE STATION.** **ANNEXURE II: TRUE COPY OF THE AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT.** **ANNEXURE III: TRUE COPY OF THE AFFIDAVIT SWORN TO BY THE 4TH RESPONDENT.** **ANNEXURE IV: TRUE COPY OF THE AFFIDAVIT SWORN TO BY THE 5TH RESPONDENT.** **ANNEXURE V: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER.** ## **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** ## **P.S.TO JUDGE** Msd. **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.1297 of 2016 ----------------------------------------Dated this the 11th day of August, 2016** ## **O R D E R** 1. The 2[nd] accused in S.C.No. 843/2015 on the file of the Principal Sub Judge, Thalassery is before this Court seeking to quash the final report as against him. He along with the co-accused are indicted for having committed the offence punishable under sections 143, 147, 148, 323, 324, 308, 295A read with 149 of the IPC and section 5 read with 27(1) of the Arms Act. - 2.The petitioner claims that he was not involved in the offence and that the injured witnesses, who have been arrayed as respondents 3 to 5 in this petition have filed separate affidavits wherein they have vouchsafed his innocence. He has rushed to this Court with a prayer to invoke the extraordinary powers of this Court, as the pendency of the Criminal Proceeding, which according to Crl.M.C.1297/2016 2 him is frivolous, vexatious and false, will undermine his prospects to secure a Job in the Military. 3.The prosecution case unfurls in the following manner :- On 6.10.2013 at 5 pm, while Yasir, the 3[rd] respondent herein , was taking rest at the stage near to the Valliyad ground after partaking in a 5000 meter race , a group of 10 persons, armed with weapons, surrounded him and dealt a blow on his dead with an iron rod. He sustained injuries and to escape from further harm being caused, took to his heels. The aforesaid persons then went on a rampage and did not spare his friends and several others. When their acts attracted the attention of the neighbours, they fled from the scene. Later he came to know that his friends namely Arshad and Samad had also sustained injuries. He was later taken to the hospital where he underwent treatment. He came to know that it was one Saju , who had inflicted cut injuries on Arshad. He was also told later that Hemant, Amarnath, Praneesh, Vivek Crl.M.C.1297/2016 3 and others were present along with others to assault him. Based on the statement furnished by the aforesaid Yasir, Annexure-A1 crime was registered . 4.It is submitted by the learned counsel, that a perusal of the FI statement given by the 3[rd] respondent would reveal that he was not aware of the identity of the petitioner, but had stated about his presence on the basis of information furnished by one of the injured. It is also argued that the statements of the victims will not reveal the presence of the petitioner or that he had inflicted any injury on respondents 3 to 5. According to the learned counsel, the petitioner's name was dragged in for the purpose of vexing his father, who is a prominent member of a particular political party. Much reference is also made to the final report laid by the police to contend that there is no whisper about the involvement of the petitioner but only a passing reference is made that the victims were told later that the petitioner was also present at the Crl.M.C.1297/2016 4 scene. Finally the learned counsel contends that respondents 3 to 5 are the victims in the instant case and taking note of the gross injustice that has been perpetrated by the false implication of the petitioner, they have come forward to swear that the petitioner was not involved in the incident. - 5.The learned Counsel who has entered appearance for and on behalf of the respondents 3 to 5 endorses the submissions of the learned counsel and submits that the respondents have no objection in allowing this petition and in quashing the proceedings . - 6.I have heard the learned Public Prosecutor as well. - 7.It is submitted by the learned Public prosecutor that the petitioner has been primarily roped in under section 149 of the IPC . No individual act is required to be established and his presence in the unlawful assembly is spoken to by the respondents 3 to 5 in their earlier statements . - 8.I have considered the submission advanced at the Bar and Crl.M.C.1297/2016 5 have perused Annexure-I as well as Annexures-II, III & IV affidavits submitted before court by respondents 3 to 5. FI statement has been furnished in the instant case by the 3[rd] respondent while he was undergoing treatment at the Kuthuparamba Government Hospital. It is borne out from the FI statement that the main injury was inflicted by Arshad. As against the petitioner, it is stated that he had received information from his friends that the petitioner was also present at the scene along with other accused. However in view of the fact that respondents 3 to 5 have sworn to separate affidavits stating that the petitioner had no role to play in the incident and taking note of the peculiar facts and circumstances as presented, I am of the view that powers under section 482 of this Court can be exercised in the instant case. I am supported by the view taken by the Apex Court in **Gian Singh v. State of Punjab** ( 2012 (4) KLT 108) and a series of other cases which include **Narinder Singh and others v. State of** Crl.M.C.1297/2016 6 **Punjab and anr. (2014) 6 SCC 466)** and **Yogendra Yadav and others V State of Jharkhand** (2014 (9) SCC 653 ) wherein the Apex Court has delineated the circumstances and the cases in which inherent powers under Section 482 can be invoked _de hors_ section 320 of the Code of Criminal Procedure for recognizing out of court settlement for the purpose of quashing criminal proceedings. When the victims have unequivocally asserted the innocence of the petitioner and when they have given an explanation as to how the name of the petitioner happened to be included in the Case, even if the prosecution is peritted to continue, no purpose will be served as as the possibility of conviction is remote and bleak. In the said circumatances I am of the firm view that this petition is to be allowed by invocing the extraordinary powers of this Court under section 482 of the Code of Criminal Procedure . Crl.M.C.1297/2016 7 Accordingly this petition is allowed. All further proceedings against the petitioner herein, who is the 2[nd] accused in S.C.No. 843/2015 on the file of the Principal Sub Judge, Thalassery are quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps