Jafar Khan S/o Mytheenkunju v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 16TH DAY OF JULY 2013/25TH ASHADHA, 1935 Crl.MC.No. 2905 of 2013 --------------------------LP 8/2008 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM CRIME NO. 192/2004 OF PARAVUR POLICE STATION , KOLLAM PETITIONER(S)/ACCUSED: ---------------------------------- JAFAR KHAN S/O.MYTHEENKUNJU, KANNAMBAZHIKAM VEEDU KOTTAPPURAM VILLAGE, KONGAL CHERRY, KOLLAM DISTRICT. BY ADVS.SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT/STATE: ----------------------------------- 1. SULAIMANKUNJU, AGED 33 YEARS S/O.JAMAL, KOCHUMELLOOTTIL VEEDU, NEAR KAVUVILA MUKKU KONGAL CHERRY, KOTTAPPURAM VILLAGE-691 531. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-31. R1 BY ADV. SRI.RAJESH RAJAN R2 BY PUBLIC PROSECUTOR SMT. S. HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 2905 of 2013 () --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE-1.TRUE COPY OF THE FINAL RERPOT IN CRIME NO.192/2004 OF THE PARVUR POLICE STATION DATED 30/5/2004. ANNEXURE-2.TRUE COPY OF THE JUDGMENT DATED 5/7/2008 IN SC 1077/2006. ANNEXURE-3.TRUE COPY OF THE JUDGMENT DATED 21/2/2011 IN ST NO.1389/2009. nkm /true copy/ P.S.TO JUDGE ## **V.K.MOHANAN, J. -----------------------------------------Crl.M.C.No.2905 of 2013 ------------------------------------------Dated this the 16[th] day of July, 2013** ## **ORDER** The petitioner is the second accused in Crime No.192 of 2004 of Paravur Police Station where the offences involved are under Sections 341, 323, 308 & 34 of IPC. According to the petitioner, though the other accused in the above crime faced prosecution on two occasions, which resulted in Annexures-2 and 3 judgments and they are acquitted, since the matter is settled out of court. So, according to the petitioner he is also entitled to get the benefit of the above judgments and hence he preferred the above Crl.M.C. under Section 482 of Cr.P.C. with a prayer to quash Annexure-1 Final Report and all further proceedings in L.P.No.8 of 2008 on the file of the court of the Additional District and Sessions Judge (Ad hoc)II Kollam. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. The prosecution allegation is that, on account of previous enmity towards CW.3, at 7.30 p.m. on 30/05/2004 at Crl.M.C.No.2905 of 2013 :-2-: the public road which is proceeding from Padippura Junction to Kongal Thekkathil in Kongal Cheriyil, Kottarappuram Village in furtherance of the common intention accused No.1 wrongfully restrained CW.3 by catching hold on the collar of his shirt and gave a blow on him. On seeing the occurrence, CW.2 intervened and at that time accused No.1 advanced a stab towards the chest of CW.2 and he tried to avoid the same causing injuries on the left side of his abdomen and the accused No.1 again stabbed on the body of CW.1 causing injury. Accused Nos.2 to 4 gave blows and fisted on different parts of the bodies of CWs.1 and 2 and had CW.2 not tried to avoid the stab advanced towards his chest, he would have died and that thereby the accused committed the offences punishable under the above mentioned sections. 4. In the light of the submissions made by the learned counsel for the petitioner, I have carefully perused Annexures2 and 3 judgments and it appears that the prosecution has miserably failed to establish the case against the accused solely for the reason that all the witnesses turned hostile to the Crl.M.C.No.2905 of 2013 :-3-: prosecution and the prosecution has also dispensed with the examination of the remaining witnesses. It is also relevant to note that the first respondent, who is the de facto complainant has sworn into an affidavit dated 13/07/2013 and thus, according to the petitioner as well as the de facto complainant, who is the first respondent herein, the matter is settled out of court. 5. The learned counsel for the petitioner submitted that, during the pendency of the above case, the dispute is settled amicably between the parties 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. 6. The learned counsel for the 1[st] respondent who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and he has no grievance against him. Crl.M.C.No.2905 of 2013 :-4-: 7. I have carefully considered the above submissions of the respective counsel. I have verified the documents and 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. 8. 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 under Sections 341, 323, 308 & 34 of IPC. 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 1[st] respondent, it appears to me that 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 Crl.M.C.No.2905 of 2013 :-5-: ## reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108 ## (SC)] in which the Supreme Court has held as follows:- “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 Crl.M.C.No.2905 of 2013 :-6-: 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........” 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. ## Crl.M.C.No.2905 of 2013 :-7-: In the result, this Crl.M.C. is allowed, quashing Annexure-1 Final Report and all further proceedings pending against the petitioner alone in L.P.No.8 of 2008 on the file of the court of the Additional District and Sessions Judge (Ad hoc) II, Kollam. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge