Koya and Mohammedunni v. State of Kerala and Usman

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 CRL.MC NO. 3333 OF 2022 ``` ``` SC 1094/2021 OF ADDITIONAL SESSIONS COURT - II, MANJERI ``` ``` CRIME NO.108 OF 2004 OF PONNANI POLICE STATION ``` ## **`PETITIONER/ACCUSED:`** ``` 1KOYA AGED 58 YEARS S/O KUNHALI, THANDAMKOLIL HOUSE, GRAMAM P.O, VELIYANCODE, MALAPPURAM DISTRICT, PIN – 679579 2MOHAMMEDUNNI AGED 58 YEARS S/O HUSSANKUTTY @ HAMSAKKUTTY, THANNITHURAKKAL HOUSE, GRAMAM P.O, VELIYANCODE, MALAPPURAM DT. PIN. 679579. NOW RESIDING AT THIRUVATHRA P.O, CHAVAKKAD, THRISSUR DISTRICT, PIN – 680516 BY ADVS. M.MUHAMMED SHAFI T.RASINI AYISHA AFRIN A.V.K. ``` ## **`RESPONDENTS/STATE AND DE-FACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2USMAN AGED 51 YEARS S/O AMMU,MUKRIYAKATH HOUSE, VELIYANCODE P.O, MALAPPURAM DISTRICT, PIN – 679579 ``` ``` CRL.MC NO. 3333 OF 2022 ``` ``` 2 ``` ``` BY ADV. ADV A.V.ANVAR ADV. C. S. HRITHWIK -SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 3333 OF 2022 ``` ``` 3 ``` ## **`ORDER`** The petitioners are the accused No.10 and 9 respectively, in Crime No.108/2004 of Ponnani Police Station. The offences alleged against the petitioners and other accused are under Sections 143, 147, 148, 341, 323, 324, 326 and 307 read with Section 149 of Indian Penal Code which is now pending as S.C. No.1094 of 2021 on the file of Additional Sessions Court – III, Manjery. 2. The prosecution case is that, on 30.03.2004 at about 12.43 pm., the petitioners, along with other accused persons, assaulted the 2[nd] respondent/defacto complainant with dangerous weapons and caused serious injuries to him. Annexure A1 is the Final Report submitted by the Police after completing the investigation which was originally taken cognizance by the Judicial First Class Magistrate, Ponnani as C.P. No.37/2004 and later the same was committed to the Sessions Court. Thereupon, the trial of the said case was conducted as S.C. No.84/2005 before the Additional Sessions Court, Adhoc I, Manjeri and it culminated in Annexure A2 judgment. In the aforesaid trial, 3[rd] and 7[th] accused were have participated. As per Annexure A2 judgment both of them ``` CRL.MC NO. 3333 OF 2022 ``` ``` 4 ``` acquitted. Subsequently, As per Annexure A3 order passed by this Court in Crl.M.C. No.1327/2020 proceedings against accused Nos.1, 4, 11 and 12 were quashed on the ground that, consequent to the order of acquittal passed by the learned Sessions Judge, the substratum of the case is lost. It is further pointed out that, as per judgment dated 05.03.2020 in Crl.M.C. No.1149/2020, the proceedings against the A2 was also quashed on the same ground. Now the petitioners herein have approached this Court seeking for an order for quashing the proceedings against them. 3. Heard Sri.Muhammed Shafi, learned counsel appearing for the petitioners, Sri.C.S. Hrithwik, learned Public Prosecutor for the State and Sri.A.V. Anvar, learned counsel appearing for the 2[nd] respondent/ defacto complainant. 4. The prayer for quashing the above proceedings is sought for by the petitioners on the ground that, the dispute between the parties has been settled and to substantiate the same, the injured person has sworn Annexure A4. The aforesaid affidavit indicates that, the matter has been settled and the injured person has no ``` CRL.MC NO. 3333 OF 2022 ``` ``` 5 ``` subsisting grievance against the petitioners herein. He also conveyed that he has no objection in quashing the proceedings against the petitioners herein. The learned counsel for the 2[nd] respondent/injured person also confirmed the same. The learned Public Prosecutor upon instructions submitted that the veracity of the settlement was verified by the Station House officer concerned and before the SHO also, the injured person has reiterated that, he does not have any objection in quashing the proceedings as he has no subsisting grievance against the petitioners herein. 5. Going through the materials available on record, it is discernible that, the dispute is basically private in nature and on account of the settlement arrived at between the parties, no purpose would be served if the proceedings against the petitioners herein were allowed to continue. In such circumstances, the chances of a successful prosecution are very bleak. Therefore, I am of the view that going by the decision in **Gian Singh v. State of Punjab and Another [2012(4) KLT 108],** this is a fit case in which the powers of this Court under Section 482 of the Code of Criminal Procedure ``` CRL.MC NO. 3333 OF 2022 ``` ``` 6 ``` can be invoked. 6. It is true that the offences include Section 326 and 307 of Indian Penal Code. However, it is discernible from the records that, in Annexure A2 judgment, the learned Sessions Judge found that the prosecution could not establish the case. The aforesaid finding was rendered by the learned Sessions Judge after evaluating the evidence of the occurrence witnesses who stated that they did not witness the incident. It is true that in the aforesaid proceedings the defacto complainant was not examined. However, in this case the defacto complainant had already appeared and filed an affidavit conveying that he does not have any subsisting grievance against the petitioner and he conveyed his no objection in quashing the proceedings. The proceedings against the accused Nos.1, 2, 4, 11 and 12 were already quashed by this Court as per Annexure A3 order as well as the order passed in Crl.M.C. No.1149/2020, by holding that, the substratum of the case is lost on account of the order of acquittal passed in Annexure A2 judgment. Thus taking note of all the relevant aspecst as mentioned above, I am of the view ``` CRL.MC NO. 3333 OF 2022 ``` ``` 7 ``` that no fruitful purpose would be served by allowing the prosecution to continue as against the petitioners herein. In such circumstances, it is only proper that further proceedings in this case against these petitioners are quashed. Accordingly these Crl.M.C. is allowed, Annexure A1 final report submitted in Crime No.108/2004 of Ponnani Police Station, and all further proceedings in S.C. No.1094/2021 pending before the Additional Sessions Court II, Manjery as against petitioners are hereby quashed. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` CRL.MC NO. 3333 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 3333/2022`** ``` PETITIONER ANNEXURES Annexure A1TRUE COPY OF THE FINAL REPORT IN CRIME NO. 108 OF 2004 OF PONNANI POLICE STATION, MALAPPURAM Annexure1TRUE COPY OF THE FINAL REPORT IN CRIME NO. 108 OF 2004 OF PONNANI POLICE STATION, MALAPPURAM Annexure A2TRUE COPY OF THE JUDGMENT 03-07-2007 IN SC. NO. 84/2004 IN ADDITIONAL SESSIONS COURT, MANJERY Annexure A3TRUE COPY OF THE ORDER DATED 02-03- 2020 IN CRL. MC. NO. 1327 OF 2020 OF THE HON'BLE HIGH COURT OF KERALA Annexure A4AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 21-05-2022 ```