Mammassan Hakkeem v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935** ## **Crl.MC.No. 1277 of 2014 ()** **--------------------------CRIME NO. 286/1995 OF PAYANGADI POLICE STATION, KANNUR DISTRICT ------------------** ## **PETITIONER/ACCUSED :** **------------------------------------** **MAMMASSAN HAKKEEM S/O.MUHAMMADALI, AGED 43 YEARS PUTHIYANGADI, MADAI AMSOM DESOM KANNUR DISTRICT.** **BY ADVS.SRI.E.N.VISHNU NAMBOODIRI SRI.P.P.NARAYANAN** ## **RESPONDENT/COMPLAINANT :** **----------------------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **ADDL.R2 IMPLEADED** **--------------------------------** **2. BEECHANTAKATH ABDUL JABBAR @ BAPPANTAKATH ABDUL JABBAR, S/O. IBRAHIM MADAYI AMSOM, PUTHIYANGADI DESOM P.O. MADAYI, KANNUR DISTRICT, PIN - 670 304.** ***IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 25/2/2014 IN CRL.M.A. NO. 1931/2014.** **R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE P. ADDL.R2 BY ADV. SRI.S.P.SURESH KUMAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 1277 of 2014 () -------------------------------------** ## **APPENDIX** |**PETITIONERS' ANNEXURE:**|**PETITIONERS' ANNEXURE:**| |---|---| |**-------------------------------------**|| |**ANNEXURE A1**|**CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO 286/1995**| ||**OF PAYANGADI POLICE STATION.**| |**ANNEXURE A2**|**TRUE COPY OF THE ORDER DATED 12/4/2000 IN CC**| ||**NO 807/1995 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**PAYYANNUR.**| |**ANNEXURE A3**|**AFFIDAVIT DATED 31/1/2014 SWORN BY THE DEFACTO**| ||**COMPLAINANT.**| |**RESPONDENT(S)'**|**EXHIBITS : NIL**| |**-------------------------------------------------------------**|| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| |**Mn**|| K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M.C. No.1277 of 2014 --------------------------------------------------------------------Dated this the 4[th] day of March, 2014 ## O R D E R This criminal miscellaneous case is filed by the accused in L.P.No.62/2001 (Crime No.286/1995 of Payangadi Police Station) to quash the proceedings on the basis of the settlement arrived at between the petitioner and the defacto-complainant under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. It is alleged in the petition that, the present petitioner is the 4[th] accused in Crime No.286/1995 of Payangadi Police Station, registered on the basis of the statement given by the 2[nd] respondent, as defactocomplainant along with three other accused persons, alleging offences under Section 323 read with Section 34 of the Indian Penal Code. All other accused persons were tried and acquitted by the court, as per orders in C.C.No.807/1995 and C.C.No.505/2008. The present Crl. M.C. No.1277 of 2014 2 petitioner is the only accused now left out in that crime. In the previous cases also, none of the witnesses supported the case of the prosecution. Now the matter has been settled between the petitioner and the defacto-complainant. The defacto-complainant filed Annexure-A3 affidavit. Since he was working outside Kerala, he could not appear and participate in the proceedings and now the case has been transferred to the register of long pending cases and pending as L.P.No.62/2001. Since the matter has been settled between the parties, there is no possibility of any conviction being entered into against the petitioner. Further even in the earlier proceedings, no acceptable evidence has been adduced to prove the case of the prosecution. So, the petitioner has no other remedy, except to file this petition before this court, seeking the following relief: “For these and other grounds that may be urged at the time of hearing, it is most humbly prayed that this Hon'ble court may be pleased to quash the entire proceedings in L.P.C.No.62/2001 (pursuant to Crime No.286/1995 of Payangadi Police Station) pending on the file of Judicial First Class Magistrate Court, Payyannur against the petitioner, so as to secure the ends of justice.” 3 Crl. M.C. No.1277 of 2014 3. 2[nd] respondent appeared through counsel and submitted that, the matter has been settled between the parties and he has filed Annexure-A3 affidavit regarding the same. 4. Learned Public prosecutor on instructions, as directed by this court submitted that, there is no other case against the petitioner and the case against other accused persons have been tried and ended in acquittal, but opposed this application, on the ground that he was absconding after the incident. 5. The counsel for the petitioner submitted that, since no purpose will be served by allowing the case to proceed with, he prayed for allowing the application. 6. It is an admitted fact that, on the basis of the statement given by the additional 2[nd] respondent, a case was registered as Crime No.286/1995 of Payangadi Police Station, against four accused persons, including the petitioner, alleging offence under Section 323 read with Section 34 of the Indian Penal Code and after investigation, Crl. M.C. No.1277 of 2014 4 Annexure-A1 final report was filed and it was originally taken on file as C.C.807/1995 on the file of the Judicial First Class Magistrate Court, Payyannur, and original accused Nos.1 and 3 were tried and they were acquitted by the court, as per Annexure-A2 order and the case against the original accused Nos.2 and 4 including the present petitioner was split up and re-filed as C.C.No.106/2000. Thereafter the 2[nd] accused also appeared and case against him was refiled as C.C.No.166/2000 and that was also ended in acquittal. The present petitioner is the only left out of the accused in that case. He was absconding through out. The Public prosecutor had submitted that, there is no other case against the petitioner. Further a perusal of Annexure-A2 judgment will go to show that none of the witnesses have supported the case of the prosecution and all of them were declared hostile and the examination of official witnesses were dispensed with and the judgment was pronounced, acquitting accused Nos.1 and 3 in that crime. Now the matter has been settled between the 5 Crl. M.C. No.1277 of 2014 parties, the defacto-complainant has filed Annexure-A3 affidavit stating that, the matter has been settled and he has no grievance against the petitioner. Merely because the petitioner is absconding, is not a ground not invoke the Section 482 of the 'Code', if there is no purpose will be served in retaining the case. Further it is seen from the documents produced that, even cases in which other accused persons were tried, the prosecution witnesses did not support the case of the prosecution and they were acquitted. So, no purpose will be served in retaining this case, in view of the settlement arrived at between the parties. 7. In the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)],** it is stated that: “The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceedings 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 has to be exercised in accord with Crl. M.C. No.1277 of 2014 6 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 FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case an no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. 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 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 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.” 8. In view of the dictum laid down in the above decision and also considering the fact that, the case against Crl. M.C. No.1277 of 2014 7 the accused persons were ended in acquittal due to nonsupport from the prosecution witnesses and the matter has been settled between the present accused and the defactocomplainant, this court feels that no purpose will be served by retaining the case and allowing the prosecution to continue will only amount to wastage of judicial time and it is a fit case where the power under Section 482 of the ‘Code’ can be invoked and the case has to be quashed. So the petition is allowed and further proceedings in L.P.C.No.62/2001 (Crime No.286/1995 of Payangadi Police Station) on the file of the Judicial First Class Magistrate Court, Payyannur, against the petitioner is quashed. Office is directed to communicate this order to the concerned magistrate court for further necessary action. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss