M.K.SHIJU, RAJESH and NOUSHAD v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 27TH DAY OF JUNE 2013/6TH ASHADHA, 1935** ## **Crl.MC.No. 2582 of 2013** **--------------------------------** ## **AGAINST THE JUDGMENT IN CC 691/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III,KOZHIKODE CRIME NO. 63/2009 OF KAKKUR POLICE STATION , KOZHIKODE** **----------------** ## **PETITIONER(S)/ACCUSED NOS. 3,7 & 10:** **-----------------------------------------------------------** ## **1. M.K.SHIJU,** - **S/O.APPU NAIR, CHERUVALATH HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE.** ## **2. RAJESH,** - **S/O.GOPALAN, IPPATHMEETHAL HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE.** ## **3. NOUSHAD,** - **S/O ABDURAHIMAN, KOZHIKKALMADATHIL HOUSE, KAKKUR AMSOMDESOM, KOZHIKODE.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **COMPLAINANT(S)/COMPLAINANT AND STATE:** **------------------------------------------------------------------** **1. SHIBU, S/O.RAVEENDRAN, PUTHALATHKUZHI MEETHAL HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE-673612.** ## **2. KARUNAN,** **S/O.MUTHOMAN, AMBALAPARAMBIL HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE-673612.** ## **3. SHIJU,** **S/O.BHASKARAN, ILLATH MEETHAL HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE-0673612.** **PJ** **...2/-** **..2..** ## **Crl.MC.No. 2582 of 2013** ## **--------------------------------** ## **4. RAJAN,** **S/O.CHANDU MUTHAN, SANKARAN PARAMBU HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE-673612.** **5. SUJA, AGED 47 YEARS, W/O.ASOKAN, MELEPUTHIYEADTHKANDI HOUSE, KAKKUR AMSOMDESOM, KOZHIKODE-673612.** ## **6. ASHITHA.N, AGED 24 YEARS,** - **D/O.LATE ASOKAN, MELEPUTHIYEADTHKANDI HOUSE, KAKKURAMSOM DESOM, KOZHIKODE-673612.** **7. AKHILA.N, AGED 22 YEARS, D/O.LATE ASOKAN, MELEPUTHIYEADTHKANDI HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE-673612.** ## **8. ARSHIL.M, AGED 16 YEARS,** - **S/O.LATE ASOKAN, MELEPUTHIYEADTHKANDI HOUSE, KAKKUR AMSOM DESOM, KOZHIKODE-673612.** **9. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** **R1-8 BY ADV. SRI.P.V.ANOOP BY PUBLIC PROSECUTOR SMT.S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 2582 of 2013 () ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **ANNEXURE A: COPY OF THE FINAL CHARGE SHEET FILED BY THE KAKKOOR POLICE IN CRIME NO.63 OF 2009 AGAINST THE PETITIONERS WHICH IS NOW PENDING AS C.C.237/2012 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE-III,KOZHIKODE.** - **ANNEXURE B: COPY OF THE JUDGMENT IN C.C.691 OF 2009 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III,KOZHIKODE.** **ANNEXURE C: COPY OF THE DEATH CERTIFICATE SHOWING THE DEATH OF ASOKAN.N ISSUED BY KAKKUR GRAMA PANCHAYATH DATED 17.04.2012.** **ANNEXURE D: COPY OF THE AFFIDAVIT SWORN BY IST RESPONDENT DATED 02.11.2012.** **ANNEXURE E: COPY OF THE AFFIDAVIT SWORN BY 2ND RESPONDENT DATED 02.11.2012.** - **ANNEXURE F: COPY OF THE AFFIDAVIT SWORN BY 3RD RESPONDENT DATED 02.11.2012.** - **ANNEXURE G: COPY OF THE AFFIDAVIT SWORN BY 4TH RESPONDENT DATED 02.11.2012.** **ANNEXURE H: COPY OF THE AFFIDAVIT SWORN BY THE RESPONDENT NOS.5 TO 8 WHO ARE THE LEGAL HEIRS OF DECEASED CHARGE WITNESS NO.3 DATRED 02.11.2012.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **NIL.** **TRUE COPY** **P.S.TO JUDGE** **PJ** ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.M.C.No. 2582 of 2013** ## **----------------------------------------** Dated this the 27[th] day of June, 2013 ## **O R D E R** The petitioners are accused Nos.3,7 and 10 in Crime No.63 of 2009 of Kakkur Police Station, Kozhikode, who were not available to face the trial when the case is proceeded against accused Nos.1,2,4 to 6,8 and 9 in C.C.No.691 of 2009 on the file of the Judicial First Class Magistrate Court-III, Kozhikode which resulted in acquitting the above accused. Now the case of the petitioners is that case against him is split up and now pending as C.C.No.237 of 2012 and it is the further case of the petitioners that the matter is settled with the injured including the de facto complainant. 2. The prosecution case is that on 14.4.2009 at 16.45 hours, while CW1 along with his friends being BJP activists were standing near Kakkur market, A1 to 10 being CPI(M) activists along with 25 others formed themselves into an unlawful assembly with harmful weapons came near them and beat on CW1's head using an iron rod and the other accused Crl.M.C.No. 2582 of 2013 :-2-: persons beat CW1 and others using iron road and rafter. Some motor cycles were damaged in the incident. Thus, the accused has committed the offences punishable under Sections 143,147,148,324,427 read with Section 149 of I.P.C. Now the case of the petitioners is that the matter is settled out of court and therefore, the proceedings against the petitioners in C.C.No. 237 of 2012 on the file of the court below is an abuse of process of the court. 3. I have heard the learned counsel for the petitioners, respondents 1 to 4 and the learned Public Prosecutor. 4. It is pertinent to note that by Annexure B judgment, particularly in paragraph 4, the learned Magistrate, who undertook the trial, found that PW1, the injured and the de facto complainant deposed that he does not know the persons allegedly attacked him and he has no complaints against the accused persons. Though Pws.2 to 5 are also the injured, they also deposed before the court in tune with the statement of PW1. If that be so, according to me, if the petitioners are directed to face the trial, there will not be any fruitful turn over. Crl.M.C.No. 2582 of 2013 :-3-: 5. In this juncture, it is relevant that the injured are impleaded in this Crl.M.C. as respondents 1 to 4. They have preferred Annexures D to G affidavits. PW3, one of the injured is no more and therefore, his legal heirs are impleaded as respondents 5 to 8, who filed a common affidavit, which is marked as Annexure H. 6. 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. 7. 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 143,147,148,324,427 read with Section 149 of I.P.C 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 Crl.M.C.No. 2582 of 2013 :-4-: submission made by the counsel for the respondents, it appears to me that the the de facto complainant has no further grievance against the petitioners/accused in the light of the settlement arrived by them. 8. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012 (4) KLT 108] (SC)] which is squarely applicable in the present case. In Gian Singh's case, 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.._ Crl.M.C.No. 2582 of 2013 :-5-: ## It is further held as follows:- “...... _... But the criminal cases having overwhelmingly and predominatingly 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 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 Crl.M.C.No. 2582 of 2013 :-6-: 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 the trial proceeded, 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. In the result, this Crl.M.C. is allowed, quashing the entire proceedings in C.C.No.237 of 2012 on the file of the Judicial First Class Magistrate Court-III, Kozhikode in Crime No.63 of 2009 of Kakkur Police Station, Kozhikode. **V.K.MOHANAN, Judge** MBS/ Crl.M.C.No. 2582 of 2013 :-7-: