Mooppantakath Muneer v. State of Kerala and Anakkaran Puthiya Purayil Haris

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 30TH DAY OF JULY 2014/8TH SRAVANA, 1936** ## **CRL.MC.NO. 3761 OF 2014 (F)** **-------------------------------------[AGAINST THE PROCEEDINGS IN C.P.NO.54/2014 OF THE JUDICIAL FIRST - CLASS MAGISTRATE COURT, PAYYANUR, KANNUR DISTRICT, CRIME NO. 110/1995 OF PAYYANNUR POLICE STATION]** **..........** ## **PETITIONER/ACCUSED:** **----------------------------------** **MOOPPANTAKATH MUNEER, S/O.ABDULLA, AGED 40 YEARS, VADIPRAM HOUSE, KAVVAYI, PAYYANUR, KANNUR - 670 307.** ## **BY ADV. SRI.MAHESH V.RAMAKRISHNAN.** **RESPONDENT/STATE & DEFACTO COMPLAINANT(SOLE INJURED): ------------------------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. ANAKKARAN PUTHIYA PURAYIL HARIS, S/O.ABDUL AZEEZ, AGED 47 YEARS, RESIDING AT PAYYANUR AMSOM - AND KAVVAYI DESOM OF TALIPARAMBA TALUK, KANNUR DISTRICT - 670 307.** **R1 BY PUBLIC PROSECUTOR SMT. P. MAYA, R2 BY ADV. SMT.R.LEELA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-07-2014, ALONG WITH CRL.M.C.NO. 3400/2014,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.3761/2014 - F:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE FIRST INFORMATION REPORT DATED 29-04-1995 IN CRIME NO 110/1995 OF THE PAYYANUR POLICE STATION. ANNEXURE A2: TRUE COPY OF THE CHARGE DATED 31-12-1998 IN C.P NO. 54 OF 2014 (CRIME NO 110/1995). ANNEXURE A3: TRUE COPY OF THE JUDGMENT DATED 23-01-2009 IN S.C NO 351 OF 2004 OF THE ASSISTANT SESSIONS COURT,PAYYANNUR. ANNEXURE A4: THE AFFIDAVIT DATED 05/07/2014 SWORN TO BY THE RESPONDENT NO. 2 AND ATTESTED BY AN ADVOCATE.** ## **RESPONDENTS' ANNEXURES: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## K. RAMAKRISHNAN, J. ------------------------------------------------------------------------------------------Crl. M.C. Nos.3761 & 3400 of 2014 --------------------------------------------------------------------------------Dated this the 30[th] day of July, 2014 ## O R D E R Crl.M.C.No.3761/2014 is filed by accused in C.P.No.54/2014 pending before the Judicial First Class Magistrate Court, Payyanur, to quash the proceedings, on the basis of settlement and also on the basis of Annexure-III judgment and Crl.M.C.No.3400/2014 was filed by the same petitioner, challenging the order in Crl.M.P.No.3128/2014 of the learned magistrate, both under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. The common case of the petitioner in both the cases is that, the petitioner was arrayed as one of the accused in Crime No.110/1995 of Payyanur police station, alleging offences under Section 143, 147, 148, 323, 326, 307 read with Section 149 of the Indian Penal Code. After investigation final report was filed and it was originally taken on file as S.C.No.351/2004 and made over to the 2 Crl.M.C.3761 & 3400/2014 Assistant Sessions Court, Payyanur, after committal for trial, as against 5[th] accused and after trial he was acquitted by the court below evidenced by Annexure-III judgment. Except the present petitioner, other accused persons were acquitted as per judgment in S.C.No.184/2000 of the same court. Now the present petitioner also surrendered and the case against him was re-filled as C.P.No.54/2014 and he was released on bail and as a condition for releasing him on bail, his passport was directed to be produced as per order in Crl.M.P.3128/2014 and he had produced the same and the order directing him to produce passport is challenged by the petitioner and also seeking permission to go abroad by filing Crl.M.C.3400/2014. In the meantime, the matter has been settled between the defacto-complainant and the present petitioner also as he had done in other cases. In view of the settlement, there is no possibility of conviction and since the offences alleged are non-compoundable in nature, they could not file the application for compounding Crl.M.C.3761 & 3400/2014 3 before the court below. So the petitioner has no other remedy, except to approach this court, seeking the following reliefs: in Crl.M.C.No.3761/2014 “It is most humbly prayed that this Hon'ble court may be pleased to call for records and quash AnnexureA2 charge and all further proceedings in C.P.No.54/2014 in Crime No.110/1995 on the file of the Judicial First Class Magistrate Court, Payyanur and appropriate orders may be passed accordingly in the interest of justice”. in Crl.M.C.No.3400/2014 i). To call for records and to modify Annexure-A1 order dated 07.05.2014 in CMP No.3128/2014 in CPNo.54/2014 of the Judicial First Class Magistrate Court, Payyanur, deleting the conditions 2 & 3 i.e., not to leave India without the permission of the court and to deposit the original passport before the court; ii) To direct the Judicial First Class Magistrate Court, Payyanur to release the original passport to the petitioner on any condition as this Hon'ble court may please to impose; and iii) For such other and further reliefs that the petitioner makes at the time of hearing of the above petitioner and the Hon'ble court deem fit to grant under the circumstances of the case in the interest of justice 3. The 2[nd] respondent in Crl.M.C.No.3761/2014 appeared through counsel and submitted that, the matter has been settled between the parties and other accused persons except the present petitioner had been acquitted by Crl.M.C.3761 & 3400/2014 4 earlier judgment on account of the settlement. So he does not want to proceed with the case. No purpose will be served by proceeding with the case as well and he had filed Annexure-IV affidavit stating these facts. The counsel for the petitioner also submitted that, in view of the settlement, no purpose will be served by proceeding with the case. Further he is entitled to get the benefit of acquittal of other accused persons where the substratum of the prosecution case has been shattered. So he prayed for allowing the application. 4. The learned Public Prosecutor on instructions, as directed by this court submitted that, except this case there is no other case against the petitioner and he was an absconding accused and it is not a fit case to invoke the power under Section 482 of the Code of Criminal Procedure. 5. It is an admitted fact that, the petitioner has been arrayed as 6[th] accused in Crime No.110/1995 of 5 Crl.M.C.3761 & 3400/2014 Payyanur police station, which was registered on the basis of the statement given by the 2[nd] respondent as defactocomplainant along with other accused persons, alleging offences under Section 143, 147, 148, 323, 326, 307 read with Section 149 of the Indian Penal Code. After investigation, Annexure-II final report in Crl.M.P.3761/2014 was filed and it was originally taken on file as C.P.No.14/1999 on the file of Judicial First Class Magistrate Court, Payyanur, and except the petitioner, others appeared on different occasions and by different committal orders, the case against other accused persons were committed to the Sessions Court and it was taken on file as S.C.184/2000 against five accused persons and since the 5[th] accused did not appear, the case against other accused persons were tried and they were acquitted. Thereafter, the case against the original 5[th] accused was refiled as S.C. 351/2004 and later he appeared and was also acquitted by the Assistant Sessions Court, Payyanur, as per Annexure-III judgment. It Crl.M.C.3761 & 3400/2014 6 is seen from Annexure-III judgment that, none of the witnesses examined including the injured have supported the case of the prosecution and it was on that basis that they were acquitted. Further witnesses were given up by the prosecution as well. Since the present petitioner did not appear, the case against him was transferred to the register of long pending cases. Later he surrendered before the court below and it was taken on file as C.P.54/2014 and he was granted bail as a condition for granting bail, he was directed to surrender his passport and accordingly he had surrendered the passport as well. Now he is on bail and also the matter has been settled between the defactocomplainant and the petitioner as well. 6. The petition filed by him as Crl.M.P.No.3128/2014 for granting bail was granted, but the condition imposed to surrender his passport and since he wants to go abroad, he filed Crl.M.C.3400/2014 for modification of condition, directing him to produce the Crl.M.C.3761 & 3400/2014 7 passport as a condition for releasing him on bail. 7. It is true that, offence under Section 307 of the Indian Penal Code is a grave offence and even if the parties settled the claim, the court should not invoke the power under Section 482 of the Code of Criminal Procedure to quash the proceedings. But in this case, the other accused persons have already faced trial and they were acquitted on the basis of settlement and none of the prosecution witnesses including the defacto-complainant had supported the case of the prosecution and it was on that basis other accused persons were acquitted evidenced by Annexure-III judgment and also the observations made in Annexure-III judgment, regarding the acquittal of other accused in S.C.No.184/2000 of that court. 8. In the decision reported in **(2006 (1) KLT 552) Moosa v. Sub Inspector of Police (FB)** , this court has held that, acquittal of other accused is not a ground for quashing the proceedings of co-accused, who did not face Crl.M.C.3761 & 3400/2014 8 trial. But in the same decision, it has been observed that, if the substratum of the prosecution case has been shattered in the previous case and allowing the case against other accused who did not face trial, will only amount to wastage of judicial time, then the benefit of acquittal of other accused can be given to the co-accused, who did not face trial and the case against him can be quashed, invoking the power under Section 482 of the Code of Criminal Procedure. In this case, the other accused persons were acquitted on the basis of settlement and none of the witnesses have supported the case of the prosecution. In this case also the defacto-complainant had filed an affidavit stating that, he does not want to proceed against the present petitioner as well. So under the circumstances, this court feels that, allowing the case against the present petitioner to proceed with and asking him to face the trial will only amount to wastage of judicial time and he is entitled to get the benefit of acquittal of other accused Crl.M.C.3761 & 3400/2014 9 persons and the case against him is also liable to be quashed. In the result, Crl.M.C.No.3761/2014 is allowed and further proceeding in C.P. 54/2014 (Crime No.110/1995 of Payyanur police station) pending before the Judicial First Class Magistrate Court, Payyanur, as against the petitioner is quashed. Crl.M.C.No.3400/2014 is also allowed, as the case against the petitioner has been quashed and there is no necessity to keep the passport in custody of the court, in view of the quashing of the proceedings and the lower court is directed to release the passport to the petitioner at the earliest, on filing an application before that court for that purpose. With the above observation and direction this criminal miscellaneous cases are disposed of. Office is directed to communicate this order to the concerned court, immediately. Handover the copy of this order to the counsel for the petitioner, so as to enable him to produce the same Crl.M.C.3761 & 3400/2014 10 before the court below, for further necessary action in this regard. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy // P.A. to Judge ss