M.P. Mahamood v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 CRL.MC NO. 7426 OF 2022 ``` ``` CRIME NO.1412/2013 OF Hosdurg Police Station, Kasargod CC 1152/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,HOSDRUG ``` ## **`PETITIONER/5TH RESPONDENT:`** ``` M.P.MAHAMOOD AGED 44 YEARS SON OF KUNHAMMED SOOPPI, M.P. HOUSE, BALLA KADAPPURAM, BALLA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT., PIN – 671315 ``` ``` BY ADVS. A.ARUNKUMAR HEERAKRISHNA T.H. SACHIN GEORGE ARAMBAN ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682031 2HARIS C.P AGED 39 YEARS SON OF BAPUNHI MUSALIYAR RESIDING AT KUCHANATH PURAYIL, PAZHAYA KADAPPURAM KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT., PIN – 671315 3SIDDIQUE.B.M AGED 32 YEARS SON OF ABDUL RAHIMAN RESIDING AT KHADER MANZIL, PAZHAYA KADAPPURAM, KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT., PIN – 671315 ``` ``` 2 ``` ## **`CRL.MC NO. 7426 OF 2022`** ``` BY SDV ADV VIPIN T JOSE ADV M.P.PRASHANTH ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 7426 OF 2022 ``` ``` 3 ``` ## **`ORDER`** The petitioner is the 5[th] accused in Crime No.1412/2013 of Hosdurg Police Station, which is now pending as C.C. No.1152/2019 on the file of the Judicial First Class Magistrate Court II, Hosdurg. The offences alleged against the petitioner and other accused are under Sections 143, 147, 148, 341, 323, 324, 326, and 427, read with Section 149 of the Indian Penal Code. 2. The prosecution case is that on 24.11.2013 at 8.30 p.m., the petitioner along with four other persons, formed themselves into an unlawful assembly, wrongfully restrained the respondents 2 and 3 by stopping the car in which they were travelling, assaulted them, thereby causing grievous hurt. Annexure AI is the First Information Report and Annexure AII is the final report submitted by the Police. 3. Earlier, the Judicial First Class Magistrate Court II, Hosdurg has taken cognizance of the offence as C.C. No.1018/2015 and in the trial followed, all the accused persons except the petitioner participated. Annexure AIII is the judgment passed by ``` CRL.MC NO. 7426 OF 2022 ``` ``` 4 ``` the learned Magistrate by which, all the accused persons who faced trial were found not guilty and were acquitted. The case against the petitioner has been split up and now it stands refiled as C.C. No.1152/2019 before the Judicial First Class Magistrate Court II, Hosdurg. This Crl.M.C. is filed for quashing all further proceedings pursuant to Annexure AII. 4. Heard Sri.A. Arunkumar, learned counsel appearing for the petitioner, Sri.M.P. Prashanth, learned Public Prosecutor for the State and Sri.Vipin T Jose, learned counsel appearing for respondents 2 and 3. 5. The prayer for quashing the above proceedings is sought for by the petitioner on the ground that, the dispute between the parties has been settled and to substantiate the same, the respondents 2 and 3 have sworn Annexure AIV and Annexure AV affidavits respectively. The aforesaid affidavits indicate that, the matter has been settled and the respondents 2 and 3 have no subsisting grievance against the petitioner herein. They also conveyed that they have no objection in quashing the proceedings ``` CRL.MC NO. 7426 OF 2022 ``` ``` 5 ``` against the petitioner herein. The learned counsel for the 2[nd] and 3[rd] respondents also confirmed the same. 6. 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 petitioner herein were allowed to continue. In such circumstances, the chances of a successful prosecution are very bleak. Therefore, I am of the view that is 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 can be invoked. 7. It is true that one of the offences is under Section 326 of the Indian Penal Code. Since the said offence being a serious one, under normal circumstances, the same cannot be quashed based on settlement. However, it is discernible from the records that, as per Annexure III judgment, all the accused persons except the petitioner were found not guilty, and they were acquitted. I have gone through ``` CRL.MC NO. 7426 OF 2022 ``` ``` 6 ``` the contents of Annexure III judgment. It is evident from the observations made therein that the injured persons were examined as PWs 4 and 5. Even though they stated that they sustained injuries in the attack in the manner projected by the prosecution, they could not identify any of the assailants as it was dark. Apart from their evidence, there were no other materials to establish the offences. Thus, after taking into account all the relevant aspects, the learned Magistrate passed an order acquitting the accused Nos.1 to 4, who faced the trial. On perusal of the records, it is evident that as the injured persons, who are respondents 2 and 3 herein, have deposed before the court that they could not identify any of the assailants, I am of the view that no fruitful purpose would be served by continuing the prosecution as against the petitioner herein. Moreover, the order of acquittal passed by the learned Magistrate has the impact of destroying the substratum of the case as well. In such circumstances, taking into account the settlement arrived between the parties and also the order of acquittal passed by the learned Magistrate as against all the other accused persons, I deem ``` CRL.MC NO. 7426 OF 2022 ``` ``` 7 ``` it appropriate to invoke the jurisdiction of this Court under Section 482 Cr.P.C and to quash the proceedings, as further proceedings in the matter would be a futile exercise. Accordingly, this Crl.M.C. is allowed. Annexure AII final report in Crime No.1412/2013 of Hosdurg Police Station and all further proceedings in C.C. No.1152/2019 on the file of the Judicial First Class Magistrate Court II, Hosdurg as against the petitioner are hereby quashed. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` scs ``` 8 ``` ## **`CRL.MC NO. 7426 OF 2022`** ## **`APPENDIX OF CRL.MC 7426/2022`** ``` PETITIONER ANNEXURES Annexure AIA TRUE COPY OF THE F.I.R IN CRIME NO. 1412 OF 2013 OF HOSDURG POLICE STATION Annexure AIICERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 1412 OF 2013 OF HOSDURG POLICE STATION Annexure AIIIA TRUE COPY OF THE JUDGMENT DATED 31.12.2019 IN C.C NO.1018 OF 2015 OF JUDICIAL FIRST CLASS MAGISTRATE-II, HOSDURG Annexure AIVTHE AFFIDAVIT SWORN TO BY THE RESPONDENT NO. 2 Annexure AVTHE AFFIDAVIT SWORN TO BY THE RESPONDENT NO.3 ```