Muhammed Dilshad v. Chandran, Geetha & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 11TH DAY OF JULY 2013/20TH ASHADHA, 1935** ## **Crl.MC.No. 2835 of 2013** ## **---------------------------------** **AGAINST THE ORDER IN SC 425/2011 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA AGAINST THE ORDER IN LP 67/2012 ofJUDICIAL FIRSTY CLASS MAGISTRATE COURT, VADAKARA** **----------** ## **PETITIONER(S)/ACCUSED NO.4:** **---------------------------------------------** **MUHAMMED DILSHAD, AGED 25 YEARS, S/O MOIDU, A1 NAJATH HOUSE, P.O.PUTHUPPANAM, VATAKARA TALUK, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.ZUBAIR PULIKKOOL** ## **COMPLAINANT(S)/COMPLAINANT:** **--------------------------------------------------** **1. CHANDRAN, AGED 57 YEARS,** **S/O.KANARAN, PALOLI HOUSE, NADAKKUTHAZHA.P.O, PUTHUPPANAM, VATAKARA. KOZHIKODE DISTRICT-673101.** **2. GEETHA, AGED 47 YEARS, W/O.CHANDRAN, PALOLI HOUSE, NADDAKKUTHAZHA.P.O, PUTHUPPANAM, VATAKARA, KOZHIKODE-673101.** **3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1-2 BY SMT.P.A.ANEESHA R3 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 2835 of 2013** **--------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **------------------------------------------** **ANNEXURE-I TRUE COPY OF THE POLICE CHARGE IN CRIME NO,.436/2009 OF VATAKARA POLICE STATION.** **ANNEXURE-II A TRUE COPY OF THE JUDGMENT IN SC 425/2011 OF ADDITIONAL DISTRICT COURT,VATAKARA.** **ANNEXURE-III A TRUE COPY OF THE AFFIDAVIT OF THE IST RESPONDENT. ANNEXURE-IV A TRUE COPY OF THE AFFIDAVIT OF THE 2ND RESPONDENT. RESPONDENT(S)' ANNEXURE** **-----------------------------------------** **NIL.** **/TRUE COPY/** **P.S.TO JUDGE** **PJ** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.M.C.No. 2835 of 2013** **----------------------------------------** Dated this the 11[th] day of July, 2013 ## **O R D E R** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioner, who is an accused in Crime No.436/2009 of Vatakara Police Station for the offences punishable under Sections 143, 147, 148, 323, 324, 452, 308 r/w Section 149 oof I.P.C. According to the petitioners accused Nos. A1, A2 and A4 faced the prosecution in S.C.No.425/2011, and by Annexure-AII judgment the learned Sessions Judge acquitted them under Section 232 of IPC. 2. The present case of the petitioner is that he is also entitled to get the benefit of Annexure-AII judgment and especially when the disputes between himself and the defacto complainant who is the first respondent and the injured second respondent are settled. Therefore, he preferred the above M.C with a prayer to quash Annexure-I police charge and all proceedings pending in L.P.No.67/2012 on the file of the Judicial First Class Magistrate Court, Vatakara. 3. Heard the learned counsel for the petitioner as **Crl.M.C.No. 2835 of 2013** 2 well as the respondents. I have also heard the learned Public Prosecutor. 4. The case of the prosecution is that the accused who are the activists of N.D.F shared with their common object to commit the offence on account of enmity towards CW2 who is an activists of A.B.V.P, formed an unlawful assembly in the premises of his dwelling house at Kakkattil Nadakkunathozha on 5/7/2009 around 8 p.m. armed with G.I. Pipe, wooden reaper etc., and they trespassed into the said house and the second accused blow CW2 with a wooden reaper and slapped him, whereas the first accused blow CW1 the father of CW2 and they also assaulted CW3 the mother of CW2 with the weapons carried by them. According to the prosecution all these acts were done by the accused with the intention of knowledge that if from their act has caused the death of CW2 all of them are guilty of culpable homicide not amounting to murder. 5. Having regard to the facts and circumstances involved in the case it can be seen that though the accused Nos. A1, A2 and A4 faced the prosecution, they were acquitted by Annexure-A2 judgment and in the paragraph 12 of the said **Crl.M.C.No. 2835 of 2013** 3 judgment the learned Sessions Judge has found that after considering the evidence of PWs 2 and 3 it appears that neither of them has not identified that the accused as the assailants of them, or they had a case that prior to the incident they saw the accused in or near to the scene of crime. The learned Sessions Judge has also found that mere presence of A1, A2 and A4 at the place of occurrence or there participation into the commission offence is not spoken by PWs. 1 to 3. It is also found that by the learned Judge that it is come out from the testimony that the grievance of the witnesses PW1 to 3 towards the accused are settled due to the intervention of leaders and accordingly held that the prosecution evidence is not capable to bring home the guilty of the accused punishable under Sections 143, 147, 148, 323, 324, 452, 308 r/w Section 149 of I.P.C. In view of Annexure 3 and 4 affidavit filed respectively by the defacto complainant and the injured who are respondents 1 and 2 in the above M.C., I am of the view that there is no meaning in sending the petitioner to face the prosecution and in the given circumstance no fruitful turn out can be anticipated even if the trial is undertaken by the Court below rather it will be resulted in sheer waste of judicial time. **Crl.M.C.No. 2835 of 2013** 4 6. The learned counsel for the petitioner submitted that during the pendency of the above case, the matter is settled amicably between the parties to the dispute which is the subject matter of the above case. Therefore, the continuation of the proceedings in the above case is abuse of process of law and proceedings. 7. The learned counsel for the respondents who on the basis of specific instruction received from the respondent submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and they have no grievance against him. 8. 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. 9. 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 Sections 143, 147, 148, 323, 324, **Crl.M.C.No. 2835 of 2013** 5 452, 308 r/w 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 submission made by the counsel for the respondents, it appears to me that the the de facto complainant has no further grievance against the petitioner accused in the light of the settlement arrived by them. 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)]. In which 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._ **Crl.M.C.No. 2835 of 2013** 6 _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.._ ## It is further held as follows:- “...... _... 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,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. **Crl.M.C.No. 2835 of 2013** 7 Thus, I am of the view that as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such 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 proceeding with the trial, 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 Annexure-I and all further proceedings pending against the petitioners in L.P.No. 67/2012 of the Judicial First Class Magistrate Court, Vatakara and all further proceedings thereto. ## **V.K.MOHANAN, JUDGE** AS