Muhammed Hasheer A @ Muhammed Asheer v. State of Kerala and Kamaljith

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938** ## **Crl.MC.No. 2159 of 2016** ## **----------------------------------** **CC.648/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR CRIME NO. 477/2015 OF KANNUR TOWN POLICE STATION, KANNUR** **------------------** ## **PETITIONER/ACCUSED NO.2:** **------------------------------------------** **MUHAMMED HASHEER A @ MUHAMMED ASHEER, AGED 30 YEARS, S/O.HASHIM, AYISHA MANZIL, KANNUR CITY, KANNUR-3.** **BY ADVS.SRI.P.U.SHAILAJAN SMT. D.N.NISHANI** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **-------------------------------------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **2. KAMALJITH, AGED 32 YEARS,** **S/O.KARUNAKARAN, 'KAMANEEYAM', NEERVELI, KUTHUPARAMBA, THALASSERY, KANNUR DISTRICT-670643.** **R1 BY PUBLIC PROSECUTOR SMT.LILLY LASLIE R2 BY ADV. SRI.M.SURESH KUMAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 2159 of 2016** ## **---------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** **------------------------------------------** ## **ANNEXURE-1: PHOTOCOPY OF THE F.I.R IN CRIME NO.477/2006 OF KANNUR TOWN POLICE STATION** **ANNEXURE-II: TRUE COPY OF THE JUDGMENT DATED 29.9.2012 IN C.C.451/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KANNUR** **ANNEXURE-III: TRUE COPY OF THE DEPOSITION OF THE DE-FACTO COMPLAINANT IN C.C.451/2010** **ANNEXURE-IV: TRUE COPY OF THE ORDER DATED 5.3.2015 IN CRL.M.C.883/2013 BEFORE THIS HON'BLE COURT** **ANNEXURE-V: ORIGINAL AFFIDAVIT SWEARED BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' ANNEXURES** **-------------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** ## **PJ** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2159 of 2016 - - - - - - - - - - - - - - - - Dated 2[nd] June, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** The petitioner herein is the 2[nd] accused in C.C.No.648 of 2015 on the files of the Judicial Magistrate of 1[st] Class-I, Kannur. The criminal proceedings pending against him are sought to be quashed in this petition filed under section 482 of the Code of Criminal Procedure, essentially on the ground that the matter has been amicably settled with the defacto complainant. 2. It is on the basis of the statement given by the 2[nd] respondent herein that Crime No.477 of 2006 of Kannur Town Police Station was registered against the accused for the offences punishable under Section 143, 147, 148, 323, 324 and 427 read with Section 149 of the IPC. 3. The prosecution allegation is that on 9.10.2006 at about 10.30 am accused persons formed themselves into an unlawful assembly and threw stones at the vehicle in which _de facto_ complainant was traveling and caused him injuries. Crl.M.C. No.2159 of 2016 -2- 4. After investigation, final report was laid before court and the case was taken cognizance as C.C.No.41 of 2007. In that case except accused Nos. 3 to 7, 10, 11 and 15, all the other accused appeared before court and faced trial. As per judgment dated 18.10.2010 they were acquitted under Section 248 (1) of the Cr.P.C.(hereinafter referred to as the “Code”). Thereafter the case was re-numbered as C.C.No.451 of 2010. Accused Nos. 5, 6 and 8 faced trial and as per judgment dated 29.9.2012, they were acquitted by the learned Magistrate under Section 248(1) of the Code. 5. Thereafter, the case against the remaining accused were refiled as C.C.No.1863 of 2012. While so, the 2[nd] accused in the original crime approached this Court by filing a petition under Section 482 of the Code and sought to quash the proceedings on the ground that the substratum of the case has been destroyed. As per Annexure IV judgment dated 5.3.2015 in Crl.M.C.No.883 of 2013, this Court has quashed the proceedings against the original 2[nd] accused. Thereafter the case was re-numbered as C.C.No.648 of 2015 and the same is pending before the learned Crl.M.C. No.2159 of 2016 -3- Magistrate. The petitioner is the 2[nd] accused in the said case. 6. The learned counsel appearing for the petitioner referring to Annexures II, III and IV submitted that in view of the order of acquittal passed against the other accused, the continuance of prosecution as against the petitioner herein is nothing but abuse of process of law. No purpose will be served as none of the witnesses had supported the prosecution case. It is also pointed out that proceedings against the original 2[nd] accused was quashed by this Court as per Annexure IV order. Finally it is submitted that the 2[nd] respondent _de facto_ complainant has sworn to Annexure V affidavit wherein it is asserted that the said respondent does not have any subsisting grievance in the matter and that he has no objection in quashing the criminal proceedings as against the petitioner herein. 7. The 2[nd] respondent has entered appearance through counsel and it is submitted that the assertions in Annexure V are true and correct and that the said respondent has no objection in allowing the instant petition. Crl.M.C. No.2159 of 2016 -4- 8. The learned Public Prosecutor was directed to obtain instructions from the Investigating officer and it is submitted that the State has no objection in acting on Annexure V affidavit as it would promote peace and harmony. It is also submitted that the petitioner is not a person with any criminal antecedents. 9. I have heard the rival submissions and have anxiously gone through the Annexures II and IV jugment of the trial court and order of this Court respectively. After evaluating the evidence in detail, the learned Magistrate came to the conclusion that the prosecution has miserably failed to prove its case against the accused persons and on its basis the accused were acquitted under Section 248(1) of the Cr.P.C. In **Moosa v. Sub Inspector of Police (2006 (1) KLT 552)** and also **Ashraf Kancheriyil v. State of Kerala (2011 (2) KHC 812)** it has been held that when substratum of the case is destroyed, there is no point in pursuing with the prosecution as against the other accused. In the instant case the de facto complainant has filed separate affidavits asserting that he has entered into an Crl.M.C. No.2159 of 2016 -5- amicable settlement with the petitioner and he did not wish to proceed with the criminal prosecution. The counsel who entered appearance for and on behalf of respondent No.2 also asserted that the assertions in the affidavit are true. 10. After hearing the counsel for the petitioner and also the learned Public prosecutor and the learned counsel for the 2[nd] respondent, I am of the considered opinion that this is one of those exceptional cases where prayer for invocation of the extraordinary inherent jurisdiction can be justifiably invoked to serve the ends of justice. The bona fides of the petitioner in approaching this court with the prayer cannot be doubted as the substratum of the case has been destroyed. It has been held by the Apex Court that, the High Court, while exercising powers under Section 482 of the Code will be justified in quashing cases involving even non-compoundable offence, if the disputes are really private in nature and no public interests are involved, provided that the offences are not of the gravely objectionable variety. I am convinced that the extraordinary powers under Section 482 of the Code can be invoked as the case falls within the Crl.M.C. No.2159 of 2016 -6- matrix of guidelines laid down by the Apex Court in **Gian Singh v. State of Punjab ( 2012 (4) KLT 108) and Narinder Singh and others v. State of Punjab and anr. reported in (2014) 6 SCC 466)** and other cases. 11. It is also felt that quashing of the instant proceeding would bring about peace and secure ends of justice. No purpose will be served in subjecting the parties to the ordeal of a protracted trial in view of the settlement. It will only enure to waste valuable judicial hours. In the result, this petition is allowed and all further proceedings against the petitioner herein in C.C.No.648 of 2015 on the files of the Judicial Magistrate of 1[st] Class -I, Kannur shall stand quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-6.6.16