Nedumkandathil Pulikkal Abdul Nasir @ Nassar v. Sub Inspector of Police, Mukkam Police Station, Kozhikode; State of Kerala; and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** ## **FRIDAY, THE 10TH DAY OF OCTOBER 2014/18TH ASWINA, 1936** ## **Crl.MC.No. 4964 of 2014 ()** **--------------------------SC 42/2007 of SESSIONS COURT, KOZHIKODE CP 39/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THAMARASSERY CRIME NO. 119/2004 OF MUKKAM POLICE STATION , KOZHIKODE DISTRICT =================** ## **PETITIONER/ACCUSED:** ## **-----------------------------------** **NEDUMKANDATHIL PULIKKAL ABDUL NASIR @ NASSAR, AGED 47 YEARS S/O. MUHAMMED, KAKKAD AMSOM DESOM, KONDOTTI TALUK MALAPPURAM.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENTS/DEFACTO COMPLAINANT/STATE:** **------------------------------------------------------------------------** ## **1. SUB INSPECTOR OF POLICE** **MUKKAM POLICE STATION, KOZHIKODE - 673 021.** ## **2. STATE OF KERALA** - **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **3. MUHAMMED, AGED 64 YEARS S/O. KAMMUTY MUSALIYAR, RESIDING AT KANNATTIL HOUSE KODIYATHUR AMSOM, NELLIKKAPARAMBU DESOM KOZHIKODE - 673 019.** **4. KOMUTTY, AGED 64 YEARS S/O. KUNHAMUTTY, KARATTU HOUSE, KAKKAD AMSOM KODIYATHUR DESOM, KOZHIKODE - 673 019.** **5. UNNIMAMU, AGED 82 YEARS S/O. AHAMMED KUTTY, ARIPPARAMANNIL HOUSE, KAKKAD AMSOM NELLIKKAPARAMBU, KOZHIKODE - 673 019.** **6. ULLATTIL BEERANKUTTY, AGED 53 YEARS S/O. KUNHAMU, KAKKAD AMSOM, NELLIKKAPARAMBU KOZHIKODE - 673 019.** **7. ABDULLA, AGED 65 YEARS S/O. ALI, KIZHAKKETHODI HOUSE, KAKKAD AMSOM NELLIKKAPARAMBU, KOZHIKODE - 673 019** **Crl.MC.No. 4964 of 2014 ()** **-2-** **8. P.V.C. AHAMMED, AGED 63 YEARS S/O. MOHAMMED KOYA HAJI, KATTIRICHALIL HOUSE KAKKAD AMSOM, NELLIKKAPARAMBU, KOZHIKODE - 673 019** ## **9. ABDULLA, AGED 73 YEARS** **S/O. ITHALLU, THARAMMEL HOUSE, KATTIRICHALIL KAKKAD AMSOM, NELLIKKAPARAMBU, KOZHIKODE - 673 019** **10. MUKKUNGAL ABDUL KHADER, AGED 65 YEARS S/O. MOOSA, KODIYATHUR AMSOM, NELLIKAPARAMBU KOZHIKODE - 673 019.** ## **11. ABDULLA, AGED 66 YEARS** - **S/O. IBRAHIM HAJI, ADUKATHIL HOUSE, KAKKAD AMSOM NELLIKKAPARAMBU, KOZHIKODE - 673 019** ## **12. MOHAMMED, AGED 60 YEARS** **S/O. CHEKKUMUHAMMED, THALATHIL HOUSE, KODIYATHUR AMSOM NELLIKKAPARAMBU, KOZHIKODE - 673 019.** ## **13. ABDU RAHIMAN, AGED 45 YEARS** **S/O. MOIDEEN HAJI, PEKKADAN HOUSE, KAKKAD AMSOM NELLIKKAPARAMBU, KOZHIKODE - 673 019** ## **BY ADV. SRI.P.V.ANOOP** **R1&R2 BY Sr. PUBLIC PROSECUTOR SMT. SAREENA GEORGE P.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.M.C. NO. 4964/2014** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **ANNEXURE-A COPY OF THE JUDGMENT DATED 20.12.2012 IN S.C. NO. 42/2007 ON THE FILE OF THE III RD ADDITIONAL ASSISTANT SESSIONS JUDGE, KOZHIKODE** **ANNEXURE-B COPY OF THE PETITION FILED BY THE PETITIONER DAED 01.01.2013, WHICH WAS NUMBERED AS Crl.M.P. NO. 1833/2013** **ANNEXURE-C COPY OF THE ORDER DATED 05.08.2013 IN C.M.P. NO. 1833/2013 IN S.C. NO. 805/2012 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSION SJUDGE, FAST TRACK(ADHOC-II), KOZHIKODE (WHICH IS NOW RE-NAMED AS VTH ADDITIONAL SESSIONS JUDGE, KOZHIKODE)** **ANNEXURE-D COPY OF THE APPLICATION DATED 18.06.2014 FILED FOR THE CERTIFIED COPY OF THE CHARGE SHEET** ## **ANNEXURE-E1 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW1** **ANNEXURE-E2 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW2 ANNEXURE-E3 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW3 ANNEXURE-E4 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW4** **ANNEXURE-E5 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW5 ANNEXURE-E6 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW6 ANNEXURE-E7 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW7 ANNEXURE-E8 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW8** **ANNEXURE-E9 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW9** **ANNEXURE-E10 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW10** **ANNEXURE-E11 AFFIDAVIT SWORN BY CHARGE WITNESS NO. CW11** **ANNEXURE-F COPY OF THE COMMITTAL ORDER DATED 19.09.2012 IN C.P. NO. 39/12 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THAMARASSERY** ## **RESPONDENTS' EXHIBITS** ## **NIL** // TRUE COPY // P.A. TO JUDGE SD P. UBAID, J. --------------------------------------Crl.M.C. No. 4964 Of 2014 --------------------------------------Dated this the 10[th] day of October, 2014 ## O R D E R The petitioner herein is one among the twenty five accused in crime No. 119/2004 of the Mukkam Police Station, registered under Sections 143, 147, 148, 324, 326, 307 and 450 IPC. On the final report submitted by the police under the above Sections, cognizance was taken in the Court of Session, Kozhikode as S.C. No. 42/2007. The petitioner herein was arraigned as accused No. 14 in the said case. Pending the proceedings, the original 17[th] accused died, and thus the charge against him abated. The others except the petitioner herein faced trial in S.C.No. 42/2007 before the learned III Additional Sessions Judge, Kozhikode and obtained a judgment of acquittal when all the material witnesses turned fully hostile to the prosecution in view of an amicable settlement arrived at out of court. As composition as such was not possible under the law, the learned trial judge directed the prosecution to examine the witnesses. Accordingly, the **2** _Crl.M.C.. No. 4964/2014_ prosecution examined 13 witnesses in S.C.No. 42/2007 including the injured persons, except the first witness cited by the prosecution as the first injured. None of the material witnesses supported the prosecution in the said trial in view of the amicable settlement made out of court. Witness No.11 cited by the prosecution died pending the proceeding. In the absence of any incriminating materials, the other accused were acquitted by the learned trial judge under Section 232 Cr.P.C. by judgment dated 20.12.2012 in SC No. 42/2007. When the petitioner herein remained consistently absent during trial, his case was split up and refiled as SC No. 805/2012. Now, he has come before this Court under Section 482 Cr.P.C. to quash the prosecution against him in S.C. No. 805/2012 pending before the Vth Additional Sessions Judge, Kozhikode, on the ground that he and all the injured persons have amicably settled the whole dispute out of court, and also on the ground that all the other accused stand acquitted on trial. 2. Crime in the case was registered on the complaint of one Muhammed, S/o. Kammutty. The prosecution case is that the petitioner herein and the other co-accused assaulted the said Muhammed and his friends, eleven in number, as part of a **3** _Crl.M.C.. No. 4964/2014_ criminal design made by them to attack their political opponents, and inflicted simple and grievous injuries on their body in an attempt on their life. The persons who sustained injuries in the alleged incident are the respondents 3 to 13 in this proceeding. They have filed affidavit to the effect that they have amicably settled the whole dispute with the petitioner herein also, and that they have no grievance or complaint. In **Gian Sing Vs. State of Punjab [2012(4) KLT 108(SC)]** , **Narinder Singh and Others v. State of Punjab and Anothr [2014(2) KLJ 252]** and other decisions, the Honourable Supreme Court has held that even in cases involving non-compoundable offences, the High Court can act under Section 482 Cr.P.C. and quash the prosecution, if the parties have really settled whole dispute amicably, and continuance of prosecution will not serve any purpose. Annexure-A judgment produced in this proceeding shows that all the other accused, except the one who died pending the proceeding, obtained order of acquittal from the trial court when all the material witnesses turned hostile to the prosecution in view of the settlement made out of court. None of the material witnesses stated anything during trial to incriminate any person, and when cross examined by the learned Public Prosecutor **4** _Crl.M.C.. No. 4964/2014_ everybody stated about the amicable settlement made out of court. In such a situation, I find that it will be really waste of time to proceed with the prosecution against petitioner herein. I am well satisfied that the parties have really settled the whole dispute, which does not involve any public interest or public issue. The dispute is purely personal, and the parties have come to terms on the intervention of acceptable persons. In such a situation, continuance of prosecution will not serve any purpose, other than wasting the precious time of the court. I find that, applying decisions of the Honourable Supreme Court and the guidelines made by the Honourable Supreme Court, this prosecution can be quashed. In the result, this Crl.M.C. is allowed. The prosecution against the petitioner herein in S.C.No. 805/2012 before the Vth Additional Sessions Judge, Kozhikode will stand quashed under Section 482 Cr.P.C., and the petitioner will stand released from prosecution. Sd/P. UBAID, JUDGE sd **==> picture [246 x 13] intentionally omitted <==**