P.A. NIYAS v. Shankara Alva and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 31ST DAY OF JULY 2014/9TH SRAVANA, 1936** ## **Crl.MC.No. 3555 of 2014 ()** **--------------------------LPC. NO.64/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KASARAGOD. CRIME NO. 171/1998 OF KUMBALA POLICE STATION, KASARAGOD DISTRICT. ........** **PETITIONER/ACCUSED:** **----------------------------------** **P.A. NIYAS, S/O.ABDULLA, THALANGARA GARDEN, BIGNANGI ROAD, KOPRA BAZAR, MOGRAL POST, VIA-KUMBALA, KASARAGOD.** **BY ADV. SRI.V.TEKCHAND.** ## **RESPONDENTS/COMPLAINANT & STATE:** **-------------------------------------------------------------** ## **1. SHANKARA ALVA,** **S/O.KUNHANNA ALVA, KOTEKAR HOUSE, KOIPADY VILLAGE, KUMBALA, KASARAGOD.** ## **2. STATE OF KERALA,** **THROUGH S.I. OF POLICE, KUMBALA POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.** **R1 BY ADV. SMT.ANN LORETTA CORREYA. R2 BY PUBLIC PROSECUTOR SMT.P. MAYA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **Crl.MC.No. 3555 of 2014** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1 CERTIFIED COPY OF THE CHARGE SHEET IN C.C. NO.2027/2011 ON THE FILE OF JFCM, KASARAGOD. ANNEXURE A2 AN AFFIDAVIT SWORN TO BY THE DEFACTO COMPLAINANT.** ## **RESPONDENT'S ANNEXURES:-** **NIL.** **//TRUE COPY//** **P.A. TO JUDGE** **rs.** ## K. RAMAKRISHNAN, J. ------------------------------------------------------------------------------------------Crl. M.C. Nos.3555 of 2014 --------------------------------------------------------------------------------Dated this the 31[st] day of July, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioner, who is the 8[th] accused in Crime No.171/1998 of Kumbala police station, to quash the proceedings on the basis of settlement and also on the basis of acquittal of other accused under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that, the petitioner was arrayed as 8[th] accused in Crime No.171/1998 of Kumbala police station, which was registered on the basis of the statement given by the first respondent against the petitioner and others, alleging offences under Section 143, 147, 341, 506(i) read with Section 149 of the Indian Penal Code. After investigation final report was filed and it was originally taken on file as C.C.No.86/1999 on the file of then Judicial First Class Magistrate Court, Kasaragod, and Crl.M.C.3555/2014 2 all the accused persons appeared and the trial was proceeded with. At the time when the case was posted for 313 examination of the accused persons, the present petitioner got employment and so he could not participate in the trial thereafter and case against him was split up and case against others ended in acquittal, as per judgment dated 23.12.2002 and since he did not appear, case against him was split up and later it was transferred to the register of long pending cases as L.P.C.No.64/2009. The matter has been now settled between the petitioner and the first respondent and he has no grievance against the petitioner. Since some of the offences are non-compoundable in nature, they could not file the application before the court below and so the petitioner has no other remedy, except to approach this court, seeking the following relief: “This Hon'ble court may be pleased to quash Annexure-A1 charge sheet in Crime No.171/1998 of Kumbala police station, Kasaragod District and all further proceedings in LPC 64/09 of JFCM, Kasaragod as against the petitioner”. 3. Since the petitioner was an absconding Crl.M.C.3555/2014 3 accused, this court felt that, without getting his presence in court, it is not proper to invoke the discretionary power to quash the proceedings under Section 482 of the Code of Criminal Procedure and accordingly he surrendered before the court below and the case was re-filed as C.C.No.2590/2014 and he was granted bail, which is evident from the report dated 19.07.2014 obtained from the Judicial First Class Magistrate Court,-I, Kasaragod. 4. The first respondent appeared through counsel and submitted that, the matter has been settled between the parties due to the intervention of well-wishers and other accused persons were also acquitted on the basis of the settlement earlier. So he has no grievance against the petitioner also. He had filed an affidavit stating these facts. 5. The counsel for the petitioner also submitted that, in view of the settlement and also in view of the order of acquittal of other accused persons by which the substratum of the prosecution case has been shattered, no Crl.M.C.3555/2014 4 purpose will be served by allowing the case to continue. So he prayed for allowing the application. 6. The learned Public Prosecutor, on instructions as directed by this court, submitted that, there is no other case against the petitioner, but opposed the application, as he did not co-operate with the trial of the case earlier and it was on account of his attitude that the disposal of the case has been delayed. 7. It is an admitted fact that, on the basis of the statement given by the defacto-complainant/first respondent, Crime No.171/1998 of Kumbala Police station was registered, alleging offences under Section 143, 147, 341, 506(i) read with Section 149 of the Indian Penal Code and after investigation final report was filed against 13 accused persons including the present petitioner and it was taken on file originally as C.C.No.86/1999 on the file of the then Judicial First Class Magistrate Court, Kasaragod, and it is seen from the copy of the judgment send by the learned magistrate along with his report that, except the present Crl.M.C.3555/2014 5 petitioner all others were acquitted as per Judgment dated 23.12.2002 and case against the present petitioner, who is the 8[th] accused in the case was split up and re-filed as C.C.No.863/2002 and thereafter it was transferred to the register of long pending cases as L.P.C.No.64/2009. Now as per the order of this court, he surrendered before the court below and the case is now re-filed as C.C.No.2590/2014 on the file of Judicial First Class Magistrate Court-I, Kasaragod. Even as per the earlier judgment, it is seen that, the defacto -complainant and his witnesses did not support the case of the prosecution and they have deposed that, they could not identify the person, who had committed the crime. The learned magistrate after considering the evidence found that, the prosecution has failed to prove the case against the accused persons and acquitted them of the charge leveled against them. Now the matter has been settled between the defacto-complainant and the petitioner as well. 8. In the decision reported in **2006 (1) KLT** Crl.M.C.3555/2014 6 **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 as against the coaccused, who did not participate in the trial”. 9. But in the same decision it has been held that, if the substratum of the prosecution case has been shattered in the earlier case, then that benefit can be given to the accused, who did not participate in the trial and on that basis, the case against the non-participating accused can be quashed invoking the power under Section 482 of the Code of Criminal Procedure, as no purpose will be served by allowing the case to continue and that will only a wastage of judicial time as well. 10. Further in the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)]** , the Hon'ble Supreme Court has held that: “If the matter has been settled between the parties due to the intervention of well-wishers Crl.M.C.3555/2014 7 and on account of the settlement, their original relationship has been restored, then court must honour such settlement and allowed the case to be quashed invoking the power under Section 482 of the Code of Criminal Procedure, though non-compoundable offences have been incorporated, in order to promote the settlement and the harmony that has been restored between the parties”. 11. So in view of the dictum laid down in the above decision and also considering the fact that, the matter has been settled between the petitioner and the defacto-complainant and it cannot be said to be a matter for public interest and the other accused persons have been acquitted by the judgment in C.C.No.86/1999 dated 23.12.2002, on the ground that, the prosecution has failed to prove the case against the accused persons and their involvement, no purpose will be served by proceeding with the case and it will amount to wastage of judicial time, this Crl.M.C.3555/2014 8 court feels that, it is a fit case where the power under Section 482 of the Criminal Procedure has to be invoked to quash the proceedings to promote settlement and restoration of harmony that has been resulted on account of the settlement and pendency of this case should not be a hurdle for the same. So the application is allowed and further proceedings in C.C.No.2590/2014 (Crime No.171/1998 of Kumbala Police Station) pending before the Judicial First Class Magistrate Court-I, Kasaragod, as against the petitioner is quashed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy // P.A. to Judge ss