Rafeeque, Abbas, Muhammed and Sadiq v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938** ## **Crl.MC.No. 2504 of 2016 ()** **--------------------------SC.NO. 864/2012 OF ADDL. DISTRICT & SESSIONS COURT - I, KASARAGOD CP.NO. 151/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KASARAGOD CRIME NO. 11/2010 OF MANJESHWAR POLICE STATION , KASARGOD DISTRICT** **-----------------------** ## **PETITIONER(S)/ACCUSED 7, 10-12:** **----------------------------------------------------** ## **1. RAFEEQUE, S/O.BAPPANKUNHI,** **R/AT BOTHUKKULI HOUSE, BAKRABAYAL, PANTHOOR VILLAGE, VORKADY PANCHAYATH, KASARAGOD DISTRICT.** **2. ABBAS, S/O.MUHAMMED,** **R/AT BOLMAR, NEAR BOLMAR MASJID, SALATHUR PANCHAYATH, KASARAGOD DISTRICT.** ## **3. MUHAMMED,** **S/O.GUJIRI IBRAHIM, R/AT THALAKKI HOUSE, PANTHOOR VILLAGE, VORKADY PANCHAYATH, KASARAGOD DISTRICT.** ## **4. SADIQ,** - **S/O.ABDUL MAJEED, R/AT THALAKKI HOUSE, PANTHOOR VILLAGE, VORKADY PANCHAYATH, KASARAGOD DISTRICT.** ## **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **----------------------------------------------------------------** ## **1. STATE OF KERALA,** - **THROUGH THE STATION HOUSE OFFICER MANJESHWAR, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUALM.** **2. KADENGODLU ANILKUMAR D'SOUZA,** - **AGED 29 YEARS, S/O.HENRY D'SOUZA, R/AT KADENGODLU HOUSE, PERUVAI POST AND VILLAGE, BANTWAL TALUK, DK DISTRICT, KARNATAKA STATE-601 385** **2/-** **-2-** **CRL.MC.NO.2504/2016** ## **3. WILFRED D'SOUZA,** **AGED 37 YEARS, S/O.HENRY D'SOUZA, R/AT KADENGODLU HOUSE, PERUVAI POST AND VILLAGE, BANTWAL TALUK, DK DISTRICT, KARNATAKA STATE-601 384** **R1 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE.P. R2 & R3 BY ADV. SMT.C.B.SUMA DEVI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 2504 of 2016 () ----------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES: ----------------------------------------------** **ANNEXURE I : TRUE COPY OF THE FINAL REPORT IN CRIME NO.11/2010 DT 4-5-2011 BY THE MANJESHWAR POLICE STATION. ANNEXURE II : TRUE COPY OF THE JUDGMENT IN SC NO.864/2012 BY THE ADDITIONAL SESSIONS COURT, KASARAGOD DATED 9-11-2015. ANNEXURE III : TRUE COPY OF THE AFFIDAVIT BY THE 2ND RESPONDENT. ANNEXURE IV : TRUE COPY OF THE AFFIDAVIT BY THE 3RD RESPONDENT.** **RESPONDENT(S)' ANNEXURES: NIL ------------------------------------------------** **==> picture [69 x 44] intentionally omitted <==** **----- Start of picture text -----**<br> /TRUE COPY/<br>P.A.TO JUDGE<br>**----- End of picture text -----**<br> **==> picture [15 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> sts<br>**----- End of picture text -----**<br> **RAJA VIJAYARAGHAVAN V, J. -------------------------------------------------------Crl.M.C.No.2504 of 2016 -------------------------------------------------------Dated this the 17[th] day of May, 2016** ## **O R D E R** 1. The petitioners herein are the accused Nos.7 and 10 to 12 in Crime No.11/2010 of Manjeshwar police station. The aforesaid crime has been registered for offence punishable under S. 143, 147, 148, 341, 323, 324, 365, 308 r/w S.149 of the IPC. 2. After completion of investigation, final report was laid before the Judicial Magistrate of the I Class Kasaragod and the case was committed to the Court of Sessions. Since the petitioners did not appear before the Court below and face the trial, proceedings as against them were split up and is now pending as C.P.No.151 of 2012 of the Judicial Magistrate of the I Class, Kasaragod. Crl.M.C.No.2504 of 2016 : 2 : 3. I have heard the learned counsel for the petitioners, the learned Counsel for the respondents 2 and 3 and the learned Public Prosecutor. 4. It is submitted that, as against the accused Nos. 1 to 3, 5 and 6, the learned Sessions Judge had proceeded with the trial and as per Annexure A II judgment dated 9.11.2015 in SC No 864 of 2012, it was held that the prosecution has not succeeded in proving the guilt of the accused. Holding so, the accused were acquitted under S.235(1) of the Cr.P.C. It is the submission of the learned counsel that in view of Annexure-A II, the substratum of the case as against the petitioners has been destroyed and it would result in travesty of justice to direct the petitioners to undergo the ordeal of a protracted trial. 5. It is submitted that after the acquittal of accused Nos. 1 to 3, 5 and 6 , mediation talks were held at the instance of Crl.M.C.No.2504 of 2016 : 3 : well wishers and the matter has been settled. It was submitted by the counsel for the respondents 2 and 3 , that separate affidavits have been filed asserting that they are not inclined to proceed with the matter as against the petitioner herein. 6. I have anxiously gone through the judgment rendered by the learned Additional Sessions Judge. The learned Additional Sessions Judge in para.11 of Annexure AII judgment has observed that the evidence would reveal that the dispute has been settled out of court. None of the witnesses had deposed in favor of the prosecution. 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. Crl.M.C.No.2504 of 2016 : 4 : 7. In the instant case, the injured witness and the de facto complainant have filed separate affidavits asserting that they have entered into an amicable settlement with the petitioners and they do not wish to proceed with the criminal prosecution. The counsel who entered appearance for and on behalf of respondents 2 and 3 has submitted that the assertions in the affidavit are true. 8. After hearing the counsel for the petitioner and also the learned Public prosecutor and the learned counsel for the respondents 1 and 2, 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 S. 482 will be Crl.M.C.No.2504 of 2016 : 5 : justified in quashing cases involving even noncompoundable offence if the disputes are really private in nature and no public interests are involved provided that the offenses are not of the gravely objectionable variety. I am convinced that the extraordinary powers under S. 482 can be invoked as the case falls within the 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. 9. 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. I am, therefore, of the view that the criminal proceedings pending as against the petitioner can be quashed by invoking the inherent Crl.M.C.No.2504 of 2016 : 6 : powers of this Court under S. 482 of the Code of Criminal Procedure. 10. In the result, this Crl.M.C. is allowed. All further proceedings as against the petitioners in C.P.No.151/2012 on the file of the Judicial First Class Magistrate Court, Kasaragod arising from Crime No.11/2010 of Manjeshwar police station shall stand quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE.** Bb _[True copy]_ _P.A to Judge_