Rajan Thayyullathil v. Ammad, Muhammed P. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH DAY OF MARCH 2013/20TH PHALGUNA 1934 Crl.MC.No. 3432 of 2012 () --------------------------CRIME NO.147/98 OF KUTTIADU POLICE STATION C.P.17/2013 OF JFCM COURT, NADAPURAM PETITIONER(S)/ACCUSED(A16): ----------------------------------- RAJAN THAYYULLATHIL, S/O KANNAN, THAYYULLATHIL HOUSE, P.O.POOLAKOOL CHERUPURAM-VATAKARA, KOZHIKODE. BY ADV. SRI.ZUBAIR PULIKOOL RESPONDENTS/DEFACTO COMPLAINANTS & STATE: ------------------------------------------------------ ## 1. AMMAD, S/O.MOOSA, VELOM, VATAKARA, KOZHIKODE DISTRICT-673102. ## 2. MUHAMMED.P, S/O.ABDULLA, THIRUVALLOOR, VATAKARA KOZHIKODEDISTRICT-673101. ## 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. R1-2 BY ADV. SMT.P.A.ANEESHA R3 BY ADDL.D.G.P. SRI.K.I.RASHEED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3432 of 2012 () ## APPENDIX PETITIONER'S EXHIBITS ANNEXURE I: TRUE COPY OF FINAL REPORT IN CRIME NO.147/2008 ANNEXURE II: TRUE COPY OF JUDGMENT IN S.C.616/2009 ANNEXURE III: TRUE COPY OF THE DEPOSITION OF IST RESPONDENT IN S.C.616/2009 ANNEXURE IV: TRUE COPY OF SWORN AFFIDAVIT ANNEXURE V: TRUE COPY OF THE DEPOSITION OF 2ND RESPONDENT IN.S.C.616/2009. ANNEXURE VI: TRUE COPY OF MEDICAL PRESCRIPTION OF THE SURGERY ISSUED FROM PARIYARAM MEDICAL COLLEGE. ANNEXURE VII: TRUE COPY OF THE JUDGMENT IN S.C.616/2010 OF THE Ist ADDL. SESSIONS COURT, KOZHIKODE DATED 19.6.2009. RESPONDENTS' EXHIBITS : NIL // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.M.C.No.3432 of 2012 ---------------------------Dated 11[th] March, 2013 ## **ORDER** The petitioner is the 16[th] accused in Crime No.147 of 1998 of Kuttiady Police Station. Annexure-I would reveal that against the first accused therein and certain others commission of offences under Sections 143, 147, 148, 452, 427 and 304 read with Section 149 of the Indian Penal Code was charged. Subsequently, the petitioner and certain others were also identified as persons having involvement in the commission of the said crime and consequently, they too have been arraigned as accused in the said crime. Accused Nos.3 and 5 were tried in S.C.No.1261 of 2006. Obviously, on finding that there was no material to connect the said accused with the commission of the said offences they were acquitted under Section 232 Cr.P.C. Annexure-VII is the judgment in S.C.No.616 of 2009 which is a split up case. One Suresh who was one another accused was tried in that case and upon finding that there is no material before the court to connect the said accused with the commission of the aforesaid offences he was acquitted under Section 232 Cr.P.C. The contention of the learned counsel for the petitioner is that all the accused sans the petitioner herein in the aforesaid crime were acquitted and in such circumstances no fruitful purpose could be achieved by conducting trial against the petitioner. It Crl.M.C.3432/2012 2 is to be noted that all such persons were acquitted only after trial. To substantiate the contention that trial against the petitioner would be a wasteful exercise the petitioner has produced Annexures-II and VII and relied on the decision of the Hon'ble Apex Court in **Gian Singh** v. **State of Punjab** reported in **2012 (4) KLT 108 (SC).** The learned counsel for the petitioner further contended that a perusal of the evidence in S.C.No.616 of 2009 would reveal that the witnesses failed to identify the accused and according to the learned counsel appearing for the petitioner virtually they deposed to the effect that they could not identify any of the assailants. In the context of the said contention I have carefully perused Annexure-II and VII which are respectively the judgments in S.C.Nos.1261 of 2006 and 616 of 2009. True that some of the witnesses deposed to the effect that they could not identify any of the assailants. At the same time, they would go to show that some of the witnesses deposed to the effect that they had seen some assailants approaching the shop run by PW1 and also had seen the attack on the deceased Ashraf. Necessarily, from their evidence one could gather only the impression that such witnesses failed to identify the accused who stood the trial. When that be the situation and in the light of the decision of the Hon'ble Apex Court in **State of Kerala** v. **Joseph @ Baby** ( **2013** Crl.M.C.3432/2012 3 **(1) KLT 546 (SC)** ) I cannot uphold the contention of the learned counsel for the petitioner that the evidence in those cases should be relied on to consider the case of the petitioner, that too, for the purpose of quashing the entire proceedings against him. The learned counsel for the petitioner submitted that the said decision is not relevant as regards the petitioner's case and what is relevant in this case is the decision of a Full Bench of this Court in **Moosa v. Sub Inspector of Police (2006** **(1) KLT 552 (F.B.)** . It appears that the learned counsel relies on the explanation carved out by the Full Bench in paragraph 50 of the said judgment. After laying down the general rule to the effect that the judgment of acquittal of co-accused could not act as a bar for the subsequent trial of absconding accused the Full Bench held that the said general rule would not be applicable in a case where the very substratum of the prosecution case had been lost with the pronouncement of the judgment in the case of a co-accused who stood the trial. I have carefully considered Annexures II and VII judgments. As stated hereinbefore, in Annexures II and VII judgments relating the case of some of the co-accused of the petitioner, who stood the trial, the trial court held that no material evidence was available to connect them with the commission of the crime. It is also evident from the discussion of the Crl.M.C.3432/2012 4 evidence therein that some of the accused despite admitting the fact that they they had seen the incident failed to identify the accused. I am afraid, such a judgment cannot be relied upon to canvass the position that the very substratum of the prosecution case was lost. I am not persuaded to uphold the contention of the petitioner that the substratum of the case had been lost with the pronouncement of Annexures II and VII judgments, in the circumstances. 2. True that in the decision in **Gian Singh's** case (supra) the Hon'ble Apex Court held that High Courts are having a duty to prevent continuation of proceedings which became absolutely unnecessary in the interest of justice. The Hon'ble Supreme Court held thus:- “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 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. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact Crl.M.C.3432/2012 5 on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. 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, mercantile, 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. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” In the context of this case it is only apposite to refer to the decision of the Hon'ble Apex Court in **Dimpey Gujral and Others** v. **Union Territory of Chandigarh and others (2013(1) KLD 66 (SC))** . In that case the Hon'ble Supreme Court held thus:- Crl.M.C.3432/2012 6 “5. In the light of the observations of this Court in **Gian Singh,** we feel that this is a case where the continuation of criminal proceedings would tantamount to abuse of process of law because the alleged offences are not heinous offences showing extreme depravity nor are they against the society. They are offences of a personal nature and burying them would bring about peace and amity between the two sides.” Thus, it is evident from the judgment that heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. In other words, in the case of heinous offences or when an offence is said to have been committed against the society it would certainly be against the interest of society to quash proceedings even if the victim or victim's family and the offender settled the disputes. In this case, it is to be noted that, it cannot be said that the victim's family settled the dispute with the petitioner. It is only PW1 who was one of the witnesses filed an affidavit to the effect that he got no objection in quashing the proceedings against the petitioner. Thus, it is obvious that in this case even the victim's family had not so far settled the disputes with the petitioner and even if such settlement is arrived at in the light of **Moosa's** case (supra) this Court cannot quash the 7 Crl.M.C.3432/2012 proceedings against the petitioner relying on Annexures-II and VII judgments. In fact, no case has been brought out for the application of the decision of the Hon'ble Supreme Court in **Gian Singh's** case (supra). In this case one of the offences alleged is under Section 304 IPC and that is certainly an offence against the society. I have no hesitation to hold that this is not a fit case for invocation of the inherent power under section 482, Cr.P.C. to quash the proceedings against the petitioner. In view of the above discussion, I am of the considered view that this petition is liable to fail and accordingly, it is dismissed. It is made clear that this judgment will not stand against the petitioner's right to claim for discharge at the appropriate stage, in accordance with law. Sd/C.T.RAVIKUMAR Judge TKS