Rony Mathews v. Manish, Sunil and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934 Crl.MC.No. 676 of 2013 () -------------------------SC 141/2010 of PRINCIPAL SESSIONS COURT,PATHANAMTHITTA CRIME NO. 757/2006 OF PATHANAMTHITTA POLICE STATION ## PETITIONER(S): ## ----------------- RONY MATHEWS, AGED 28 YEARS S/O.MATHEWS, PUTHENPURAYIL HOUSE, VAZHAMUTTOM EAST VALLIKKODE VILLAGE, PATHANAMTHITTA DISTRICT. BY ADVS.SRI.RAJAVIJAYARAGHAVAN SRI.M.T.SURESHKUMAR RESPONDDENT:-COMPLAINANT(S), INJURED & STATE: ----------------------------------------------------------- ## 1. MANISH S/O.KUNJUKUNJU, VALIYAMADATHINAL THEKKETHIL HOUSE VAZHAMUTTOM EAST, VALLIKODU VILLAGE, PATHANAMTHITTA 689 645 ## 2. SUNIL S/O.KRISHNAN, VALIYAMADATHINAL THEKKETHIL HOUSE VAZHAMUTTOM EAST, VALLIKODU VILLAGE, PATHANAMTHITTA 689 645 ## 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682031 R1-2 BY ADV. SRI.M.REVIKRISHNAN R3 BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.676/13 ## APPENDIX PETITIONER'(S) EXHIBITS: ANNEXURE 1: TRUE COPY OF FIR AND FIS IN CRIME NO.757 OF 2006 OF PATHANAMTHITTA POLICE STATION DATED 7/9/2006. - ANNEXURE 2: TRUE COPY OF THE FINAL REPORT SUBMITTED BEFORE THE J.F.C.M-1, PATHANAMTHITTA IN FIR NO.757/2006 OF PATHANAMTHITTA POLICE STATION DATED 13/11/2006. - ANNEXURE 3: TRUE COPY OF THE JUDGMENT DATED 8/1/2010 IN SC.NO.263 OF 2008 ON THE FILE OF THE COURT OF SESSIONS JUDGE, PATHANAMTHITTA. - ANNEXURE 4: TRUE COPY OF THE JUDGMENT DATED 13/01/2011 IN CRL.MC NO.117 OF 2011. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== CRL.M.C. No.676 OF 2013 ==========================** Dated this the 5[th ] day of February, 2013 ## **ORDER** The petitioner herein is the accused in S.C.No.141 of 2010 on the files of the Court of the Principal Sessions Judge, Pathanamthitta. He was accused No.3 in S.C.No.263 of 2008 on the files of that court and was facing charge for offences punishable under sections 143, 147, 341, 323 read with 149 IPC and under section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the 'Act') along with the other accused. Accused 1, 2, 4 and 5 therein stood the trial and ultimately as per Annexure-A3 judgment, they were acquitted. The case against the petitioner herein was split up and it was re-numbered as S.C.No.141 of 2010. This Crl.M.C. has been filed with the prayer to quash Annexure A-2 final report in crime No.757 of 2006 of Pathanamthitta Police Station and all further proceedings in S.C.No.141 of 2010 in exercise of the powers **Crl.M.C.676/13** 2 conferred under section 482 of the Code of Criminal Procedure, in the interest of justice, based on the settlement and compromise reached between the petitioner and respondents 1 and 2. 2. Separate affidavits have been sworn in by respondents 1 and 2 in this case. It is stated by them that the disputes that led to the registration of the aforesaid crime which is now pending before the Court Principal Sessions Judge, Pathanamthitta as S.C.No.141 of 2010 have been compromised between the parties and in terms of the compromise and settlement, they got no objection in quashing Annexure-A2 final report and all further proceedings in S.C.No.141 of 2010. 3. A judgment of acquittal of a co-accused would not bar the subsequent trial of an absconding accused. This position has been laid down by a Full Bench decision of this Court in **Moosa v. Sub Inspector of Police [2006(1) KLT 552]** . The learned counsel for **Crl.M.C.676/13** 3 respondents 1 and 2 brought to my attention paragraph 50 therein to claim the benefit of the exception carved out for the application of the law thus settled. The relevant portion reads thus:- “From the above discussion, it can thus be seen that a judgment to be relevant within the meaning of Sections 40 to 43 of the Evidence Act so as to bar a trial under S.403 Cr.P.C. should be a judgment inter parties. So however, it does not mean that the judgment is not admissible if it is admissible under any other provisions of the Evidence Act. Thus, in order to prove as to who were the accused in the previous trial or ought to prove the factum of acquittal in those cases it will still be admissible under S.30 or 35 of the Evidence Act. At the same time, the judgment rendered in the case of a co-accused and the reasoning of the judgment contained therein or appreciation of the evidence therein are not matters to be taken into account for the purpose of granting any relief to quash the proceedings and thus bar the trial itself. It may however, be a case where the very substratum of the case is lost which may be an exception to this rule. However, as held by the apex court it has to be held that even when a coaccused is acquitted in the very same trial, the other accused can be convicted if there are good reasons to do so. In other words, the acquittal of some of the accused by itself is not a reason to bar the trial in the case of the other accused. **Crl.M.C.676/13** 4 4. The learned counsel for the petitioner and learned counsel for respondents 1 and 2 also brought to my attention paragraph 23 of Annexure-A3 judgment whereby the co-accused who stood trial were acquitted. It reads thus: “Evidently with respect to the community to which the parties belonged apart from the oral evidence, there is no documentary evidence to sustain the case. Therefore so far as the involvement of the accused for the offence punishable u/s 3(1)(x) of the SC/ST (P.A) Act was concerned the evidence on record was not sufficient to pin point the guilt of the accused (see the principle in 2008 Crl. Law Journal 4369 (Supreme Court), 672 (Bombay) 1197 and 2008 Crl. Law Journal NOC 289).” 5. It is contended that in the light of the same and also in view of the fact that the matter has been settled between the parties, there cannot be a successful prosecution against the petitioner for the offences punishable under section 3(1)(10)(x) of the Act. Besides the aforesaid provisions under the Act, the petitioner was also charge sheeted under sections 143, 147, 341 and 323 read with 149 IPC. Obviously, the offences under sections 341 and 323, IPC are **Crl.M.C.676/13** 5 compoundable by virtue of the provisions under section 320 Cr.P.C. True that the petitioner is also charge sheeted for commission of noncompoundable offences. Relying on the decisions of the Hon'ble Apex Court in **Gian Singh v. State of Punjab [2012 (4) KLT 108 SC], B.S.Joshi and others v. State of Haryana & Anr. [2003 (2) KLT 1062 SC], Nikhil Merchant v. Central Bureau of Investigation [2008 (3) KLT 769]** and **Manoj Sharma v. State & Ors. [2008 (4) KLT 417]** , it is contended that in view of the fact that the dispute that led to the registration of the aforesaid crime has been compromised and settled between the parties and also that the said compromise of the said case would not in any way go against the public interest and continuation of the criminal proceedings in the circumstances became unnecessary and liable to be terminated. To canvass the said position, the learned counsel on both sides relied on the decision in **Gian Singh's** case (supra), more particularly to paragraph 15 therein. In **Gian Singh's** case (supra), the Hon'ble Supreme Court held that in the very nature of its constitution, it is the **Crl.M.C.676/13** 6 judicial obligation of the High Court to prevent continuation of unnecessary judicial process. In the decision in **B.S. Joshi's** case (supra), the Hon'ble Apex Court held that provisions under section 320, Cr.P.C would not limit the exercise of inherent powers under section 482, Cr.P.C. Having heard the learned counsel for the petitioner and the learned counsel for respondents 1 and 2 and also learned Public Prosecutor, I am convinced that the action for which the crime was registered is private and personal in nature and the settlement reached between the parties would not go against the public interest. In the circumstances obtained in this case, continuation of criminal proceedings based on Annexure-A2 final report in Crime No.757 of 2006 of Pathanamthitta Police Station before the court of Principal Sessions Judge, Pathanamthitta in S.C.No.141 of 2010 became unnecessary and the chance for a successful prosecution of the petitioner is also very remote and bleak. When the other offences mainly alleged are compoundable viz., under sections 341 and 323, IPC it is only proper to act upon the compromise despite the allegation **Crl.M.C.676/13** 7 of commission of offences under sections 143, 147 and 149, I.P.C. When once it is so found in the light of the decision of **Gian Singh's case** (supra), it is the obligation of this Court to abruptly terminate the proceedings before that court. In the said circumstances, this Crl.M.C is allowed. Annexure -A2 and FIR based on the same, now pending before the Court of Principal Sessions Judge as S.C.No.141 of 2010 are quashed. Sd/- **C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.M.C.676/13** 8 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **Crl.M.C.676/13** 9