Sameer v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 Crl.MC.No. 3619 of 2008() ------------------------SC.399/2007 of ASSISTANT SESSIONS COURT, VADAKARA .................... PETITIONER(S): ACCUSED: ----------------------- SAMEER, S/O.ABDULLA HAJI, AGED 30 YEARS, MEETHALAI HOUSE, THUNERI AMSOM, PERODU DESOM, VADAKARA TALUK. BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENT(S): COMPLAINANTS: ---------------------------- 1. KANNAN, S/O.POKKINAN, - AGED 74 YEARS, UPPATTUKANDI HOUSE, VELLOOR AMSOM, PEROD DESOM, VADAKARA TALUK. 2. CHEERU, W/O.KANNAN, AGED 65 YEARS, UPPATTUKANDI HOUSE, VELLOOR AMSOM, PEROD DESOM, VADAKARA TALUK. 3. SUSEELA, W/O.RAJAN, AGED 35 YEARS, UPPATTUKANDI HOUSE, VELLOOR AMSOM, PEROD DESOM, VADAKARA TALUK. 4. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZER - SRI.SUDHEESH.A. FOR R1 TO R3 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.3619 of 2008 ---------------------------------------Dated this the 21[st] day of October 2008 ## **O R D E R** The petitioner, along with the co-accused, faces allegations for offences punishable inter alia under Section 3 and 5 of the Explosive Substances Act and under Section 395 read with 149 I.P.C. Investigation is complete. Final report has already been filed. The case against the petitioner has been committed to the court of Session. One of the co-accused was tried and as per Annexure II judgment, the said accused was found not guilty and acquitted. The case against the petitioner is pending before the Sessions Court after committal. The petitioner has now come to this court along with the injured that is CWs 1 to 3 to apprise this court of the fact that they have settled their disputes and the victims/respondents 1 to 3 have compounded all the offences alleged against the petitioner. The learned counsel for the petitioner prays that invoking the dictum in **Madan Mohan Abbot v. State of Punjab [2008 AIR SCW 2287]** , premature termination of the proceedings may be brought about. Respondents 1 to 3 have entered appearance through counsel. Crl.M.C.No.3619/08 2 They have filed Annexure III affidavit to confirm that the disputes have been settled and the offences compounded by them. 2. Submissions made at the Bar persuade me to conclude that there has been a valid and genuine settlement of the disputes between the petitioner and respondents 1 to 3. The short question is whether this is a fit case where the extraordinary inherent jurisdiction under Section 482 Cr.P.C deserves to be invoked to quash the proceedings. 4. The fact that a co-accused have been acquitted, it is by now trite in the light of the decision of the Full Bench in **Moosa vs. Sub Inspector of Police [2006(1) KLT 552 (FB)],** cannot by itself operate as a valid reason to justify the claim of an absconding accused for any benefit or advantage. The acquittal of the co-accused under Annexure II judgment cannot, hence, be reckoned as sufficient reason to entitle the petitioner to any benefit under Section 482 Cr.P.C. 5. Coming to the question of application of the dictum in **Madan Mohan Abbot v. State of Punjab [2008 AIR SCW 2287]** this court had already held in **Santhosh v. State of** Crl.M.C.No.3619/08 3 **Kerala [2008(3) KLT 240]** that the mere fact that there has been a composition of the non-compoundable offence is no reason for the High Court to mechanically invoke the dictum in **Madan Mohan** (Supra). The nature of the allegations have to be considered. The totality of the circumstances must be taken into account. The mere fact that the victims or their witnesses may turn hostile to the prosecution with impunity is, according to me, too unsatisfactory a reason in itself to invoke the dictum in **Madan Mohan** (Supra). In the instant case, it does not appear to be a personal dispute between the petitioner and respondents 1 to 3. Political animosity had allegedly operated as the reason for an organized attack on the residential building of respondents 1 to 3. It may be true that if all the witnesses turn hostile, the prosecution may turn out to be an unworthy and nonprofitable venture; but that, according to me, is not sufficient in itself to justify the invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C even with the aid of the dictum in **Madan Mohan** (Supra). 6. I am not, in these circumstances, persuaded to agree that powers under Section 482 Cr.P.C deserves to be invoked. Crl.M.C.No.3619/08 4 This is a fit case, I am of opinion, where the petitioner must stand trial. The application is opposed by the learned Public Prosecutor also on the very same ground. 7. The learned counsel for the petitioner submits that if the personal appearance of the petitioner were insisted ritualistically on all dates of posting in S.C.No.399/2007 pending against him, that would work out great prejudice, hardship and inconvenience to the petitioner. The petitioner can certainly apply for exemption from personal appearance and unless his personal presence be necessary for the further progress of the case, I find no reason why such application should not be allowed. 8. With the above observations, this petition is dismissed. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.3619/08 5 Crl.M.C.No.3619/08 6 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008