Suresh v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 3RD DAY OF MAY 2016/13TH VAISAKHA, 1938** **Crl.MC.No. 2672 of 2016 -------------------------** **JUDGMENT DATED 15-06-2015 IN SC 455/2012 OF ADDITIONAL SESSIONS COURT - II, MANJERI CP 32/2012OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, PONNANI CRIME NO. 70/2012 OF CHANGARAMKULAM POLICE STATION, MALAPPURAM** **.....** **PETITIONER(S)/ACCUSED:** **---------------------** **SURESH, S/O. SUBRAMANYAN, AGED 28 YEARS, KURUMBOOR HOUSE, KOKKUR, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENT(S)/STATE AND DE-FACTO COMPLAINANT:** **---------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM - 682 031. (IN CRIME NO. 70/2012 OF CHANGARAMKULAM POLICE STATION)** **2. SALIM,** **AGED 34 YEARS, S/O. KAREEM, KAITHAVALAPPIL HOUSE, KOKKUR, PIN - 679 591, OTHALOOR, MALAPPURAM DISTRICT.** **3. SHARAFUDHEEN, AGED 29 YEARS, S/O. ABOOBACKER, KANJANGATTUVALAPPIL HOUSE, OTHALOOR - 679 591, MALAPPURAM DISTRICT.** **msv/** **-2-** **-2-** ## **Crl.MC.No. 2672 of 2016** **------------------------** ## **4. FAISAL,** **AGED 30 YEARS,S/O. YOUSUF, ERALATH VALAPPIL HOUSE, OTHALOOR - 679 591, MALAPPURAM DISTRICT.** ## **5. SHAJI,** **AGED 36 YEARS, S/O. MOHAMMEDALI, KAITHAVALAPPIL HOUSE, KOKKUR - 679 591, OTHALOOR, MALAPPURAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR SMT.LILLY LESSLY R2-R5 BY ADV. SRI.JITHIN LUKOSE** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## **Crl.MC.No. 2672 of 2016** ## **------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** - **A1 CERTIFIED COPY OF THE CHARGE SHEET IN CRIME NO. 70/2012 OF CHANGARAMKULAM POLICE STATION.** - **A2 TRUE COPY OF THE DISCHARGE CERTIFICATE IN RESPECT OF THE 2ND RESPONDENT.** - **A3 CERTIFIED COPY OF THE JUDGMENT DT. 15.6.2015 IN SC 455/2012 ON THE FILES OF ADDL. SESSIONS COURT (ADHOC-II) MANJERI.** - **A4 THE ORIGINAL AFFIDAVIT SWORN IN BY THE 2ND RESPONDENT.** - **A5 THE ORIGINAL AFFIDAVIT SWORN IN BY THE 3RD RESPONDENT** - **A6 THE ORIGINAL AFFIDAVIT SWORN IN BY THE 4TH RESPONDENT.** - **A7 THE ORIGINAL AFFIDAVIT SWORN IN BY THE 5TH RESPONDENT.** ## **RESPONDENT(S)' ANNEXURES:** ## **NIL** ## **//TRUE COPY//** ## **P.S.TO JUDGE** ## **Msv/** ## **RAJA VIJAYARAGHAVAN.V. J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. 2672 of 2016 - - - - - - - - - - - - - - - - Dated 3[rd] May, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** 1. The petitioner herein is the 1[st] accused in Crime No.70 of 2012 of Changarankulam police station which is registered for offences punishable under sections 341, 323, 308, 120B r/w 34 of the Indian Penal Code. The investigation was completed and charge sheet was laid before the jurisdictional Magistrate. While the committal proceedings were pending, the petitioner herein went abroad. There were altogether four accused and insofar as the accused Nos. 2 to 4 are concerned, the case was committed to the learned Sessions Court, Manjeri. The case was later made over to the Additional Sessions Judge and the same was numbered as SC No. 455 of 2012. It is submitted that as against the petitioner, the case is pending as CP No. 45 of 2012 before the learned Magistrate, Ponnani. **Crl.M.C 2672 of 2016** 2 2. Annexure A3 is the judgment of the learned Additional Sessions Judge-II, Manjeri in SC No. 455 of 2012. As per judgment dated 15.06.2015 the accused Nos. 2 to 4 were acquitted under S. 232 of the Code of Criminal Procedure. None of the prosecution witnesses had supported the prosecution case. 3. According to the learned counsel for the petitioner, the petitioner was unable to face trial as he was abroad. It is submitted that after the acquittal of the accused Nos. 2 to 4, mediation talks were held at the instance of well wishers and the matter has been settled. Annexure A4 to A7 are the affidavits filed by the _de facto_ complainant and the injured witnesses asserting that they are not inclined to proceed with the matter as against the petitioner herein. 4. I have heard the learned counsel for the petitioner , the learned Counsel for the respondents 2 to 5 and the learned Public Prosecutor. **Crl.M.C 2672 of 2016** 3 5 . I have anxiously gone through the judgment rendered by the learned Sessions Judge. After evaluating the evidence in detail, the learned Sessions Judge has held that the evidence let in by prosecution was insufficient to bring home the guilt. It was on the basis of the said finding that the accused Nos. 2 to 4 were acquitted. 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. 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 petitioner and they do not wish to proceed with the criminal prosecution. The counsel who entered appearance for and on behalf of respondents 2 to 5 have also asserted that the assertions in the affidavit are true. 6. After hearing the counsel for the petitioner and also the learned Public prosecutor and the learned counsel for **Crl.M.C 2672 of 2016** 4 the respondents 2 to 5, 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. It has been held by the Apex Court, that the High Court, while exercising powers under S. 482 will be justified in quashing cases involving even non-compoundable 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. 7. 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 5 ## **Crl.M.C 2672 of 2016** 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 powers of this Court under S. 482 of the Code of Criminal Procedure. 8. This Criminal Miscellaneous case is allowed. The proceedings as against the petitioner in CP No.45 of 2012 on the file of the Judicial Magistrate of the First Class, Ponnani arising out of Crime No. 70 of 2012 of Changaramkulam Police Station, is hereby quashed. sd/- **RAJA VIJAYARAGHAVAN.V. JUDGE** das