T. Binu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 24TH DAY OF JUNE 2013/3RD ASHADHA, 1935** ## **Crl.MC.No. 2544 of 2013** **--------------------------AGAINST THE ORDER/JUDGMENT IN SC NO.252/2009 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM** **....** **CRIME NO. 219/2002 OF CHATHANNOOR POLICE STATION , KOLLAM** **...** **PETITIONER/ ( *1ST ACCUSED) CORRECTED AS 2ND ACCUSED - AS PER ORDER DTD.24/06/2013 IN CRL.M.A.NO.5117/2013** **--------------------------------------------------------------------------------------------------------** **T.BINU, AGED 41 YEARS, S/O.LATE THANKAPPAN, PATTATHIL VEEDU, THAZHOM MIDDLE CHERRY, MEENADU VILLAGE, CHATHANOOR P.O., KOLLAM DISTRICT.** ## **BY ADV. SRI.V.VENUGOPALAN NAIR** ## **RESPONDENTS:** **---------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31.** **2. THE CIRCLE INSPECTOR OF POLICE, CHATHANNOOR POLICE CIRCLE, KOLLAM DISTRICT - 691 001.** ## **3. THE SUB INSPECTOR OF POLICE,** ## **CHATHANNOOR POLICE STATION, KOLLAM DISTRICT - 691 001.** ## **4. ASHARAF,AGED 37 YEARS,** - **S/O.SHAMSUDEEN, PANDARAZHIKATHU VEEDU, KONGAL CHERRY, PARAVUR VILLAGE, PARAVUR P.O, KOLLAM DISTRICT.** **R1 TO R3 BY PUBLIC PROSECUTOR SMT. S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-06-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** **Crl.MC.No. 2544 of 2013** ## **------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES:** **---------------------------------------------** **ANNEXURE A1: TRUE PHOTOCOPY OF THE FINAL REPORT IN RESPECT OF CRIME NO.219/02 OF THE CHATHANNOOR POLICE STATION.** **ANNEXURE A-2: TRUE PHOTOCOPY OF THE JUDGMENT IN S.C.NO.252/09 OF THE HON'BLE ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC II)KOLLAM.** **ANNEXURE A-3: PHOTOCOPY OF THE AFFIDVIT OF THE 4TH RESPONDENT/VICTIM.** **RESPONDENT(S)' ANNEXURES: ----------------------------------------------N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **V.K.MOHANAN, J.** ## **-------------------------------------------Crl.M.C.No.2544 of 2013 --------------------------------------------Dated this the 24[th] day of June, 2013** ## **ORDER** The above Crl.M.C. is filed by the second accused in Crime No.219 of 2002 of Chathannoor Police Station, where offences involved are under Sections 323, 324 & 308 read with Section 34 of IPC and the present case of the petitioner is that he could not face the trial, when the trial against the other accused proceeded as he was out of station. According to the petitioner, though the other accused on different occasions faced the trial, in both the trial they were acquitted. Therefore, there is no meaning in sending him to face the trial. It is also the case of the petitioner that the de facto complainant now came forward and settled the matter, which is evident from affidavit sworn in by the de facto complainant. Therefore, the petitioner seeks an order from this Court to quash Annexure-A1 report and all further proceedings pending against him. Crl.M.C.No.2544 of 2013 :-2-: 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The allegation against the petitioner is that, at about 3.30 p.m. on 01/07/2002 the accused three in number due to previous enmity attacked the 4[th] respondent, who is the de facto complainant with a sword, A2 with a stone and A3 with his hand hit him and thereby caused contusions and aberrations on the body of the de facto complainant and thereby committed the above said offences. 4. The learned counsel for the petitioner submitted that as evident by Annexure-A2 judgment, the 3[rd] accused, who faced the trial in S.C.No.252 of 2009, was acquitted by the judgment dated 29/02/2012, as all the witnesses turned hostile towards the prosecution. It is also the submission of the learned counsel for the petitioner that the first accused has already been acquitted by judgment dated 05/06/2008 in S.C.No.160 of 2004. Thus, the submission of the learned counsel is that there would not be any fruitful turn out, if the petitioner is compelled to face the trial especially when the Crl.M.C.No.2544 of 2013 :-3-: matter is settled between the petitioner and the de facto complainant, the 4[th] respondent herein who filed Annexure-A3 affidavit. The learned Public Prosecutor also fairly conceded that, in view of Annexure-A2 judgment, it can be seen that the learned Judge has also found that all the witnesses turned hostile. The present case of the petitioner is that the matter has been settled between himself and the de facto complainant as evident by Annexure-A3 affidavit. 5. Having regard to the facts and circumstances involved in the case, it can be seen that the offences involved in the above case are only under Sections 323, 324 & 308 read with Section 34 of IPC which are more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for the 4[th] respondent, it appears to me that the injured/the victim/the de facto complainant has no further grievance against the petitioner/accused in the light of the settlement Crl.M.C.No.2544 of 2013 :-4-: arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108(SC)] in which the Supreme Court has held as follows:- “57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. 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.. ## It is further held as follows:- “......... 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,mercandile, 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 Crl.M.C.No.2544 of 2013 :-5-: 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........” According to me, in the light of the facts and circumstances involved in the present case and particularly in view of the settlement arrived in the present case, the dictum laid in the above decision is applicable in the present case. According to me, as the parties to the dispute settled the issues amicably, it is the duty of this Court to promote and encourage such settlement, instead of compelling the parties to go on with the dispute. It is pertinent to note that, since the matter is settled out of court, in the event of proceeding with the trial, there would not have any fruitful prosecution resulting the conviction of the accused, rather the net result would be sheer waste of judicial time and abuse of process of the court and proceedings. Thus, according to me, following Crl.M.C.No.2544 of 2013 :-6-: the decisions cited supra, this Criminal M.C. can be allowed granting the relief as sought for. In the result, this Crl.M.C. is allowed, quashing Annexure A-1 Final Report in Crime No.219 of 2002 of Chathannoor Police Station and all further proceedings thereto. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge