T. Moideen v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 ``` ``` CRL.MC NO. 1712 OF 2022 ``` ``` [AGAINST THE PROCEEDINGS IN L.P. CASE NO.14/1997 OF THE ASSISTANT SESSIONS COURT, TIRUR ARISING OUT OF CRIME NO.189/1992 OF THE CHANGARAMKULAM POLICE STATION, MALAPPURAM DISTRICT] ``` ## `PETITIONER/ACCUSED:` ``` T. MOIDEEN AGED 52 YEARS S/O.MOIDUNNI, THALAPPIL, ALAMCODE P.O., MALAPPURAM DISTRICT PIN - 679585 BY ADV BABU S. NAIR ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE SUB INSPECTOR OF POLICE CHANGARAMKULAM POLICE STATION,MALAPPURAM DISTRICT PIN – 679575 3ABDULLA, AGED 59 YEARS, S/O.ABDURAHIMAN, AZHAKATH VALAPPIL HOUSE, ALAMCODE, MALAPPURAM DISTRICT, PIN-679585 4BAVA, S/O. ABDURAHIMAN, AGED 54 YEARS, AZHAKATH VALAPPIL HOUSE, ALAMCODE, MALAPPURAM DISTRICT, [R3 AND R4 ARE IMPLEADED AS PER THE ORDER DATED 27.7.2022 IN CRL.MA. NO.3/2022 IN CRL.MC 1712/2022] FOR R1 AND R2 BY SHRI.C.S.HRITHWIK, SR.PUBLIC PROSECUTOR FOR R3 AND R4 BY ADV.SMT.SHAMSEERA C. ASHRAF. ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.07.2022, THE COURT ON 11.8.2022 PASSED THE FOLLOWING: ``` CRL.MC No.1712 of 2022 2 ## `O R D E R` ``` The petitioner is the 12[th] accused in Crime No.189/1992 of Changaramkulam Police Station which was registered for the offences punishable under Sections 143,147,148,341,324,447,427,307 r/w. Section 149 of the Indian Penal Code (IPC). ``` ``` 2.The prosecution case is that, on ``` ``` 20.12.1992, CWs.1 and 2, who are the additional respondents 3 and 4 in this Crl.M.C., were wrongfully restrained by the accused persons total 16 in numbers and were assaulted with ``` ``` weapons. Annexure-A is the final report submitted by the Police. Earlier, the trial of ``` ``` the said case was conducted before the court of Sessions, Manjeri as S.C.No.158/1994 in which ``` ``` accused Nos.2,3,9,13 and 15 have participated. Annexure-B is the judgment passed therein and all the said accused who faced trial were ``` CRL.MC No.1712 of 2022 3 ``` acquitted by the Sessions Court. The case ``` ``` against the petitioner was split up. Since the petitioner did not appear, it was included in the Long Pending Register as LP No.14/1997 ``` ``` before the Assistant Sessions Court, Thirur. Earlier, the petitioner submitted Crl.MC ``` ``` No.1156/2019 before this Court and the same was withdrawn by the petitioner since the Crl.M.C. did not contain relevant documents. This ``` ``` Crl.M.C. is filed by the petitioner praying for quashing all further proceedings pursuant to Annexure-A final report as against the ``` ``` petitioner herein. ``` ``` 3.When the Crl.M.C. came up for ``` ``` consideration before this Court on 14.3.2022, the petitioner was directed to surrender before the Court to get the case against him re-filed. It is reported that, the petitioner has already surrendered before the Court in compliance with the same, and the case against him now stands ``` CRL.MC No.1712 of 2022 4 ``` refiled as S.C.No.467/2022 before the Assistant ``` ``` Sessions Court, Tirur. ``` ``` 4.Heard Sri.Babu S.Nair, the learned ``` ``` counsel for the petitioner, Sri. C.S.Hrithwik, ``` ``` the learned Public Prosecutor for the State and Smt.Shamseera C.Ashraf, the learned counsel for ``` ``` additional respondents 3 and 4. ``` ``` 5.The prayer for quashing the proceedings is sought mainly for the reason that, the ``` ``` dispute between the parties has been settled and ``` ``` to substantiate the same, Annexures D and E ``` ``` affidavits sworn by respondents 3 and 4, respectively are produced. The fact of ``` ``` settlement is acknowledged in the aforesaid affidavits and it is also specifically stated that, the 3[rd] and 4[th] respondents have no ``` ``` subsisting grievances against the petitioner ``` ``` herein. The 3[rd] and 4[th] respondents also clearly ``` ``` expressed their no objection in quashing the ``` CRL.MC No.1712 of 2022 5 ``` proceedings against the petitioner. The learned ``` ``` counsel appearing for the 3[rd] and 4[th] respondents also confirms the aforesaid settlement and supports the prayer sought for by the petitioner ``` ``` herein. The learned Public Prosecutor upon ``` ``` instructions submitted that, the veracity of the ``` ``` settlement was verified by the Station House Officer concerned and before the SHO also, the 3[rd] and 4[th] respondents have reiterated that, ``` ``` they do not have any objection in quashing the proceedings as they have no subsisting grievances against the petitioner herein. ``` ``` 6.On going through the nature of allegations as contained in Annexure-A final report, it can be seen that, the dispute is basically private in nature. Considering the settlement arrived at between the parties, the ``` ``` chances of a successful prosecution are very bleak and hence no fruitful purpose would be served if the proceedings are allowed to ``` CRL.MC No.1712 of 2022 6 ``` continue. Therefore, I am of the view that going ``` ``` by the decision in Gian Singh v. State of Punjab and Another [2012(4)KLT 108], this is a fit case ``` ``` in which the powers of this Court under Section ``` ``` 482 Cr.PC can be invoked. ``` ``` 7.It is true that one of the offences ``` ``` alleged is under Section 307 of IPC and, ``` ``` therefore, normally, prosecution for the said ``` ``` offence cannot be quashed on the basis of ``` ``` settlement alone. However, in this case, the ``` ``` petitioner has produced Annexure-B judgment ``` ``` wherein some of the accused persons were ``` ``` acquitted by the learned Sessions Judge after a full-fledged trial. ``` ``` 8.I have carefully scrutinized the ``` ``` contents of Annexure-A final report and also the ``` ``` observations made in Annexure-B judgment. It is ``` ``` discernible therefrom that, the injured persons CWs.1 and 2 were not examined in the said trial. The other occurrence witnesses examined by the ``` CRL.MC No.1712 of 2022 7 ``` Prosecution are PWs.1 to 4. None of them has ``` ``` supported the prosecution case, and they have clearly stated that, they could not identify the ``` ``` accused persons. The order of acquittal was passed against some of the accused persons in the said circumstances. InMoosa v. Sub ``` ``` Inspector of Police [2006(1)KLT 552], the Full Bench of this Court has held that, if the substratum of the case is lost consequent to the ``` ``` order of acquittal passed against the co- accused, proceedings against the remaining accused persons can be quashed invoking the power under Section 482 of Cr.PC. While ``` ``` considering the question whether the substratum ``` ``` of the case is lost, one crucial aspect to be noticed is that, in the trial which culminated in Annexure-B judgment, CWs.1 and 2, who are the ``` ``` injured persons, were not examined. However, the ``` ``` aforesaid witnesses have sworn affidavits before this Court in the form of Annexures D and E, ``` CRL.MC No.1712 of 2022 8 ``` stating that all the matters between the parties ``` ``` have been settled and they do not have any subsisting grievances against the petitioner ``` ``` herein. In such circumstances, taking note of the settlement as evidenced by the aforesaid affidavitsandalsobasedonthe ``` ``` observations/findings made by the learned Sessions Judge in Annexure-B judgment, I am of the view that the prosecution against the ``` ``` petitioner is a futile exercise and, therefore, unwarranted. ``` ``` 9.In the above circumstances, I am ``` ``` inclined to invoke the power under Section 482 ``` ``` of Cr.PC even though one of the offences is ``` ``` under Section 307 of IPC. ``` ``` Accordingly, this Crl.M.C. is allowed. All ``` ``` further proceedings in S.C.No.467/2022, on the ``` ``` file of the Assistant Sessions Court, Tirur arising out of Crime No.189/1992 of the ``` CRL.MC No.1712 of 2022 9 ``` Changaramkulam Police Station, Malappuram ``` ``` District, are hereby quashed. ``` ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` pkk CRL.MC No.1712 of 2022 10 The Sessions Case number mentioned in the 1[st] line at page No.(4) and in the operative portion at page (8) of the final order dated 11.8.2022 in Crl.M.C.No.1712/2022 stands corrected as SC 461/2022 of Asst. Sessions Court, Tirur instead of SC 467/2022 as per order dated 24.08.2022 in Crl.M.Appl. No.5/2022 in Crl.M.C. No.1712/2022. **Sd/-** **Deputy Registrar** CRL.MC No.1712 of 2022 11 ## `APPENDIX OF CRL.MC 1712/2022` ``` PETITIONER’S ANNEXURES: ``` ``` Annexure AA TRUE COPY OF THE CHARGE IN CRIME NO.189/1992 OF THE CHANGARAMKULAM POLICE STATION Annexure BA TRUE COPY OF THE JUDGMENT IN S.C.NO.158/1994 OF THE ASSISTANT SESSIONS COURT, TIRUR DATED, 28-2-1997 Annexure CATRUECOPYOFTHEORDERIN CRL.M.C.NO.1156/2019 DATED, 18-2-2019 OF THIS HON'BLE COURT ```