Tony Thomas Chammany and Others v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944 CRL.MC NO. 2709 OF 2022 ``` ``` CC 319/2022 OF JMFC - VIII, ERNAKULAM ``` ``` CRIME NO.1691/2021 OF MARADU POLICE STATION ``` ## **`PETITIONERS/ACCUSED:`** |`1`|`TONY THOMAS CHAMMANY`| |---|---| ||`AGED 52 YEARS, S/O THOMAS CHAMMANY`| ||`CHAMMANY HOUSE, KADAVANTHARA ROAD,`| ||`KALOOR, ERNAKULAM, PIN – 682020`| |`2`|`JOSEPH P.G`| ||`AGED 48 YEARS`| ||`S/O. GEORGE, PEREPPILLY HOUSE, DELSTAR ROAD,`| ||`VYTILLA, ERNAKULAM, PIN – 682019`| |`3`|`SHAJAHAN`| ||`AGED 34 YEARS`| ||`S/O. YOUSUF, PARUTHIKKAL HOUSE, VADACODE,`| ||`KANGARAPPADY, KAKKANAD, ERNAKULAM, PIN – 682030`| |`4`|`ARUN VARGHESE`| ||`AGED 37 YEARS`| ||`S/O. VARGHESE, VAZHAPARAMBIL HOUSE,`| ||`CARRIER STATION ROAD, SOUTH ERNAKULAM, PIN – 682011`| |`5`|`MANU JACOB`| ||`AGED 35 YEARS`| ||`S/O. LINO JACOB, ARAKKAL HOUSE,`| ||`A.L. JACOB ROAD, ERNAKULAM 682 025`| |`6`|`JERJES V. JACOB`| ||`AGED 30 YEARS`| ||`S/O. JOHN JACOB, VYLASSERY HOUSE,`| ||`VYLASSERY ROAD, PALARIVATTOM, ERNAKULAM – 682025`| |`7`|`JOSEPH M.M`| ||`AGED 56 YEARS`| ||`S/O. MATHAI, MALIYEKKAL HOUSE,`| ||`PONNURUNNI, VYTILLA, ERNAKULAM, PIN – 682019`| ``` CRL.MC NO. 2709 OF 2022 ``` ``` 2 ``` ``` 8SHEREEF K.B AGED 41 YEARS S/O. BAHARI, KALAPURACKAL HOUSE, CHATHANVELIPADAM, VAZHAKKALA, THRIKKAKARA, ERNAKULAM 682 021 ``` ``` BY ADVS. THOMAS T.VARGHESE PHILIP T.VARGHESE V.T.LITHA K.R.MONISHA MATHEW KURIAN MATTAM MOHAMMED SIYAD M.F. ``` ## **`RESPONDENTS/STATE AND DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 2JOSEPH GEORGE @ JOJU GEORGE S/O GEORGE, PAREKKATTUVEETTIL HOUSE, NEAR ST. GEORGE CHURCH, KUZHUR P.O, KAKKULISSERY, THRISSUR, PIN – 680734 ``` ``` 3THE STATION HOUSE OFFICER MARADU POLICE STATION, ERNAKULAM, PIN – 682304 ``` ``` BY ADVS. PUBLIC PROSECUTOR ADV Sangeetha Lakshmana ADV SEENA C – PUBLIC PROSECUTOR ADV VIPIN NARAYAN -PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 2709 OF 2022 ``` ``` 3 ``` ## **`ORDER`** The petitioners are the accused in Crime No.1691/2021 of Maradu Police Station, which is now pending as C.C. No.319/2022 before the Judicial First Class Magistrate Court VIII, Ernakulam. The offences alleged against the petitioners are under Sections 143, 147, 149, 109, 283, 323, 294(b), 427, 506 read with Section 188 of Indian Penal Code and also under Section 5 of Kerala Prevention of Damage to Private Property Act and Payment of Compensation Act, 2019. 2. The prosecution case is that on 01.11.2021 the accused who were members of a political Party, illegally blocked the public road near Vyttila Flyover and when the 2[nd] respondent/defacto complainant questioned the same, he was abused, threatened and his vehicle was also damaged, thereby causing a loss of Rs.6,21,134/-. Annexure A1 is the Final Report submitted by the Police and this Crl.M.C. is filed for quashing all further proceedings pursuant thereto. 3. Heard Sri.Mohammed Siyad M.F., learned counsel ``` CRL.MC NO. 2709 OF 2022 ``` ``` 4 ``` appearing for the petitioners, Smt.Seena C., learned Public Prosecutor appearing for the State and Smt.Sangeetha Lakshmana, learned counsel appearing for the 2[nd] respondent herein. 4. The prayer for quashing the above proceedings is sought by the petitioners on the ground that, the dispute between the parties has been settled and to substantiate the same, the defacto complainant has sworn Annexure A2. The aforesaid affidavit indicates that, the matter has been settled and the defacto complainant has no subsisting grievance against the petitioners herein. He also conveyed that he has no objection in quashing the proceedings against the petitioners herein. The learned counsel for the 2[nd] respondent/ defacto complainant also confirmed the same. 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 defacto complainant has reiterated that, he does not have any objection in quashing the proceedings as he has no subsisting grievance against the petitioners herein. ``` CRL.MC NO. 2709 OF 2022 ``` ``` 5 ``` 5. Going through the materials available on record, it is discernible that, the dispute is basically private in nature and on account of the settlement arrived at between the parties, no purpose would be served if the proceedings against the petitioners herein were allowed to continue. In such circumstances, the chances of a successful prosecution are very bleak. 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 of the Code of Criminal Procedure can be invoked. 6. However, the learned Public Prosecutor opposes the said application by pointing out that some of the accused persons have criminal antecedents. It is pointed out that 1[st] petitioner is involved in four cases. The 2[nd] petitioner is involved in one case, the 3[rd] petitioner is involved in 31 cases, the 4[th] petitioner is involved in one crime, the 5[th] petitioner is involved in 17 crimes, the 6[th] petitioner is involved in two crimes, 7[th] petitioner is involved in one crime. The 8[th] petitioner is involved in one crime. Therefore, it was ``` CRL.MC NO. 2709 OF 2022 ``` ``` 6 ``` pointed out that since some of the petitioners have antecedents, the invocation of powers of this Court under Section 482 is not warranted in this case. 7. However, on perusal of the records, it is seen that the allegations which form the basis of the offences are a dispute between petitioners and the 2[nd] respondent, and it is private in nature, which is not serious as well. Moreover, no injuries are seen sustained by anybody, and the loss allegedly sustained is by way of damages caused to the vehicle of the 2[nd] respondent. Since the 2[nd] respondent has come forward to settle the matter, I am of the view that the offences in connection with the same can be quashed. 8. However, concerning the offences under Section 283 and Section 188 of the Indian Penal Code, a different approach has to be made. The offence under section 283 pertains to the obstruction caused to the traffic in a public way. The obstruction to a public way cannot be treated as an offence committed against the 2[nd] respondent alone, even though he is one of the victims of the crime. The victims of the said crime are the public at large whose ``` CRL.MC NO. 2709 OF 2022 ``` ``` 7 ``` right of movement through the said road at the relevant time was obstructed by the acts of the petitioners, and the 2[nd] respondent cannot settle the same on behalf of all the said victims. Therefore, since the offence under section 283 of the Indian Penal Code is against the public at large, the same cannot be quashed based on a settlement between the petitioners and the 2[nd] respondent. 9. The offence under section 188 of the Indian penal Code pertains to the violation of the orders promulgated by the public servant. It is also an offence which cannot be quashed based on settlement between the petitioners and the 2[nd] respondent, being an offence against the public at large. However, prosecution for the said offence is not sustainable based on a police report, as the same is not permitted under section 195(1) (a) of Cr.P.C. As per the said provision, cognizance of the offence under section 188 of the IPC can be taken only on a complaint submitted by the public servant whose orders were violated or any other public servant to whom he is administratively subordinate. In this case, the same is initiated based on the police report, and hence the prosecution for the said ``` CRL.MC NO. 2709 OF 2022 ``` ``` 8 ``` offence is liable to be quashed for non compliance with the statutory stipulated in section 195(1) (a) of Cr.P.C. In such circumstances, this Crl.M.C. is allowed by quashing Annexure A1 Final Report to the extent it contains the offences punishable under Sections 143, 147, 149, 341, 323, 294(b), 427, 506, 188 and 109 of Indian Penal Code. However, the prosecution against the petitioners can be continued under Section 283 of the Indian Penal Code. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` CRL.MC NO. 2709 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 2709/2022`** ``` PETITIONER ANNEXURES ANNEXURE A1CERTIFIED COPY OF FINAL REPORT IN CRIME NO.1691/2022 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.VIII, ERNAKULAM DATED 26.11.2021 ANNEXURE A2TRUE COPY OF AFFIDAVIT DATED 18.04.202 EXECUTED BY 3RD RESPONDENT ```