V.H. Ali Darimi v. State of Kerala & M. Nazeer v. State of Kerala (Cr.M.C. Nos. 5112/2017 and 3187/2018)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942** ## **Crl.MC.No.5112 OF 2017(H)** **CRIME NO.783/2016 OF Cheranelloor Police Station , Ernakulam** ## **PETITIONER/ACCUSED NO.3:** **V.H.ALI DARIMI AGED 54 YEARS, S/O.V.K. HUSSAIN MOULAVI, RESIDING AT DARUL ASLAM MANZIL,HARITHA ROAD, VYTTILA PO, ERNKULAM DISTRICT** **BY ADVS. SRI.SALIM V.S. SMT.K.S.HASEENA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2 NISSANI W/O.SHAJAHAN, AGED 40 YEARS, ABIDA MANZIL, KOTTAMKULANGARA, ALAPPUZHA** **R2 BY ADV. SRI.RAMESH .P SRI.K.J.MOHAMED ANZAR, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.01.2021, ALONG WITH Crl.MC.3187/2018(G), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C Nos. 5112/2017 & 3187 /2018 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942** ## **Crl.MC.No.3187 OF 2018** **SC 771/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)** **CRIME NO.783/2016 OF Cheranelloor Police Station , Ernakulam** ## **PETITIONER/ACCUSED NO.1:** **M.NAZEER AGED 38 YEARS, S/O. MUHAMMED KUTTY, VALIYATH HOUSE, NEW MSM COLLEGE,KAYAMKULAM P.O, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.RASHEED C.NOORANAD SMT.ANITHA M.N. (EKM)** ## **- RESPONDENTS/DE FACTO COMPLAINANT** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM 682 031. 2 M. NISANI W/O. SHAJAHAN, ABIDHA MANSIL, KOTTAMKULANGARA, KAYAMKULAM,ALAPPUZHA DISTRICT 690 502.** **R2 BY ADV. SRI.RAMESH .P** **SRI.K.J.MOHAMED ANSAR, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19.01.2021, ALONG WITH Crl.MC.5112/2017(H), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C Nos. 5112/2017 & 3187 /2018 3 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. Nos. 5112 of 2017 & 3187 of 2018 -----------------------------------Dated this the 19[th ] day of January, 2021 Criminal M.C. Nos. 5112 of 2017 & 3187 of 2018 ## **O R D E R** The prayer in the Cr.M.C No. 5112 of 2017 filed under 482 of Cr.PC is as follows:- - _“(i) to quash Annexure-A final report in Crime No.783/2016 of Cheranalloor Police Station and pending as C.P.No.2/2017 of Judicial First Class Magistrate Court-IX, Ernakulam.”_ - _(ii) Pass such other orders as may be necessary in the interest of justice.”_ ## 2. The prayer in the Crl.M.C No.3187 of 2018 filed under 482 of Cr.PC is as follows:- _“......to quash all further proceedings as against this petitioner in S.C.No.771/17 on the file of the Additional District and Sessions Court (POCSO Court) Ernakulam.”_ 3. Heard Sri.C.Rasheed, learned counsel appearing for the petitioner (A1) in Crl.M.C.No.3187/2018, Sri.P.Martin Jose, learned counsel appearing for the petitioner (A3) in Crl.M.C.No.5112/2017, Sri.K.J.Mohamed Anzar, learned Public Prosecutor appearing for the 1[st] respondent State and Sri.P.Ramesh, learned counsel appearing for contesting respondent No.2 (mother of the juvenile victim). 4. The Petitioners herein have been arrayed as accused 1 & 3 among the three accused in the instant impugned FIR in Crime Crl.M.C Nos. 5112/2017 & 3187 /2018 4 No.783/2016 of Cheranalloor Police Station, which has been registered on 05.05.2016 for offences punishable under Secs.341, 326, 294(b), 503, 506 and 34 of the Indian penal Code and Sec.23 of the Juvenile Justice Act (subsequently added), on the basis of First Information Statement given by the 2[nd] respondent on 05.08.2016 in respect of the alleged incidents which happened on 06.01.2014. The police after investigation has filed the impugned Anx.II Final report/charge sheet in this case, which has now led to the pendency of Sessions Case, S.C No.771/2017 on the file of the Additional Sessions Court, North Paravur, Ernakulam District. 5. The prosecution case is that, the minor son of the 2[nd] respondent was placed in an orphanage at Cheranalloor and that A1 was a teacher in the said orphanage and A2 & A3 are the Secretary and the Administrators of the orphanage organisation and that on 06.01.2014 A1 had wrongfully restrained the juvenile boy in the said orphanage and had beaten him with a rod on his head and that he had sustained some uneasiness and discomfort and later he had taken to the hospital on the same day and after one month his surgery was conducted at the Medical College Alappuzha and he left Crl.M.C Nos. 5112/2017 & 3187 /2018 5 the orphanage. The accused No.2 has died in the meanwhile. The accused No.3 is the Administrator of the organization which is running the orphanage. 6. The case of the petitioners is that, the impugned criminal proceedings are vitiated on account of long and inordinate delay. Further that the allegations are not tenable. The accused No.3 who is the Administrator of the organization which is running the orphanage, cannot be imputed with any criminal liability etc, and further that the alleged weapon has not been recovered. Moreover there is inordinate delay of more than two years in the lodging of the FIR and the delay is not in any manner explained. That apart, now it is submitted by learned advocates appearing for the accused persons as well as the learned advocate appearing for the complainant that the dispute between the parties have been resolved and matter has been settled and the 2[nd ] respondent, who is the mother of the juvenile victim, has filed affidavit dated 31.12.2020 in Crl.M.C. No.3187/2018, stating that the entire dispute between the parties have been resolved. 7. Further Sri.P.Ramesh, learned advocate appearing for the 2[nd] respondent would submit on the basis of instructions from the party Crl.M.C Nos. 5112/2017 & 3187 /2018 6 that the petitioners herein have given compensation to the _de facto_ complainant and that the _de facto_ complainant and juvenile victim do not wish to prosecute the matter any further. In this case the only non-compoundable offence is the one as per Sec.326 of the IPC. The nature of the injury is not stated out with any clarity by the prosecution. Further it is beyond any dispute that the alleged weapon /rod has not been recovered by the investigation agency in this case. 8. Taking into account all these aspects, this Court is of the considered view that the plea for quashment on the ground of settlement could be considered. 9. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the Crl.M.C Nos. 5112/2017 & 3187 /2018 7 court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 10. In that view of the matter it is ordered that the impugned Annexure II final report/charge sheet filed in the impugned Anx.I FIR in crime No.783/2016 of Cheranalloor Police Station, which has now led to the pendency of Sessions Case, S.C No.771/2017 on the file of Additional Sessions Court, North Paravur, Ernakulam District as against the accused persons concerned and all further proceedings emanating therefrom as against the accused persons therein will stand quashed and set aside. 11. The petitioners will produce certified copies of this order Crl.M.C Nos. 5112/2017 & 3187 /2018 8 before the Investigating Officer concerned as well as before the Additional Sessions Court, North Paravur, Ernakulam District, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C Nos. 5112/2017 & 3187 /2018 9 ## **APPENDIX OF Crl.MC 5112/2017** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 783/2016 FILED BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT IX, ERNAKULAM** **RESPONDENT'S/S EXHIBITS:** **ANNEXURE-R2(A) THE CERTIFIED COPY OF THE FIR AND CHARGE SHEET IN SC NO.771/2017 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM.** **ANNEXURER2(B) THE COPY OF THE LETTER ISSUED BY THE MADRASSA.** **ANNEXURE R2(C) THE COPY OF THE MEDICAL RECORD INCLUDING THE DISCHARGE SUMMARY. ANNEXURE-R2(D) THE COPY OF THE PRIVATE COMPLAINT FILED BY 2ND RESPONDENT AGAINST ACCUSED 1 TO 3** Crl.M.C Nos. 5112/2017 & 3187 /2018 10 ## **APPENDIX OF Crl.MC 3187/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I: A TRUE COPY OF THE FIR NO.783/2016 REGISTERED BY THE CHERANELLOOR POLICE DATED 05/08/2016.** **ANNEXURE II: A TRUE COPY OF THE CHARGE SHEET IN S.C.NO.771/2017 DATED 30/11/2016.** ## **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R2 (A) THE CERTIFIED COPY OF THE FIR AND CHARGE SHEET IN SC 771/2017 OF THE ADDITIONAL DISTRICT AND SESSION COURT, ERNAKULAM.** **ANNEXURE R2 (B) THE COPY OF THE LETTER ISSUED BY THE MADRASSA** **ANNEXURE R2 (C) THE COPY OF THE MEDICAL RECORD INCLUDING THE DISCHARGE SUMMARY.** **ANNEXURE R2 (D) THE COPY OF THE PRIVATE COMPLAINT FILED BY 2ND RESPONDENT AGAINST ACCUSED 1 TO 3**