Allowed

M.K.Muhamed Kunju v. a.P.Abdul Rahman

Kerala HC3 Oct 2008Crl.MC/2949/2005

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition under Section 482 CrPC, the Kerala High Court allowed the plea to quash criminal proceedings initiated against petitioners for alleged provocation and assault at a marriage function. The court found the proceedings were an abuse of process and issued summons solely to harass the accused based on the complainant's sworn statement, which named absent individuals

What did the court decide?

The Criminal Miscellaneous Case is allowed. The proceedings pending against the petitioners in CC.No.1281 of 2002 are quashed.

M.K.Muhamed Kunju Vs a.P.Abdul Rahman — Quashing and FIR | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER

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FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930

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Crl.MC.No. 2949 of 2005

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------------------------------CC.1281/2002 of JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY

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PETITIONERS/ACCUSED:

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M.K.MUHAMMED KUNJU, S/O.KUNJU KANI RAWTHER, MUNNGETTU HOUSE, CHANGANASSERY.

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ABDUL RAZAK MAULAVI, (ARABIC TEACHER), DAR-AL-SALAM MADRASSA, PURAKADAVU .-------(CORRECTED)

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NAME AND ADDRESS OF SECOND PETR. STANDS CORRECTED AS :

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RASHEED MAULAVI, IMAM , VADAKKEKKARAMUHIYADEEN JUMA

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MASJID, KURISUMMOODU.P.O., CHANGANASSERY.

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AS PER ORDER DATED 2/1/2006 IN CRL.M.A..14495/05.

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BY ADV. SRI.K.A.HASSAN SMT.P.SHYNI

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RESPONDENTS:

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A.P.ABDUL RAHMAN, S/O.PAREETHU KUNJU, ENACHIRA PUTHEN VEEDU, VEROOR P.O., CHANGANASSERY.

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA. SRI.JOMY GEORGE FOR R1

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.K. Basheer, J.

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Crl.M.C. No. 2949 of 2005

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Dated this the 3^rd day of October, 2008 ORDER

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Petitioners who have been summoned by the Judicial Magistrate of First Class No.I, Changanasserry to face trial for the offences punishable under Sections 352, 355 and 500 read with Section 109 and 34 IPC have preferred this petition under Section 482 of the Code of Criminal Procedure seeking to quash the above proceeding pending against them. Petitioners have been arraigned as accused Nos. 2 and 3 in the said complaint. Apart from the petitioners, two other accused have also been summoned by the learned Magistrate to face trial in the case.

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It is contended by the petitioners that the learned Magistrate had issued process to the petitioners without a proper application of the judicial mind. It is further contended that the learned Magistrate was totally unjustified in directing the petitioners to face trial solely on the basis of the sworn statement of the complainant.

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When this petition had come up for consideration in September 2005, remarks of the learned Magistrate were called for, particularly since it was noticed that there was apparently long delay in issuing process to the accused . The complaint was seen to have been filed in the year 2002.

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The learned Magistrate in his remarks has informed that his predecessor had ordered issue of process to the 4 accused after examining the complainant and two witnesses. It is further revealed from the remarks that accused Nos.1 and 4 had not appeared in spite of

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Crl.M.C.2949/2005.

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issuance of non bailable warrant. Anyhow, the fact remains that the petitioners who had initially appeared before the court had also failed to do so at a later stage, and non bailable warrants are now pending against them.

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Petitioners have produced the certified copy of the sworn statement given by the complainant at the time of his examination. From the sworn statement, it is seen that the complainant had specifically stated that one N.K.Muhammed and Subair Moulavi had told the complainant that he was a “Haram” and that Islam had no connection with him. According to the complainant he was asked to leave the venue of the marriage function by these two people who had pushed him and caught hold of his neck and left hand.

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It may be noticed that the complainant had not alleged any overt acts against the petitioners in the sworn statement. The two persons mentioned above viz., N.K.Muhammed and Subair Moulavi do not appear in the array of the accused at all. The other two accused are (Accused Nos.1 and 4) Mytheen Rawther and Abdul Razzak Moulavi. The case of the complainant was that he had gone to the house of the complainant in connection with the marriage of the latter. It was on that occasion that the 4 accused named in the complaint had allegedly committed the offences.

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In the above context it may also be noticed that there was no love lost between the complainant and the accused, particularly the two petitioners in this case. It is on record that various civil suits were pending between the complainant and petitioner No.1 herein who is

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Crl.M.C.2949/2005.

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the Secretary of local Jama-ath. The dispute had arisen way back in the year 1990 when OS.No.585/90 was filed by the complainant, which was followed by OS.No.373/93, OS.No.178/2000 and OS.41/2003. I do not propose to refer to the history of those litigations at this stage.

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Having heard learned counsel for the petitioners and the complainant, and having perused the materials available on record, I find considerable force in the contention raised by the petitioners that the attempt of the complainant is only to harass the two petitioners. I am persuaded to accept the above contention particularly in view of the averments made by the complainant in the sworn statement, a certified copy of which is on record as Annexure A2.

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In the peculiar facts and circumstances I am satisfied that the proceedings pending against the petitioners are liable to be quashed to meet the ends of justice, since in my view, the above proceeding is clearly an abuse of process.

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Therefore the Crl.M.C is allowed . The proceedings pending against the petitioners in CC.No.1281 of 2002 on the file of the Judicial Magistrate of First Class, No. I, Changanasserry are quashed.

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A.K. Basheer Judge.

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an.

M.K.Muhamed Kunju v. a.P.Abdul Rahman

Case brief

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M.K.Muhamed Kunju v. a.P.Abdul Rahman

Case brief

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