Allowed

Shamsudheen @ Shamsu v. the Circle Inspector of Police

Kerala HC19 May 2016Crl.MC/2312/2016

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings against the fourth accused, holding that the acquittal of other accused and inters Wigac settlement destroyed the case substratum, making continuation a waste of judicial time.

What did the court decide?

Criminal proceedings against the petitioner in Crl.MC.No. 2312 of 2016 and C.P.No. 224 of 2014 are allowed and stood quashed.

Shamsudheen @ Shamsu Vs the Circle Inspector of Police — Quashing and FIR | Kerala HC (2016)

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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 RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938

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Crl.MC.No. 2312 of 2016 ()

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CP.NO. 224/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KASARAGOD CRIME NO. 39/2009 OF KUMBLA POLICE STATION , KASARGOD DISTRICT

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PETITIONER/ACCUSED NO.3:

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SHAMSUDHEEN @ SHAMSU, S/O.MUHAMMED, AGED 33 YEARS, POONKULAM HOUSE, PERUMUDE, KOODAL BERKALA, KASARAGOD.

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BY ADV. SRI.T.G.RAJENDRAN

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RESPONDENT(S)/COMPLAINANTS AND STATE:

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1. THE CIRCLE INSPECTOR OF POLICE, KUMBLA POLICE STATION, KASARAGOD DISTRICT -671 122.

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2. M.A.KHALID, S/O.HUSSAIN,AGED 56 YEARS, MORATHANADKA HOUSE, PERMUDE, KUDALMERKALA VILLAGE, MANJESHWAR TALUK, KASARAGOD- 671 121.

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3. M.A.KHADER, S/O.HUSSAIN, AGED 64 YEARS, PANCHAMBALA HOUSE, KUDALMERKALA VILLAGE, MANJESHWAR TALUK, KASARAGOD- 671 121.

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4. HUSSAIN, S/O.ABDUL KHAER, AGED 31 YEARS, PACHAMBALA HOUSE, KUDALMERKALA VILLAGE, MANJESHWAR TALUK, KASARAGOD -671 121.

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5. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031.

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R1 & R5 BY PUBLIC PROSECUTOR SMT. SAREENA GEORGE R2 TO R4 BY ADV. SRI.CIBI THOMAS

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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Crl.MC.No. 2312 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEX I	COPY OF THE FINAL REPORT
ANNEX II	THE CERTIFIED COPY OF THE JUDGMENT DATED 26.11.2015 ON THE FILES OF THE ADDITIONAL SESSIONS JUDGE-I, KASARAGOD
ANNEX III	TRUE COPY OF THE AFFIDAVITS SWORN IN BY THE 2ND RESPONDENT
ANNEX IV	TRUE COPY OF THE AFFIDAVITS SWORN IN BY THE 3RD RESPONDENT
ANNEX V	TRUE COY OF THE AFFIDAVITS SWORN IN BY THE 4TH RESPONDENT

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RESPONDENT(S)' ANNEXURES: NIL ---------------------------------------------

/TRUE COPY/

P.A.TO JUDGE

sts

RAJA VIJAYARAGHAVAN.V., J

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- - - - Crl.M.C. No. 2312 of 2016

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- - - - Dated 19^th May, 2016

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ORDER

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The petitioner herein is the fourth accused in Crime No.39 of 2009 of the Kumbla Police Station, Kasaragod. The aforesaid crime was registered at the instance of the second respondent herein alleging offences punishable under Sections 143, 147, 148, 324, 326, 307, 447, 427 read with Section 149 IPC. After investigation, final report was laid before the jurisdictional Magistrate and the case was committed to the Court of Sessions.

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2.The petitioner did not appear before the committal court and therefore his case was not committed to the Court of Sessions.

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As against the other accused, the case was proceeded with and as per Annexure II judgment dated 26.11.2015, the learned Sessions Judge came to the conclusion that the prosecution had not succeeded in proving the offences as against the accused and they were acquitted under

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Crl.M.C. No.2312 of 2016 -2-

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Section 235(1) of the Cr.P.C.

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The learned counsel appearing for the petitioner would submit that a perusal of the judgment produced as Annexure II would reveal that none of the prosecution witnesses had supported the prosecution case. The learned Sessions Judge has taken note of this aspect at the time of passing the judgement of aquittal as against the other accused. It is further submitted by the learned counsel that pursuant to the order of acquittal, the matter was settled between respondents 2 to 4, who are the defacto complainant and injured witnesses and evidencing this aspect, Annexure III, IV and V affidavits have been sworn to by the party respondents, wherein it has been stated in unmistakable terms that the respondents 2 to 4 have no subsisting grievance as against petitioner herein.

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5.I have also heard the learned counsel appearing for respondents 2 to 4 who submitted that the matter has been settled and the respondents do not wish that the criminal prosecution as against the petitioner herein

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Crl.M.C. No.2312 of 2016 -3-

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should continue any further.

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6.I have anxiously gone through the judgment rendered by

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the learned Sessions Judge which has been produced as Annexure II. In paragraph No.8 of the learned Sessions Judge had observed that none of the prosecution witnesses had deposed in favor of the prosecution . They had stated that the entire matter has been settled between the parties.

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In Moosa v. Sub Inspector of Police (2006 (1) KLT 552) and also Ashraf Kancheriyil v. State of Kerala (2011 (2) KHC 812) it has been held that when substratum of the case is destroyed, there is no point in pursuing with the prosecution as against the other accused.

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After hearing the counsel for the petitioner, the learned Public prosecutor and the learned counsel for the respondents 2 to 4, I am of the considered opinion that this is one of those exceptional cases where prayer for invocation of the extraordinary inherent jurisdiction can be

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Crl.M.C. No.2312 of 2016 -4-

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justifiably invoked to serve the ends of justice. The bona fides of the petitioner in approaching this Court with the prayer cannot be doubted as the substratum of the case has been destroyed. It has been held by the Apex Court, that the High Court, while exercising powers under Section 482 of the Cr.P.C (hereinafrter referred to as the code for short) will be justified in quashing cases involving even non-compoundable offence if the disputes are really private in nature and no public interests are involved provided that the offenses are not of the gravely objectionable variety. I am convinced that the extraordinary powers under Section 482 of the code can be invoked as the case falls within the matrix of guidelines laid down by the Apex Court in Gian Singh v. State of Punjab ( 2012 (4) KLT 108) and Narinder Singh and others v. State of Punjab and anr. reported in (2014) 6 SCC 466) and other cases.

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9.It is also felt that quashing of the instant proceeding would bring about peace and secure ends of justice. No

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Crl.M.C. No.2312 of 2016 -5-

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purpose will be served in subjecting the parties to the ordeal of a protracted trial in view of the settlement. It will only enure to waste valuable judicial hours. I am, therefore, of the view that the criminal proceedings pending as against the petitioner can be quashed by invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure.

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10.In the result, the Crl.M.C. is allowed. All further proceedings as against petitioner herein in C.P.No.224 of 2014 on the files of the Judicial First Class Magistrate Court-I, Kasaragod has which has arisen from Crime No.39 of 2009 of the Kumbala Police Station, Kasaragod shall stand quashed.

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RAJA VIJAYARAGHAVAN.V., JUDGE

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kp/-20.5.16

Shamsudheen @ Shamsu v. the Circle Inspector of Police

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Shamsudheen @ Shamsu v. the Circle Inspector of Police

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