Allowed

Kandambeth Chandran v. Ibrahim @ Ibrahimkutty V.V.

Kerala HC24 Oct 2016Crl.Rev.Pet/2001/2014

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an order granting consent for withdrawal of prosecution under Section 321 Cr.P.C. because the victim was not served notice or given an opportunity to be heard. The matter was remitted to the lower court to reconsider the application after affording the petitioner a chance to be heard.

What did the court decide?

The impugned order dated 9.10.2014 in C.M.P. No.347 of 2014 was set aside and the matter was remitted to the lower court to afford the petitioner a reasonable opportunity to be heard.

Kandambeth Chandran Vs Ibrahim @ Ibrahimkutty V.V. — Criminal Trial and Appeal | 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 B.SUDHEENDRA KUMAR

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MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938

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Crl.Rev.Pet.No. 2001 of 2014 ()

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(AGAINST THE ORDER IN CMP 347/2014 IN SC 854/2012 OF ASST.SESSIONS COURT, KANNUR)

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(CRIME NO.457 OF 2011 OF TALIPARAMBA POLICE STATION)

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REVISION PETITIONER/VICTIM:

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KANDAMBETH CHANDRAN, AGED 51 YEARS S/O.KORAN, KANDABETH HOUSE, POTHADA, PATTUVAM P.O., KANNUR DT.

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BY ADVS.SRI.P.NARAYANAN SRI.NICHOLAS JOSEPH

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RESPONDENTS/ACCUSED AND STATE:

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IBRAHIM @ IBRAHIMKUTTY V.V., AGED 24 YEARS S/O.MOIDEEN, VAZHA VALAPPIL HOUSE, PATTUVAM KADAVU,

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PATTUVAM P.O., KANNUR DT., 670001.

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SHAMMAS.K.A., AGED 24 YEARS

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S/O.ABDULLA, KAYALA EDAYIL HOUSE, PATTUVAM KADAVU,

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PATTUVAM P.O., KANNUR DT.670001.

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HANEEFA, AGED 35 YEARS

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S/O.MOIDEEN,THAYYIL HOUSE, PATTUVAM KADAVU, PATTUVAM P.O., KANNUR DT.- 670001.

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ARIEF.K.P., AGED 24 YEARS S/O.ASHARAF, KIZHAKKEPURAYIL HOUSE, PATTUVAM KADAVU, PATTUVAM P.O., KANNUR DISTRICT, 670001.

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STATE OF KERALA

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REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,

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ERNAKULAM- 682031.

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R1-R4 BY ADV. SRI.K.R.AVINASH (KUNNATH) R1-R4 BY ADV. SRI.ABDUL RAOOF PALLIPATH R1-R4 BY ADV. SRI.P.B.MANOJ

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R5 BY PUBLIC PROSECUTOR, SHRI.C.K.PRASAD

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.SUDHEENDRA KUMAR, J.

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Crl.R.P. No.2001 of 2014

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- - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 24^th day of October 2016

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O R D E R

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The revision petitioner is the de-facto

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complainant /victim in the above case.

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The prosecution allegation is that on 6.7.2011 at

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about 2 p.m., the accused persons trespassed into the house

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of the revision petitioner, wherein the revision petitioner was residing with his family and destroyed the windows and doors of the said house, and also the house-hold articles causing a loss of about Rs.2,00,000/- to the revision

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petitioner. They also committed robbery of about 6½ sovereign of gold ornaments from the almirah kept in the

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Crl.R.P.2001/2014

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: 2 :

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said house. The offences alleged are the offences under

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Sections 143, 147, 148, 452, 427 and 395 read with Section 149 I.P.C.

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During the pendency of the case before the Assistant Sessions Court, Kannur as S.C. No.854 of 2012, the learned Additional Public Prosecutor filed an application under Section 321 Cr.P.C. seeking for granting permission to withdraw from the prosecution. The court below allowed the said application. Aggrieved by the said

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order, this revision petition has been filed.

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Heard both sides.

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The learned counsel for the revision petitioner has submitted that since no notice was served on the revision petitioner, who is the de-facto complainant /victim in the

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Crl.R.P.2001/2014

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: 3 :

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above case, before passing the order impugned, the order impugned cannot be sustained. The court in Saji v. State of Kerala [2014(1) KHC 324] held that the victim should be given a right to be heard on application seeking consent of the court for withdrawal from prosecution under Section 321 Cr.P.C. In this case, the endorsements on Annexure Nos.A2 and A3 notices would show that Annex.A2 notice was affixed on house No.355/II of Pattuvam Panchayath and Annex.A3 notice was affixed on house No.347/XII of

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Pattuvam Panchayath. The address of the revision petitioner is shown as house No.374/XII of Pattuvam Panchayath in the final report filed by the police. No notice was served on the revision petitioner on the above said address. In the said circumstances, the revision

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Crl.R.P.2001/2014

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: 4 :

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petitioner could not submit his grievance before the court

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before granting consent to the learned Public Prosecutor to withdraw from the prosecution. In the said circumstances, I am of the view that it is only just and proper to grant an opportunity to the revision petitioner of being heard before granting consent to withdraw from the prosecution. For the said reason, I am inclined to set aside the order impugned.

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In the result, this revision petition stands allowed and the order dated 9.10.2014 in C.M.P. No.347 of 2014 in S.C. No.854 of 2011 in Crime No.457 of 2011 of Taliparamba police station stands set aside and the matter is remitted to the court below to consider and pass order afresh in C.M.P. No.347 of 2014, in accordance with law, affording reasonable opportunity to the

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Crl.R.P.2001/2014

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: 5 :

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revision petitioner of being heard.

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The parties shall appear before the learned Magistrate

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on 7.12.2016 without further notice. Needless to state that if the revision petitioner fails to appear before the learned Magistrate either directly or through the counsel on the above said date, the learned Magistrate shall be at liberty to dispose of C.M.P. No.347 of 2014, in accordance with law,

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without hearing the revision petitioner.

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Sd/-

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B.SUDHEENDRA KUMAR, JUDGE

dl/.24.10.2016

// True Copy //

PA to Judge

Crl.R.P.2001/2014

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Kandambeth Chandran v. Ibrahim @ Ibrahimkutty V.V.

Case brief

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Kandambeth Chandran v. Ibrahim @ Ibrahimkutty V.V.

Case brief

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