IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.MC.No. 2244 of 2009() ------------------------- SC.29/2006 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CP.102/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... (CRIME N.9/2005 OF KARUVARAKUNDU POLICE STATION) PETITIONER(S): ACCUSED: ------------------------------------------ 1. ABDU RAHIMAN, S/O.MUHAMMED, KAVUNGALTHODI HOUSE, KALIKAVU, MALAPPURAM DISTRICT. 2. ABDUL HAMEED, S/O.ALAVIKUTTY HAJI, CHENDANKULANGARA HOUSE, PALLIKULAM, KALIKAVU, MALAPPURAM DISTRICT. BY ADV. MR.BABU S. NAIR RESPONDENT(S): STATE & DEFACTO COMPLAINANT: -------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KARUVARAKUNDU POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. NHARANTHODIKA ABDUL NAZAR @ MUTHU, S/O.ABDUL KHADER, KERALA ESTATE, ANIKKODUPADAM, NILAMBUR, MALAPPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR. B.VINOD R2 BY ADV. SMT.M.T.SHEEBA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2244 of 2009 -------------------------- ORDER Petitioners are accused 2 and 3 in S.C.No. 29/2006 on the file of Additional Sessions Court (Fast Track Court-III), Manjeri, now pending in the long pending register. Prosecution case is that on 16.1.2005 at about 10.15 p.m., the accused formed themselves into an unlawful assembly and armed with deadly weapons attacked second respondent and also pelted stones with the intention to cause his death and thereby they committed offences under Sections 143, 147, 148, 323, 323 and 308 read with Section 149 of Indian Penal Code. As petitioners were absconding, the remaining accused were tried by Additional Sessions Judge, after splitting up the case as against the petitioners. Under Annexure-B judgment dated 31.1.2007, those accused were acquitted finding them not guilty of the offences. Annexure-B judgment shows that an application was CRMC 2244/09 2 filed before the Additional Sessions Judge for permission to compound the offences and as the offence under Section 308 of Indian Penal Code is not compoundable, parties were not permitted to compound the offences. It also shows that second respondent, the injured, the defacto complainant, turned hostile to prosecution. So also the eye witness examined deposed that he had not seen the incident and the other eye witness was not available, as he was in Saudi Arabia. In such circumstances and on the development of the case, Public Prosecutor had given up other prosecution witnesses and learned Sessions Judge acquitted accused 1, 4, 5 and 6. 2. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings as against petitioners contending that in view of the settlement of the disputes with the second respondent, the injured and acquittal of the co- accused, in the interest of justice, the case is to CRMC 2244/09 3 be quashed. 3. Learned counsel appearing for the petitioners and Public Prosecutor were heard. 4. Second respondent appeared through a counsel and filed Annexure-C affidavit to the effect that there was a settlement of the disputes with petitioners and he is not intending to proceed against the petitioners and he has no objection for quashing the proceedings. 5. Affidavit of the second respondent as well as Anenxure-B judgment establish that even if petitioners are to be tried, there is no chance for a successful prosecution, in view of the settlement of the disputes with the second respondent. Though, ordinarily, an offence under Section 308 of Indian Penal Code is not to be quashed exercising the power of this Court under Section 482 of Code of Criminal Procedure, based on the settlement of the disputes between the parties, Annexure-A wound certificate establish that second respondent CRMC 2244/09 4 sustained only multiple abrasions. When there is no chance of a conviction in the case, as the witness turned hostile to the prosecution, when examined earlier and second respondent is not prepared to support the prosecution, it is not, in the interest of justice, to proceed with the trial of the case, which would result in unnecessary waste of valuable time of the court. In such circumstances, petition is allowed. Proceedings as against the petitioners in S.C.No. 29/2006 on the file of Additional Sessions Court (Fast Track Court-III), Manjeri, now pending in the long pending register, is quashed. 22nd July, 2009 (M.Sasidharan Nambiar, Judge) tkv