IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 Crl.MC.No. 4447 of 2010() ------------------------------------ CP.43/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER(S): ----------------------- 1. V.D.ABIJITH, AGED 28 YEARS, S/O. DEVADAS, VELAYIL HOUSE, P.O. NATTIKA,THRISSUR DISTRICT. 2. SARATH BABU, AGED 19 YEARS, S/O. SURESH BABU, PADATHIL HOUSE, P.O.VALAPAD, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENT(S): -------------------------- 1. STATE OFKERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. HARI, S/O. CHANDRAN, ANTHIKATTU HOUSE, P.O.VALAPAD BEACH, CHAVAKKAD THALUK, THRISSUR DISTRICT. PIN- 680 567. R1 BY PUBLIC PROSECUTOR SRI. P.A.SALIM R2 BY ADV. SRI.V.V.JOY THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 4447 OF 2010 =========================== Dated this the 1st day of December,2010 ORDER Petitioners are the accused and second respondent the de facto complainant in C.P.43/2010 on the file of Judicial First Class Magistrate Court, Kodungallur taken cognizance for the offences under sections 323, 324 and 308 read with section 34 of Indian Penal Code on Annexure C final report. Prosecution case is that on 2.9.2009 at about 9.30 p.m while second respondent was proceeding along Thriprayar Beach Road, in furtherance of the common intention petitioners attacked him and first petitioner with an iron rod hit on his head and second petitioner stabbed him with a knife on his back and both the petitioners thereby committed the offences under sections 323, 324 and 308 read with section 34 of Indian Penal Crl.M.C.4447/2010 2 Code. Petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings contending that entire disputes with the second respondent were settled amicably and consequent to the settlement, it is not in the interest of justice to continue the prosecution. It is contended that though an offence under section 308 of Indian Penal Code is alleged, ingredients of the offence is not attracted. Petitioners also contended that when petitioners filed B.A.6396/2009 before this court second respondent was impleaded and through the counsel he reported to the court that it was not the petitioners who attacked him but by some other identifiable persons as seen from Annexure 3 order and in such circumstance continuation of the proceedings is not in the interest of justice. 2. Second respondent appeared through a counsel and filed an affidavit stating that he is the injured and on 2.9.2007 at about 9.30 p.m. he was attacked by four identifiable persons with knife Crl.M.C.4447/2010 3 stone and iron road and when he cried people gathered there and if the people had not gathered assailants would have killed him and the reasons for the attack was that his relatives Pradeep and Promod had attacked some persons and it was in retaliation second respondent was attacked and he did not name anybody in his First Information Statement and no further statement was recorded and he has no grievance against the petitioners and they are living as friends and in such circumstances, case is to be quashed. 3. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard. 4. Though an offence under section 308 of Indian Penal Code is alleged, learned Public Prosecutor submitted that no grievous hurt was caused and the offences committed were only under section 323 and 324 of Indian Penal Code. It is clear that an offence under section 308 of Indian Penal Code, though alleged, is not attracted. The Crl.M.C.4447/2010 4 affidavit filed by second respondent establishes that he has settled all the disputes with the petitioners. As held by the Apex Court in Madan Mohan Abbot v. State of Punjab (2008(3)KLT 19) when offences alleged against the petitioners are purely personal in nature and second respondent the injured, settled the disputes with the petitioners, it is not in the interest of justice to continue the prosecution. Petition is allowed. C.P.43/2010 on the file of Judicial First Class Magistrate Court, Kodungallur is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006