IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.MC.No. 889 of 2010(E) ------------------------------------ [LP.NO.4/2003 OF ASSISTANT SESSIONS COURT, TIRUR, LP.NO.33/2000 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PONNANI, CRIME NO.54/1997 OF THE PERUMBADAPPU POLICE STATION] .................... PETITIONERS/ACCUSED: ------------------------------------ 1. YOUSAF, S/O.KUNHUMON, KUNNATHUVALAPPIL HOUSE, CHERAVALLUR, MALAPPURAM DISTRICT. 2. SHAMEER, S/O.MOIDU, MOOCHIKOOTTATHIL HOUSE, CHERAVLLUR, MALAPPURAM DISTRICT. 3. LATHEEF, S/O.MUHAMMED, KARUMATH HOUSE, CHERAVALLUR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR. RESPONDENTS/STATE AND DEFACTO COMPLAINANT: ------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PERUMBADAPPU POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. THONIKKADAVIL MUHAMMED, S/O.MUHAMMEDKUTTY, AMAYAM, PERUMBADAPPU, MALAPPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM, R2 BY ADV. SMT.VRINDA PAUL. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 889 OF 2010 =========================== Dated this the 23rd day of September,2010 ORDER Petitioners are the accused in C.P.6/1998 on the file of Judicial First Class Magistrate’s Court, Ponnani. As presence of accused 1 and 6 alone were procured, the case against them was committed to Session Court and made it over to Assistant Sessions Court, Tirur as S.C. 353/2004. By Annexure B judgment dated 29.11.2004 those accused were acquitted for the offence under sections 143, 148, 341, 326, 307 read with section 149 of Indian Penal Code as second respondent the injured who was examined as PW1 and the eye witness who was examined as PW2, did not identify the accused as the persons who inflicted the injuries on the second respondent. Subsequently when presence of the fourth accused was procured, the case as Crl.M.C.889/2010 2 against him was committed to the Sessions Court in C.P.44/2004. The fourth accused was tried in S.C.33/2005 by Additional Sessions Judge, Manjeri. By Annexure C judgment, learned Additional Sessions Judge acquitted the fourth accused also. Annexure B judgment shows that though respondent was examined as PW2, he deposed that due to the assault made by a group of persons, he lost memory and fell unconscious and regained the memory only from the hospital and he did not see the assailants. The other eye witness when examined as PW3 again deposed that he did not witness the incident. In such circumstances, fourth accused was also acquitted. When the presence of the third accused was procured the case as against him was committed to Sessions Court and then made over to Assistant Sessions Court, Tirur. As he absconded, it was subsequently transferred to the register of long pending cases and is pending as L.P.4/2003. As presence of petitioners 1 and 3, who were accused 2 and 5 could not be procured, the case as against them was subsequently transferred to the long Crl.M.C.889/2010 3 pending cases as L.P.33/2000 on the file of Judicial First Class Magistrate, Ponnani. This petition is filed under section 482 of Code of Criminal Procedure to quash the proceedings pending against them contending that in the light of Annexure B and C judgments, and the settlement of the dispute with the second respondent, it is not in the interest of justice to continue the prosecution. 2. Second respondent appeared through a counsel and submitted an affidavit stating that entire disputes were settled amicably and consequent to the settlement, he has no grievance against the petitioners. 3. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard. 4. Prosecution case is that on 19.4.1997 at about 11.30 a.m. the six accused formed themselves into an unlawful assembly with the common object of wrongfully restraining second respondent and causing grievous hurt and death and in furtherance Crl.M.C.889/2010 4 of the common object, armed with deadly weapons like iron pipes. reapers, stick etc. wrongfully restrained second respondent in front of Amayam Juma ath Mosque at Uppungalkadav road and caused grievous hurt to second respondent by beating him with iron pipes and stick and thereby committed the offences under sections 143, 148, 341, 326 and 307 read with section 149 of Indian Penal Code. As is clear from Annexure B and C judgments, when accused 1, 4 and 6 were tried, the eye witnesses turned hostile disclosing that they did not witness the incident. The second respondent, the injured, also turned hostile deposing in S.C.353/2004 that he did not identify accused 1 and 6 as the persons among the accused who attacked him and in S.C.33/2005 disclosing that he fell unconscious and did not identify the accused. Annexure D affidavit filed by second respondent establishes that he has settled the dispute with the petitioners. It is absolutely clear from the said settlement that even if second respondent is to be examined once again, directing the petitioners to undergo the ordeal of a trial, Crl.M.C.889/2010 5 second respondent is not going to give evidence against them. The eye witness had already deposed before court, when examined earlier on two occasions, that he did not witness the incident. It is thus clear that even if petitioners are to be directed to undergo the ordeal of a trial, no purpose will be served as in view of the settlement, second respondent will not depose against them and the other eye witness will not tender evidence as he has already disclosed that he did not witness the incident. In such circumstances, it would amount only to unnecessary waste of valuable time of the court. Petition is allowed. The proceedings pending against petitioners 1 and 3 before Judicial First Class Magistrate’s Court, Ponnani as L.P.33/2000 and against the second petitioner before Assistant Sessions Court, Tirur as L.P.4/2003 are quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006