IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 Crl.MC.No. 3500 of 2009(B) -------------------------------------- SC.NO.449/2007 OF ASSISTANT SESSIONS COURT, HOSDRUG. .................... PETITIONER/ ACCUSED: ----------------------------------- MUHAMMED RAMEES, AGED 24 YEARS, S/O. VADAKKAN ABDUL RAHIMAN, ARANGADI, HOSDURG VILLAGE, P.O. KANHANGAD, KASARAGOD DISTRICT. BY ADV. MR.K.P.HARISH. RESPONDENTS/ STATE & DEFACTO COMPLAINANT (CW1 IE., INJURED): -------------------------------------------------------------------------------------------------------- 1. STATE – REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.H. HAKKIM, AGED 23 YEARS, S/O. LATE MUHAMMED, MANIKKOTH, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. R1 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR, R2 BY ADV. MR.M.T.SURESHKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3500 OF 2009 ------------------------------------------ Dated 6th November 2009 O R D E R Petitioner was the fourth accused in C.P.241/2005 on the file of Judicial First Class Magistrate-I, Hosdurg. As petitioner and fifth accused were absconding, case as against them was split up and re-numbered as C.P.189/2006 and case as against other five accused were committed to Sessions court. Learned Sessions Judge made it over to the Assistant Sessions court for trial as S.C.146/2007. When those accused were being tried, original accused 6 and 7 absconded. Hence case as against them was split up by the Assistant Sessions Judge and the remaining three accused were tried in S.C.146/2007. By Annexure-A5 judgment dated 18/8/2009 those three accused were acquitted finding them not guilty of the offences. The second respondent, de facto complainant, who was examined as PW1 deposed that though he was assaulted by a group of unidentified persons, he could not identify them. So also, out of Crmc 3500/09 2 the eye witnesses, the witness who was examined as PW2, also deposed on similar lines. The other two witnesses deposed that they did not witness the incident. It is based on those evidence, learned Assistant Sessions Judge acquitted accused 1 to 3. When presence of the petitioner was procured, Judicial First Class Magistrate-I, Hosdurg granted him bail and thereafter, the case as against him was committed to the Sessions court. Under Annexure-6 committal order after the case as against the absconding original fifth accused was split up and re-filed. Case as against the petitioner is now pending before Assistant Sessions court, Hosdurg as S.C.449/2007. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that in view of the order of acquittal as against co-accused by Annexure-AV judgment, as well as due to the settlement of the disputes with second respondent, the injured, there is no likelihood of a conviction and trial would unnecessarily result only in waste of the valuable time of the court and therefore, it is to be quashed. 2. Second respondent appeared through a counsel and also filed Annexure-AVIII statement and Annexure-AIX Crmc 3500/09 3 affidavit stating that entire disputes were settled amicably and in view of the settlement, he has no objection for quashing the proceedings. Annexure-AX joint petition is filed by the petitioner along with second respondent to compound the offence consequent to the settlement. 3. Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard. 4. Prosecution case as is clear from Annexure-AII final report and Annexure-AV judgment is that on 23/7/2005 at about 2.30 p.m, all the accused formed themselves into an unlawful assembly with the common object of causing hurt to second respondent and in front of Shobha Textiles at Kanhangad town wrongfully restrained second respondent and accused 1,2, 5 and 6 voluntarily caused hurt to second respondent by beating and kicking and seventh accused with the intention of doing away with second respondent attempted to beat him with an iron rod on his head and when tried to avoid it hit on his hand causing fracture. It is alleged that all the accused thereby committed offences under Sections 143, 147, Crmc 3500/09 4 148, 341, 323 and 326 and 308 read with Section 149 of Indian Penal Code. 5. Though second respondent, the injured who sustained grievous hurt, who was also wrongfully restrained by the accused, along with the petitioner filed Crl.M.A.6012/2009, under Sub Section 8 of Section 320 of Code of Criminal Procedure for permission to compound the offence, permission cannot be granted as offences under Sections 326 and 308 of Indian Penal Code cannot be compounded under Section 320 of Code of Criminal Procedure. Hence Crl.M.A.6012/2009 can only be dismissed. 6. As is clear from Annexure-AIII final report and Annexure-AV judgment, there is no specific allegation of any overt act as against the petitioner. The only case against petitioner is that he was also one among the members of the unlawful assembly. Annexure-AV judgment shows that even though accused 1 to 3 who were available were tried, second respondent when examined, deposed that he could not identify any of the assailants. Similarly one of the eye witness also deposed that he could not identify the assailants. The other eye witnesses deposed that they did not Crmc 3500/09 5 witness the incident. It is in such circumstances, learned Assistant Sessions Judge was constrained to find accused 1 to 3 not guilty. In the light of the order of acquittal, out of seven members of the alleged unlawful assembly, three persons already stand acquitted and only the four remains who by themselves cannot constitute an unlawful assembly. Whatever it be, affidavit filed by the second respondent establish that even if second respondent is to be examined, in the trial of the case against petitioner, he will not give any evidence as against the petitioner identifying him as one of the assailants. In such circumstances, it would only be a futile exercise. When there is no chance for a successful prosecution and the ordeal of a trial would only result in unnecessary waste of the valuable time of the court ,it is not in the interest of justice to continue the prosecution. Petition is allowed. S.C.449/2007 on the file of Assistant Sessions court, Hosdurg is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj. Crmc 3500/09 6