IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.MC.No. 606 of 2009 ------------------------ CP 65/08 OF JUDL.MAGISTRATE OF FIRST CLASS-III, THIRUVANANTHAPURAM ............. PETITIONERS: ACCUSED 1 AND 4 ------------------------------------- 1. BAIJU, S/O. ISSAC, FLAT NO.393, SECRETARIAT WARD, THYCAUD VILLAGE, THIRUVANANTHAPURAM. 2. UNNI, S/O. APPUKUTTAN NAIR, T.C 27/1919, NEAR MATHRUBHOOMI, VANCHIYOOR, THIRUVANANTHAPURAM. 3. AJAYA, S/O. SUKUMARAN NAIR, NEAR MATHRUBHOOMI, VANCHIYOOR, THIRUVANANTHAPURAM. 4. SURESH KUMAR, S/O. RAJAPPAN PILLAI, T.C. 33/77, NEAR MATHRUBHOMMI, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS/DEFACT COMPLAINANT AND STATE: -------------------------------------------------------- 1. SHABI KHADER, S/O. KHADER, BISMI HOUSE, MRS 241-A, MOOLAVILAKOM, KANNANMOOLA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.BIJU BALAKRISHNAN R2 BY PUBLIC PROSECUTOR, SRI.JIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 606 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2009 O R D E R Petitioners are accused in CP No.65/08 on the file of Judicial First Class Magistrate-III, Thiruvananthapuram. This petition is filed under Section 482 Cr.P.C to quash Annexure A final report based on which cognizance for offences under Sections 341, 323, 324, 308 r/w Section 334 of IPC was taken by the learned Magistrate. Case of the petitioner is that subsequently, all the disputes of petitioners with the 1st respondent defacto complainant/injured were settled and 1st respondent has no intention to proceed with the case and therefore it is unnecessary to proceed with the case and as there is no chance of conviction in view of the settlement between the parties the case is to be quashed. An affidavit by the 1st respondent is also filed to the effect that there was a settlement of the disputes and he is not intending to prosecute the case. 2. Learned counsel appearing for the petitioner, learned counsel appearing for the 1st respondent and learned Prosecutor were heard. 3. Learned counsel relying on decisions of the apex court in Crl.M.C.606/09 -:2:- Madan Mohan Abbot v. State of Punjab [2008 AIR SCW 2287], Nikhil Merchant v. Central Bureau of Investigation [2008(3) KLT 769(SC)] and Manoj Sharma v. State [2008(4)KLT 417 SC] submitted that even though all the offences are not compoundable, when continuation of the proceeding is only an empty formality as the petitioners will not be convicted in view of the settlement of the dispute with the injured, it is to be quashed. 4. True. The attitude of the 1st respondent injured settling the dispute with the petitioners would show that 1st respondent will not depose against petitioners even if he is to be examined in the case. But the question is whether based on the settlement of the disputes the case is to be quashed. Though in Madan Mohan's case and Nikhil Merchant's case(supra) the apex court held that when there is no possibility of a conviction due to the settlement of the disputes with the prosecution witnesses and the trial would only result in wast of valuable time of the court, and hence court can quash the proceedings exercising inherent the extraordinary jurisdiction under Section 482 Cr.P.C, as held by the apex court in Manoj Sharma's case(supra) when an offence under Section 308 IPC is also involved, Crl.M.C.606/09 -:3:- the proceedings cannot be quashed as sought for. Hence the petition is dismissed. 5. Though learned counsel for the petitioner making available a certified copy of the wound certificate argued that the offence under Section 308 of Indian Penal Code is not attracted, it is for the Sessions Judge to decide whether offence under Section 308 Indian Penal Code is attracted or not. 6. Learned counsel for the petitioner further submitted that a warrant is pending against the 2nd accused and he may be permitted to surrender and file an application before the learned Magistrate. It is up to the 2nd accused to surrender and file an application for bail. If an application is filed, Magistrate has to consider all the relevant aspects including the settlement, the nature of injuries inflicted and pass appropriate order in accordance with law. Petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE ttb