IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 Crl.MC.No. 4959 of 2010 ------------------------- (Crime No.437 /2003 of Ernakulam Town North Police Station. ) PETITIONERS/ ACCUSED NOS.1 TO 4 --------------------------------- 1. AZEEZ, S/O. SEYD MOHAMMED, AGED 40 YRS, NALADYTHUNDIYIL HOUSE, S.R.M.ROAD, KOCHI-18, ERNAKULAM. 2. DIRAR, S/O. MAMU, AGED 37 YEARS, MANAYPARAMBU HOUSE, S.R.M.ROAD, KOCHI-18, ERNAKULAM VILLAGE, THRIKKANARVATTOM, ERNAKULAM. 3. HASHIM, S/O. HASSAN, AGED 32 YEARS, PUTHENPARAMBIL HOUSE, S.R.M.ROAD, KOCHI-18, ERNAKULAM. 4. SHAKKEER, S/O. ABU, VADAKKATHUPARAMBU HOUSE, AGED 34 YEARS, S.R.M.ROAD, KOCHI-18, ERNAKULAM. BY ADV. SRI.P.M.ZIRAJ RESPONDENTS/STATE & COMPLAINANT -------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REP. BY SUB INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT. 2. UNNIKRISHNAN, S/O. MADHAVAN, AGED 55 YEARS, S.R.M.ROAD, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. BY PUBLIC PROSECUTOR K.J. MOHAMMED ANZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.4959 of 2010 -------------------------------------- Dated this the 14th day of January, 2011. ORDER Petitioners are accused Nos.1 to 4 in Crime No.437 of 2003 of Ernakulam Town Police Station. On the Police submitting final report in that case learned Judicial First Class Magistrate-II, Ernakulam has taken cognizance for offences punishable under Section 452, 506(ii) and 427 read with Section 34 of the Indian Penal Code (for short, “the Code”) and Sections 25 read with Section 27 of the Indian Arms Act. Petitioner No.1 is a neighbour of the defacto complainant. It is said that there was property dispute between petitioner No.1 and the brother of defacto complainant who was residing with the defacto complainant and on account of that dispute, on 22.09.2003 at about 10.15 p.m. petitioners criminally trespassed into the house of the defacto complainant, committed mischief by breaking the window glass panes and criminally intimidated the defacto complainant with iron rod, sword and stick. Learned Magistrate has registered C.C.No. No.753 of 2004 against petitioners for the said offences. It is submitted that the matter is settled between petitioners and defacto complainant and the latter has sworn Annexure-III, affidavit stating that the matter is settled between him and petitioners and that on account of the settlement he is not interested in proceeding with the case. He has no objection to compound the offences against petitioners. It is stated that the affidavit is prepared with his free will and consent. Crl.M.C.No.4959/2010 2 2. I have heard learned counsel for petitioners, respondent No.2 (defacto complainant) and the Public Prosecutor. 3. Learned Public Prosecutor has pointed out that petitioner No.1 was involved in about five cases many of which involved offence punishable under Section 27 of the Indian Arms Act and one case involved offence under Section 302 of the Code. In response it is submitted by learned counsel for petitioners that the incidents which gave rise to all those cases happened in the year 2003 and that thereafter no incident has been reported against petitioner No.1. It is submitted that the case involving offence under Section 302 of the Code ended in acquittal by the appellate court and in other cases, there was settlement between the parties and the proceedings were dropped. It is also submitted by learned counsel and admitted by learned counsel for respondent No.2 as well that petitioners have paid `.25,000/- by way of compensation to respondent No.2. Learned counsel submits that petitioner No.1 is now staying in Soudi Arabia with his family. 4. True, petitioner No.1 has to his credit a few cases, the incident for which occurred in the year 2003. But, no incident has been reported thereafter for the last 7-8 years. The present case arose from property dispute between petitioner No.1 and the brother of defacto complainant. There is no case that the defacto complainant or anybody else suffered hurt in the incident. Damage caused to the defacto complainant has been compensated by payment of money. In these circumstances I am inclined to accept and act upon the affidavit of respondent No.1, defacto complainant. I must also bear in mind that the Crl.M.C.No.4959/2010 3 alleged incident occurred at 10.15 p.m. and success of the prosecution mainly depended on the evidence that defacto complainant has to give. Having regard to these aspects I am inclined to allow this petition. Resultantly this petition is allowed. Annexures -I and II, FIR and final report in Crime No.437 of 2003 of Ernakulam Town Police Station and cognizance taken and further proceedings in C.C.No.753 of 2004 of the court of learned Judicial First Class Magistrate-II, Ernakulam are quashed. Crl.M.A.No.8039 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks