IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 Crl.MC.No. 1933 of 2009() ------------------------- CC.229/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... PETITIONER(S): ACCUSED: ----------------------------------------- K.M. ABAMED, AGED 72 YEARS, S/O. MAMMU, 'PANAPPANOOR HOUSE', CHERUVANCHERY AMSOM DESOM, KANNUR. BY ADVS. MR.C.KHALID, MR.N.GOPINATHA PANICKER, MR.T.P.SAJID, SMT.M.A.SULFIA, SMT.NAMITHA JYOTHISH. RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTICORRUPTION BUREAU, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/02/2010 ALONG WITH CRMC NO. 3521 OF 2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. --------------------------------------------------------- CRL.M.C.NO.1933/09 &3521 OF 2009 --------------------------------------------------------- Dated 22nd February 2010 O R D E R Petitioner in Crl.M.C.1933/2009 is the third accused and petitioners in Crl.M.C.3521/2009 are accused 1 and 2 in C.C.229/2004 on the file of Judicial First Class Magistrate-I, Kozhikode. Vigilance crime No.4/2001 filed under Section 13(1) read with Section 13(2) of P.C Act and Sections 465, 468, 477(A) and 120B of Indian Penal Code is registered under Annexure-1 FIR as against first accused, the former Senior Superintendent of Wakf Board, second accused Auditor of Kerala Wakf Board and fourth accused U.D.Stenographer Aboobacker. After investigation Annexure-3 final report was Crmc 1933/09 & 3521/09 2 submitted before the learned Magistrate for the offences under Sections 465 and 471 read with Section 34 of Indian Penal Code alone. Prosecution case is that in furtherance of their common intention with first accused, they had given a time barred form to the third accused who filled up the form with incorrect facts and first accused with the knowledge and consent of second accused in furtherance of common intention accepted the same and enclosed it into Wakf file and issued a certificate that third respondent is Muthavalli and when fair copy was produced before him that Muthavalli is Valappil Maravan Mammed, he corrected the name as Maravan Ahammed and thereby fabricated the records of Wakf Board and issued false certificate to third Crmc 1933/09 & 3521/09 3 accused who with the knowledge that it is not genuine used it as genuine and thereby committed offences under Sections 466 and 471 read with Section 34 of Indian Penal Code. 2. Third accused originally filed Crl.M.C on 20/11/2005 to quash the final report and cognizance taken by the learned Magistrate contending that in view of the judgment in A.S.1/2001 by Wakf Tribunal, Kozhikode that there is no forgery and hence no question of using forged document as genuine, sought to quash the proceedings. This court by Annexure-4 order held that question cannot be decided in the petition filed under Section 482 of Code of Criminal Procedure and petitioner is at liberty to seek an order of discharge. Crmc 1933/09 & 3521/09 4 3. By that time learned Magistrate has already framed a charge. Therefore, he was not entitled to seek an order of discharge under Section 239 of Code of Criminal Procedure. 4. Crl.M.C.1933/2009 is therefore filed by third accused to quash the proceedings pending before the learned Magistrate contending that in the light of Annexures-6,7 and 8 settlements and award, continuation of the proceedings before the learned Magistrate is only an abuse of process of court and in the interest of justice proceedings it is to be quashed. Later accused 1 and 2 also filed Crl.M.C.3521/2009 for quashing the proceedings. 5. Learned counsel appearing for Crmc 1933/09 & 3521/09 5 the petitioners and learned Public Prosecutor were heard. 6. Though learned counsel appearing for the petitioners vehemently argued that in view of the findings in Annexure-2 judgment of Wakf Tribunal and subsequent settlement of the disputes between the parties, as evidenced by Annexures-6 to 8 settlements and award, continuation of the proceedings as against the petitioners would only result in unnecessary waste of valuable time of the court, as there is no possibility of successful prosecution. It was also submitted that CW1 was already examined as PW1 and his evidence also established that there was a settlement and consequent to the settlement, even if petitioners are Crmc 1933/09 & 3521/09 6 to be tried, there is no likelihood of a successful prosecution and hence the case is to be quashed. 7. Learned Public Prosecutor pointed out that findings of the Wakf Tribunal in Annexure-2 judgment cannot be a ground to quash the proceedings, as it is for the learned Magistrate to decide the question on the evidence to be let in before him. It was argued that as the allegation is that officials of Wakf Board in collusion with the petitioner in Crl.M.C.1933/2008 made fabricated Wakf records, the case cannot be quashed accepting the settlement between the officials of the Wakf Board and third respondent or the de facto complainant and hence the case cannot be quashed. Crmc 1933/09 & 3521/09 7 8. Findings of the civil court or the Wakf Tribunal in Annexure-2 judgment with regard to the fabrication of the records of Wakf Tribunal is not binding on the criminal court. Under Annexure-2 judgment civil court did not find that there was fabrication of document, for want of evidence in that case. That does not mean that said finding is binding on the criminal court. Hence based on Annexure-2 judgment the case cannot be quashed. 9. True, Annexure-7 award passed in C.R.P.275/2003, the revision filed challenging Annexure-1 judgment shows that there was a settlement of the disputes between the parties and counsel appearing for Wakf Board was representing in that Crmc 1933/09 & 3521/09 8 proceedings. But that settlement between the parties cannot be a ground to quash the criminal proceedings. Therefore, based on the award or settlement also the case cannot be quashed. In such circumstances, petitions can only be dismissed. 10. Learned counsel appearing for the petitioners then submitted that the case is pending from 2004 onwards and when consequent to the settlement, there is no likelihood of a successful prosecution, it is not in the interest of justice to continue the prosecution and even if, the case is not quashed there may be a direction to dispose the case expeditiously. 11. Fact that the case is pending from 2004 is not a ground to quash the Crmc 1933/09 & 3521/09 9 proceedings. But there could be a direction to the learned Magistrate to dispose the case expeditiously. Petitions are dismissed. Judicial First Class Magistrate-I, Kozhikode is directed to dispose C.C.229/2004 as expeditiously as possible. Petitioners are at liberty to file an application under Section 205 of Code of Criminal Procedure to exempt from personal appearance before the court on each posting dates. M.SASIDHARAN NAMBIAR, JUDGE. uj.