IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 Crl.MC.No. 4867 of 2010() ------------------------------------ CRIME NO. 162/2009 OF KOTTAKKAL POLICE STATION LP.30/2005 of DISTRICT & SESSIONS COURT, MANJERI .................... PETITIONER/ACCUSED NO.1: --------------------------------------------- MUHAMMED RAFI, S/O.KUNHEETHU, KALLANKUNNAN VEEDU, KOTTAKKAL AMSOM, DESOM, PALAPPURAM, MALAPPURAM DISTRICT. BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENT/STATE & DEFACTO COMPLAINANT/INJURED: ---------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTAKKAL POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. ABDURAHIMANKUTTY, S/O.KUNHEETHU KUTTY, CHEVIDIKUNNAN HOUSE, IRIGALUR, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 306. 3. ABDUL KAREEM, S/O.KUNHEETHU KUTTY, CHEVIDIKUNNAN HOUSE, IRIGALUR, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 306. 4. KUNHAMMEDKUTTY, S/O.KUNHEETHU KUTTY, CHEVIDIKUNNAN HOUSE, IRIGALUR, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 306. 5. ABOOBACKER, S/O.KUNHEETHU KUTTY, CHEVIDIKUNNAN HOUSE, IRIGALUR, TIRURANGADI, MALAPPURAM DISTRICT, PIN-676 306. ADV. SMT.M.T.SHEEBA FOR R2-5 BY SRI. K.J. MOHAMED ANZARI, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS .P.JOSEPH, J. ---------------------------------- Crl.M.C.No.4867 of 2010 --------------------------------- Dated this the 4th day of January, 2011 ORDER Petitioner is accused No.1 in L.P.Case No.30/2005 on the file of learned Sessions Judge, Manjeri arising from Crime No.162/2009 of Kottakkal Police Station. The alleged incident occurred on 14.07.1999 at about 5 A.M. In the incident one person died and the police chargesheeted the de facto complainant and injured in the present case as accused in the case for murder. I am told that the said case ended in conviction. Petitioner along with eight others were chargesheeted by the police in the present case, said to be counter to main case involving murder for offences punishable under sections 147, 148, 323 and 324 read with section 34 of the Indian Penal Code (for short, ”the code”). Petitioner and accused nos.3, 4 and 9 were not available for trial. The remaining accused faced trial and were acquitted for want of evidence by Annexure-J judgment. Petitioner has filed this petition to quash the proceeding in L.P.Case No.30/2005 on the file of learned Sessions Judge, Crl.M.C.No.4867 of 2010 2 Manjeri stating that the dispute has been settled between petitioner and PWs 1 to 4, the informant and injured in the case. It is also stated that trial of some of the remaining accused ended in acquittal since CWs 1 to 4 did not support the prosecution. In the circumstances, according to the petitioner, it is a wasteful exercise to proceed with trial of the case and hence quashing of the proceedings as prayed for. 2. I have heard learned counsel for petitioner, CWs 1 to 4 and the learned Public Prosecutor who appeared for respondent No.1. 3. It is true that the non compoundable offences charged against petitioner are only under Sections 147 and 148 of the Code; other offences being compoundable as on the date of alleged commission of the offence. I have been taken through Annexure-J judgment dated 17.05.2005 whereby some of the co- accused who faced trial were acquitted by the learned Sessions Judge. Learned counsel has invited my attention to the observations made by the learned Sessions Judge in paragraph 13 of the judgment that on appreciating the evidence made available much vacuum is seen developed in the prosecution Crl.M.C.No.4867 of 2010 3 case, hollowness of the prosecution case indicates that there is absolutely no merit in the first information provided by PW1, he was absconding immediately after the incident(he is one of the accused in the main case) and otherwise he would have directly gone to the police station and given first information regarding the incident. Learned Sessions Judge held that prosecution failed to prove the case against those accused. Learned counsel has invited my attention to Annexure-A chargesheet to show that it does not specify which all accused pelted stones at which all witnesses. Reference is also made to the affidavit of CWs 1 to 4 where they stated that dispute between them and petitioner has been amicably settled. Learned counsel has relied on decisions in Madan Mohan Abbot v. State of Punjab (2008(3) KLT 19), Nikhil Marchant v. C.B.I (2008 (3) KLT 769) and Manoj Sharma v. State (2008 (4) KLT 417). 4. It is true that the Supreme Court held that criminal proceedings could be quashed, once the parties have settled the disputes amicably if the dispute is purely of a personal nature. In the present case the case is registered as counter to a case involving murder and which ended in conviction. In other words, Crl.M.C.No.4867 of 2010 4 the dispute is not merely personal, it is something which affected public tranquility and law and order. It is also true that CWs 1 to 4 did not support the prosecution in the trial of some of the co- accused but it is not a case where they denied having sustained injuries out of any such incident as alleged by prosecution. They just failed to identify those accused who faced trial. I am also bearing in mind that according to the prosecution petitioner, who was allegedly was a member of the unlawful assembly acted in prosecution of the common object of that unlawful assembly. If petitioner is proved to be a member of the unlawful assembly and that the members of the unlawful assembly committed the offences, it is not necessary to prove overt act of petitioner. In these circumstances, notwithstanding the affidavit sworn to by CWs 1 to 4 and Annexure-J judgment resulting in acquittal of the co-accused, I am not inclined to think that this is a case where proceedings should be quashed in exercise of the power under Section 482 of the Code of Criminal Procedure. In my view, that would affect public tranquility and peace. Hence the prayer cannot be allowed. Crl.M.C.No.4867 of 2010 5 5. Learned counsel submits that non bailable warrant is pending against petitioner. It is stated that petitioner was abroad in connection with his employment and hence he could not attend trial along with the other accused. I make it clear that if an application for bail is filed court considering that application shall certainly bear in mind the circumstances stated above and that the co-accused are already acquitted, and pass appropriate order on the application if necessary subject to appropriate conditions. Resultantly, this petition fails and it is accordingly dismissed. I make it clear that the trial court shall not be influenced by any observation made in this judgment and that the application for bail if presented by the petitioner shall be disposed of as early as possible in the light of the observations made above. Execution of non-bailable warrant against petitioner will stand in abeyance for a period of two weeks from today. THOMAS.P.JOSEPH, JUDGE. ln