IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 Crl.MC.No. 3368 of 2009 --------------------------------------- SC.1146/2004 of II ADDL.SESSIONS COURT, KOLLAM .................... PETITIONERS/DEFACTO COMPLAINANT: 1. SUKU, AGED 28 YEARS, SON OF JAISON, RESIDING AT ARON'S VILLA, NEAR KSEB OFFICE, VALLIKKEEZHU, KAVANADU.P.O, SAKTHIKULANGARA VILLAGE, KOLLAM FROM MADATHIL VAYALIL VEEDU, MUKKADU, KAVANAD.P.O, NOW RESIDING AT P.O. BOX NO. 2825, NICO INTERNATIONAL, FUJAIRA, UAE. 2. JASSY, AGED 55 YEARS, W/O.JAISON, RESIDING AT ARON'S VILLA, NEAR KSEB OFFICE, VALLIKKEEZHU, KAVANADU.P.O, SAKTHIKULANGARA VILLAGE, KOLLAM FROM MADATHIL VAYALIL VEEDU, MUKKADU, KAVANAD.P.O, KOLLAM DISTRICT. BY ADV. SRI.JOHNSON GOMEZ RESPONDENTS/STATE: 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH THE DEPUTY SUPDT. OF POLICE, KARUNAGAPPALLY, KOLLAM DISTRICT. 2. IMMANUEL, S/O.THOMAS, RESIDING AT IMMANUEL VEEDU, MEENATHU CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM DIST. 3. JAIN, DO. DO. 4. THOMAS, S/O.PETER, DO. DO. BY PUBLIC PROSECUTOR SRI.AMJAD ALI FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3368 of 2009 -------------------------- ORDER Petitioner is Charge Witness No.1 and the defacto complainant in S.C.No.1146/2004 on the file of Additional Sessions Court, Kollam, being tried for the offences under Sections 498A and 304B read with Section 34 of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that entire disputes with the accused were settled and in such circumstances, the proceedings is to be quashed. 2. Annexure-A2 affidavit sworn to in the presence of Consulate General of India, Dubai is filed to the effect that consequent to the settlement and the decision to compound the offences, first petitioner has no objection for quashing the case. 3. As held by the Apex Court in Manoj Sharma v. State (2008 (4) KLT 417), all non compoundable offences cannot be quashed, accepting the settlement, following the dictum laid down in Madan Mohan Abbot v. State of CRMC 3368/09 2 Punjab (2008 (3) KLT 19). An offence under Section 304B of Indian Penal Code, which cannot be termed purely personal in nature, not involving public, cannot be allowed to be compounded or even quashed invoking the inherent power under Section 482 of Code of Criminal Procedure. Hence, the petition can only be dismissed. 4. Learned counsel appearing for the petitioners then submitted that consequent to the settlement, first petitioner is not intending to give evidence against the accused and therefore, first petitioner, who is not in India may not be compelled to appear and as the other witnesses, including the second petitioner, had already been examined, a non bailable warrant was issued against him and it was communicated to the Indian Consulate at Dubai and in such circumstances, either examination of the petitioner may be dispensed with or first petitioner may be granted time for his appearance and examination. 5. The powers under Section 311 of Code of Criminal Procedure, available to the Additional Sessions Judge, cannot be curtailed by resorting to the power under Section 482 of Code of Criminal Procedure. CRMC 3368/09 3 A witness cannot approach this Court under Section 482 of Code of Criminal Procedure to direct the Additional Sessions Judge not to examine him. If the Additional Sessions Judge, on the evidence or materials, finds that for a just decision of the case, his evidence is necessary, it cannot be interfered. In such circumstances, no direction as sought for can be granted. If petitioner wants time to appear before the trial court to give evidence, it is up to the petitioner to approach the concerned Sessions Judge and seek appropriate relief. Petition is dismissed. 19th October, 2009 (M.Sasidharan Nambiar, Judge) tkv