Ashraf vs State Of Kerala

Ziyad Rahman A.A., J

The petitioner is the 4th accused in Crime No.141/2014 of Vengara Police Station, which was registered for the offences punishable under Sections 447,323,324,326,427 and 307 r/w. Section 34 of the Indian Penal Code (IPC).

The prosecution case is that on 12.02.2014 at around 21.40 hours, due to the previous enmity with the 3rd respondent, in furtherance of their common intention to cause his death, accused Nos.1 to 4 criminally trespassed into the house of the 3rd respondent and assaulted him. Accused No.1 stabbed the 3rd respondent with a knife and accused No.3 had beaten him with a torch light. Accused No.4 swatted him with his hands and the 3rd respondent had sustained serious injuries due to the aforesaid assaults. It is also alleged that, accused Nos.1 to 4 smashed the window pane of the house and as a result of the same, the 2nd respondent suffered a loss to the tune of Rs.5,000/-. Annexure-A is the final report submitted by the Police. The trial of the said case was conducted before the Additional Sessions Court-III, Manjeri in S.C.No.477/2014 wherein the 2nd accused alone participated. Annexure-B is the judgment passed after the said trial, as per which the 2nd accused was found not guilty as all the witnesses including the victim had turned hostile to the prosecution.

Later, the petitioner along with accused Nos.1 and 3 approached this Court by filing Crl.M.C.No.3322/2018. When the said Crl.MC was filed, the petitioners therein were directed to surrender before the trial court and take bail, as at the relevant time they were absconding. However, all the petitioners therein, except the petitioner herein, surrendered. The said Crl.M.C. was disposed of as per the order passed on 11.07.2018. In the said order, the prosecution against accused Nos.1 and 3 was quashed by this Court on the ground that consequent to the order of acquittal passed as per Annexure-B judgment in respect of the 2nd accused, the substratum of the prosecution case is lost and hence no fruitful purpose would be served, if the prosecution as against them is allowed to continue. However, the prayer of the petitioner was dismissed on the ground that the petitioner did not surrender before the court despite a direction in this regard. Therefore, the said Crl.M.C. was dismissed as far as the petitioner herein is concerned. But it was observed in the said order that if the petitioner files a fresh application, it will be entertained only if he complies with the order dated 7.6.2018 in which the petitioner was directed to surrender before the trial court and seek bail.

This Crl.M.C. is filed by the petitioner in such circumstances seeking to quash the prosecution against him. When this Crl.M.C. came up for consideration, the petitioner sought some time to comply with the direction issued by this Court on 7.6.2018 in Crl.MC No.3322/2018. As per the order passed on 9.10.2019 in this Crl.M.C, he was granted permission till 23.10.2019. Later, he submitted Crl.M.A No.1/2022 seeking further extension of time as the petitioner could not comply with the condition as he was abroad. This Court, as per the order dated 5.8.2022, granted time for a week from the date of the said order to comply with the said condition. In compliance with the direction issued, the petitioner surrendered before the Additional Sessions Court-III, Manjeri and now the case against the petitioner stands re-filed as S.C.No.1052/2022.

Heard   Sri.C.M.Mohammed   Iquabal,   the learned counsel for the petitioner, Smt. Sreeja V., the learned Public Prosecutor for the State and Sri.Nidhin Kumar A.P., the learned counsel appearing for respondents 2 and 3.

The prayer for quashing the proceedings is sought mainly because the dispute between the parties has been settled and to substantiate the same, Annexure C and Annexure D affidavits sworn by respondents Nos. 2 and 3 are produced. The settlement is acknowledged in the aforesaid affidavits and it is also specifically stated that the 2nd and 3rd respondents have no subsisting grievances against the petitioner herein. The 2nd and 3rd respondents also clearly expressed their no objection in quashing the proceedings against the petitioner. The learned counsel appearing for the 2nd and 3rd respondents also confirms the aforesaid settlement and supports the prayer sought by the petitioner herein. The veracity of the settlement has been examined by the Station House Officer concerned by contacting the 2nd and 3rd respondents.

It is true that the offences alleged against the petitioner includes Sections 326 and 307 of IPC, which are serious in nature and cannot be quashed in normal circumstances based on settlement. However, in this case, it is evident that the 2nd accused who faced the trial was acquitted as per Annexure-B judgment. It is discernible from the observations and findings made by the learned Sessions Judge that the prosecution could not adduce any evidence to substantiate the prosecution case. All the occurrence witnesses, including the victim, turned hostile to the prosecution. Further, as per the order passed by this Court in Crl.M.C.No.3322/2018, this Court quashed the proceedings against 1st and 3rd accused, against whom the main allegations are raised, on the ground that no purpose would be served by conducting the trial of the said accused, in the light of the order of acquittal passed in respect of the 2nd accused in Annexure-B judgment. It is to be noted that, even though the petitioner was a party to the aforesaid Crl.M.C, the prosecution against the petitioner was not quashed by this Court only because, the petitioner did not surrender before the Sessions Court as ordered by this Court. Now the petitioner, though belatedly, surrendered before the Sessions Court as permitted and directed by this Court. Hence the petitioner is entitled to the benefit granted to accused Nos.1 and 3 in the order passed by this Court in Crl.M.C.No.3322/2018.

In such circumstances, this Crl.M.C. is allowed and Annexure-A final report submitted by the Police in Crime No.141/2014 of Vengara Police Station and all further proceedings pursuant to it, including the proceedings in S.C.No.1052/2022 as against the petitioner is hereby quashed.