IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3246 of 2009()
1. SHAREEF @ UMMER SHEREEF,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY THE PUBLIC
... Respondent
2. YAMUNA
For Petitioner :SRI.SOJAN MICHEAL
For Respondent :SRI.NISHIL.P.S.
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/10/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.3246 OF 2009
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Dated 22nd October 2009
O R D E R
Petitioner was the first accused in
C.P.178/2005 on the file of Judicial First Class
Magistrate, Kasaragod. Learned Magistrate committed
the case to the Sessions court which was taken
cognizance as S.C.322/2006. As the petitioner was
absconding, only accused 3 and 4 were tried. Second
accused being a juvenile, the case was not committed
to the Sessions court and instead charge was laid
before Chief Judicial Magistrate, Kasaragod. When co-
accused were tried, second respondent, the de facto
complainant turned hostile to the prosecution and by
Annexure-III judgment those accused were acquitted.
Prosecution case is that second respondent is a member
of Scheduled caste and on 24/4/2005 at 2 p.m accused 1
to 3 who do not belong to Scheduled caste and
Scheduled Tribe, forcibly took her in an auto
rickshaw KL-14/D-3472 and brought her to an
unnumbered newly built house with an intention to
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outrage her modesty and commit rape, caught her
breast and attempted to undress her and also
attempted to commit rape and thereby committed the
offences under Sections 511 of 376, 366, 354, 536(1)
read with Section 34 of Indian Penal Code. This
petition is filed under Section 482 of Code of
Criminal Procedure to quash the case as against the
petitioner, which is now pending as L.P.12/2008
before the Sessions court, Kasaragod contending that
in view of the order of acquittal as against the co-
accused and settlement of the dispute with the second
respondent, it is not in the interest of justice to
continue the prosecution.
3. Second respondent appeared through a
counsel and also filed an affidavit stating that the
matter has been settled due to intervention of
mediators and consequent to the settlement, she has
no intention to proceed with the case further and she
has no objection for quashing the proceedings. Second
respondent along with petitioner jointly filed
Crl.M.A.5571/2009 for compounding the offence, by
quashing the proceedings. As the offences are not
compoundable as provided under Section 320 of Code of
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Criminal Procedure, permission to compound the
offence cannot be granted.
4. Learned counsel appearing for the
petitioner, second respondent and learned Public
Prosecutor were heard.
5. Though ordinarily an offence under
Section 376 or 511 of Section 376 of Indian Penal
Code is not to be quashed, invoking the extra
ordinary powers of this court under Section 482 of
Code of Criminal Procedure, based on the settlement
arrived at later, facts of the case reveal that even
when the remaining two accused were tried by the
learned Sessions Judge, second respondent turned
hostile to the prosecution and deposed that she could
not identify the person who committed the alleged
acts against her. It is for want of evidence, as
against them the said accused were acquitted under
Annexure-III judgment. In the light of the said
judgment, even if second respondent is to examine the
chances of a successful prosecution is very bleak.
Added to this, affidavit filed by the second
respondent establish that consequent to the
settlement she is not intending to give evidence
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against the petitioner. In such circumstances, even
if petitioner is to be directed to undergo the ordeal
of a trial, it would only result in unnecessary waste
of valuable time of the court. In such circumstances,
it is not in the interest of justice to continue the
prosecution.
Petition is allowed. L.P.12/2008 on the
file of Sessions court, Kasaragod is quashed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.