IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4959 of 2010()
1. AZEEZ, S/O. SEYD MOHAMMED, AGED 40 YRS,
... Petitioner
2. DIRAR, S/O. MAMU, AGED 37 YEARS,
3. HASHIM, S/O. HASSAN, AGED 32 YEARS,
4. SHAKKEER, S/O. ABU,
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
2. UNNIKRISHNAN, S/O. MADHAVAN,
For Petitioner :SRI.P.M.ZIRAJ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :14/01/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.4959 of 2010
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Dated this the 14th day of January, 2011.
ORDER
Petitioners are accused Nos.1 to 4 in Crime No.437 of 2003 of Ernakulam
Town Police Station. On the Police submitting final report in that case learned
Judicial First Class Magistrate-II, Ernakulam has taken cognizance for offences
punishable under Section 452, 506(ii) and 427 read with Section 34 of the Indian
Penal Code (for short, “the Code”) and Sections 25 read with Section 27 of the
Indian Arms Act. Petitioner No.1 is a neighbour of the defacto complainant. It is
said that there was property dispute between petitioner No.1 and the brother of
defacto complainant who was residing with the defacto complainant and on
account of that dispute, on 22.09.2003 at about 10.15 p.m. petitioners criminally
trespassed into the house of the defacto complainant, committed mischief by
breaking the window glass panes and criminally intimidated the defacto
complainant with iron rod, sword and stick. Learned Magistrate has registered
C.C.No. No.753 of 2004 against petitioners for the said offences. It is submitted
that the matter is settled between petitioners and defacto complainant and the
latter has sworn Annexure-III, affidavit stating that the matter is settled between
him and petitioners and that on account of the settlement he is not interested in
proceeding with the case. He has no objection to compound the offences against
petitioners. It is stated that the affidavit is prepared with his free will and
consent.
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2. I have heard learned counsel for petitioners, respondent
No.2 (defacto complainant) and the Public Prosecutor.
3. Learned Public Prosecutor has pointed out that petitioner
No.1 was involved in about five cases many of which involved offence
punishable under Section 27 of the Indian Arms Act and one case involved
offence under Section 302 of the Code. In response it is submitted by learned
counsel for petitioners that the incidents which gave rise to all those cases
happened in the year 2003 and that thereafter no incident has been reported
against petitioner No.1. It is submitted that the case involving offence under
Section 302 of the Code ended in acquittal by the appellate court and in other
cases, there was settlement between the parties and the proceedings were
dropped. It is also submitted by learned counsel and admitted by learned
counsel for respondent No.2 as well that petitioners have paid `.25,000/- by way
of compensation to respondent No.2. Learned counsel submits that petitioner
No.1 is now staying in Soudi Arabia with his family.
4. True, petitioner No.1 has to his credit a few cases, the incident for
which occurred in the year 2003. But, no incident has been reported thereafter
for the last 7-8 years. The present case arose from property dispute between
petitioner No.1 and the brother of defacto complainant. There is no case that the
defacto complainant or anybody else suffered hurt in the incident. Damage
caused to the defacto complainant has been compensated by payment of
money. In these circumstances I am inclined to accept and act upon the affidavit
of respondent No.1, defacto complainant. I must also bear in mind that the
Crl.M.C.No.4959/2010
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alleged incident occurred at 10.15 p.m. and success of the prosecution mainly
depended on the evidence that defacto complainant has to give. Having regard
to these aspects I am inclined to allow this petition.
Resultantly this petition is allowed. Annexures -I and II, FIR and final
report in Crime No.437 of 2003 of Ernakulam Town Police Station and
cognizance taken and further proceedings in C.C.No.753 of 2004 of the court of
learned Judicial First Class Magistrate-II, Ernakulam are quashed.
Crl.M.A.No.8039 of 2010 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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