High Court Kerala High Court

Shareef @ Ummer Shereef vs State Of Kerala on 22 October, 2009

Kerala High Court
Shareef @ Ummer Shereef vs State Of Kerala on 22 October, 2009
       

  

  

 
 
  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.

              ------------------------------------------
               CRL.M.C.NO.3246 OF 2009
              ------------------------------------------

               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

Crmc 3246/09
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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

Crmc 3246/09
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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.