IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 224 of 2007()
1. SUJIN,S/O.PALAS, AGED 31 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.V.N.GOPALAKRISHNAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :31/01/2007
O R D E R
R. BASANT, J.
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Crl.M.C.No. 224 of 2007
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Dated this the 31st day of January, 2007
O R D E R
The petitioner is the first accused in a prosecution, inter alia,
under Sections 341, 323 and 324 r/w. 149 I.P.C. Cognizance was
taken on the basis of the final report filed by the police. Crime was
registered on the basis of a private complaint filed by the complainant
and referred to the police by the learned Magistrate under Section
156(3) Cr.P.C., submits the learned counsel. The petitioner was not
available for trial. The co-accused, who stood trial, have been found
to be not guilty and acquitted by judgment dt. 30.6.2006, copy of
which is produced as Annex.VII. There are two injured persons,
CWs. 1 and 2. They were examined before court as PWs. 1 and 2.
They did not support the prosecution case. The co-accused have thus
been acquitted.
2. The case against the petitioner has been split up. The
petitioner has now come to this court with a prayer that the
proceedings against him may be quashed. Two reasons are urged.
Crl.M.C.No. 224 of 2007 2
All the witnesses, who are to be examined in the case against the petitioner,
have already been examined in the trial against the co-accused. They have
not supported the prosecution case. Secondly it is contended that there has
been due composition of the compoundable offences. In these
circumstances it is prayed that the proceedings against the petitioner may
be quashed.
3. Both reasons do not appear to me to be sufficient to justify the
prayer for quashing of the proceedings. In Moosa v. S.I. or Police (2006
(1) KLT 552) the Full Bench of this Court held categorically that the mere
fact that the witnesses have turned hostile to the prosecution in the trial
against the co-accused cannot deliver any advantage to the absconding co-
accused, who does not appear before Court and participate in the
proceedings.
4. The second contention does, of course, deserve more serious
consideration. The victims appear to have compounded the offences
allegedly committed against them by the petitioner herein also. Indications
to that effect are available in the depositions recorded in their evidence in
the trial against the co-accused. The compromise petition filed
earlier has been produced as Annex.VIII. The composition of the offences
Crl.M.C.No. 224 of 2007 3
allegedly committed by the petitioner has not been considered by the court
below.
5. It is for the petitioner and the victims to appear before the learned
Magistrate and file an application for composition. The composition of the
compoundable offences can certainly be accepted. The question of grating
permission for such composition, if any required, can also be considered by
the learned Magistrate. After so dealing with the compoundable offences,
the learned Magistrate must still consider, in the light of the acquittal of the
co-accused in the trial that has already been held, whether charges are
liable to be framed against the petitioner for the remaining non-
compoundable offences. All offences in this case are summons offences
and there is no requirement of raising a formal charge. In these
circumstances, the learned Magistrate must consider whether the
proceedings are liable to be discontinued and dropped invoking the powers
under Section 258 Cr.P.C.
6. This Crl.M.C. is accordingly dismissed, but with the specific
observation that it shall be open to the petitioner to appear before the
learned Magistrate along with the alleged victims and file application for
composition. The learned Magistrate must consider such application for
Crl.M.C.No. 224 of 2007 4
composition and must further consider whether in view of the composition,
if accepted, any further proceedings are liable to be taken or continued
against the petitioner for the remaining offences alleged against him.
(R. BASANT)
Judge
HO
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