BY AD v. SRI.B.RAMAN PILLAI

R2 BY BY ADV. NANDAGOPAL S.KURUP R1 BY SRI.VIPIN NARAYAN, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON

04.01.2024 THE COURT ON 11.01.2024 PASSED THE FOLLOWING: CRL.RP No.503 of 2018 2 O R D D E The petitioner herein is the 2nd accused in S.C.No.319/2013 on the file of the court of the Additional Sessions Judge-IV, Kottayam. The said sessions case arises from crime No.665/2009 of Kottayam East Police Station, registered for the offences punishable under Sections 307, 201 r/w. Section 34 of the Indian Penal Code (IPC). Altogether, there were three accused persons.

2. The prosecution case is as follows: On 13.10.2009, at about 3.30 p.m., CWs.1 and 2 assaulted the 1st accused due to the animosity in connection with the illicit relationship between the 1st accused and CW12, the wife of CW1. As a retaliation of the said incident, the 1st accused obtained a revolver from the 3rd accused and on 13.10.2009 at about 4.30 p.m., arrived at the place of occurrence in the car of the 1st accused driven by the 2nd accused, the petitioner herein and stopped the vehicle at a place near Manarkad-Puthupally road which was on the western side of one Mylakkattil Joy’s property. Thereafter, the 1st accused got down from the car and, by using the revolver, fired at CW2 on his right shoulder, thereby causing severe injuries to him. Thereafter, the 1st accused left the scene of the occurrence in the car driven by the 2nd accused. The crime was registered in such circumstances, and the final report was CRL.RP No.503 of 2018 3 submitted after completing the investigation. The matter was committed to the Additional Sessions Court, Kottayam, which was numbered S.C.No.319/2013. While so, Crl.M.P.No.2275/2014 was submitted by the petitioner/2nd accused seeking discharge under section 227 of Cr.PC which was dismissed by the learned Sessions Judge as per order dated 21.02.2018. The said order is under challenge in this Revision Petition.

3. Heard Sri. B.Raman Pillai, the learned Senior Counsel for the petitioner, Sri.Vipin Narayan, the learned Public Prosecutor for the State and Sri. Nandagopal S. Kurup, the learned counsel for the 2nd respondent/victim in the incident.

4. The learned Senior Counsel contents that, the materials produced along with the final report would indicate that, the petitioner/2nd accused was the driver employed by the 1st accused. It was further contended that the statement of witnesses would clearly establish the animosity that led to the incident was between the 1st accused on one side and CWs.1 and 2 on the other side. There are absolutely no materials to show that the petitioner shared a common intention with the 1st accused so as to make him liable to be prosecuted for the offence under section 307 of IPC. Even as per the prosecution case, the act of making an attempt to commit murder was alleged against the 1st accused and under no circumstances the petitioner could have been implicated as one of the CRL.RP No.503 of 2018 4 accused. As per the prosecution case, the petitioner drove the vehicle of the 1st accused to the place of occurrence, and when they reached there, the 1st accused got down from the vehicle and committed the offence. Thereafter, he left the place of occurrence in the vehicle driven by the 2nd accused. Therefore, it was pointed out that, being the employee, he had no other option than to obey the orders of the employer, and merely because of that, no culpability could be attributed to him. Besides the same, it was also pointed out that the prosecution against the 1st accused, the person who physically committed the offence and the 3rd accused, were already quashed by this Court as per order dated 29.07.2021 in Crl.M.C.No. 3942/2020. Crl.R.P. was submitted in such circumstances.

5. The learned counsel appearing for the 2nd respondent pointed out that, the 2nd respondent had already sworn an affidavit which he produced along with Crl.M.A.No.2/2020 before this Court. In the said affidavit, it has been categorically mentioned by the 2 nd respondent that the 1st accused was his relative, and he had settled the dispute with all the accused persons. All the parties are now living cordially, and the 2nd respondent does not want to prosecute the matter against any of the accused persons, including the petitioner. The learned counsel for the 2nd respondent also conveyed that, the 2nd respondent has no objection in allowing this Crl.R.P by discharging the petitioner herein. CRL.RP No.503 of 2018 5

6. I have carefully gone through the records. Evidently, the prosecution against the 1st and 3rd accused was already quashed by this Court. It is discernible from the final report that the overt act was alleged against the 1st accused alone. The motive for committing the said act by the 1st accused was also the animosity of the 1st accused against CWs.1 and 2. From the final report submitted by the Police, it can be seen that, according to the eyewitnesses, it was the 1 st accused who committed the act which formed the basis of the offence. The role of the petitioner/2nd respondent is confined to the fact that he was driving the vehicle at the relevant time, and admittedly, the vehicle belongs to the 1st accused himself. The fact that the petitioner herein was an employee of the 1st accused as a driver is also not disputed. From none of the materials placed before this Court, it can be seen that there was animosity between the petitioner herein and CWs.1 and 2. On careful scrutiny of the final report also, I am unable to find any specific instance or material indicating that the petitioner had shared any common intention with the 1st accused who committed the offence. In such circumstances, I find a probable case advanced by the petitioner herein.

7. Besides the same, another crucial aspect which cannot be ignored is that now, the prosecution against the 1st accused is already been quashed by this Court as per order dated 29.07.2021 in Crl.M.C No.3942/2020, which is produced along with Crl.M.A.No.1/2022 in this CRL.RP No.503 of 2018 6 Crl.R.P. The 2nd respondent-victim who suffered injuries in the incident also filed an affidavit by appearing before this Court through a counsel to the effect that, he does not want to prosecute the matter against any of the accused persons and he has no objection in allowing this Revision as well. Of course, it is true that, in State of Madhya Pradesh v. Laxmi Narayan and Others [2019(5) SCC 688], the Hon’ble Supreme Court observed that when there is allegation of committing a heinous offence, including one under section 307 of the IPC, the proceedings cannot be quashed ordinarily based on the settlement between the parties unless the court is convinced that there are no materials to make out the said offence. In this case, as observed above, the main allegations are raised against the 1st accused. There are no sufficient materials to show that the petitioner shared a common intention with the 1st accused for committing such acts. Therefore, the offence under section 307 cannot be attributed against the petitioner herein, who was admittedly only an employee of the 1st accused. Moreover, in the light of the quashing of the proceedings against the main accused, no fruitful purpose would be served in the proceedings against the petitioner.

8. While making this observation, this Court is conscious of the fact that, while exercising powers under sections 397 and 401 of the Cr.PC, the court has to confine the jurisdiction to find out whether a prima facie case is made out or not and evidently, the settlement CRL.RP No.503 of 2018 7 arrived at between the parties may not be a crucial factor for invoking the said jurisdiction. However, the peculiar facts and circumstances of this case, i.e. (1) quashing of the prosecution against the 1 st accused herein, the main accused, (2) the lack of materials against the petitioner, (3) the affidavit filed by the 2nd respondent-victim before this Court to the effect that, he does not have any objection in terminating the proceedings against the petitioner, compels this court to conclude that, this is a fit case in which inherent powers of this Court under section 482 Cr.PC are also to be invoked to secure the ends of justice. In such circumstances, this Crl.R.P. is allowed. The order dated

21.02.2018 in Crl.M.P.No.2275/2014 in SC No.319/2013 on the file of the Sessions Court, Kottayam, is hereby set aside, and the petitioner is discharged from the offences. Sd/- ZIYAD RAHMAN A.A. JUDGE CRL.RP No.503 of 2018 8 APPENDIX OF CRL.REV.PET 503/2018 PETITIONER’S ANNEXURES: ANNEXURE-E TRUE COPY OF THE ORDER IN CRL.M.C.NO.3942 OF 2020 OF THIS HON'BLE COURT DATED 29-7-2021.