Abdul Jabbar and K.G. ASHA v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 18 [ TH ] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945 ``` ## **`CRL.MC NO. 408 OF 2020`** ## **`AGAINST THE ORDER/JUDGMENT IN LP 7/2008 OF CHIEF JUDICIAL MAGISTRATE ,KOZHIKODE`** ## **`PETITIONER/S:`** ``` 1 ABDUL JABBAR, AGED 68 YEARS S/O.MOIDEENKOYA, RESIDING AT K.M.HOUSE, BEYPORE P.O., KOZHIKODE DISTRICT, PIN - 673 015. 2 K.G.ASHA, AGED 46 YEARS D/O.GOPALA KRISHNAN, KASTHURI PARAMBA, VALIYANGADI, KOZHIKODE, PIN - 679 322. BY ADVS. BINISH MATHEW SRI.SHYAM PADMAN ``` ## **`RESPONDENT/S:`** ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 VISWANATHAN, AGED 64 YEARS S/O.RAGHAVAN NAIR, RESIDING AT SHANKOLI VEEDU, THAMARASSERI P.O., PIN - 673 573, KOZHIKODE DISTRICT. 3 P.RAGHUNANDHAN, AGED 81 YEARS S/O.VELAYUDHA MEMON, RESIDING AT ALAKANANDHA, H.NO.27/1176A, PARAYANCHERI, PUTHIYARA P.O., PIN - 673 004, KOZHIKODE DISTRICT. ``` ``` CRL.MC NO. 408 OF 2020 ``` ``` 2 ``` ``` 4 V.P.BAVA, AGED 75 YEARS S/O.KUNJAMU, RESIDING AT VADAKKEPPURATH VEEDU, MUNNIYOOR SOUTH P.O., PIN - 676 311, MALAPPURAM DISTRICT. 5 ABDUL SALAM, AGED 60 YEARS S/O.E.T.ALIKOYA, RESIDING AT SEETHIMARAKKARAKAM, KALLAI P.O., PIN - 673 003, KOZHIKODE DISTRICT. 6 KASHIYAPPAN, AGED 78 YEARS S/O.CHOYIKKUTTY, RESIDING AT ETTAPPURATHU ELLATH VEEDU, CHULLIYOTTU, CIVIL STATION, KOZHIKODE, PIN - 673 020, KOZHIKODE DISTRICT. 7 SUNIL JOHAR, AGED 68 YEARS S/O.N.N.JOHAR, RESIDING AT HOUSE NO.5522, BILATHIKULAM HOUSING COLONY, ERANJIPALAM P.O., PIN - 673 006, KOZHIKODE DISTRICT. 8 JACOB M., AGED 61 YEARS S/O.THOMAS MATHAI, RESIDING AT PATHANAPURAM, VALILAPPUZHA P.O., AREEKODE, PIN - 673 639, MALAPPURAM DISTRICT. 9 PAUL THOMAS, AGED 59 YEARS S/O.PAULOSE, RESIDING AT MECHERIL VEEDU, VALILAPPUZHA P.O., AREEKODE, PIN - 673 639, MALAPPURAM DISTRICT. 10 K.S.NARAYANAN, AGED 76 YEARS S/O.DHAMODHARAN NAMBOOTHIRI, RESIDING AT MANJUSHA, NELLIKODE AMSOM DESOM, PIN - 673 008, ``` ``` CRL.MC NO. 408 OF 2020 ``` ``` 3 ``` ``` KOZHIKODE DISTRICT. 11 A.MADHU, AGED 54 YEARS S/O.GANGADHARA MENON, RESIDING AT SAROJ, CHOLAKKUZHI PARAMBU, CHELEMBRA P.O., PIN - 673 631, MALAPPURAM DISTRICT. 12 AHAMMEDKUTTY, AGED 55 YEARS S/O.UMMERKUTTY, RESIDING AT ELEYEDATH HOUSE, CHERUVANNUR, FEROKE P.O., PIN - 673 631, KOZHIKODE DISTRICT. 13 UNNI MUHAMMED C.P., AGED 63 YEARS S/O.MUHAMMED UNNI, RESIDING AT CLIFF HOUSE, AREEKKOD ROAD, KONDOTTY P.O., PIN - 673 638, MALAPPURAM DISTRICT. 14 ASHOK B.METHA, AGED 61 YEARS S/O.BHAI LAL METHA, RESIDING AT HOUSE NO.13/994, PARAS BUILDING, NAGARAM AMSOM DESOM, PIN - 673 001, KOZHIKODE DISTRICT. 15 GOVINDHAN, AGED 83 YEARS S/O.KESAVAN, RESIDING AT MURALI, PALAPPARAMBU, KOTTOOLI, KUTHIRAVATTAM P.O., PIN - 673 016, KOZHIKODE DISTRICT. 16 RATHNAKARAN, AGED 56 YEARS S/O.VIJAYAN, RESIDING AT ULLATTIL PARAMBU, CHEVAYOOR AMSOM DESOM, PIN - 673 017, KOZHIKODE DISTRICT. 17 RAVEENDRAN, AGED 55 YEARS S/O.VASUDEVAN NAIR, ``` ``` CRL.MC NO. 408 OF 2020 ``` ``` 4 ``` ``` RESIDING AT SREE NILAYAM, PULLANCHERI P.O., KUZHIMANNA, KIZHISSERI, PIN - 676 122, MALAPPURAM DISTRICT. 18 C.S.SHAH, AGED 87 YEARS S/O.SHIVCHANDH, RESIDING AT PARAS BUILDING, SECOND FLOOR, JAIN TEMPLE COMPOUND, THRIKKOVIL LANE, PIN - 673 001, KOZHIKODE DISTRICT. 19 ARUNSHA, AGED 87 YEARS S/O.C.S.SHAH, RESIDING AT PARAS BUILDING, SECOND FLOOR, JAIN TEMPLE COMPOUND, THRIKKOVIL LANE, PIN - 673 001, KOZHIKODE DISTRICT. 20 ABDUL LATHEEF, AGED 61 YEARS S/O.MOOSAKOYA, RESIDING AT NOOR MAHAL, PANNIYANKARA, KALLAI P.O., PIN - 673 003, KOZHIKODE DISTRICT. 21 YOOSAF AGED 69 YEARS, S/O ALIKOYA P K (DECEASED),ROSEMIN, EDAKKADU( P O),KOZHIKODE DISTRICT, PIN-673005 22 HAMEED ALIKOYA AGED 73 YEARS, S/O ALIKOYA P K (DECEASED),ROSEMIN, EDAKKAD ( P O),KOZHIKODE DISTRICT. PIN-673005 23 YAKOOB P AGED 60 YEARS, S/O ALIKOYA P K (DECEASED),ROSEMIN, EDAKKADU ( P O),KOZHIKODE DISTRICT. PIN-673005 24 ANURAADHAA MENON AGED 52 YEARS D/O MR NARAYANANKUTTY (DECEASED),PUNNOLIRUPPATTIL HOUSE, VRINDAVAN CHOLAKUZHI,CHELAMBRA (P O), MALAPPURAM DISTRICT. PIN-673634 ``` ``` CRL.MC NO. 408 OF 2020 ``` ``` 5 ``` |`25`|`V V HANEEF`| |---|---| ||`AGED 56 YEARS S/O MOHAMMED C M (DECEASED),`| ||`GRACE, K T GOPALAN ROAD,NEAR DESHA SEVASANGAM,`| ||`KOTTOOLI (P O), KUTHIRAVATTOM,`| ||`KOZHIKODE DISTRICT. PIN-673015`| |`26`|`ASHRAF V V`| ||`AGED 51 YEARS,`| ||`S/O MOHAMMED C M (DECEASED), ANUGRAH,PATTERI CROSS`| ||`ROAD, NEAR DESHA SEVASANGAM,KOTTOOLI`| ||`(P O),KUTHIRAVATTOM,`| ||`KOZHIKODE DISTRICT.PIN-673016`| |`27`|`KARISHMA GHATOR`| ||`AGED 22 YEARS,`| ||`D/O KAILAS KUMAR GHATOR (DECEASED),`| ||`KAILAS BHAVAN, PERUMANNA,`| ||`KOZHIKODE DISTRICT.PIN-673019.`| |`28`|`KOMAL GHATOR`| ||`AGED 20 YEARS,`| ||`D/O KAILAS KUMAR GHATOR (DECEASED),`| ||`KAILAS BHAVAN, PERUMANNA,`| ||`KOZHIKODE DISTRICT.PIN-673019.`| |`29`|`GEETHA GHATOR`| ||`AGED 46 YEARS,`| ||`W/O KAILAS KUMAR GHATOR (DECEASED),`| ||`KAILAS BHAVAN, PERUMANNA,`| ||`KOZHIKODE DISTRICT.PIN-673019.`| |`30`|`KAILASH KUMAR`| ||`S/O SHIVCHAND,`| ||`AGED 68 YEARS KAILASH BHAVAN,PERUMANNA,`| ||`KOZHIKODE DISTRICT,PIN-673019`| |`31`|`P V BHASKARAN NAIR,`| ||`S/O GOVINDAN NAIR,AGED 80 YEARS, CHITRAVEEDU,CHELEMBRA,`| ||`MALAPPURAM DISTRICT,PIN-673634`| |`32`|`P J VARGHESE`| ||`S/O P J JOSEPH,`| ||`AGED 86 YEARS,`| ||`NEAR KURISHUPALLI,KOZHIKODE, KOZHIKODE`| ||`DISTRICT,PIN-673005`| ``` CRL.MC NO. 408 OF 2020 ``` ``` 6 ``` - `33 SARADHA M R/AT CHITHRA, NH -17, KINFRA, KAKKANCHERY, CHELAMBRA AMSOM DESOM MALAPPURAM, 673635` - `34 BASANTH BHASKAR R/AT CHITHRA, NH -17, KINFRA, KAKKANCHERY, CHELAMBRA AMSOM DESOM MALAPPURAM, 673635` - `35 KADEEJA PAYYARAM VEEDU, ARIYALLUR, KOTTAKKAD, MALAPPURAM-676319` ``` 36 ABRAHAM VARGHESE S/O PUTTANPURIZZAL JOSEPH VARGHESE @ P.J VARGHESE AGED 53 YEARS, DOOR NO.6/379, BANK ROAD NEAR KURISHU PALLI, PIN-673001 KOZHIKODE DISTRICT NOW RESIDING AT # 20, ALFRED STREET, BEHIND BALDWIN BOYS SCHOOL, RICHMOND TOWN, MUSEUM ROAD, BANGLORE NORTH, BANGLORE, KARNATAKA (IMPLEADED AS PER ORDER DATED 07.08.2023) ``` ``` BY ADVS. SRI.M.K.MUFEED SRI.V.A.AJIVAS MUHAMMED YASIL ``` ``` SMT. NEEMA T V, SR. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 408 OF 2020 ``` ``` 7 ``` ## **ORDER** The petitioners herein are the accused in L.P. No.7/2008 on the files of the Chief Judicial Magistrate’s Court, Kozhikode. In the aforesaid case, they are facing prosecution for having committed offences punishable under Sections 406, 420, 201 r/w 34 of the IPC. 2. The prosecution allegation is that the 1st accused was running a share trading business in the name and style “Prime Scrips” in his capacity as the Manging Director. The 2nd accused was arrayed in his capacity as the Manager of the share trading business. It is alleged that the party respondents entrusted money with the accused for the pruspose of purchasing shares. The allegation is that huge sums of money was collected and the same was not transferred to the respective accounts of the party respondents. Later, the business establishment was closed down and thereby financial loss to the party respondents were caused. 3. Sri. Binish Mathew, the learned counsel appearing for the petitioners, submits that in the course of proceedings entire disputes have been settled and all the party respondents have filed separate affidavits before this court stating that they have no further grievance. It is submitted that intiitally, notice to CW26 was not served. Later, respondent No. 36 has been impleaded, who happens to be the legal heir of the CW26 and he has ``` CRL.MC NO. 408 OF 2020 ``` ``` 8 ``` also filed an affidavit to that effect. Counsel argues that if the proceedings are terminated, with the recording of the amicable settlement, the parties can move forward in an atmosphere of peace and mutual respect. 4. I have also heard Sri. M.K. Mufeed, the learned counsel appearing for the respondents 2 to 26 and 33 to 36, Sri. V.A. Ajivas, the learned counsel appearing for the rest of the respondents and the learned public prosecutor. 5. The learned Public Prosecutor, on instructions, submitted that the statements of the party respondents have been recorded, and they have unequivocally stated that they do not have any lasting grievances. 6. I have considered the submissions and have gone through the records. 7. In **State of M.P. v. Laxmi Narayan,[ 1 ]** , a three-judge bench of the Hon’ble Supreme Court has summarized the law as laid down in **Gian Singh v. State of Punjab[ 2 ]** , **Narinder Singh v. State of Punjab[ 3 ]** and in subsequent cases. It was laid down as under: 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove, it is observed and held as under: > 1 [(2019) 5 SCC 688] > 2 (2012) 10 SCC 303 > 3 2014 (6) SCC 466 ``` CRL.MC NO. 408 OF 2020 ``` ``` 9 ``` - 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; - 15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; - 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; - 15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the ``` CRL.MC NO. 408 OF 2020 ``` ``` 10 ``` High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [ Narinder Singh v. State of Punjab , (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; 15.5. While exercising the power under Section 482 of the Code to - quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc. Having carefully analyzed the prayer sought for in the light of the principles laid down as above and also the nature of the allegations, the gravity of the offense, antecedents of the accused, and the amicable relationship that now exists between the parties, I am of the considered opinion that quashing the proceedings on the basis of the settlement will not have any adverse impact on society. In fact, it would only serve to bring ``` CRL.MC NO. 408 OF 2020 ``` ``` 11 ``` about peace and secure the ends of justice. Additionally, persisting with the prosecution would be a waste of time, as the prospects of conviction are bleak. In light of all of the relevant circumstances, I am of the considered view that this Court would be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings Resultantly, this petition will stand allowed. Annexure-A3 Final Report in Crime No.214/2003 of CBCID Kasaba Police Station, Kozhikode and all further proceedings against the petitioners pending as L.P. No. 07/2008 on the file of the Chief Judicial Magistrate Court, Kozhikode, are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` CRL.MC NO. 408 OF 2020 ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 408/2020`** ## **`PETITIONER ANNEXURES`** |`ANNEXURE A1`|`THE CERTIFIED COPY OF THE COMPLAINT IN L.P. NO.`| |---|---| ||`07/2008 ON THE FILES OF THE HON’BLE CHIEF JUDICIAL`| ||`MAGISTRATE COURT, KOZHIKODE`| |`ANNEXURE A2`|`THE CERTIFIED COPY OF THE FIR IN L.P. NO. 07/2008`| ||`ON THE FILES OF THE HON’BLE CHIEF JUDICIAL`| ||`MAGISTRATE COURT, KOZHIKODE`| |`ANNEXURE A3`|`THE CERTIFIED COPY OF THE FINAL REPORT IN L.P. NO.`| ||`07/2008 ON THE FILES OF THE HON’BLE CHIEF JUDICIAL`| ||`MAGISTRATE COURT, KOZHIKODE`| |`ANNEXURE A4`|`THE CERTIFIED COPY OF THE MEMORANDUM OF EVIDENCE`| ||`IN L.P.NO.07/2008 ON THE FILES OF HONORABLE CHIEF`| ||`JUDICIAL MAGISTRATE COURT, KOZHIKODE.`| |`ANNEXURE A5`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 2ND`| ||`RESPONDENT.`| |`ANNEXURE A6`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 3RD`| ||`RESPONDENT.`| |`ANNEXURE A7`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 4TH`| ||`RESPONDENT.`| |`ANNEXURE A8`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 5TH`| ||`RESPONDENT.`| |`ANNEXURE A9`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 6TH`| ||`RESPONDENT.`| |`ANNEXURE A10`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 7TH`| ||`RESPONDENT.`| |`ANNEXURE A11`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 8TH`| ||`RESPONDENT.`| ``` CRL.MC NO. 408 OF 2020 ``` ``` 13 ``` |`ANNEXURE A12`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE 9TH`| |---|---| ||`RESPONDENT.`| |`ANNEXURE A13`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`10TH RESPONDENT.`| |`ANNEXURE A14`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`11TH RESPONDENT.`| |`ANNEXURE A15`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`12TH RESPONDENT.`| |`ANNEXURE A16`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`13TH RESPONDENT.`| |`ANNEXURE A17`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`14TH RESPONDENT.`| |`ANNEXURE A18`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`15TH RESPONDENT.`| |`ANNEXURE A19`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`16TH RESPONDENT.`| |`ANNEXURE A20`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`17TH RESPONDENT.`| |`ANNEXURE A21`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`18TH AND 19TH RESPONDENTS JOINTLY.`| |`ANNEXURE A22`|`THE ORIGINAL OF THE AFFIDAVIT NOTARIZED BY THE`| ||`20TH RESPONDENT.`| ``` CRL.MC NO. 408 OF 2020 ``` ``` 14 ``` ## **`RESPONDENT ANNEXURES`** ``` Annexure-R33(a) A TRUE COPY OF THE AFFIDAVIT DATED 07.10.2022 OF THE ADDITIONAL RESPONDENT NO.33 Annexure-R33(b) A TRUE COPY OF THE AFFIDAVIT DATED 07.10.2022 OF THE ADDITIONAL RESPONDENT NO.34 BEFORE AN ADVOCATE NOTARY Annexure-R35(a) A TRUE COPY OF THE AFFIDAVIT DATED 11.10.2022 OF THE ADDITIONAL RESPONDENT NO.35 BEFORE AN ADVOCATE ```