Abhijith.K & Akshay Prakash.V.K v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945 ``` ``` CRL.MC NO. 6058 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT SC 788/2020 OF ADDITIONAL ``` ``` DISTRICT COURT & SESSIONS COURT - IV, KOZHIKODE / III ADDITIONAL MACT, KOZHIKODE ``` ## **`PETITIONER/S:`** ``` 1ABHIJITH.K, AGED 24 YEARS S/O SREEKUMAR.V.K, KOMATH HOUSE, IRINGANNOOR P.O, KOZHIKODE DISTRICT., PIN - 673505 2AKSHAY PRAKASH.V.K, AGED 25 YEARS S/O JAYAPRAKASH, VADAKKE KOMATH HOUSE, KECHERI P.O, VADAKARA, KOZHIKODE DISTRICT., PIN - 673502 BY ADVS. RAMEES P.K. RAJESH KUMAR R. M.B.SHYNI ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2RAHUL, AGED 30 YEARS S/O RAJEEVAN, KALLANANDIYIL HOUSE, ANIYARAM P.O, CHOKLI, KANNUR DISTRICT ., PIN - 670672 3AKSHAY, AGED 25 YEARS S/O KUMARAN, THACHARAKKAL HOUSE, IRINGANNOOR P.O, KOZHIKODE DISTRICT., PIN - 673505 4SIVAPRAKASH, AGED 24 YEARS ``` Crl.M.C No. 6058 of 2023 -2- ``` S/O PRAKASHAN, PALLIYIL THAZHEKUTTI HOUSE, IRINGANNOOR P.O, KOZHIKODE DISTRICT., PIN - 673505 ``` ## **`OTHER PRESENT:`** ``` SEENA. C PP,V.R ANIL KUMAR ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -3- Crl.M.C No. 6058 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No.6058 of 2023 ============================================================= Dated this the 7[th] day of September, 2023 ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners are the accused in SC No.788 of 2020 of the Additional District and Sessions Court -III, Kozhikode, arising from Crime No.62 off 2018 of Nadapuram Police Station, Kozhikode district. The above case is charge sheeted alleging offences punishable under Sections 143, 147, 148, 341, 323, 324, 308 read with 149 IPC. 3. The prosecution case is that the accused assaulted the victims after forming themselves into an unlawful assembly. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. The counsel relies on the affidavit filed by the victims in support of his contention. The counsel appearing for the victims also -4- Crl.M.C No. 6058 of 2023 submitted that the matter is settled and the victims has no objection in quashing the prosecution. 5. The learned Public Prosecutor, on instructions, has expressed reservations about quashing the proceedings solely on the basis of the settlement. But the Public Prosecutor conceded that the matter is settled between the parties. 6. This Court has considered the submission of the petitioner, victim/s and the Public Prosecutor and has also gone through the records including the affidavits filed by the victims. 7. In **State of Madhya Pradesh v Laxmi Narayan and Others (2019 (5) SCC 688),** three judge bench of the Hon'ble Supreme Court has summarized the situation in which non compoundable offences can be quashed invoking the powers under Section 482 of the Code. The apex court in _**Laxmi Narayan**_ 's case (supra) also relied on the law laid down in **Gian Singh v. State of Punjab and another (2012 (10) SCC 303)** and **Narinder Singh and others v. State of Punjab and another (2014 (6) SCC 466)** . The apex court in paragraph 13 of the -5- Crl.M.C No. 6058 of 2023 _**Laxmi Narayan**_ 's case discussed the law in detail and the same is extracted hereunder: _“13. Considering the law on the point and the other decisions of this Court on the point, referred to herein above, it is observed and held as under: i) that the power conferred under S.482 of the Code to quash the criminal proceedings for the non - compoundable offences under S.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;_ _ii) 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;_ _iii) similarly, such power is not to be exercised for the offences under the special statutes like 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; iv) offences under S.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 S.307 IPC and / or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under S.482 of the Code, on the ground that the parties_ -6- Crl.M.C No. 6058 of 2023 _have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of S.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 S.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 S.307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital / delegate 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 paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated herein above;_ _v) while exercising the power under S.482 of the Code to quash the criminal proceedings in respect of non- compoundable offences, which are private in nature and do not have a serious impart on society, on the that there is a settlement / ground 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.”_ -7- Crl.M.C No. 6058 of 2023 8. Keeping in mind the above dictum laid down by the apex court, this court perused the facts in this case and also perused the documents produced by the parties. After going through the entire facts and circumstances I am of the considered opinion that the dispute is private in nature and the settlement can be accepted. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners alone in SC No.788 of 2020 of the Additional District and Sessions Court -III, Kozhikode, arising from Crime No.62 off 2018 of Nadapuram Police Station, Kozhikode district are quashed. _sd/-_ **P.V.KUNHIKRISHNAN JUDGE** das -8- Crl.M.C No. 6058 of 2023 ## **`APPENDIX OF CRL.MC 6058/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure -1COPY OF THE FINAL REPORT IN CRIME NO: 62/2018 OF NADAPURAM POLICE STATION, KOZHIKODE DISTRICT ``` ``` Annexure -2A TRUE COPY OF THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 6TH DAY OF JULY 2023 Annexure -3A TRUE COPY OF THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT DATED 6TH DAY OF JULY 2023 ``` ``` Annexure -4A TRUE COPY OF THE AFFIDAVIT SWORN BY THE 4TH RESPONDENT DATED 6TH DAY OF JULY 2023 ```