Abinas K. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ``` CRL.MC NO. 5980 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT SC 674/2021 OF SUB COURT, HOSDRUG ``` ## **`PETITIONER/ACCUSED NO.7:`** ``` ABHINAS. K, AGED 24 YEARS SON OF KUNJAMAD, NOUSHAD MANZIL, NEAR IQBAL SCHOOL, AJANUR VILLAGE, KASARAGOD-, PIN - 671531 BY ADVS. A.ARUNKUMAR S.SHYAM KUMAR HEERAKRISHNA T.H. SACHIN GEORGE ARAMBAN ``` ## **`RESPONDENT/STATE/DEFACTOR COMPLAINANT & INJURED:`** |`1`|`STATE OF KERALA`| |---|---| ||`REPRESENTED BY PUBLIC PROSECUTOR,`| ||`HIGH COURT OF KERALA, ERNAKULAM -, PIN - 682031`| |`2`|`MUHAMMED IRSHAD,`| ||`AGED 26 YEARS`| ||`SON OF IBRAHIM KASIMI, KADEEJA MANZIL,`| ||`P.O. KOLAVAYAL, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD`| ||`DISTRICT-, PIN - 671531`| |`3`|`AHAMMED KABEER,`| ||`AGED 25 YEARS`| ||`SON OF ABOOBAKER PERUMPRADI, DARUNNAJATH HOUSE, KOLAVAYAL`| ||`P.O, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-,`| ||`PIN - 671531`| |`4`|`SAMEERA C, AGED 35 YEARS`| ||`WIFE OF SHARAFUDEEN, R/AT KOLAVAYAL, KOLAVAYAL.P.O,`| ||`AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-, PIN -`| ||`671531`| |`5`|`KHALID KOLAVAYAL,`| ||`AGED 44 YEARS`| **Crl.M.C No. 5980/2023& 1345/2023 2** ``` SON OF KUNHABDULLA(LATE), R/AT KOLAVAYAL HOUSE, KOLAVAYAL.P.O, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-, PIN - 671531 ``` ## **`OTHER PRESENT:`** ``` SANAL P RAJ PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.09.2023, ALONG WITH Crl.MC.1345/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **Crl.M.C No. 5980/2023& 1345/2023** **3** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ``` CRL.MC NO. 1345 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CP 17/2022 OF JUDICIAL MAGISTRATE OF ``` ## **`FIRST CLASS -I,HOSDRUG`** ## **`PETITIONERS/ACCUSED NOS.1 & 2:`** ``` 1SUFAIL RAHIMAN, AGED 25 YEARS SON OF ABDUL RAHIMAN.K.K, T.K.HOUSE, ATHINHAL, MANIKOTH.P.O, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD., PIN - 671531 2MARSHAD AGED 26 YEARS SON OF IBRAHIM, C.P.MANZIL, KOLAVAYAL, AJANUR VILLAGE, KASARAGOD., PIN - 671531 BY ADVS. A.ARUNKUMAR S.SHYAM KUMAR HEERAKRISHNA T.H. SACHIN GEORGE ARAMBAN ``` ## **`RESPONDENT/STATE/DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2MUHAMMED IRSHAD AGED 26 YEARS SON OF IBRAHIM KASIMI, R/AT KHADEEJA MANZIL, KOLAVAYAL, ANJANUR VILLAGE, HOSDURG TALUK, KASARAGOD., PIN - 671531 3AHAMMED KABEER AGED 24 YEARS SON OF ABOOBACKER PERUMPRADI R/AT DARUNNAJATH HOUSE, KOLAVAYAL.P.O, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD., PIN - 671531 ``` ``` 4KUNHABDULLA AGED 74 YEARS ``` **Crl.M.C No. 5980/2023& 1345/2023 4** ``` SON OF MUHAMMED HAJI, R/AT RAFIYA MANZIL, AJANUR VILLAGE, KOLAVAYAL.P.O, HOSDURG TALUK, KASARAGOD., PIN - 671531 5SAMEERA.C AGED 34 YEARS WIFE OF SHARAFUDHEEN, R/AT KOLAVAYAL, KOLAVAYAL.P.O, HOSDURG TALUK, KASARAGOD., PIN - 671531 ``` ## **`OTHER PRESENT:`** ``` SRI.RENJITH.T.R, PP, SRI.VIPIN.T.JOSE FOR RESPONDENTS. ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.09.2023, ALONG WITH Crl.MC.5980/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **Crl.M.C No. 5980/2023& 1345/2023** **5** ## P.V.KUNHIKRISHNAN, J. -------------------------------- Crl.M.C. No. 5980 and 1345 of 2023 ---------------------------------------------Dated this the 15[th] day of September, 2023 ## ORDER These two Criminal Miscellaneous Cases are filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). These are connected cases and therefore dispose of with a common order. 2. The petitioner in Crl.M.C No. 5980/2023 is the accused in S.C No.674 of 2021 on the files of Assistant Sessions Judge, Hosdurg arising from Crime No.99 of 2017 of Hosdurg Police Station, alleging offences punishable under S.143, 147, 148, 448, 341, 323, 324, 308 read with 149 IPC. The petitioners in Crl.M.C No.1345/2023 are accused Nos.1 and 2 in the same crime numbered as 99/2017 of Hosdurg Police Station which is now pending as C.P No. 17 of 2022 on the files of Judicial First Class Magistrate I , Hosdurg. **Crl.M.C No. 5980/2023& 1345/2023** **6** 3. It is submitted that the accused Nos.3 to 5 earlier filed Crl.M.C No. 8012/2022 and the case was quashed based on settlement. Similarly accused No.6 also approached this Court with Crl.M.C No. 8903/2022 and the case against him also quashed based on settlement. Now it is submitted that the case against the petitioners in these Crl.M.C are also be settled. 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 affidavits filed by the victims in support of his contention. The counsel appearing for the victims also submitted that the matter is settled and the victims have 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. **Crl.M.C No. 5980/2023& 1345/2023** **7** 6. This Court has considered the submission of the petitioners, victims 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 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; **Crl.M.C No. 5980/2023& 1345/2023** **8** 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 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) **Crl.M.C No. 5980/2023& 1345/2023** **9** 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 noncompoundable offences, which are private in nature and do not have a serious impart 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.” 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, these Criminal Miscellaneous cases are allowed in the following manner: 1. In Crl.M.C 5980/2023 is allowed quashing all further proceedings against the petitioner in S.C No.674/2021 on **Crl.M.C No. 5980/2023& 1345/2023 10** the file of the Additional Sessions Judge, Hosdurg arising from Crime No. 99 of 2017 of Hosdurg Police Station. 2. In Crl.M.C 1345/2023 is allowed quashing all further proceedings against the petitioners in C.P No.17 of 2022 on the file of Judicial First Class Magistrate-I, Hosdurg arising from Crime No. 99 of 2017 of Hosdurg Police Station. SD/- P.V.KUNHIKRISHNAN, Judge jma **Crl.M.C No. 5980/2023& 1345/2023** **11** ## **`APPENDIX OF CRL.MC 5980/2023`** ``` PETITIONER ANNEXURES Annexure AI ``` ``` Annexure AII ``` ``` Annexure AIII Annexure AIV Annexure AV Annexure AVI Annexure AVII ``` ``` Annexure AVIII ``` ``` A TRUE COPY OF THE F.I.R IN CRIME NO.99 OF 2017 OF HOSDURG POLICE STATION ``` ``` CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.99 OF 2017 OF HOSDURG POLICE STATION ``` ``` THE AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT THE AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT THE AFFIDAVIT SWORN TO BY THE 4TH RESPONDENT THE AFFIDAVIT SWORN TO BY THE 5TH RESPONDENT A TRUE COPY OF THE ORDER DATED 01-12-2022 IN CRL.M.C NO.8012 OF 2022 ``` ``` A TRUE COPY OF THE ORDER DATED 20-12-2022 IN CRL.M.C NO.8903 OF 2022 ``` **Crl.M.C No. 5980/2023& 1345/2023** **12** ## **`APPENDIX OF CRL.MC 1345/2023`** ``` PETITIONER ANNEXURES Annexure AI ``` ``` Annexure AII ``` ``` Annexure AIII Annexure AIV Annexure AV Annexure AVI ``` ``` A TRUE COPY OF THE F.I.R IN CRIME NO.99 OF 2017 OF HOSDURG POLICE STATION CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 99 OF 2017 OF HOSDURG POLICE STATION THE AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT THE AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT THE AFFIDAVIT SWORN TO BY THE 4TH RESPONDENT THE AFFIDAVIT SWORN TO BY THE 5TH RESPONDENT ```