Ahmedkutty @ Kunjava v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 23RD DAY OF SEPTEMBER 2016/1ST ASWINA, 1938** **Crl.MC.No. 6170 of 2016 -------------------------** **SC 306/2015 OF ADDITIONAL DISTRICT & SESSIONS COURT - II, MANJERI CRIME NO. 934/2013 OF KOTTAKKAL POLICE STATION, MALAPPURAM .....** **PETITIONER(S)/ACCUSED -:** **------------------------** **AHMEDKUTTY @ KUNJAVA, AGED 58 YEARS, S/O.MUHAMMED HAJI, PULIKKAL HOUSE, CHANGUVETTIKUND P.O., KOTTAKKAL, MALAPPURAM DISTRICT.** **BY ADV. SRI.M.RAJESH** **RESPONDENT(S)/COMPLAINANTS -:** **-----------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2. ABDUSAMAD SAMADANI, AGED 55 YEARS, S/O.ABDUL HAMEED MOULAVI, IQBAL BHAVAN, KOTTAKKAL P.O., MALAPPURAM DISTRICT-673 743.** **R1 BY PUBLIC PROSECUTOR SRI.M.S.BREEZE R2 BY ADVS. SRI.NOUSHAD THOTTATHIL SRI.NOORJI NOUSHAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** **Crl.MC.No. 6170 of 2016 ------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES ------------------------** **ANNEXURE A1. A TRUE COPY OF THE FINAL REPORT FILED IN CRIME NO.934/2013 OF THE KOTTAKKAL POLICE STATION. ANNEXURE A2. A TRUE COPY OF THE AFFIDAVIT SWEARED AND SIGNED BY THE 2ND RESPONDENT. ANNEXURE A3. A TRUE COPY OF THE JOINT STATEMENT PREPARED THE PETITIONER WITH THE 2ND RESPONDENT. RESPONDENT(S)' ANNEXURE -----------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.6170 of 2016 ----------------------------------------Dated this the 23[rd] day of September, 2016** ## **O R D E R** - 1.This petiiton is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). - 2.On the basis of the information given by the 2[nd] respondent, Crime No. 934 of 2013 of the Kottakkal Police Station was registered against the petitioner herein for the offences punishable under Sections 342, 324, 452, and Section 307 of the IPC. After investigation, final report was laid before the jurisdictional court and the case is now pending as S.C.No.306 of 2015 on the file of the Additional Sessions Court-II, Manjeri. - 3.Succintly stated, the prosecution allegation is that on - 8.11.2013 at about 8.a.m., the petitioner herein criminally trespassed into the office of the 2[nd] respondent and Crl.M.C.6170/2016 2 attempted to murder him by stabbing with a knife. The petitioner is alleged to have sustained a fracture to his nasal bone and other injuries. 4. The prayer in this petition is to quash the proceedings on the ground of compromise arrived at between the petitioner and the 2[nd] respondent. - 5.I have heard the learned counsel appearing for the petitioner, the 2[nd] respondent and also the learned Public Prosecutor. It is submitted by the learned counsel appearing for the 2[nd] respondent that an affidavit has been sworn to by the victim completely absolving the petitioner. 6. The learned counsel appearing for the petitioner submits that in view of the Annexure-A2 affidavit, the inherent power can be exercised by this Court and the entire proceedings are liable to be quashed. Reference is made to the judgment of the Apex Court in **Shiji @ Pappu and** Crl.M.C.6170/2016 3 **Others v. Radhika and Another** [2011(10) SCC 705], **Gian Singh v. State of Punjab and Another** [2012(10) SCC 303], **Narinder Singh v. State of Punjab** [2014(6) SCC 466] and **Yogendra Yadav and Others v. State of Jharkhand and Another** [2014 (9) SCC 653] to contend that this Court will be justified in exercising inherent powers in a case of this nature to prevent abuse of the process of the court or to otherwise secure the ends of justice. - 7.Per contra, the learned Public Prosecutor submits that the nature and gravity of offence is serious and therefore this Court will not be justified in exercising its discretionary powers. However, it is submitted that the petitioner is not a person with criminal antecedents. - 8.I have considered the rival submissions and have taken note of the fact that the victim has completely absolved the petitioner. I have gone through Annexure-A2 affidavit Crl.M.C.6170/2016 4 sworn to by the 2[nd] respondent. In the affidvavit it is stated that the 2[nd] respondent believes in the moral traditions of forgetting and forgiving evil acts committed upon him by others. It is stated that he considers it is duty and in the best interest of his faith and ethics to pardon the accused person. The 2[nd] respondent expresses the hope that his gesture will enable the petitioner to reform himself and live his life with the feelings of fraternity, fellowship and humanity. He further states that he has no further grievance or complaints against the petitioner and prays for terminating the proceedings. - 9.The legal position is no longer _res integra_ that the inherent powers of this Court enshrined under Section 482 of the Code is distinct from the power of a criminal court to compound the offence under Section 320 of the Code. The powers can be exercised _ex debito justitiae_ to render real and substantial justice for the administration of which Crl.M.C.6170/2016 5 alone the courts exist. However, the plenitude of the power under Section 482 of the Code by itself makes it obligatory for this Court to exercise the same with utmost care and caution. As held in the precedents cited above, securing the ends of justice being the ultimate guiding factor, the fact that the dispute between the offender and the victim has been settled can be taken note of by this Court and proceedings can be quashed if it ultimately be only an exercise in futility and if justice demands that the dispute between the parties is put to an end and peace is restored. As held in **Gian Singh** (supra) this Court within the framework of its inherent power can quash the criminal proceeding if it is satisfied on the face of such settlement that there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be the casuality and ends of justice shall be defeated. Crl.M.C.6170/2016 6 10.The question whether an offence under Section 307 of the IPC can be compounded was considered by the Apex Court in **Yogendra Yadav** (supra). In paragraph No. 4 of the judgment it was held thus: 4. Now, the question before this Court is whether this Court can compound the offences under S.326 and S.307 of the IPC which are non - compoundable. Needless to say that offences which are non - compoundable cannot be compounded by the Court. Courts draw the power of compounding offences from S.320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab, 2012 (10) SCC 303). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under S.482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non - compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two Crl.M.C.6170/2016 7 groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. 11.The background facts of the instant case is that two of the brothers of the petitioner were murdered and the petitioner was deeply distressed as a result of the above loss. For some obscure reason it appears that the petitioner was nursing a grudge against the 2[nd] respondent in view of the above fact. Further more, it is seen that the 2[nd] respondent had sustained a nasal fracture and some other minor injuries. - 12.After anxiously considering the allegations and taking Crl.M.C.6170/2016 8 note of the fact that the party respondent has completely absolved the petitioner, it appears to me that even if the criminal proceedings are taken to its logical conclusion it would be nothing but an exercise in futility. In the above view of the matter, this Court will be justified in exercising its inherent powers to quash the impugned criminal proceedings. In the result, this petition will stand allowed. The criminal proceeding pending against the petitioner on the file of the Additional Sessions Court-II, Manjeri as S.C.No.306 of 2015 are quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps