Ali Badar and others v State of Kerala and Sufiyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 23[RD] DAY OF APRIL 2024 / 3RD VAISAKHA, 1946** **CRL.MC NO. 3195 OF 2024** **CRIME NO.33/2021 OF KULATHUPUZHA POLICE STATION, KOLLAM** **AGAINST THE ORDER/JUDGMENT DATED IN CC NO.191 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR PETITIONERS/ACCUSED NO.1 TO 5:** **1 ALI BADAR AGED 23 YEARS S/O BADARUDHEEN, PUTHEN VEEDU, THINKALKARIKKAM, NELLIMOODU, KOLLAM., PIN - 691310 2 SHAN AGED 25 YEARS S/O SAINUDHEEN, KUZHIVILA HOUSE, THINKALKARIKKAM, NELLIMOODU, KOLLAM., PIN - 691310 3 SAMEER AGED 26 YEARS S/O NAJEEM, KALACHIRA MANZIL, THINKALKARIKKAM, NELLIMOODU, KOLLAM., PIN - 691310 4 MUHAMMED FAYAZ AGED 26 YEARS S/O NAZARUDHEEN, RIYAS MANZIL, THINKALKARIKKAM, NELLIMOODU, KOLLAM., PIN - 691310 5 AMEEN SHAH AGED 26 YEARS S/O SHAHJAHAN, KUZHIVILA HOUSE, KULATHUPUZHA P.O., NELLIMOODU, KOLLAM., PIN - 691310** **BY ADV M.R.SASITH** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** CRL.MC No.3195 of 2024 2 - **2 STATION HOUSE OFFICER KULATHUPUZHA POLICE STATION, KOLLAM., PIN - 691310** - **3 SUFIYAN AGED 23 YEARS S/O SALIM, RESIDING AT P K HOUSE, CHANDANAKKAVU, THINKALKARIKKOM, KULATHUPUZHA, KOLLAM RURAL., PIN - 691310** ## **BY ADV NANMA.B.B** ## **OTHER PRESENT:** ## **SMT. SHEEBA THOMAS PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION** **ON 23.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC No.3195 of 2024 3 ## **P.V.KUNHIKRISHNAN** **- - - - - - - - - - - - - - - - - - - - -** CRL.MC No.3195 of 2024 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 23[rd] day of April, 2024 ## **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 C.C.No.191/2021 on the files of the Judicial First Class Magistrate Court-I, Punalur arising from Crime No.33/2021 of Kulathupuzha Police Station, Kollam. The above case is charge sheeted against the petitioners alleging offences punishable under Sections 341, 323 143, 147 r/w Section 149 IPC. 3. The prosecution case is that the accused formed themselves into unlawful assembly and assaulted the victim after wrongfully restrained. 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 victim in support of his CRL.MC No.3195 of 2024 4 contention. The counsel appearing for the victim also submitted that the matter is settled and the victim 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 petitioners, victim and the Public Prosecutor and has also gone through the records including the affidavits filed by the victim. 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 CRL.MC No.3195 of 2024 5 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;_ _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_ CRL.MC No.3195 of 2024 6 _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 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 CRL.MC No.3195 of 2024 7 and the settlement can be accepted. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in C.C.No.191/2021 on the files of the Judicial First Class Magistrate Court-I, Punalur arising from Crime No.33/2021 of Kulathupuzha Police Station, Kollam are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** bng CRL.MC No.3195 of 2024 8 ## **APPENDIX OF CRL.MC 3195/2024** **PETITIONERS ANNEXURES** **Annexure A1 THE TRUE COPY OF THE FIR IN CRIME NO.33 /2021 OF KULATHUPUZHA POLICE STATION, KOLLAM** **Annexure A2 THE TRUE COPY OF THE FINAL REPORT FILED BY THE 2ND RESPONDENT IN CRIME NO.33 / 2021 OF KULATHUPUZHA POLICE STATION, KOLLAM WHICH IS PENDING AS CC NO.191/2021 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, PUNALUR Annexure A3 THE AFFIDAVIT SWORN BY THE RESPONDENT NO.3 DATED 29.03.2024**