Asifa, Muhammed Nissar, Muhammed Ashiq & Fajish Muhammed v. State of Kerala & Sharafudheen

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 30[TH] DAY OF MAY 2023 / 9TH JYAISHTA, 1945`** ## **`CRL.MC NO. 2472 OF 2023 AGAINST THE ORDER/JUDGMENTCC 263/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PERINTHALMANNA`** ## **`PETITIONER/S:`** ``` 1ASIFA AGED28YEARS ALIKKALHOUSE,PUTHANANGADI, ANGADIPPURAMP.O.,PERINTHALMANNA, - MALAPPURAMDISTRICT,PIN679321 2MUHAMMEDNISSAR AGED31YEARS S/O.USMAN, ALIKKALHOUSE,PUTHANANGADI,ANGADIPPURAMP.O., - PERINTHALMANNA,MALAPPURAMDISTRICT,PIN679321 3MUHAMMEDASHIQTP AGED28YEARS S/O.ALI.T.P., THACHUPARAMBANHOUSE,CHERAKKAPARAMBU, ANGADIPPURAMP.O.,PERINTHALMANNA, - MALAPPURAMDISTRICT.,PIN679321 4FAJISHMUHAMMED AGED28YEARS S/O.KUNHUMUHAMMED, AMBALAKUTTHUHOUSE,THIRURKKAD, ANGADIPPURAMP.O.,PERINTHALMANNA, - MALAPPURAMDISTRICT,PIN679321 BYADVU.K.DEVIDAS ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,ERNAKULAM,PIN682031 ``` ``` CRL.MCNO.2472OF2023 ``` ``` 2 ``` ``` 2SHARAFUDHEEN AGED28YEARS S/O.ALI, PUTHENPEEDIKAKKALHOUSE,PONNIAKURSSI, PERINTHALMANNAP.O., - MALAPPURAMDISTRICT,PIN679322 ``` ``` BYADVP.M.SHAHIDA ``` ``` SRIVIPINNARAYANSRPP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 30.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.2472OF2023 ``` ``` 3 ``` ## **ORDER** This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners herein are accused Nos. 1 to 4 in C.C. No. 263/2021 on the file of the Judicial Magistrate of First Class-I, Perinthalmanna. In the said case, they are accused of having committed offence punishable under Sections 341, 323, 324 r/w. Section 34 of the IPC. 3. The prosecution allegation is that on 24.8.2020 at 9.15 p.m., the petitioners herein, in furtherance of their common intention, wrongfully restrained the 2nd respondent and attacked him with an iron rod causing injuries. 4. The learned counsel appearing for the petitioners submitted that while the proceedings were pending, at the intervention of mediators, the parties have settled their entire disputes. He would point out that the 2nd respondent has sworn to an affidavit asserting that the differences of opinion that they had have been ironed out. According to the learned counsel, the continuance of criminal proceedings will not serve any purpose and will only enure to waste the valuable time of the trial court as there are no prospects of conviction. ``` CRL.MCNO.2472OF2023 ``` ``` 4 ``` 5. The learned Public Prosecutor has vehemently opposed the prayer for quashing the criminal proceedings. It is submitted that the Apex Court in **State of M.P. v. Laxmi Narayan,[1]** has laid down the principles and had observed that quashing of proceedings on the basis of settlement would depend on the facts and circumstances of each case. He would point out that the Apex Court had observed that while quashing the proceedings, the court will have to consider whether the crime is against the society or against an individual alone and also the character, conduct, and antecedents of the accused. 6. As it was submitted by the learned public prosecutor that the petitioners are involved in numerous crimes, directions were issued to place on record the details of crimes in which the petitioners are involved. The list of cases has been placed before this Court, and the same is extracted for easy reference. 7. The 1st petitioner, Asif A, is involved in the following cases: - 1) Perinthalmanna Crime 783/2016 u/s 143, 147, 148, 341, 307, 326 r/w 149 IPC. - 2) Perinthalmanna Crime 280/2018 u/s 323, 324, 308, 506 (i), r/w 34 IPC - 3) Perinthalmanna Crime 450/2018 u/s 143, 147, 148, 341, 323, 324 r/w 149 IPC - (2019) 5 SCC 688 1 ``` CRL.MCNO.2472OF2023 ``` ``` 5 ``` - 4) Perinthalmanna Crime 318/2019 u/s 143, 147, 323, 324, 392, 326, 363, 308, 109, 201, 506(2) r/w 149 IPC - 5) Perinthalmanna Crime 363/19 U/S 341,323 324,506 (i) r/w 34 IPC - 6) Perinthalmanna Crime 793/2020 u/s 341, 323,324,34 IPC - 7) Perinthalmanna Crime 62/21 U/S 341,323,34 IPC - 8) Perinthalmanna Crime 464/2019 u/s 143, 147, 448, 341, 323 r/w 149 IPC - 9) Perinthalmanna Crime 605/20 U/S 143, 147, 148, 447, 323, 324, 341, 326, 308, 354, 395 r/w149 IPC - 10) Perinthalmanna Crime 1407/2015 u/s 143, 147, 148, 323,324 r/w 149 IPC - 11) Perinthalmanna Crime 471/18 U/S 107 CrPC. - 12) Perinthalmanna Crime 1073/2021 U/S 151 CrPC - 13) Perinthalmanna Crime 264/2019 U/S 341, 323, 324, R/W 34 IPC ## 8. The 2nd petitioner, Muhammed Nisar, is involved in the following cases. - 1) Perinthalmanna Crime 1407/15 U/S 143, 147,148, 323, 324 r/w 149 IPC - 2) Perinthalmanna Crime 783/16 U/S 143, 147, 148, 341, 307, 326 r/w 149 IPC - 3) Perinthalmanna Crime 216/2017 u/s 107 CRPC - 4) Perinthalmanna Crime 645/2018 U/S 323, 324, 341 R/W 34 IPC - 5) Perinthalmanna Crime 264/2019 U/S 341,323,324,R/W 34 IPC - 6) Perinthalmanna Crime 1074/2021 U/S 151 CrPC - 7) Mankada PS Crime 21/2021 U/S 143, 147, 148, 341, 324, 326 307, 506 (1), R/W 149 IPC ``` CRL.MCNO.2472OF2023 ``` ``` 6 ``` 9. The 3rd petitioner, Muhammed Ashiq, is involved in the following cases. - 1) Perinthalmanna Crime 129/2019 U/S 143, 147, 148, 341, 323, 324, 452,308 r/w 149 IPC - 2) Perinthalmanna Crime 373/2020 U/S 269, 291 IPC - 3) Perinthalmanna Crime 793/2020 U/S 341,323,324,34 IPC - 4) Perinthalmanna Crime 62/2021 U/S 341,323,34 IPC - 5) MANKADA PS CRIME 21/2021 U/S 143, 147, 148, 323, 308, 506 R/W 149 IPC 10. The 4th petitioner, Fajis Muhammed, is involved in the following cases. - 1) Perinthalmanna Crime 783/16 U/S 143, 147, 148, 341,307,326 r/w 149 IPC - 2) Perinthalmanna Crime 450/2018 u/s 143, 147, 148, 341, 323, 324 r/w 149 IPC - 3) Kolathur PS Crime 300/2018 u/s 341, 323 r/w 34 IPC - 4) Perinthalmanna Crime 264/2019 U/S 341,323,324 R/W 34 IPC - 5) Perinthalmanna Crime 208/2020 U/S 151 CrPC - 6) Perinthalmanna Crime 793/2020 U/S 341,323,324,34 IPC - 7) Perinthalmanna Crime 384/2022 U/S 341, 323, 324, 427, 506, 34 IPC - 8) Perinthalmanna Crime 245/2022 U/S 151 CrPC Asif, Muhammed Nisar, Muhammed Ashiq, are the rowdies of Perinthalmanna police station, and proceedings under the Kerala Anti Social Activities Prevention Act have been initiated against Sri. Asif during the previous years. ``` CRL.MCNO.2472OF2023 ``` ``` 7 ``` 11. I have considered the submissions and have gone through the records. 12. In **State of M.P (supra),** a three-judge bench of the Hon’ble Supreme Court has summarised the law as laid down in **Gian Singh v. State of Punjab[2]** , **Narinder Singh v. State of Punjab[3]** , **State of Rajasthan v. Shambhu Kewat[4]** , **State of M.P. v. Deepak[5] , State of M.P. v. Manish[6]** , **J. Ramesh Kamath v. Mohana Kurup[7]** ; **State of M.P. v. Rajveer Singh[8]** , **Parbatbhai Aahir v. State of Gujarat[9] , State of M.P. v. Kalyan Singh[10] and State of M.P. v. Dhruv Gurjar[11]** . 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: - 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 - 2 (2012) 10 SCC 303 3 2014 (6) SCC 466 4 (2014) 4 SCC 149 5 (2014) 10 SCC 285 6 (2015) 8 SCC 307 7 2016) 12 SCC 179 8 (2016) 12 SCC 471 9 (2017) 9 SCC 641 10 (2019) 4 SCC 268 11 (2019) 5 SCC 570] ``` CRL.MCNO.2472OF2023 ``` ``` 8 ``` 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 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 ``` CRL.MCNO.2472OF2023 ``` ``` 9 ``` 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. 13. The petitioners are involved in a multitude of crimes during the past several years. Needless to say, their continuous involvement necessarily has societal ramifications. It will have to be construed as a transgression infringing upon the fabric of society rather than a private dispute. Consequently, it is infeasible to terminate the ongoing criminal proceedings on the basis of a settlement arrived at with the de facto complainant. This Court is also unsure whether the settlement was arrived at with a free or open mind or whether it was obtained by threat or coercion, given the criminal antecedents of the accused and their propensity to involve in crimes ``` CRL.MCNO.2472OF2023 ``` ``` 10 ``` disturbing the peace, one after the other. I have no doubt in my mind that the action of the petitioners in continuously engaging in crimes has a significant and adverse societal impact. The Apex Court had also observed that while considering the prayer for quashing on the basis of settlement, this Court is bound to consider the antecedents and conduct of the accused and the manner in which the accused had managed to enter into a compromise. Having considered the facts and circumstances and the antecedents of the petitioners, I am not inclined to exercise the powers conferred on this Court under Section 482 of the Code to put a premature end to the prosecution. This petition is accordingly dismissed. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** ``` avs ``` ``` CRL.MCNO.2472OF2023 ``` ``` 11 ``` ## **`APPENDIX OF CRL.MC 2472/2023`** ## **`PETITIONER ANNEXURES`** ``` AnnexureI ``` ``` TRUECOPYOFTHEFINALREPORTINCRIMENO. 793/2020OFPERINTHALMANNAPOLICESTATIONDATED 23.04.2021 ``` ``` AnnexureII ``` ``` TRUECOPYOFTHELISTOFWITNESSESINCRIME NO.793OF2020OFPERINTHALMANNAPOLICESTATION DATED23.04.2021 ``` ``` Annexure-IIITHEORIGINALOFTHEAFFIDAVITDATED17.03.2023 EXECUTEDBYTHESECONDRESPONDENT ```