Babeesh @ Babin Kumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 Crl.MC.No. 2480 of 2008() ------------------------FIR NO. 265/08 OF THE PAYYOLI POLICE STATION PETITIONER: ACCUSED: -------------------- BABEESH @ BABIN KUMAR, AGED 20, S/O.BABU, KURUNGOTT HOUSE, PALAYAD KURUVANCHERY PO KOZHIKODE DISTRICT. BY ADV. SMT.K.V.RESHMI RESPONDENTS: COMPLAINANT, STATE AND DEFACTO COMPLAINANT: -------------------------------------------------------- 1. S.I.OF POLICE, PAYYOLI POLICE STATION, PAYYOLI. 2. THE STATE OF KERALA, REPRESENTED BY PUBLICL PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. ARUN, S/O.KUNHIRAMAN, AGED 23 YEARS ERAVATH HOUSE, CHERIYANNOOR, KUNATHUKARA P.O., PALAYOD, VADAKARA TALUK, KOZHIKKODE DISTRICT. BY ADV. SRI.BINOY VASUDEVAN FOR R3 R1 & 2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2480 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August, 2008 ## **O R D E R** On application of the dictum in **Madan Mohan Abbot v. State of Punjab** (2008 AIR SCW 228), as understood by this Court in **Santhosh v. State of Keral** a (2008 (3) KLT 240), can or should the powers under Section 482 Cr.P.C. be invoked to quash the prosecution against the petitioner under Section 326 Cr.P.C. This is the short question that falls for consideration in this Crl.M.C. 2. The petitioner had come to this Court with this application under Section 482 Cr.P.C. initially to quash an F.I.R. registered against him and later request is made to quash the final report filed by the police after investigation into that crime. The crucially relevant and vital facts can be summarised as follows. 3. The defacto complainant/third respondent is an autorikshaw driver. He, along with his friends, was sitting and chatting in the autorikshaw parked at a public place near a 2 Crl.M.C.No. 2480 of 2008 dispensary on the night of 19.5.2008. Earlier there was a dispute between the petitioner herein and the brother of the third respondent. The petitioner had allegedly attacked the brother of the third respondent and in respect of that there was a crime registered by the police. Actuated by ill-will on account of the previous incident - of the brother of the third respondent complaining to the police, the petitioner, when he saw the third respondent in the autorikshaw, allegedly went away and came back armed with a dangerous weapon. When he came back, he pulled the third respondent out of the autorikshaw and inflicted a grievous injury on the third respondent with such dangerous weapon. This in short is the allegation, on the basis of which the F.I.R. was registered. Investigation confirms the culpability of the petitioner and accordingly final report has been filed. 4. The petitioner and the third respondent have come before this Court through their respective counsel to apprise this court of the fact that they have settled the disputes. The third respondent, it is submitted, has compounded the offence allegedly committed by the petitioner herein. The third respondent is represented by counsel and 3 Crl.M.C.No. 2480 of 2008 the counsel asserts unambiguously that the third respondent has settled the disputes and has compounded the offence allegedly committed by the petitioner under Section 326 I.P.C. He has no surviving grievance whatsoever against the petitioner herein. 5. The final report that has been filed is also placed before court. In the final report allegations are raised only under Section 326 I.P.C. The victim/R3 has suffered a fracture and the fracture was allegedly inflicted with a dangerous weapon. In addition to R3, three other witnesses are also cited as eye witnesses to the occurrence. 6. The petitioner and the third respondent have filed a joint statement duly counter signed by their counsel to confirm that they have settled the disputes and the third respondent has compounded the offence under Section 326 I.P.C. allegedly committed by the petitioner. Counsel for the petitioner and the third respondent pray that premature termination of proceedings may be brought about by invoking the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. Crl.M.C.No. 2480 of 2008 4 7. Notice was given to the learned Prosecutor, who opposes the application. He submits that all crimes are offences against the State and in every such crime the aggrieved is primarily the State, though the injured victim can also be said to have suffered some injuries. Crimes being offences against State, private citizens including the aggrieved party has no right under law to compound crimes. The law however recognises a class of cases which are described to be compoundable, in which the law permits and enables an indictee and the individual victim to settle and compound the offence. Unless the case on hand falls within the sweep of compoundable offence specified under law, no private citizen has any authority to compound the offence. Such composition has to be ignored by law and the courts cannot take cognizance of such compositions opposed to law and bring criminal cases to premature termination on the basis of such compositions which are impermissible in law. 8. The learned counsel for the petitioner and the third respondent point out and the learned Prosecutor accepts that the decision in **B.S. Joshi** v. **State of Haryana** (AIR 2003 SC 1386) 5 Crl.M.C.No. 2480 of 2008 and **Madan Mohan Abbot v. State of Punjab** (2008 AIR SCW 228) are decisions which lay down that the sweep of powers under Section 482 Cr.P.C. is not fettered by the stipulations in Section 320 Cr.P.C. regarding composition of offences. The powers under Section 482 Cr.P.C. are awesome. They are not conferred on the High Court under Section 482 Cr.P.C. But those are powers which were always available with the High Court to act in aid of justice and Section 482 Cr.P.C. only saves or reserves such power which the High Court always had. The High Court may be obliged to invoke such powers in certain situations when the interests of justice may transcend the mere interests of law. The High Court may at times be called upon to do justice beyond the law and while exercising such extra ordinary inherent jurisdiction the stipulations of Section 320 Cr.P.C. cannot be reckoned as a fetter. The counsel place reliance particularly on the observations in paragraph 5 of the decision in **Madan Mohan Abbot** (supra), which I extract below:- We are, therefore, of the opinion that no useful would be served in with the purpose continuing Crl.M.C.No. 2480 of 2008 6 proceedings in the light of the compromise and also in the light of the fact that the complainant has, on 11[th] January 2004, passed away and the possibility of a conviction being recorded has thus to be ruled out. We need to emphasize that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter live with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground realities and bereft of the technicalities of the law.” (emphasis supplied) 9. The learned Prosecutor submits that in the facts and circumstances of this case it would be puerile as also impermissible for this Court to take the view that the question involved is one of a purely personal nature. It cannot be argued that the ground realities in this case must persuade the court to accept the composition bereft of technicalities of law. This is not a case of purely personal disputes Crl.M.C.No. 2480 of 2008 **==> picture [7 x 10] intentionally omitted <==** between the parties. The alleged cause of attack is the conduct of the brother of the third respondent approaching the law for redressal of his grievance. The incident takes place in a public place and the third respondent is pulled out of the autorikshaw and attacked with a dangerous weapon. It is not as though the incident took place on the spur of the moment. The allegation shows that after seeing the victim/R3, the petitioner went away, came back armed with weapon and unleashed an attack on the victim. 10. The learned Prosecutor submits that the interesta of public justice are involved and that by no stretch of imagination can it be held that the dispute is one purely private and personal between the petitioner and the third respondent. The ground realities which are to be taken note of in this case is the fact that there has been conduct threatening the majesty of law by the petitioner. In not rejecting this prayer for composition this Court will not be succumbing to the technicalities of law, but only upholding the sublimity of law, which does not permit composition of non-compoundable offences by individual victim to the detriment of the polity at large. Crl.M.C.No. 2480 of 2008 8 11. The learned Prosecutor further submits that this is not a case where reluctance of the third respondent to support the prosecution case, would result in the trial exercise to be empty, unreal or without substance. There are three other witnesses to speak about the incident. It would be idle now to assume that those eye witnesses will also not support the prosecution case. Even the third respondent herein, if he were a dutiful citizen, notwithstanding the composition by him, will have to speak truth on oath and if he so speaks truth, the prosecution will be able to sustain the charge. The learned Prosecutor submits that interests of public justice are involved and that the dispute on hand cannot be reckoned as one which is private and personal between the parties. The law cannot approve of the alleged composition. Acceptance of such composition will make the law farcical and the provisions of Section 320 Cr.P.C. would become meaningless. 12. I have considered all the relevant aspects. I do take note of the elbow room which is available to this Court after the decision in **Madan Mohan Abbot** (supra) to accept composition of noncompoundable offences in the exceptional facts of a peculiar case and Crl.M.C.No. 2480 of 2008 9 to bring a prosecution to premature termination. But the crucial question is whether the extra ordinary inherent jurisdiction deserves to be invoked or not. 13. Having rendered my very anxious consideration to all the relevant circumstances, I am certainly of the opinion that this is not a fit case where such extra ordinary inherent jurisdiction can or ought to be invoked. or 14. I must alertly note that the decisions in **B.S. Joshy Madan Mohan Abbot** do not obliterate the distinction between compoundable and non-compoundable offences. It is not as though that the parties can after the decision in **Madan Mohan Abbot,** instead of going to the Magistrate with an application for composition merrily approach this court to accept the composition and quash the proceedings invoking the jurisdiction under Section 482 Cr.P.C. In the facts of an exceptional case, in the yearning to do justice beyond law recognizing the fact that interests of justice may at times transcend the interests of mere law, this Court may be justified in accepting such compositions and bringing prosecutions to premature termination. But Crl.M.C.No. 2480 of 2008 10 an alert application of mind is necessary before such jurisdiction is invoked. In the facts and circumstances of this case, in the light of the informed opposition of the Prosecutor, I am of the opinion that the composition in the instant case cannot be accepted and that proceedings cannot be brought to premature termination. May be, if the third respondent does not respect the solemnity of oath, turns hostile and does not speak the truth and eye witnesses also sail with the petitioner and the third respondent, the possibility of a conviction may be bleak. But even that cannot persuade me to invoke the extra ordinary inherent jurisdiction. 15. I have already mentioned in **Santhosh** (supra) that the wisdom of Legislature reflected in Section 320 Cr.P.C. as to what offences ought to be held to be not compoundable has to be respected by this Court and unless there is a change in law under Section 320 Cr.P.C. it will be idle to expect the Court to mechanically accept compositions like the one in the instant case and resort to premature termination of prosecution invoking the jurisdiction under Section 482 Cr.P.C. Crl.M.C.No. 2480 of 2008 11 16. The learned counsel for the petitioner prays that there may be a direction to the learned Magistrate to expeditiously complete the prosecution in as much as the matter has been settled between the parties. The petitioner can move the learned Magistrate. As requested by the learned counsel for the petitioner, the fact of composition can certainly be brought to the notice of the learned Magistrate. Certainly such a composition must weigh with a prudent mind while considering the quantum of punishment to be imposed for the offence committed, if ultimately it is found that the accused is guilty of the offence alleged against him. 17. This Crl.M.C. is accordingly dismissed. **(R. BASANT)** Judge tm 12 Crl.M.C.No. 2480 of 2008 ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2480 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2008 ## **O R D E R** The learned counsel for the petitioner undertakes to ensure of the third and of appearance respondent filing joint statement/affidavit of the third respondent to confirm that the disputes have been settled and the offence has been compounded by the third respondent. 2. It is submitted that the investigation is now being conducted only for the offence punishable under Section 326 I.P.C. That offence has now been compounded, it is submitted. The petitioner prays for invocation of the dictum in **Madan Mohan Abbot v. State of** 13 Crl.M.C.No. 2480 of 2008 **Punjab** (2008 AIR SCW 228). 3. The Prosecutor shall take instructions as to whether the State has any objection against the prayer for invocation of the dictum in **Madan Mohan Abbot** (supra) and quash the FIR. Call on 11.7.2008. **(R. BASANT)** Judge tm