BiJoy K Kaged v. State of Kerala and Sarath Kumar

CRL.MC NO. 7202 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 CRL.MC NO. 7202 OF 2023** ## **AGAINST THE ORDER/JUDGMENT CC 1191/2023 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS - III, ATTINGAL (TEMPORARY)** ## **PETITIONER/S:** BIJOY K KAGED 33 YEARSS/O JOSPEH, KUZHIYATH HOUSE, MANJUMMEL, ELOOR, ERNAKULAM DISTRICT., PIN - 683501 BY ADV VISHNU DAS ## **RESPONDENT/S:** 1 STATE OF KERALAREPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICERCHIRAYINKEEZHU POLICE STATION, ATTINGAL ROAD, CHIRAYINKEEZHU, THIRUVANANTHAPURAM KERALA, PIN - 695304 3 SARATH KUMARAGED 30 YEARSS/O GOPAKUMAR, AMBIKALAYAM, NEAR SARKKARA NSS KARAYOKAM, CHIRAYINKEEZHU, SARKKARA, KERALA, THIRUVANANTHAPURAM., PIN - 695304 BY ADVS. Sruthi Das TINU JOHNSON(K/281/2014) JISHMA K.S(K/476/2019) ## **OTHER PRESENT:** RENJITH TR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 7202 OF 2023 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------Crl.M.C. No. 7202 of 2023 -------------------------------------Dated this the 25[th] day of September, 2023** ## **O R D E R** 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 petitioner is the 2[nd] accused in Crime No. 451/2022 of Chirayinkeezhu Police Station, which is pending as CC No. 119/2023 on the file of the Judicial First Class Magistrate Court-III, Attingal (Temporary). 3. The prosecution case is that the accused in this case cheated the defacto complainant. 4. The learned counsel for the petitioner 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 contention. The CRL.MC NO. 7202 OF 2023 3 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. The Public Prosecutor submitted that the victim settled the matter only with the petitioner, who is the 2[nd] accused. But in the light of the decision of this Court in **Sajeev and anr. v. State of Kerala** [2022 (2) KLT 861] quashing of the proceedings against the accused with whom the matter is settled is possible. In the facts and circumstances of this case, I think this Crl.M.C. can be quashed. 6. This Court has considered the submission of the petitioner, victim and the Public Prosecutor and has also gone through the records including the affidavit filed by the victim. 7. In **State of Madhya Pradesh v Laxmi Narayan** CRL.MC NO. 7202 OF 2023 4 **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;_ _ii) such power is not to be exercised in those_ CRL.MC NO. 7202 OF 2023 5 _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,_ CRL.MC NO. 7202 OF 2023 6 _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 and the CRL.MC NO. 7202 OF 2023 7 settlement can be accepted. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioner in CC No. 1191/2023 on the file of the Judicial First Class Magistrate Court-III, Attingal arising from Crime No. 451/2022 of Chirayinkeezhu Police Station are quashed. **sd/P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 7202 OF 2023 8 ## **APPENDIX OF CRL.MC 7202/2023** PETITIONER ANNEXURES Annexure A1 THE TRUE COPY FIRST INFORMATION REPORT IN CRIME NO.451/2022 OF CHIRAYINKEEZHU POLICE STATION, THIRUVANTHAPURAM DISTRICT DATED 04.07.2022 Annexure A2 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.451/2022 OF CHIRAYINKEEZHU POLICE STATION, THIRUVANTHAPURAM DISTRICT DATED 14.10.2022 Annexure A3 THE AFFIDAVIT SWORN BY THE DEFACTO COMPLAINANT DATED 15.07.2023