Biju Paul v. State of Kerala and Regikumar (Crl.M.C. No.1205 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2014/29TH MAGHA, 1935** **Crl.MC.No. 1205 of 2014** **---------------------------------** **CC NO.105/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY DATED 29-08-2009.** **---------CRIME NO. 323/2004 OF KUNNATHUNADU POLICE STATION , ERNAKULAM,** **----------** **PETITIONER(5TH ACCUSED) :** **----------------------------------------------------** **BIJU PAUL, AGED 35 YEARS, S/O. PAULOSE, POOMELIL HOUSE, KUMARAPURAM P.O., PALLIKKARA, ERNAKULAM-683 565.** **BY ADV. SRI.PAUL K.VARGHESE** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** **------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. REGIKUMAR , AGED 33 YEARS,** **S/O. SREEDHARAN, SUJA BHAVAN, VAZHUTHUR PERUMPAZHUTHUR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM-685 121.** **R2 BY ADV. SMT.A.A.GEETHA R1 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE.P** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **Crl.MC.No. 1205 of 2014** ## **----------------------------------** ## **APPENDIX** **---------------** ## **PETITIONER(S)'ANNEXURES:** **------------------------------------------** **ANNEXURE I : A TRUE COPY OF THE CHARGE IN CRIME NO.323/04 SUBMITTED BY KUNNATHUNADU POLICE STATION BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY, DATED 11.07.2005. ANNEXURE II: A TRUE COPY OF THE JUDGMENT IN CC NO.105/05 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERY, DATED 29.08.2009. ANNEXURE III: A TRUE COPY OF THE JUDGMENT IN CRL.MC NO.2828/2009 OF THIS HONOURABLE COURT DATED 28.08.2009.** **RESPONDENT(S)'ANNEXURES: ---------------------------------------------** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. K. RAMAKRISHNAN, J. -----------------------------------------------------------------Crl. M. C. No.1205 of 2014 --------------------------------------------------------------------Dated this the 18[th] day of February, 2014 ## O R D E R This criminal miscellaneous case is to quash the proceedings as against the petitioner in Crime No.323/2004 of Kunnathunadu, Police Station, after recording the composition entered into between him and the 2[nd] respondent under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. It is alleged in the petition that, the petitioner is the 5[th] accused in the above crime, which was registered on the basis of the statement given by CW1, against the petitioner and others alleging offences under Section 143, 147, 148, 447, 323, 326 and Section 149 of Indian Penal Code. After investigation, final report was filed and it was taken on the file as C.C.No.102/2005 of the Judicial First Class Magistrate Court, Kolenchery, and the final report so filed is Annexure-AI. In that case, accused Crl. M. C. No.1205 of 2014 2 Nos.1 to 4 and 6 alone appeared earlier and they faced trial and as per Annexure-AII judgment, they were acquitted by that court, on the ground that even PW1 was not able to identify the accused persons, as to who had inflicted injuries on him. The case against the present peitoner and the 7[th] accused was split up and re-field as C.C.No.753/2009. Thereafter the 7[th] accused filed Criminal M.C.No.2828/2009 before this court and this court by Annexure-III order quashed the proceedings as against the 7[th] accused. Only remaining accused in the case is the present petitioner. He has also now settled the dispute with the defactocomplainant. Since some of the offences are noncompoundable in nature, they could not file compounding application before the court below. So he has no other option except to approach this court under Section 482 of the 'Code' for quashing the proceedings. Hence this petition is filed, seeking following reliefs: - “1. Call for the records leading Annexure-I charge and to Crl. M. C. No.1205 of 2014 3 quash the same by relying on Annexure-II so as to secure ends of justice. 2. Issue such other order or direction as may be necessary on the facts and circumstances of the case.” 3. The 2[nd] respondent, who is the defactocomplainant appeared though counsel and submitted that, the matter has been settled between the parties and the defacto-complainant has no grievance against the petitioner now and they are living in cordial terms and he has also filed an affidavit to that effect before this court. 4. On instructions, learned Public Prosecutor submitted that except this case the petitioner has not involved in any other crimes and he has no criminal background. The counsel for the petitioner submitted that, in view of the settlement, no purpose will be served in keeping the case as against the petitioner. 5. Heard both sides. 6. It is an admitted fact that, on the basis of the statement given by CW1, the police has registered a case as Crl. M. C. No.1205 of 2014 4 Crime No.323/2004 of Kunnathunadu police station, against the present petitioner and others, alleging offences under Sections 143, 147, 148, 447, 323 and 326 read with Section 149 of the Indian Penal Code. After investigation, the investigating officer submitted Annexure-AI final report against the 7 accused persons, including the present petitioner. Accused Nos.1 to 4 and 6 earlier appeared, when the case was taken on the file as C.C.No.102/2005 on the file of the Judicial First Class Magistrate Court, Kolenchery, and faced trial and that was ended in acquittal as per Annexure-II judgment. It is seen from the judgment that, even the defacto-complainant was not able to identify any of the assailant's, as the person who inflicted the injury on him and it was on that ground that the case was ended in acquittal as regards those accused persons. The case against the present petitioner and the 7[th] accused was split up and re-filed as C.C.No.753/2009. Thereafter the 7[th] accused moved this court by filing criminal 5 Crl. M. C. No.1205 of 2014 M.C.No.2828/2009, after settling the case with the defactocomplainant and on the basis of further investigation, it was revealed that, he was not involved in the commission of the crime, this court by Annexure-III order allowed the application and quashed the proceedings as against him. Now the only accused left out was the present petitioner. He has also now settled the dispute with the 2[nd] respondent. 7. The 2[nd] respondent filed an affidavit, admitting the settlement and expressing his willingness to quash the proceedings as against the petitioner. Since the case against the other accused persons have been ended in acquittal for want of evidence and also on the basis of the settlement, there is no purpose in keeping this case also. Further in the decision reported in **Gian Singh v. State of Punjab [2012(4) KLT 108 (SC)],** the Hon'ble Supreme Court has held that: “The position that emerges from the above discussion can be Crl. M. C. No.1205 of 2014 6 summarised thus: the power of the High Court in quashing a criminal proceedings or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case an no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc., or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of the criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal Crl. M. C. No.1205 of 2014 7 case is put to an end and if the answer to the above question (s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 8. In view of the dictum laid down in Gian Singh’s case (supra), and also considering the circumstances that, other accused persons have been acquitted on the ground of non-identification and the case against the 7[th] accused was quashed by this court and the present petitioner also settled the case with the 2[nd] respondent and they are living in harmony, I feel that, it is a fit case where the power under Section 482 of the 'Code' can be invoked to quash the proceedings to promote harmony between the parties and also considering the fact that, in view of the settlement, there is no possibility of conviction arises in this case as well. So the application is allowed and the case against the petitioner in C.C.No.753/2009 (in Crime No.323/2004 of Kunnathunadu police Station) on the file of the Judicial First Class Crl. M. C. No.1205 of 2014 8 Magistrate Court, Kolencherry, is quashed. Office is directed to communicate this order to the concerned court, immediately. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss