Binu and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945 CRL.MC NO. 2468 OF 2019** **CRIME NO.896/2009 OF Cheranelloor Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CC 564/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY)** ## **PETITIONER/ACCUSED 1 TO 4:** 1 BINU, S/O. JOSE, EDAPPALLY NORTH, ROAD VILLA, PONEKKARA, ERNAKULAM - 682 041 2 JITHIN @ KANNAN S/O. MANI, EDAPPALLY NORTH, PONEKKARA, KADIPPARAMBU HOUSE, ERNAKULAM DISTRICT - 682 041 3 DEEPU S/O. JOHNY, EDAPPALLY NORTH, PONEKKARA, NEAR AMRUTHA HOSPITAL, PALLATHU HOUSE, ERNAKULAM - 682041 4 SANU S/O. UNNI, KOLLAMPARAMBIL, AIMS P.O, EDAPPALLY, ERNAKULAM - 682 041 BY ADVS. P.C.ANIL KUMAR SRI.MANU.M.THOMAS SMT.P.SREESHA ## **- RESPONDENTS/DE FACTO COMPLAINANT/CW 2ND & 5TH** 1 STATE OF KERALA, REPRESENTED BY THE SI OF POLICE, CHERANALLOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 2 MANSOOR, S/O. KUNJU MUHAMMED, PUTHARNPURAKKAL HOUSE, MANJUMMEL, CHERANALLOOR, ERNAKULAM - 683 501 3 RATHEEESH, S/O. RAJU, THCHIYATHY THONDIYIL HOUSE, EDAYAKKUNNAM, Crl.M.C.No.2468 of 2019 **==> picture [7 x 9] intentionally omitted <==** NEAR EDAYAKKUNNAM PANCHAYATH OFFICE, ERNAKULAM - 682 027 BY ADVS. SRI. PRASANTH MP, PP SRI.AASHIQUE AKTHAR HAJJIGOTHI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2468 of 2019 3 **P.V.KUNHIKRISHNAN, J. ------------------------------** **Crl.M.C.No.2468 of 2019 ---------------------------------------------Dated this the 01[st] day of November, 2023** ## **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. Petitioners are the accused in C.C.No.564/2018 on the file of the Judicial First Class Magistrate Court -IX, Ernakulam arising from Crime No.896/2009 of Cheranalloor Police Station. The above case is charge sheeted alleging offences punishable under Section 323, 325 r/w 34 IPC. 3. It is submitted that the injured in this case died after giving evidence before the trial court. Now it is submitted that the matter is settled with the Crl.M.C.No.2468 of 2019 4 legal heirs of deceased injured and with other injured persons. 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 affidavits filed by the victims in support of his contention. The counsel appearing for the victims also submitted that the matter is settled and the victims have no objection in quashing the prosecution. 5. The learned Public Prosecutor submitted that the statement of the other injured persons and the legal heirs are recorded and they submitted that the matter is settled. 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 Crl.M.C.No.2468 of 2019 5 the matter is settled between the parties. 6. This Court has considered the submission of the petitioners, victims and the Public Prosecutor and has also gone through the records including the affidavits filed by the victims. 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 apex court in paragraph 13 of the _**Laxmi Narayan**_ 's case discussed the law in Crl.M.C.No.2468 of 2019 6 ## 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 is framed under_ Crl.M.C.No.2468 of 2019 7 _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 8 Crl.M.C.No.2468 of 2019 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 settlement can be accepted. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in C.C.No.564/2018 on the file of the Judicial First Class Magistrate Court -IX, Ernakulam arising from Crime No.896/2009 of Cheranalloor Police Station are quashed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.2468 of 2019 9 ## **APPENDIX OF CRL.MC 2468/2019** ## PETITIONER ANNEXURES |ANNEXURE A1|A CERTIFIED COPY OF THE FIR| |---|---| ||NO.896/2009 DATED 21.10.2009 OF THE| ||CHERANALLOOR POLICE STATION| |ANNEXURE A2|A CERTIFIED COPY OF THE FINAL| ||REPORT DATED 30.10.2009 IN CRIME| ||NO.896/2009 OF THE CHERANALLOOR| ||POLICE STATION| |ANNEXURE A3|A CERTIFIED COPY OF THE DEPOSITION| ||OF PW1| |ANNEXURE A4|A<br>PHOTOCOPY<br>OF<br>THE<br>DEATH| ||CERTIFICATE OF PW1| |ANNEXURE A5|A<br>DOWNLOADED<br>COPY<br>OF<br>THE| ||PROCEEDINGS IN THE E-COURT WEB SITE| |ANNEXURE A6|NOTARY ATTESTED AFFIDAVIT OF| ||CW2/2ND RESPONDENT| |ANNEXURE A7|NOTARY ATTESTED AFFIDAVIT OF| ||CW5/3RD RESPONDENT| |RESPONDENTS|EXHIBITS<br>: NIL| ||//TRUE COPY//<br>PA TO JUDGE|