Criminal Miscellaneous Case No. 5162 of 2023 (Crl.M.C. No.5162/2023)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, ``` ## **`1945`** ``` CRL.MC NO. 5162 OF 2023 ``` ``` CRIME NO.581/2012 OF ERAVIPURAM POLICE STATION, Kollam AGAINST THE ORDER IN CC 959/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, KOLLAM ``` ## **`PETITIONERS/ACCUSED 1 TO 12:`** - `1 NUJUMUDEEN @ ERACHI NUJU S/O.BASHEER AGED 49 YEARS, ULAVANTHAZHIYAM, THEJUS NAGAR-132, VADAKKEVILACHERRY, VADAKKEVILA VILLAGE, KOLLAM, PIN - 691010` - `2 NIYAS @ KACHI NIYAS S/O.ALIYARKUNJU AGED 39 YEARS, VELIYIL VEEDU, VADAKKEKKARA, SNEHADHARA NAGAR-17, VALATHUNGALCHERRY, VALATHUNGAL.P.O., ERAVIPURAM VILLAGE, KOLLAM, PIN - 691011` - `3 NAVAB, S/O.YUSUF KUNJU, AGED 59 YEARS, MANAMEL VEEDU, COLLEGE NAGAR-9, MANACAUDCHERRY, VADAKKEVILA VILLAGE, KOLLAM, PIN - 691010` - `4 FAIZAL, S/O.NIZAMUDEEN, AGED 46 YEARS THENGAZHIKATHU VEEDU, AISWARYA NAGAR123,VADAKKEVILACHERRY,VADAKKEVILA VILLAGE, KOLLAM, PIN - 691010` - `5 RASBER, S/O.KABEER, AGED 43 YEARS POCHAVILA PADINJATTATHIL, NEAR KAIZEE BOOKS, VADAKKUNKARA KIZHAKKECHERRY, UMAYANALLOOR THAZHUTHALA VILLAGE, KOLLAM, PIN - 691589` - `6 ANAS, S/O.ASSANARUKUNJU, AGED 41 YEARS PUTHENVEEDU, VALATHUNGALCHERRY, ERAVIPURAM VILLAGE, VALATHUNGAL.P.O., KOLLAM, PIN - 691011` - `7 ABDUL KALAM @ ANDI KALAM, S/O.ABDUL RASHEED AGED 45 YEARS, NABEER NIVAS, ULAKANTAZHIKAM,THEJUS NAGAR-128, VADAKKEVILACHERRY, VADAKKEVILA VILLAGE, KOLLAM, PIN - 691010` Crl.MC.5162/2023 2 - `8 SHAHUL HAMEED, S/O.VAVAKUNJU, AGED 72 YEARS KOONAMKANIYIL, CRESANT NAGAR-153, MANACADUCHERRY, VADAKKEVILA VILLAGE, KOLLAM, PIN - 691010` - `9 BISMIN SHAH, S/O.SHARAFUDEEN, AGED 45 YEARS, GREEN GARDEN VEEDU, KOOTTIKKADA, THAZHATHUCHERRY, MAYYANAD VILLAGE, KOOTTIKKADA.P.O., KOLLAM- 691020` - `10 SHAMNAD, S/O.SAINLABDEEN, AGED 31 YEARS CHEKKALAYIL VEEDU, KOOTTIKKADA NAGAR-55., VALATHUNGALCHERRY, ERAVIPURAM VILLAGE, KOOTTIKKADA.P.O., KOLLAM, PIN - 691020` - `11 HARIS, S/O.ABDUL AZEEZ, AGED 30 YEARS THODIYIL VEEDU (ANAS MANZIL), AYIRAMTHENGUCHERRY,MAYYANAD VILLAGE, MAYYANAD.P.O., KOLLAM, PIN - 691303` - `12 SHAFEER, S/O.ABDUL SALAM, AGED 31 YEARS CHEKKALAYIL VEEDU, KOOTTIKKADA, THAZHATHUCHERRY, MAYYANAD VILLAGE, KOOTTIKKADA.P.O., KOLLAM, PIN - 691020` - `BY ADVS. B.MOHANLAL ASWIN V. NAIR` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031` - `2 THE STATION HOUSE OFFICER, ERAVIPURAM POLICE STATION, ERAVIPURAM P.O., KOLLAM, PIN - 691011` - `3 SRI.BINOY @ UBAIDULLA, S/O.SHAHUL HAMEED AGED 43 YEARS, SHANOOR BHAVAN, THEJAS NAGAR-151, VADAKKEVILACHERRY, VADAKKEVILA VILLAGE, KOLLAM, PIN - 691010` - `4 SAJEER, AGED 39 YEARS, S/O.MUHAMMED, HANEEFA, VAYALIL VEEDU, S.K.N. NAGAR - 4, VADAKKEVILA CHERRY, VADAKKEVILA P.O., KOLLAM -691010` - `5 AFSAL BADHUSHA, AGED 44 YEARS, S/O. BADHUSHA, ASKAR BUILDINGS, CRESCENT NAGAR - 20, MANACAU CHERRY, VADAKKEVILA P.O., KOLLAM-691010` - `6 ASSAIN, S/O. AHAMED KUNJU, SELMATH MANZIL, THEJAS NAGAR-144, KAYYALAKKAL CHERRY, ERAVIPURAM VILLAGE ERAVIPURAM P.O., KOLLAM 691011` Crl.MC.5162/2023 3 ``` 7SHEFEEK, AGED 37 YEARS S/O. NOUSHAD, MANKUZHI PADINJATTATHIL, VAYANAKULAM, KAYYALAKKAL CHERRY, PADINJATTATHIL, VAYANKULAM, KAYYALAKKAL CHERRY, ERAVIPURAM VILLAGE, ERAVIPURAM P.O., KOLLAM-691011 8ANAS, AGED 35 YEARS S/O SHAJAHAN, MANKUZHI PADINJATTATHIL, HYDRALI NAGAR - 69, KAYYALAKKAL CHERRY, ERAVIPURAM VILLAGE, KOLLAM-691011 [R4 TO R8 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 8 AS PER ORDER DATED 27.09.2023 IN CRL.M.A. ``` ``` BY ADVS. KARTHIK J SEKHAR No Advocate SHINE N.S ``` ## **`OTHER PRESENT:`** ``` SRI RENJITH TR, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.MC.5162/2023 4 ## **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.No.5162 of 2023 ------------------------------------------Dated this the 19[th] day of December, 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. The petitioners are the accused in C.C.No.959/2015 on the file of Judicial First Class Magistrate Court-II, Kollam. The above case is chargesheeted alleging offences punishable under sections 143, 147, 148, 341, 323, 324, 427 r/w 149 of the Indian Penal Code. 3. The prosecution case is that the accused formed themselves into an unlawful assembly armed with dangerous weapons, wrongfully confined the victim, assaulted the victim and also committed mischief. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the Crl.MC.5162/2023 5 prosecution proceedings. The counsel relies on the affidavit filed by the victim in support of his contention. The 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. 6. This Court has considered the submission of the petitioners, 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 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 Crl.MC.5162/2023 6 ## 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 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_ Crl.MC.5162/2023 7 _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 noncompoundable 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 settlement can be accepted. 8 Crl.MC.5162/2023 Therefore, this Criminal Miscellaneous case is allowed. The further proceedings against the petitioners in C.C.No.959/2015 on the file of Judicial First Class Magistrate Court-II, Kollam are quashed. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ Crl.MC.5162/2023 9 ## **`APPENDIX OF CRL.MC 5162/2023`** ``` PETITIONER ANNEXURES Annexure-A1THE TRUE COPY OF THE FINAL REPORT IN C.P.NO.84/2024 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM WHICH WAS COMMITTED TO THE SESSIONS COURT, KOLLAM WHICH WAS MADE OVER TO THE ADDITIONAL DISTRICT AND SESSIONS JUDGE- V, KOLLAM IN S.C.NO.1011/2014 Annexure-A2THE TRUE COPY OF THE ORDER DATED 21/03/2015 IN CRL.M.P.NO:629/2015 IN S.C.NO.1011/2014 OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-V, KOLLAM ALONG WITH THE TYPED COPY OF THE SAME Annexure-A3THE ORIGINAL AFFIDAVIT DATED 31/05/2023 FILED BY THE DEFACTO COMPLAINANT Annexure A4THE TRUE COPY OF THE AFFIDAVIT DATED 21/08/2023 OF THE 4TH RESPONDENT Annexure A5THE TRUE COPY OF THE AFFIDAVIT DATED 21/08/2023 OF THE 5TH RESPONDENT Annexure A6THE TRUE COPY OF THE AFFIDAVIT DATED 21/08/2023 OF THE 6TH RESPONDENT Annexure A7THE TRUE COPY OF THE AFFIDAVIT DATED 21/08/2023 OF THE 7TH RESPONDENT Annexure A8THE TRUE COPY OF THE AFFIDAVIT DATED 21/08/2023 OF THE 8TH RESPONDENT Annexure A9THE TRUE COPY OF THE AFFIDAVIT DATED 30/09/2023 OF THE 9TH RESPONDENT Annexure A10THE TRUE COPY OF THE AFFIDAVIT DATED 30/09/2023 OF THE 10TH RESPONDENT ```