Criminal Miscellaneous Case Nos. 7724 of 2023 and 9459 of 2023 (Nithin & Namitha v. State of Kerala; Brijilal v. State of Kerala)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023/9[TH] AGRAHAYANA, 1945`** ``` CRL.MC NO. 7724 OF 2023 ``` ``` CRIME NO.271/2022 OF Cheranelloor Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CC 349/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY) ``` ## **`PETITIONER/S:`** - `1 NITHIN, AGED 30 YEARS, S/O MAHESWARAN, NITHIN BHAVAN, KARUVEL P.O, EDAVATTAM, KOTTARAKKARA, KOLLAM DISTRICT. NOW RESIDING AT 504(A), CONFIDENT PRIDE FLAT, VATTAEKUNNAM, THRIKKAKKARA NORTH VILLAGE, ERNAKULAM, PIN - 682021` - `2 NAMITHA, AGED 27 YEARS, D/O BABU SHEJIL KUMAR, KOZHIYOTTU HOUSE, PERIYA, MANANTHAVADY, WAYANA. NOW RESIDING AT 904 B, CONFIDENT PRIDE FLAT, VATTAEKUNNAM, THRIKKAKKARA NORTH VILLAGE, ERNAKULAM, PIN - 682021` ``` BY ADV LATHEESH SEBASTIAN ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031` - `2 STATION HOUSE OFFICER, CHERANELOOR POLICE STATION, ERNAKULAM, PIN - 683544` - `3 BRIJILAL, AGED 47 YEARS, S/O PUSHPANGATHAN, PUKARATTU HOUSE, AIMS POST, EDAPPALLY NORTH VILLAGE, KANAYANOOR TALUK, ERNAKULAM, PIN - 682024` ``` BY ADV NEETHU S. ``` ## **`OTHER PRESENT:`** ``` SRI RENJITH TR, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.11.2023, ALONG WITH Crl.MC.9459/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -2- Crl.M.C Nos. 7724 & 9459 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023/9[TH] AGRAHAYANA, 1945 CRL.MC NO. 9459 OF 2023 ``` ``` CRIME NO.18/2022 OF Cheranelloor Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT CC 315/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY) ``` ## **`PETITIONER/S:`** ``` BRIJILAL, AGED 46 YEARS, S/O PUSHPANGADAN, PUKKART HOUSE,KUNNUMPURAM, NEAR SBI BANK , EDAPPALLY NORTH, EDAPPALLY P.O, ERNAKULAM, PIN - 682021 ``` ``` BY ADV NEETHU S. ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` 2STATION HOUSE OFFICER, CHERANALLOOR POLICE STATION, ERNAKULAM DISTRICT, PIN - 683544 3NITHIN, AGED 30 YEARS, S/O. MAHESWARAN, NITHIN BHAVAN, KARUVEL P.O., EDAVATTAM, KOTTARAKKARA, KOLLAM DISTRICT ,NOW RESIDING AT 504(A), CONFIDENT PRIDE FLAT, VATTEKKUNNAM, THRIKKAKKARA NORTH VILLAGE, ERNAKULAM DISTRICT,, PIN - 682021 4NAMITHA, AGED 27 YEARS, D/O. BABU SHEJIL KUMAR, KOZHIYOTTU HOUSE, PERIYA, MANANTHAWADY, WAYANAD DISTRICT, NOW RESIDING AT 904(B), CONFIDENT PRIDE FLAT, VATTEKKUNNAM, THRIKKAKKARA NORTH VILLAGE, ERNAKULAM DISTRICT, PIN - 682021 ``` ``` BY ADV Latheesh Sebastian ``` ## **`OTHER PRESENT:`** ``` SRI HRITHWIK CS, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.11.2023, ALONG WITH Crl.MC.7724/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -3- Crl.M.C Nos. 7724 & 9459 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C Nos. 7724 & 9459 of 2023 ============================================================= Dated this the 30[th] day of November, 2023 ## **ORDER** These Criminal Miscellaneous Cases are connected and therefore, I am disposing of these two Crl.M.Cs by a common order. 2. Crl.M.C No.7724 of 2023 is filed to quash the proceedings in CC No.349 of 2022 on the file of the Judicial First Class Magistrate Court -IX, Ernakulam, arising from Crime No.271 of 2022 of Cheranelloor Police Station, Ernakulam. 3. Crl.M.C No.9459 of 2023 is filed to quash the proceedings in CC No.315 of 2023 on the file of the Judicial First Class Magistrate Court -IX, Ernakulam, arising from Crime No.18 of 2022 of Cheranelloor Police Station, Ernakulam. 4. It is submitted that these are case and counter case and both sides submitted that they settled the matter and they have no grievance. -4- Crl.M.C Nos. 7724 & 9459 of 2023 5. 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 affidavit 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. 6. 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. 7. This Court has considered the submission of the petitioner, victims and the Public Prosecutor and has also gone through the records including the affidavits filed by the victims. 8. 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 -5- Crl.M.C Nos. 7724 & 9459 of 2023 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 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;_ -6- Crl.M.C Nos. 7724 & 9459 of 2023 _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, 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_ -7- Crl.M.C Nos. 7724 & 9459 of 2023 _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.”_ 9. 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. Therefore, these Criminal Miscellaneous case are allowed. All further proceedings as against the petitioners in Crl.M.C. No.7724 of 2023, who are the accused in CC No.349 of 2022 on the file of the Judicial First Class Magistrate Court -IX, Ernakulam, arising from Crime No.271 of 2022 of Cheranelloor Police Station, Ernakulam, are quashed. -8- Crl.M.C Nos. 7724 & 9459 of 2023 All further proceedings as against the petitioner in Crl.M.C. No.9459 of 2023, who is the accused in CC No.315 of 2023 on the file of the Judicial First Class Magistrate Court -IX, Ernakulam, arising from Crime No.18 of 2022 of Cheranelloor Police Station, Ernakulam, are quashed. sd/- **P.V.KUNHIKRISHNAN** **JUDGE** das -9- Crl.M.C Nos. 7724 & 9459 of 2023 “C.C No.315/2023” wherever it occurs in the final order dated 30/11/2023 in Crl M.C. 9459/2023 is corrected and substituted as “C.C 315/2022” as per order dated 18/12/2023 in Crl.M.A.2/2023 in Crl.M.C.9459/2023. Sd/Joint Registrar -10- Crl.M.C Nos. 7724 & 9459 of 2023 ## **`APPENDIX OF CRL.MC 9459/2023`** ``` PETITIONER ANNEXURES Annexure 1CERTIFIED COPY OF FINAL REPORT IN CRIME NO.18/2022 OF CHERANALLOOR POLICE STATION, ERNAKULAM DISTRICT Annexure 2ORIGINAL OF THE AFFIDAVIT EXECUTED BY THE 3RD RESPONDENT Annexure 3ORIGINAL OF THE AFFIDAVIT EXECUTED BY THE 4TH RESPONDENT ``` -11- Crl.M.C Nos. 7724 & 9459 of 2023 ## **`APPENDIX OF CRL.MC 7724/2023`** ``` PETITIONER ANNEXURES Annexure 1TRUE COPY OF THE FINAL REPORT OF THE 2ND RESPONDENT IN CRIME NO 271/2022 OF CHERANELOOR POLICE STATION, ERNAKULAM DISTRICT Annexure 2ORIGINAL OF THE AFFIDAVIT EXECUTED BY THE 3RD RESPONDENT ```