CRL.A. Nos.1354 & 1363 of 2012 (Manikandan and Sunil Kumar v. State of Kerala)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 18TH DAY OF JANUARY 2013/28TH POUSHA 1934 CRL.A.No. 1354 of 2012 () ------------------------AGAINST THE ORDER/JUDGMENT IN SC.329/2009 of COURT OF SESSIONS, PALAKKAD DATED 05-11-2012 APPELLANTS/ACCUSED NOS.1 & 6: --------------------------------------- 1. MANIKANDAN AGED 50 YEARS S/O.LATE RAMAKRISHNAN, PUTHUPARIYARAM, PALAKKAD. 2. SUNIL KUMAR, AGED 40 YEARS S/O.LATE RAMAKRISHNAN, PUTHUPARIYARAM, PALAKKAD. BY ADVS.SRI.P.N.SUKUMARAN SRI.P.S.APPU RESPONDENT(S): - ------------------- STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN RDEFACTO COMPLAINANT BY ADV. SRI.A.R.GANGADAS RDEFACTO COMPLAINANT BY ADV. SRI.M.A.SHAJI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ALONG WITH CRL.A.NO.1363 OF 2012 ON 18-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** ----------------------------------- Crl.A.Nos.1354 & 1363 of 2012 -----------------------------------Dated 18[th] January, 2013 ## **JUDGMENT** These appeals are directed against the judgment of conviction in S.C.No.329 of 2009 passed by the Court of Sessions, Palakkad. The former appeal has been filed by accused Nos.1 and 6 therein and the latter appeal has been filed by accused Nos.2 and 3. The appellants in the former appeal were convicted and sentenced under Sections 323 and 506(ii) read with Section 34 of the Indian Penal Code and in the latter appeal the appellants were convicted and sentenced under Section 323 IPC. Pending the appeals, the defacto complainant, common in both these appeals, on whom hurt was caused and intimidated, settled the dispute involved in the case that led to the conviction and sentence of the appellants herein. Based on the settlement arrived at between the parties viz., the appellants and the defacto complainant, Crl.M.A.No.393 of 2013 in Crl.A.No.1354 of 2012 and Crl.M.A.No.392 of 2013 in Crl.A.No.1363 of 2012 have been filed. It is specifically stated therein that the case that ultimately led to the conviction and sentence has been settled. In view of the said settlement, in Crl.M.A.No.393 of 2013 filed in Crl.A.No.1354 of 2012 it is prayed that the offence under Section 323 IPC may be compounded Crl.A.Nos.1354 & 1363 of 2012 2 and the charge under Section 506(ii) IPC may be quashed by invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure. In Crl.M.A.No.392 of 2013 filed in Crl.A.No.1363 of 2012, for the same reasons, the prayer is for compounding the offence under Section 323 IPC. It is to be noted that in both these appeals the defacto complainant filed affidavits admitting the factum of settlement of the dispute between himself and the appellants in both the appeals and revealing the fact that in both the appeals he compounded the offence under Section 323 IPC. against the appellants. In the affidavit filed in Crl.A.No.1354 of 2012 it is stated that he did not wish to prosecute the appellants any further and he got no objection in exoneration of the appellants of the blame. 2. In view of the order I propose to pass in these appeals I do not think it necessary to deal with the contentions or the evidence in extenso. Evidently, the appellants in Crl.A.No.1363 of 2012 were convicted and sentenced only under Section 323 IPC. and the appellants in Crl.A.No.1354 of 2012 were convicted and sentenced under Section 323 IPC besides the conviction and sentence under Section 506(ii) I.P.C. In view of the provisions under Section 320 Cr.P.C. the offences under Table-1 therein are compoundable by the person named in the third Crl.A.Nos.1354 & 1363 of 2012 3 column thereunder. No permission of the court is required for compounding the said offences. The policy of law that embodied in Section 320 Cr.P.C. is to promote friendliness in between the parties and to restore peace between them. In this case, as noticed hereinbefore, the parties arrived at a compromise and the issue has been settled between them. After hearing the learned counsel for the appellants and the learned counsel for the defacto complainant and perusing the petitions filed with the prayer for compounding the offence and the affidavits filed by the defacto complainant volunteering to compound the offence under Section 323 IPC against the appellants, I have no hesitation to hold that the defacto complainant being the person to whom hurt was caused by the appellants is competent to compound the offence under Section 323 IPC against the appellants. So also, I do not find any reason as to why it should not be done by the defacto complainant at this stage. If an offence is compoundable it can be compounded even at the appellate stage by the person who is competent to compound the same as long as there is no statutory bar for the same. I am fortified in my view by the decision of the Hon'ble Supreme Court in **Ibrahim** v. **Mohammed** reported in **(2010) 1 SCC 798** . Evidently, the defacto complainant on whom the appellants caused hurt compounded the offence. Accordingly, the compounding of the offence under Section 323 IPC Crl.A.Nos.1354 & 1363 of 2012 4 for which the appellants in Crl.A.Nos.1354 and 1363 of 2012 were convicted and sentenced, is recorded. 3. Now, I will consider the further prayer of the defacto complainant and appellants in Crl.A.No.1354 of 2012. As noticed hereinbefore, the appellants therein filed Crl.M.A.No.393 of 2013 stating that the issue was settled and a compromise has been arrived at between themselves and the defacto complainant. The appellants therein are convicted and sentenced under Section 506(ii) IPC as well. An offence under Section 506(ii) IPC is not compoundable even with permission of the court under Section 320 Cr.P.C. In such circumstances, taking into account the factum of settlement and compromise between the victim and the accused/appellants, whether the criminal proceedings that ultimately culminated in their conviction and sentence could be quashed by invoking the provisions under Section 482 Cr.P.C. is to be considered. A survey on the authorities is not required in the light of a recent decision of the Hon'ble Supreme Court in **Gian Singh** v. **State of Punjab** ( **2012 (4) KLT 108 (SC)** ). In that case the issue whether an offence punishable under Section 506(ii) IPC could be quashed taking into account the settlement and compromise entered into between the victim and the accused was considered in detail Crl.A.Nos.1354 & 1363 of 2012 5 by the Hon'ble Supreme Court. A perusal of the judgment of the Hon'ble Apex Court would reveal that the dictum laid down by the Apex Court in **B.S.Joshi** v. **State of Haryana** ( **2003 (2) KLT 1062 (SC)** ) and similar views in the decisions of the Apex Court in **Nikhil Merchant** v. **Central Bureau of Investigation & Anr.** ( **(2008) 9 SCC 677** ) and **Manoj Sharma** v. **State & Ors.** ( **(2008) 16 SCC 1** ) were quoted with approval by the Apex Court. In **B.S.Joshi's** case (supra) the Hon'ble Apex Court held that the High Court in exercise of its inherent powers can quash criminal proceedings or F.I.R or complaint and Section 320 Cr.P.C. does not limit or affect the power under Section 482 Cr.P.C. In the light of the said decision, there can be no doubt with respect to the position that once this Court is convinced of the fact that the allegation constituting the offence under Section 506(ii) IPC that ultimately led to the conviction and the sentence imposed on the accused, taken up in appeal, has been settled and compromised between the appellants and the defacto complainant and on getting convinced of the genuineness of it and that it will not be against the interest of justice the conviction and sentence which were taken up in appeal could be set aside and in fact, the very criminal proceedings that led to the conviction and sentence also could be quashed by invoking the power under Section 482 Cr.P.C. In this context, it is also to be noted that in similar circumstances, this Court as Crl.A.Nos.1354 & 1363 of 2012 6 per the decision in **Biju Eappen** v. **State of Kerala** ( **2010 (1) KLT 289** ) relying on the decision in **B.S.Joshi's** case (supra), quashed the conviction and sentence passed by the trial court as also the appellate court against the appellant concerned under Section 498A I.P.C. which is non-compoundable under Section 320 Cr.P.C. Having heard the learned counsel for the appellants, for the defacto complainant and also the learned Public Prosecutor I am fully satisfied that all the aforesaid situations are satisfied in this case and the interest of justice invites invocation of inherent power under Section 482 Cr.P.C. in this case. The conviction and sentence imposed on the appellants in Crl.A.No.1354 of 2012 are therefore, liable to be set aside and all further proceedings based on the F.I.R. in that case are also liable to be interfered with. 4. In the result, the offence under Section 323 IPC against the appellants in Crl.A.Nos.1354 and 1363 of 2012 is compounded and it is ordered that the composition of the offence shall have the effect of acquittal of the appellants with whom the said offence was compounded, in terms of sub-section (8) of Section 320 Cr.P.C. The conviction and sentence of the appellants in these appeals in S.C.No.329 of 2009 passed by the Court of Sessions, Palakkad are set aside and the entire proceedings against them based on the private complaint filed by the Crl.A.Nos.1354 & 1363 of 2012 7 defacto complainant are also quashed in invocation of the inherent power under Section 482 of the Code of Criminal Procedure. 5. The bail bonds, if any will stand cancelled. If the appellants had deposited any amount pursuant to the order passed by this Court in the appeals, the same shall be refunded to them, on proper application, in accordance with law. Both the appeals are disposed of as above. **Sd/-** C.T.RAVIKUMAR Judge TKS