CRL.M.C No. 3670 of 2022 & 7812 of 2017

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ## **`CRL.MC NO. 3670 OF 2022`** ## **`AGAINST CRIME NO.1391/2012 OF ERNAKULAM NORTH POLICE STAION`** ## **`PETITIONER/S:`** ``` FAZIL T M AGED 29 YEARS THARAYIL HOUSE, MAMANGALAM PALARIVATTOM - 682025, PIN - 682025 BY ADVS. C.K.ANWAR K.S.SUMEESH ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682021` - `2 THE SUB INSPECTOR OF POLICE, E.T. NORTH POLICE STATION THE SUB INSPECTOR OF POLICE, E.T. NORTH POLICE STATION, PIN - 682018` - `3 MOHAMMED JESEEM, VELLEPARAMBIL HOUSE, DESHABHIMANI ROAD, COCHIN - 682025, PIN - 682025` - `4 YOUSEF NELLIKKA PARAMBIL HOUSE, PAALAPPARAMBU , KEERTHI NAGAR , COCHIN-682025, PIN - 682025` - `5 SANEER ( SOUGHT TO BE IMPLEADED ) EECHARANGATT LANE, DESHABHIMANI, KALOOR, ELAMKULAN VILLAGE, ERNAKULAM 682017 ( SOUGHT TO BE IMPLEADED ) BY ADVS. SIJI JOY P.R.SOPHIYA(K/309/2007)` -2- Crl.M.C No.3670/2022 & 7812/2017 ## **`OTHER PRESENT:`** ``` SRI.SANAL.P.RAJ, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.09.2023, ALONG WITH Crl.MC.7812/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -3- Crl.M.C No.3670/2022 & 7812/2017 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ``` CRL.MC NO. 7812 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT CC 928/2015 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , ERNAKULAM ``` ## **`PETITIONER/S:`** - `1 AKBAR V.A. S/O.ASHRAF V.A., AGED 29, VAPPUVEETTIL HOUSE, NETTAVELY LANE, ELAMAKKARA PO, COCHIN-682026.` - `2 MUHAMMED FAISAL P.I. S/O.IBRAHIM, PANACHIKKAL HOUSE, KARUKAPILLY LANE, ELAMAKKARA PO, COCHIN-682026.` - `3 JALEEL AGED 28 YEARS S/O.BASHEER, AGED 28 YEARS, THOTTAKKATTUKARA HOUSE, KEERTHI NAGAR, ELAMAKKARA-682026.` - `BY ADV SRI.K.S.SUMEESH` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.` - `2 THE SUB INSPECTOR OF POLICE E.T.NORTH POLICE STATION` ``` -682018. ``` - `3 MOHAMMED JESEEM AGED 23 YEARS AGED 23 YEARS, S/O.ABDUL KAREEM, VELLEPARAMBIL HOUSE, DESHABHIMANI ROAD, COCHIN-682026.` - `4 YOUSEF AGED 23 YEARS S/O.ASHRAF, AGED 23, NELLIKKA PARAMBIL HOUSE, PAALAPPARAMBU, KEETHI NAGAR, COCHIN-682026.` - `5 SANEER ( SOUGHT TO BE IMPLEADED )` -4- Crl.M.C No.3670/2022 & 7812/2017 ``` EECHARANGATT LANE, DESHABHIMANI, KALOOR, ELAMKULAN VILLAGE, ERNAKULAM 682017 ( SOUGHT TO BE IMPLEADED ) BY ADVS. No Advocate SIJI JOY ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.09.2023, ALONG WITH Crl.MC.3670/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -5- Crl.M.C No.3670/2022 & 7812/2017 ## P.V.KUNHIKRISHNAN, J. ====================================================== Crl.M.C No. 3670 of 2022 & 7812 of 2017 ============================================================= Dated this the 15[th] day of September, 2023 ## ORDER The petitioners in Crl.M.C No.7812 of 2017 are accused numbers 1 to 3 and the the petitioner in Crl.M.C No.3670/2022 is the accused No.4 in Crime No. 1391 of 2012 of Ernakulam North Police Station. Pending Crl.M.C No. 7812/2017, the accused Nos.1 and 2 faced trial and they were acquitted as per Annexure A6 judgment produced in Crl.M.C No. 3670 of 2022. Therefore the case against the petitioners 1 and 2 in Crl.M.C No.7812/2017 is infructuous. Now the dispute between the accused in this case and the victims are settled out of court. Moreover, the co-accused were also acquitted and in the light of the same, the continuation of the proceedings against the remaining accused is an abuse of process of court. -6- Crl.M.C No.3670/2022 & 7812/2017 2. 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 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. 3. 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. 4. This Court has considered the submission of the petitioner, victim and the Public Prosecutor and has also gone through the records including the affidavit 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 -7- Crl.M.C No.3670/2022 & 7812/2017 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 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 -8- Crl.M.C No.3670/2022 & 7812/2017 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 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 -9- Crl.M.C No.3670/2022 & 7812/2017 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.” 5. 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 Crl.M.C are allowed. All further proceedings against the 3[rd] petitioner in Crl.M.C No. 7812/2017 and the petitioner in Crl.M.C 3670/2022 which is now pending as CC No. 2100/2018 arising from Crime No.1391/2012 of Ernakulam North Town Police Station are -10- Crl.M.C No.3670/2022 & 7812/2017 quashed. The cases against the petitioners 1 and 2 in Crl. M.C No. 7812/2017 is closed. Crl.M.C No.3670/2022 is allowed. Sd/- P.V.KUNHIKRISHNAN, JUDGE das/jma -11- Crl.M.C No.3670/2022 & 7812/2017 ## **`APPENDIX OF CRL.MC 7812/2017`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE ACERTIFIED COPY OF THE CHARGE SHEET DATED 03.08.2012. ANNEXURE BTHE ORIGINAL AFFIDAVIT SWORN TO BY THE 3RD RESPONDENT DATED 20.09.2017. ANNEXURE CTHE ORIGINAL AFFIDAVIT SWORN TO BY THE 4TH RESPONDENT DATED 20.09.2017. ``` -12- Crl.M.C No.3670/2022 & 7812/2017 ## **`APPENDIX OF CRL.MC 3670/2022`** |`PETITIONER`|`ANNEXURES`| |---|---| |`Annexure1`|`CERTIFIED COPY OF THE CHARGE SHEET DATED`| ||`03.08.2012`| |`Annexure2`|`THE CERTIFIED COPIES OF THE DEPOSITIONS`| ||`OF PW 1 IN CC 928/2015 DATED 26.07.2018`| |`Annexure3`|`THE CERTIFIED COPIES OF THE DEPOSITIONS`| ||`OF PW 2 IN CC 928/2015 DATED 26.07.2018`| |`Annexure4`|`THE CERTIFIED COPIES OF THE DEPOSITIONS`| ||`OF PW 3 IN CC 928/2015 DATED 26.07.2018`| |`Annexure5`|`THE CERTIFIED COPIES OF THE DEPOSITIONS`| ||`OF PW 2 IN CC 928/2015 DATED 26.10.2018`| |`Annexure6`|`THE CERTIFIED COPY OF THE JUDGEMENT DATED`| ||`30.10.2018 IN CC 928/2015 OF ACJM`| ||`ERNAKULAM`| |`Annexure7`|`AFFIDAVIT OF YOUSEF S/O ASHRAF DATED`| ||`28.05.2022`| |`Annexure8`|`AFFIDAVIT OF MUHAMMED JASEM S/O ABDUL`| ||`KAREEM DATED 28.05.2022`|