Crl.M.C Nos. 5401 & 5402 of 2021, High Court of Kerala at Ernakulam

# **`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. 5401 OF 2021`** ## **`CRIME NO.877/2021 OF Thadiyittaparamba Police Station,`** ## **`Ernakulam`** ## **`PETITIONER/S:`** - `1 SAJITH P.A., AGED 29 YEARS S/O ANIL, PARAKKAL HOUSE, NEAR SOS,EDATHAKARA, EDATHALA VILLAGE, ERNAKULAM-683561.` - `2 MUHAMMED SHAFI, AGED 28 YEARS S/O SUBAIR, CHOOLAKKADAVU HOUSE, EDATHALA KARA, ALUVA EAST VILLAGE, ERNAKULAM-683563. BY ADV K.Y.SAJEEB` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.` - `2 MUHAMMAD SHAFI, AGED 28 YEARS, S/O.SUBAIR CHOOLAKKADAVU HOUSE, EDATHALA KARA, ALUVA EAST VILLAGE, ERNAKULAM 683563` - `3 NIBIN S.N, AGED 27 YEARS, S/O SAM BENJAMIN, SAM NIVAS , SOUTH VAZHAKULAM P.O, ERNAKULAM-683105 IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 2.11.2022 IN CRL.MA 1/2022 OF CRL.MC 5401/2021 BY ADV ASHISH GOPAL K.G` ## **`OTHER PRESENT:`** ``` SMT.SREEJA.V, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.11.2023, ALONG WITH Crl.MC.5402/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -2- Crl.M.C Nos. 5401 & 5402 of 2021 ## **`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. 5402 OF 2021 ``` ## **`CRIME NO.873/2021 OF Thadiyittaparamba Police Station,`** ## **`Ernakulam`** ## **`PETITIONER/S:`** - `1 MUHAMMAD SHAFI, AGED 28 YEARS S/O SUBAIR, CHOOLAKKADAVU HOUSE, EDATHARA KARA, ALUVA EAST VILLAGE, ERNAKULAM-683563.` - `2 NIBIN.S.N, AGED 27 YEARS S/O SAM BENJAMIN, SAM NIVAS, SOUTH VAZHAKULAM.P.O, ERNAKULAM-683105.` - `BY ADVS. KHADEEJA RISHBATH KALLINGAL ASHISH GOPAL K.G` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM682031.` - `2 SAJITH, AGED 29 YEARS, S/O ANIL, PARAKKAL HOUSE, NEAR SOS, EDATHALAKARA, EDATHALA VILLAGE, ERNAKULAM-683561.` - `3 JOMY MATHAI ( SOUGHT TO BE IMPLEADED ) S/O MATHAI KANDATHIL, CHUNAGAMVELIERUMATHALA, ALUVA VAZHAKULAM, ERNAKULAM ( SOUGHT TO BE IMPLEADED )` ``` BY ADVS. K.Y.SAJEEB No Advocate ``` -3- Crl.M.C Nos. 5401 & 5402 of 2021 ## **`OTHER PRESENT:`** ``` SMT.SREEJA.V, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.11.2023, ALONG WITH Crl.MC.5401/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -4- Crl.M.C Nos. 5401 & 5402 of 2021 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C Nos. 5401 & 5402 of 2021 ============================================================= Dated this the 1[st] day of November, 2023 ## **ORDER** These two Crl.M.Cs are connected and therefore, I am disposing of these two Crl.M.Cs by a common order. Crl.M.C No.5401 of 2021 is filed to quash the proceedings in Crime No.877 of 2021 of Thadiyattaparamba Police Station, Ernakulam District and the Crl.M.C No.5402 of 2021 is filed to quash the proceedings in Crime No.873 of 2021 of Thadiyattaparamba Police Station, Ernakulam. It is submitted that it is case and counter case and the case is settled between the parties. Both sides submitted that there is no objection in quashing the proceedings. 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 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- Crl.M.C Nos. 5401 & 5402 of 2021 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 petitioners, victims and the Public Prosecutor and has also gone through the records including the affidavits filed by the victims. 5. 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 detail and the same is extracted hereunder: -6- Crl.M.C Nos. 5401 & 5402 of 2021 _“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_ -7- Crl.M.C Nos. 5401 & 5402 of 2021 _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 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- Crl.M.C Nos. 5401 & 5402 of 2021 8. Keeping in mind the above dictum laid down by the apex6 court, this court perused the facts in these cases 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 cases are allowed in the following manner: In Crl.M.C No.5401 of 2021, all further proceedings in Crime No.877 of 2021 of Thadiyattaparamba Police Station, Ernakulam District, are quashed. In Crl.M.C No.5402 of 2021, all further proceedings in Crime No.873 of 2021 of Thadiyattaparamba Police Station, Ernakulam District, are quashed. sd/- ## **P.V.KUNHIKRISHNAN** ## **JUDGE** das -9- Crl.M.C Nos. 5401 & 5402 of 2021 ## **`APPENDIX OF CRL.MC 5402/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure ICERTIFIED COPY OF THE FIRST INFORMATION REPORT REGISTERED AS CRIME NO.873/2021 REGISTERED BY THE THADIYATTAPARAMBA POLICE STATION, ERNAKULAM DISTRICT,ALONG WITH THE CERTIFIED COPIES OF FIS. Annexure IITHE AFFIDAVIT SIGNED BY THE DEFACTO COMPLAINANT Annexure IIITHE COMPROMISE AFFIDAVIT FILED BY THE 3RD RESPONDENT DATED 1/09/2023 ``` -10- Crl.M.C Nos. 5401 & 5402 of 2021 ## **`APPENDIX OF CRL.MC 5401/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1CERTIFIED COPY OF THE FIRST INFORMATION REPPORT REGISTERED AS CRIME NO.887/2021 REGISTERED BY THE THADIYATTAPARAMBA POLICE STATION, ERNAKULAM DISTRICT,ALONG WITH THE CERTIFIED COPIES OF FIS. Annexure IITHE AFFIDAVIT SIGNED BY THE DEFACTO COMPLAINANT. Annexure IIITHE COMPROMISE AFFIDAVIT SWORN BY THE 3RD RESPONDENT ```