Crl.M.C. Nos. 7372 and 7263 of 2023, common order

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 CRL.MC NO. 7372 OF 2023 ``` ``` AGAINST THE ORDER IN CP 26/2022 OF JUDICIAL MAGISTRATE OF ``` ``` FIRST CLASS COURT, PAYYOLI ``` ## **`PETITIONER/ACCUSED NO.12:`** ``` MUHAMMED JAVAD, AGED 36 YEARS, S/O KUNJAMMAD HAJI KINARULLATHIL,AVALA, PIN - 673524 ``` ``` BY ADV K.REEHA KHADER ``` ## **`RESPONDENTS/STATE/DEFACTO COMPLAINANT:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031` - `2 KALLIANI, AGED 65 YEARS W/O VELLAN, CHERIYANDIMEETHAL HOUSE, KAKKARAMUKKU,CHERUVANNUR,KOYILANDY, PIN - 673027` - `3 HANEESHAN, AGED 45 YEARS S/O VELLAN, CHERIYANDIMEETHAL HOUSE, KAKKARAMUKKU,CHERUVANNUR,KOYILANDY,, PIN - 673027` ## **`OTHER PRESENT:`** ``` P.K.SUBHASH HRITHWICK CS, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2023, ALONG WITH Crl.MC.7263/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 2 Crl.M.C.7372 & 7263 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, ``` ## **`1945`** ## **`CRL.MC NO. 7263 OF 2023`** ``` CRIME NO.105/2009 OF Meppayur Police Station, Kozhikode AGAINST THE ORDER IN SC 290/2022 OF SUB COURT, QUILANDY ``` ## **`PETITIONER/ACCUSED NO.18:`** ``` MOOSA, AGED 50 YEARS,S/O KUNJIABDULLA MATHALLEKAKKARA,CHERUVANNUR, PIN - 673027 BY ADV K.REEHA KHADER ``` ## **`RESPONDENTS/STATE/DEFACTO COMPLAINANT:`** - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031` - `2 KALLIANI, AGED 65 YEARS W/O VELLAN,CHERIYANDIMEETHAL HOUSE, KAKKARAMUKKU,CHERUVANNUR,KOYILANDY,, PIN - 673027` - `3 HANEESHAN, AGED 45 YEARS S/O VELLAN, CHERIYANDIMEETHAL HOUSE, KAKKARAMUKKU,CHERUVANNUR,KOYILANDY,, PIN - 673027` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2023, ALONG WITH Crl.MC.7372/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 3 Crl.M.C.7372 & 7263 of 2023 ## **P. V. KUNHIKRISHNAN, J.** **------------------------------------------Crl.M.C.Nos.7372 and 7263 of 2023 ------------------------------------------Dated this the 25[th] day of October, 2023** ## **COMMON 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. These Crl.M.Cs are connected and therefore I am disposing of the Crl.M.Cs by a common order. The petitioner in Crl.M.C.No.7372/2023 is the accused in C.P.No.26/2022 on the file of the Judicial First Class Magistrate Court, Payyoli arising from Crime No.105/2009 of Meppayur Police Station, Kozhikode. The petitioner is Crl.M.C.No.7263/2023 is the accused in S.C.No.290/2022 on the file of the Assistant Sessions Court-III, Koyilandy arising from Crime No.105/2009 of Meppayur Police Station, Kozhikode. The above cases are arising from the same crime and chargesheeted for offences punishable under sections 143, 147, 148, 341, 323, 326 308 r/w 149 of the Indian Penal Code. 4 Crl.M.C.7372 & 7263 of 2023 3. The prosecution case is that the accused formed themselves into an unlawful assembly and assaulted the victims and the victim sustained grievous hurt. 4. 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. 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, victims and the Public Prosecutor and has also gone through the records including the affidavits 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 5 Crl.M.C.7372 & 7263 of 2023 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: _“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_ 6 Crl.M.C.7372 & 7263 of 2023 _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 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 7 Crl.M.C.7372 & 7263 of 2023 dispute is private in nature and the settlement can be accepted. ## Therefore, these Criminal Miscellaneous cases are allowed as follows: ## **Crl.M.C.No.7372/2023** The further proceedings against the petitioner in C.P.No.26/2022 on the file of the Judicial First Class Magistrate Court, Payyoli arising from Crime No.105/2009 of Meppayur Police Station, Kozhikode is quashed. ## **Crl.M.C.No.7263 /2023** The further proceedings against the petitioner in S.C.No.290/2022 on the file of the Assistant Sessions Court-III, Koyilandy arising from Crime No.105/2009 of the Meppayur Police Station, Kozhikode are quashed. Sd/- ## **P. V. KUNHIKRISHNAN JUDGE** Sbna/ 8 Crl.M.C.7372 & 7263 of 2023 ## **`APPENDIX OF CRL.MC 7263/2023`** ``` PETITIONER ANNEXURES Annexure A1CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 105/2009 OF MEPPAYUR POLICE STATION, KOZHIKODE DISTRICT PENDING BEFORE THE ADDL.ASS.SESSIONS COURT- III,KOZHIKODE AS SC NO. 290/2022 Annexure A2. CERTIFIED COPY OF MEMORANDUM OF EVIDENCE Annexure A3AFFIDAVIT SWORN BY R2 Annexure A4AFFIDAVIT SWORN BY R3 ``` 9 Crl.M.C.7372 & 7263 of 2023 ## **`APPENDIX OF CRL.MC 7372/2023`** ## `PETITIONER ANNEXURES` ``` Annexure A1A TRUE COPY OF THE FINAL REPORT IN CRIME NO. 105/2009 OF PMEPPAYUR POLICE STATION, KOZHIKODE DISTRICT PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT PAYYOLI AS CP 26/2022 Annexure A2A TRUE COPY OF MEMORANDUM OF EVIDENCE Annexure A3AFFIDAVIT SWORN BY R2 Annexure A4AFFIDAVIT SWORN BY R3 ```