Crl.M.C. Nos.6824 of 2023 and 8581 of 2023 (In the High Court of Kerala at Ernakulam)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 CRL.MC NO. 6824 OF 2023 ``` ``` CRIME NO.1453/2021 OF Fort Police Station, ``` ## **`Thiruvananthapuram`** ``` AGAINST THE ORDER IN CC 17/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II,THIRUVANANTHAPURAM ``` ## **`PETITIONER/ACCUSED NOS.1 & 2:`** - `1 SANOFAR, AGED 39 YEARS, S/O. MAIDEEN KANNU, RESIDING AT T.C. 39/1164, BISMI NAGAR, MANACAUD, FORT, THIRUVANANTHAPURAM, PIN - 695009` - `2 NAJUMUDEEN, AGED 30 YEARS, S/O. ABDUL LATHEEF, RESIDING AT T.C. 39/1195-1, BISMI NAGAR, MANACAUD, FORT, THIRUVANANTHAPURAM, PIN - 695009 BY ADV J.G.SYAMNATH` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031` - `2 SUB INSPECTOR OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM, PIN - 695023` - `3 SAINULABDEEN, AGED 55 YEARS S/O. JAMAL MUHAMMED, RESIDING AT T.C. 8/1502(1), S.S. VILLA, THIRUMALA P.O., THIRUMALA VILLAGE, THIRUVANANTHAPURAM, PIN - 695006` - `4 ARJUN S. NAIR, AGED 28 YEARS, S/O SIVASUDHAN, SIVAKALA VEEDU, KUZHIYANVILA, NEAR GVHSS PUNNAKULAM, KOTTUKAL, THIRUVANANTHAPURAM - 695123 BY ADVS. M.DINESH BIJU RAJAN K.R.(K/267/1987)` ``` ADV.RENJITH T R, PP ``` Crl.MC.Nos.6824 and 8581 of 2023 2 ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.11.2023, ALONG WITH Crl.MC.8581/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 3 Crl.MC.Nos.6824 and 8581 of 2023 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 ``` ## **`CRL.MC NO. 8581 OF 2023`** ``` CRIME NO.1459/2021 OF Fort Police Station, ``` ## **`Thiruvananthapuram`** ``` AGAINST THE ORDER IN CC 6/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT -II, THIRUVANANTHAPURAM ``` ## **`PETITIONERS/ACCUSED:`** - `1 SAINULABDEEN, AGED 56 YEARS, S/O JAMAL MUHAMMAD, T.C. NO.8/1502 (1), S.S. VILLA, THIRUMALA, THIRUVANANTHAPURAM DISTRICT,, PIN - 695006` - `2 ARJUN.S., AGED 27 YEARS, S/O SIVASUTHAN NAIR, SIVAKALA VEEDU, NEAR PUNNAKKULAM, G.V.H.S.S., KUZHIYAN VILA, OFFICE WARD, KOTTAKAD, THIRUVANANTHAPURAM DISTRICT, PIN - 695572 BY ADVS. M.DINESH BIJU RAJAN K.R.` ## **`RESPONDENTS /STATE, DEFACTO COMPLAINANT & CW2:`** - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM 682031` - `2 SANOFAR, AGED 39 YEARS, S/O MOIDEENKANNU, RESIDING AT TC 39/1164 BISMI NAGAR, ATTAKKULANGARA, MANACAUD VILLAGE, THIRUVANANTHAPURAM, PIN - 695009` - `3* NAJUMUDEEN, AGED 30 YEARS, S/O ABDUL LATHEEF, RESIDING AT TC 39/1196, BISMI NAGAR, ATTAKKULANGARA, MANACAUD VILLAGE, THIRUVANANTHAPURAM,, PIN – 695009 [R3's NAME IS CORRECTED AS NAJEEB @ NAJUMUDEEN AS PER ORDER DATED 28.11.2023 IN CRL.M.A.2/2023] ADV.HRITHWIK C S, PP` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28.11.2023, ALONG WITH Crl.MC.6824/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 4 Crl.MC.Nos.6824 and 8581 of 2023 **P. V. KUNHIKRISHNAN, J. ------------------------------------------Crl.M.C.Nos.6824 and 8581 of 2023** **------------------------------------------Dated this the 28[th] day of November, 2023** ## **COMMON ORDER** These two Crl.M.Cs are connected and therefore, I am disposing of these two cases by a common order. 2. Crl.M.C.No.6824/2023 is filed to quash the proceedings in C.C.No.17/2022 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram arising from Crime No.1453/2021 of Fort Police Station, Thiruvananthapuram. Crl.M.C.No.8581/2023 is filed to quash the proceedings in C.C.No.6/2022 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram arising from Crime No.1459/2021 of Fort Police Station, Thiruvananthapuram. According to the petitioners, these are case and counter case and the matter is settled. 3. 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 affidavits 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 5 Crl.MC.Nos.6824 and 8581 of 2023 have no objection in quashing the prosecution. 4. 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. 5. 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. 6. 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: _“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 -_ 6 Crl.MC.Nos.6824 and 8581 of 2023 _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 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_ 7 Crl.MC.Nos.6824 and 8581 of 2023 _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.”_ 7. 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 cases are allowed as follows: (a) Crl.M.C.No.6824/2023 is allowed. All further proceedings against the petitioner in C.C.No.17/2022 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram arising from Crime No.1453/2021 of Fort Police Station, Thiruvananthapuram are quashed. 8 Crl.MC.Nos.6824 and 8581 of 2023 (b) Crl.M.C.No.8581/2023 is allowed. All flurther proceedings against the petitioner in C.C.No.6/2022 on the file of the Judicial First Class Magistrate Court-II, Thiruvananthapuram arising from Crime No.1459/2021 of Fort Police Station, Thiruvananthapuram are quashed. Sd/- **P. V. KUNHIKRISHNAN JUDGE** Sbna/ 9 Crl.MC.Nos.6824 and 8581 of 2023 ## **`APPENDIX OF CRL.MC 8581/2023`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`Annexure A1`|`CERTIFIED COPY OF THE F.I.R. IN CRIME`| ||`NO.1459/2021 OF FORT POLICE STATION,`| ||`THIRUVANANTHAPURAM DISTRICT DATED`| ||`27.7.2021`| |`Annexure A2`|`CERTIFIED COPY OF THE FINAL REPORT IN`| ||`C.C. NO.6/2022 ON THE FILE OF JUDICIAL`| ||`FIRST CLASS MAGISTRATE COURT-II,`| ||`THIRUVANANTHAPURAM WHICH AROSE FROM`| ||`CRIME NO.1459/2021 OF FORT POLICE`| ||`STATION, THIRUVANANTHAPURAM DISTRICT`| ||`DATED 25.12.2021`| |`Annexure A3`|`NOTARIZED AFFIDAVIT OF 2ND RESPONDENT`| ||`DATED 3.10.2023`| |`Annexure A4`|`NOTARIZED AFFIDAVIT OF 3RD RESPONDENT`| ||`DATED 3.10.2023`| 10 Crl.MC.Nos.6824 and 8581 of 2023 ## **`APPENDIX OF CRL.MC 6824/2023`** |`PETITIONER`|`ANNEXURES`| |---|---| |`Annexure-1`|`CERTIFIED COPY OF THE FINAL REPORT IN`| ||`CRIME NO. 1453/2021 OF FORT POLICE`| ||`STATION REGISTERED FOR OFFENSE UNDER`| ||`SEC. 294(B), 323 AND 34 IPC WHICH IS`| ||`PENDING AS C.C. NO. 17/2022 BEFORE THE`| ||`HON'BLE JUDICIAL FIRST CLASS MAGISTRATE`| ||`COURT II, THIRUVANANTHAPURAM`| |`Annexure-2`|`TRUE COPY OF THE AGREEMENT DATED`| ||`19/05/2022 EXECUTED BETWEEN THE`| ||`PETITIONERS' EMPLOYER, MR. BASHEER KHAN`| ||`AND THE THIRD RESPONDENT`| |`Annexure-3`|`A TRUE COPY OF THE ORDER DATED`| ||`12/08/2022 IN CRL. M.C. NO. 4556 OF 2022`| ||`OF THE HON'BLE HIGH COURT OF KERALA`|