Dinay, Adith Jeevan and Balramkumar v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ``` CRL.MC NO. 7149 OF 2023 ``` ``` CRIME NO.2203/2018 OF Vaikom Police Station, Kottayam AGAINST THE ORDER/JUDGMENT CC 353/2019 OF JUDICIAL MAGISTRATE OF ``` ``` FIRST CLASS ,KOTTAYAM ``` ## **`PETITIONER/S:`** ``` 1DINAY AGED 27 YEARS S/O DAYAROY, RAMAKRIPAHOUSE, NADUVILVILLAGE, VYPINPADY ,KOTTAYAM DISTRICT, PIN - 670582 2ADITH JEEVAN AGED 30 YEARS S/O JEEVAN KUMAR, KAITHAKKEPADAVIL HOUSE, VADAKKEMURIVILLAGE, KOTTAYAM DISTRICT, PIN - 686143 3BALRAMKUMAR AGED 26 YEARS S/O SAMPATHKUMAR , KATHEKKEPADAVILHOUSE, K.S. PURAM, VADAKKEMURIVILLAGE, KOTTAYAM DISTICT, PIN - 686143 BY ADV J.ABHILASH ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2SHARON AGED 25 YEARS S/O MANOJ, ARAMPADITHARA HOUSE, PADINJAREMURI KARA , VAIKOM VILLAGE, KOTTAYAM, PIN - 686141 3NARAYANANKUTTY AGED 55 YEARS S/O SHIVARAMAN, CHOLOTHU HOUSE, VAIKOM VILLAGE, KOTTAYAM, PIN - 686141 4SOMASHEKARAN AGED 45 YEARS S/O RAJASHEKARAN, KANIYAMPARAMBIL HOUSE, NADUVIL VILLAGE, KOTTAYAM, PIN - 686141 5MANUIRAJ7149 AGED 37 YEARS S/O MANMADAN, SARASWATHIBHAVAN, UDAYANAPURAM, KOTTAYAM, PIN - 686143 ``` ``` CRL.MC NO. 7149 OF 2023 ``` ``` 2 ``` ``` 6ANEESH AGED 42 YEARS S/O ACHUTHAN, ARIYASSEY HOUSE, VAIKOM VILALGE, KOTTAYAM, PIN - 686141 7RAJESH AGED 35 YEARS S/O RAJAPPAN, MUPPATHIL HOUSE, VADAKKEMURI VILLAGE, KOTTAYAM, PIN - 686143 ``` ## **`OTHER PRESENT:`** ``` SRI HRITHWIK CS, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 7149 OF 2023 ``` ``` 3 ``` ## **`ORDER`** ## `Dated this the 10[th] day of November, 2023` This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioners are accused Nos. 6, 7 & 8 in CC No.353/2019 on the file of Judicial First Class Magistrate Court, Vaikom, Kottayam District. The above case is charge sheeted against the petitioners and others alleging offences punishable under Sec.143, 147, 294B, 324, 447 read with Sec.149 of the IPC. 3. The prosecution case is that the accused formed themselves into an unlawful assembly and assaulted the victim using filthy language. It is submitted that the case against the petitioners who are accused Nos. 6, 7 & 8 alone is settled. But, in the light of the decision in _**2022 (2) KLT 861 reported in Sajeev**_ _**Vs. State of Kerala**_ the case can be quashed, if the settlement is only against some of the accused. 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 ``` CRL.MC NO. 7149 OF 2023 ``` ``` 4 ``` 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 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 here 8. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the ``` CRL.MC NO. 7149 OF 2023 ``` ``` 5 ``` 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. 9. 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. 10. This Court has considered the submission of the petitioner, victim and the Public Prosecutor and has also gone through the records including the affidavits filed by the victims. 11. 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 ``` CRL.MC NO. 7149 OF 2023 ``` ``` 6 ``` ## 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 ``` CRL.MC NO. 7149 OF 2023 ``` ``` 7 ``` 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 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 ``` CRL.MC NO. 7149 OF 2023 ``` ``` 8 ``` absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc.” 13. 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. This Crl.MC is allowed. All further proceedings against the petitioners alone in CC No.353/2019 on the file of the Judicial First Class Magistrate Court, Vaikom, are quashed. sd/- ## **`P.V.KUNHIKRISHNAN`** ## **`JUDGE`** Nsd ``` CRL.MC NO. 7149 OF 2023 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 7149/2023`** ``` PETITIONER ANNEXURES Annexure A1THE TRUE COPY OF THE FINAL REPORT IN CC 353/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM DATED 28.01.2019 Annexure A2TRUE COPY OF THE AFFIDAVIT SWORN IN BY THE SECOND RESPONDENT Annexure A3TRUE COPY OF THE AFFIDAVIT SWORN BY THE THIRD RESPONDENT Annexure A4TRUE COPY OF THE AFFIDAVIT SWORN BY THE FOURTH RESPONDENT Annexure A5TRUE COPY OF THE AFFIDAVIT SWORN BY THE FIFTH RESPONDENT Annexure A6TRUE COPY OF THE AFFIDAVIT SWORN BY THE SIXTH RESPONDENT Annexure A7TRUE COPY OF THE AFFIDAVIT SWORN BY THE SEVENTH RESPONDENT ```