Faisal Ismail and Fahid Saidh v. State of Kerala and Jain P Joy

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA, 1945 CRL.MC NO. 5135 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CC 373/2021 OF CHIEF JUDICIAL MAGISTRATE, THODUPUZHA ``` ## **`PETITIONERS/ACCUSED NO. 3 AND 4:`** ``` 1FAISAL ISMAIL AGED 30 YEARS S/O OF ISMAIL, MUNDYCKAL HOUSE, KUMBANGALLU, KARIKODE VILLAGE, THODUPUZHA EAST, IDUKKI DISTIRICT, PIN - 685581 2FAHID SAIDH AGED 31 YEARS S/O MUHAMMED, ULLADANPARAMBIL VEEDU, KARIKODE VILLAGE, THODUPUZHA EAST, IDUKKI DISTIRICT, PIN - 685581 ``` ``` BY ADV K.P.S.JALALUDDEEN MOHMMED ``` ## **`RESPONDENTS/DEFACTO COMPLAINANT:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` ``` 2JAIN P JOY S/O P.J JOY AGED 41 YEARS, PALLIKKARAYIL HOUSE, TRIKODITHANAM VILLAGE, AMARA P.O, CHANGANASSERY, NOW RESIDING AT PALLIKKARAYIL HOUSE, KOTHAYIKUNNU, THODUPUZHA P.O, THODUPUZHA VILLAGE, KOTTAYAM DISTRICT, PIN - 685584 ``` ``` CRL. M.C. NO.5135 OF 2023 ``` **==> picture [7 x 9] intentionally omitted <==** ## **`PRESENT:`** ``` SRI. RENJITH T.R, PUBLIC PROSECUTOR SRI. AJMAL P.A ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` 3 ``` CRL. M.C. NO.5135 OF 2023 ``` **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 5135 of 2023 ---------------------------------------------Dated this the 07[th] day of September, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners are the accused Nos. 3 and 4 in C.C. No. 373/2021 on the files of the Chief Judicial Magistrate Court, Thodupuzha, arising from Crime No. 2232/2020 of Thodupuzha Police Station. The above case is charge sheeted against the petitioners alleging offences punishable under Sections 120(B), 406, 407, 420 r/w 34 of IPC. 3. The prosecution case is that, the 1[st] 4 ``` CRL. M.C. NO.5135 OF 2023 ``` accused purchased an Innova car bearing registration No.KL-27B 505 from the 2[nd] respondent/defacto complainant on the understanding that the Equated Monthly Instalments (EMI) payable to M/s. Tata Capital Finance shall be paid by the 1[st] accused. The 1[st] accused did not pay the EMI’s as undertaken and the complaint was submitted in such circumstances. It is submitted that the case against the 2[nd] accused is already quashed by this Court as per order dated 26.07.2022 in Crl. M.C. No.4777/2021. 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 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 5 ``` CRL. M.C. NO.5135 OF 2023 ``` 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, victim and the Public Prosecutor and has also gone through the records including the affidavit filed by the victim. 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 6 ``` CRL. M.C. NO.5135 OF 2023 ``` 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 ``` CRL. M.C. NO.5135 OF 2023 ``` 7 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 conclusion in paragraphs ``` CRL. M.C. NO.5135 OF 2023 ``` 8 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. 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, this Criminal Miscellaneous case is 9 ``` CRL. M.C. NO.5135 OF 2023 ``` allowed. All further proceedings against the petitioners in C.C. No. 373/2021 on the files of the Chief Judicial Magistrate Court, Thodupuzha, arising from Crime No. 2232/2020 of Thodupuzha Police Station, are quashed. Sd/- ## **P.V.KUNHIKRISHNAN** nvj **JUDGE** ``` CRL. M.C. NO.5135 OF 2023 ``` 10 ## **`APPENDIX OF CRL.MC 5135/2023`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE1A CERRTIFIED COPY OF THE FIR IN CRIME 2232/2020 OF THODUPUZHA POLICE STATION DATED 01.11.2020 ``` ``` ANNEXURE IIA CERTIFIED COPY OF THE CHARGE IN CRIME 2232/2020 OF THODUPUZHA POLICE STATION DATED 25.05.2021 ANNEXURE IIITHE ORIGINAL OF THE AFFIDAVIT GIVEN BY THE 2ND RESPONDENT DATED 30.05.2023 ANNEXURE IVA TRUE COPY OF THE ORDER IN CRL.MC NO. 4777 OF 2021 DATED 26.07.2022 BEFORE THIS HON'BLE COURT ``` RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE