Farsi, Murshid, Saifu, Rithu and Irshad v. State of Kerala and Younus C.H.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Raja Vijayaraghavan V.
Judgment Date: 2016-10-20
Court Decision / Holding: This petition will stand allowed. Annexure-A1 FIR in Crime No. 78 of 2016 of Hosdurg Police Station and all proceedings pursuant thereto against the petitioners are quashed.
Final Disposition: Petition allowed; proceedings quashed.

Parties to the Case

Appellants / Petitioners

Farsi
Murshid
Saifu
Rithu
Irshad

Respondents

The State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam representing S.H.O. Hosdurg Police Station, Kasaragod District
Younus C.H.

Legal Representation & Advocates

Counsels for Petitioners

• T. K. Vipindas

Counsels for Respondents

• Public Prosecutor
• Sri. Amjad Ali

Case Synopsis & Summary

This is a criminal Misc. Case under Section 482 CrPC before the Kerala High Court seeking to quash proceedings arising from Crime No. 78/2016 of Hosdurg Police Station, Kasaragod District, relating to alleged kidnapping, theft and offences under IPC Sections 365 (kidnapping), 325 (causing hurt) and 395 (dacoity). Accused Nos. 1 to 5 (Farsi, Murshid, Saifu, Rithu, Irshad) contend that a settlement has been reached with the de facto complainant, the 2nd respondent, who has sworn an affidavit stating that he has no grievance and does not wish to proceed. The prosecution submits that Section 482 powers must be exercised with caution in cases of public gravity; however, the court, following the three-judge Gian Singh decision, holds that 482 power can be invoked in cases with a civil flavour where disputes are settled mutually, especially where chances of conviction are remote and continued proceedings would be oppressive. The Court notes the incident is not gravely malafide and that settlement reduces risk to public order; hence the FIR and all proceedings are quashed. It cites Narinder Singh and Rajesh Kamath J. for guidelines on quashing in such scenarios.

Provisions of Law Cited

Section 482 CrPCSection 320 CrPCSection 365 IPCSection 325 IPCSection 395 IPC

Legal Doctrines & Maxims

Gian Singh v. State of Punjab
Narinder Singh v. State of Punjab
Rajesh Kamath J. v. Mohana Kurup
Quashing power under Section 482 CrPC based on settlement / civil flavour

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that the settlement between the parties ends the dispute and that continuing criminal proceedings would be oppressive and disproportionate in a case of this nature. They contend that Section 482 CrPC empowers the High Court to quash where the offence has civil overtones, the parties have resolved their dispute, and there is no genuine likelihood of conviction.

Contentions of Respondents

The State, through the Public Prosecutor, contends that the exercise of powers under Section 482 CrPC cannot be routine in offences of serious nature or where the case has a public impact. It emphasizes the need for caution and notes that the possibility of conviction, not merely private settlement, should guide such quashings. It also highlights the gravity of the alleged offences and potential harm to public order.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Gian Singh v. State of Punjab and Another	2012 (10) SCC 303	Positive	Cited to crystallize the scope of 482 CrPC quashing powers beyond Section 320, including settlements in civil-flavour cases.
Narinder Singh v. State of Punjab	2014 (6) SCC 466	Mentioned Only	Referenced for guidelines on when to exercise 482 powers; not the primary basis for the present quashing decision.
Rajesh Kamath J. v. Mohana Kurup and Others	AIR 2016 SC 2452	Mentioned Only	Cited as issuing recent guidelines; not the direct basis for the court's reasoning in this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 20TH DAY OF OCTOBER 2016/28TH ASWINA, 1938** **Crl.MC.No. 6607 of 2016 () ---------------------------** **CRIME NO. 78/2016 OF HOSDURG POLICE STATION , KASARGOD** **PETITIONER(S)/ACCUSED:** **---------------------** ## **1. FARSI** **AGED 21 YEARS, S/O.KHALID.C.H., RESIDING AT NHANIKADAVU, P.O.OZHINJAVALAPPU.** ## **2. MURSHID** **AGED 22 YEARS, S/O.MUSTHAFA, RESIDING AT NHANIKADAVU, P.O.OZHINJAVALAPPU.** ## **3. SAIFU** **AGED 20 YEARS, S/O.ABDULLA, RESIDING AT NHANIKADAVU, P.O.OZHINJAVALAPPU.** ## **4. RITHU** **AGED 20 YEARS, S/O.MUSTHAFA, RESIDING AT NHANIKADAVU,** **P.O.OZHINJAVALAPPU.** ## **5. IRSHAD** **AGED 21 YEARS, S/O.ASHARAF, RESIDING AT NHANIKADAVU,** **P.O.OZHINJAVALAPPU.** ## **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENT(S)/STATE:** **--------------------** **1. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING S.H.O. HOSDURG POLICE STATION, KASARAGOD DISTRICT.** **CONTD...** **:2:** ## **Crl.MC.No. 6607 of 2016 ()** ## **---------------------------** ## **2. YOUNUS.C.H.** **AGED 30 YEARS, S/O.MOIDU, CHIRAMMAL HOUSE, HOSDURG, OZHINHAVALAPPU, KASARAGOD DISTRICT - 671121.** **R2 BY ADV. SRI.A.L.GEORGE R BY PUBLIC PROSECUTOR, SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CONTD...** ## **:3:** **Crl.MC.No. 6607 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE-A1: TRUE COPY OF THE FIR IN CRIME NO.78/2016 OF HOSDURG POLICE STATION.** **ANNEXURE-A2: TRUE COPY OF THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 30.9.2016.** **RESPONDENT(S)' EXHIBITS : NIL -----------------------** **//TRUE COPY//** **P.A. TO JUDGE** ## **SKS** ## **RAJA VIJAYARAGHAVAN V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 6607 of 2016 - - - - - - - - - - - - - - - - Dated 20[th] October, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure. - 2.The petitioners herein are the accused Nos. 1 to 5 in Crime No. 78 of 2016 of the Hosdurg Police Station. They are accused of having committed offences punishable under Section 365, 325, 395 of the IPC. - 3.The prosecution allegation is that, on 27.01.2016 at about - 11.30 pm, the petitioners blocked the car of the 2[nd] respondent/de facto complainant and kidnapped him and thereafter assaulted him causing injuries. It is also alleged that a sum of Rs. 62,000/- and a Samsung smart phone was stolen from the possession of the de facto complainant. - 4.The 2[nd] respondent has entered appearance through his counsel and has filed Annexure-A2 affidavit wherein he has Crl.M.C. No. 6607 of 2016 -2- stated that he has settled the disputes and has no subsisting grievance against the petitioners. He asserts in the affidavit that he does not wish that the criminal proceedings against the petitioners should continue. - 5.The learned counsel appearing for the petitioners submits that in view of the settlement arrived at between the parties, this Court will be justified in quashing the proceedings. - 6.The learned Public Prosecutor after getting instructions has expressed his reservations in the matter of quashing the proceedings on the basis of settlement. It is submitted that the invocation of powers under Section 482 of the Code in a case of this nature is not warranted. However, it is submitted that no other cases are reported against the petitioners. - 7.In **Gian Singh v. State of Punjab and Another** [2012 (10)SCC 303], the Apex Court has crystalised the position in respect of the powers vested in the High Court under Crl.M.C. No. 6607 of 2016 -3- S.482 of the Criminal Procedure Code, to quash criminal proceedings. It was held that the power vested in the High Court under Section 482 of the Criminal Procedure Code, is not limited to quashing proceedings within the ambit and scope of Section 320 of the Criminal Procedure Code. The three - Judge Bench in the above case, clearly expounded, that quashing of criminal proceedings under S.482 of the Criminal Procedure Code, could also be based on settlements between private parties, and could also on a compromise between the offender and the victim. Only that, the above power did not extend to crimes against the society. It is also relevant to mention, that the jurisdiction vested in the High Court under Section 482 of the Criminal Procedure Code, for quashing criminal proceedings, was held to be exercisable in criminal cases having an overwhelming and predominatingly civil flavour, particularly offences arising from commercial, financial, mercantile, civil, partnership, or such like transactions. In Crl.M.C. No. 6607 of 2016 -4- all such cases, the parties should have resolved their entire dispute by themselves, mutually. Further, guidelines were issued by the Apex Court in **Narinder Singh v. State of Punjab** [2014 (6) SCC 466] and recently in **Rajesh Kamath J. and Others v. Mohana Kurup and Others** [AIR 2016 SC 2452]. 8.I have considered the rival submissions and I have gone through the materials on record. The offence committed by the petitioners cannot be said to be grave and serious having ingredients of extreme mental depravity. It also does not appear that the offence in this case will have a serious impact on the society. More over, when the respondent No.2 has settled the matter, the possibility of conviction is remote and bleak and the continuation of the criminal case against the petitioners would be a futile exercise. It would also put the petitioners and the 2[nd] respondent to great oppression and prejudice. - 9.Having considered all the relevant circumstances, I am of Crl.M.C. No. 6607 of 2016 -5- the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. AnnexureA1 FIR in Crime No. 78 of 2016 of Hosdurg Police Station and all proceedings pursuant thereto against the petitioners are quashed. **Sd/RAJA VIJAYARAGHAVAN V., JUDGE** SKS //TRUE COPY// P.A. TO JUDGE