Fasalkunhi and others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945`** ## **`CRL.MC NO. 2965 OF 2023 AGAINST THE ORDER/JUDGMENTCC 753/2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KASARAGOD`** ``` PETITIONER/S: ``` ``` 1FASALKUNHI AGED63YEARS S/OKUNHALIHAJI, R/ATSAIRAMANZIL,KANYANAHOUSE, PERDALAPOST,BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN67155 ``` ``` 2ABDULLAKUNHI AGED71YEARS S/OKUNHALIHAJI, R/ATTHATTARMOOLAHOUSE,THATTARMOOLA, BADIADKA,P.OPERDALA,BADIADKAVILLAGE, - KASARAGODDISTRICT,PIN671551 ``` ``` 3BASHEER AGED46YEARS S/OIBRAHIM, KANYANAHOUSE,PERDALAPOST,BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN671551 4SIDDIQUE.K AGED38YEARS S/OIBRAHIM, R/ATKANYANAHOUSE,PERDALAPOST,BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN671551 5RASHEED AGED45YEARS S/OIBRAHIM, R/ATKANYANAHOUSE,PERDALAPOST,BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN671551 ``` ``` CRL.MCNO.2965OF2023 ``` ``` 2 ``` ``` 6KAREEM AGED36YEARS S/OABDULLAKUNHI, R/ATTHATTARMOOLAHOUSE,THATTARMOOLA, BADIADKA,P.OPERDALA,BADIADKAVILLAGE, - KASARAGODDISTRICT,PIN671551 7MOOSAKUNHI AGED51YEARS S/OMOHAMMED, R/ATKANYANAHOUSE,PERDALAPOST,BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN671551 8BADSHA AGED31YEARS S/OFASALRAHMAN, R/ATTHATTARMOOLAHOUSE,THATTARMOOLA, BADIADKA,P.OPERDALA,BADIADKAVILLAGE, - KASARAGODDISTRICT,PIN671551 9ABDULLA AGED56YEARS S/OMOHAMMED, R/ATKANYANAHOUSE,PERDALAPOST,BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN671551 10SHAJANBAQAVI AGED71YEARS "QTEEB"S/OMOHAMMEDHANEEF, R/ATKANYANABADARJUMAMASJID,KANYANA, PERDALAPOST,BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN671551 BYADVP.RAKESHTHAMBAN ``` ## **`RESPONDENT/S:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,PIN682031 ``` ``` CRL.MCNO.2965OF2023 ``` ``` 3 ``` ``` 2KUNHALI.K AGED73YEARS S/OLATEBAPUNHI, R/ATKANYANAHOUSE,PERDALAPOST, BADIADKAVILLAGE, - KASARAGODTALUKANDDISTRICT,PIN671551 ``` ``` SRITRRENJITHSRPP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 31.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.2965OF2023 ``` ``` 4 ``` ## **ORDER** This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners herein are the accused Nos. 1 to 10 in CC.No.753 of 2018 on the files of the Judicial Magistrate of the First Class-II, Kasargod. In the said case, they face indictment for having committed offences punishable under Sections 143, 147, 341, 294(b), 506(i) r/w Section 149 of the IPC. 3. The prosecution allegation, as borne out from the records, are as under: On 29.01.2016 at about 1.30 p.m., the petitioners formed themselves into an unlawful assembly and, in prosecution of their common object, assaulted the informant and caused injuries. 4. The learned counsel appearing for the petitioners submitted that the parties have settled their disputes and they are not desirous of - pursuing the prosecution proceedings. Reliance is placed on Annexure A5 affidavit filed by the 2nd respondent to substantiate his contention. According to the learned counsel, if the proceedings are terminated, recording the amicable settlement, the parties can embark upon their future paths in an ``` CRL.MCNO.2965OF2023 ``` ``` 5 ``` atmosphere of tranquility and mutual respect. 5. When the matter had come up for admission, this court had directed the investigating officer concerned to record the statement of the defacto complainant/injured/victim and report as to whether the assertion in the petition and the affidavit filed in support that entire disputes have been resolved between the parties concerned is true and genuine. The investigating officer was also directed to report as to whether the petitioners are persons with criminal antecedents and whether there is any other impediment in terminating the criminal proceedings. 6. The learned Public Prosecutor has raised reservations with regard to the prospect of quashing the present proceedings purely on the basis of the settlement. It is urged that the extant circumstances may not warrant the exercise of the court's inherent jurisdiction, as conferred under Section 482 of the Code of Criminal Procedure. However, it is fairly submitted that no other transgressions or complaints stand registered against the Petitioners hitherto. It is further submitted that the statement of the party respondent has been recorded, and they have unequivocally expressed that they harbor no enduring grievances. 7. I have considered the submissions and have gone through the records. ``` CRL.MCNO.2965OF2023 ``` ``` 6 ``` 8. In **State of M.P. v. Laxmi Narayan,[1]** a three-judge bench of the Hon’ble Supreme Court has summarised the law as laid down in **Gian Singh v. State of Punjab[2]** , **Narinder Singh v. State of Punjab[3]** , **State of Rajasthan v. Shambhu Kewat[4]** , **State of M.P. v. Deepak[5] , State of M.P. v. Manish[6]** , **J. Ramesh Kamath v. Mohana Kurup[7]** ; **State of M.P. v. Rajveer Singh[8]** , **Parbatbhai Aahir v. State of Gujarat[9] , State of M.P. v. Kalyan Singh[10] and State of M.P. v. Dhruv Gurjar[11]** . It was laid down as under: 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove, it is observed and held as under: - 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 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; - 1 [(2019) 5 SCC 688] 2 (2012) 10 SCC 303 3 2014 (6) SCC 466 4 (2014) 4 SCC 149 5 (2014) 10 SCC 285 6 (2015) 8 SCC 307 7 2016) 12 SCC 179 8 (2016) 12 SCC 471 9 (2017) 9 SCC 641 10 (2019) 4 SCC 268 11 (2019) 5 SCC 570] ``` CRL.MCNO.2965OF2023 ``` ``` 7 ``` - 15.2. 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; - 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the 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; 15.4. Offences under Section 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 Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 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 Section 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 Section 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 Section 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/delicate 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 ``` CRL.MCNO.2965OF2023 ``` ``` 8 ``` ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact 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. 9. Having carefully analyzed the nature of the allegations, the gravity of the offense, the severity of injuries inflicted, antecedents of the petitioners, and the amicable relationship that now exists between the parties, I am of the considered opinion that the quashing of proceedings on the basis of the settlement will not have any adverse impact on the society and it would only inure to bring about peace and secure the ends of justice. Even otherwise, persisting with the prosecution would be nothing but a waste of time as the prospects of conviction are bleak. Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. ``` CRL.MCNO.2965OF2023 ``` ``` 9 ``` Resultantly, this petition will stand allowed. Annexure-A3 Final Report in Crime No.50/2016 of Badiadka Police Station and all further proceedings pending against the petitioners as C.C.No.753/2018 on the file of the Judicial Magistrate of the First Class-II, Kasargod, are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MCNO.2965OF2023 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 2965/2023`** ## **`PETITIONER ANNEXURES`** ``` AnnexureA1THECERTIFIEDCOPYOFTHEFIRINCRIME NO.50/2016OFBADIADKAPOLICESTATION AnnexureA2THECERTIFIEDCOPYOFTHEFISINCRIME NO.50/2016OFBADIADKAPOLICESTATION AnnexureA3THECERTIFIEDCOPYOFTHEFINALREPORTIN CRIMENO.50/2016OFBADIADKAPOLICESTATION AnnexureA4THECERTIFIEDCOPYOFTHECOMPLAINTINCC 753/2018OFJFCMIIKASARAGOD AnnexureA5THEAFFIDAVITSOLEMNLYAFFIRMEDBYTHE2ND RESPONDENT/DEFACTOCOMPLAINANTDATED 20.02.2023 ```