G. Asokan and Nikhil Chan @ Deepu v. State of Kerala and Robert @ Sundaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938** **Crl.MC.No. 1181 of 2015 () ---------------------------** ## **CRIME NO. 49/2015 OF VILAPPILSSALA POLICE STATION , THIRUVANANDAPURAM** **PETITIONER(S):** ## **-------------** **1. G.ASOKAN** **NIKHIL NIVAS, MANALI, KOLLADU MURI, KULATHUMMAL VILLAGE, THIRUVANANANTHAPURAM** **2. NIKHIL CHAN @ DEEPU S/O.G.ASOKAN, -DO-** **BY ADVS.SRI.SHABU SREEDHARAN SRI.S.VIJAYAN SRI.N.MUHAMMAD SAJU SRI.C.PAULOSE SRI.SREEDHARAN KARATTA SMT.RESHMA ABDUL RASHEED** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. ROBERT @ SUNDARAN S/O.LASER, AGED 44 YEARS ROADARIKATHUVEEDU, KAMUKINKODU MANALI, MOONGODU, KATTAKKADA THIRUVANANANTHAPURAM- 695 572 (IMPLEADED AS PER ORDER DT 15.7.2016 IN CRL.M.A.6451/2016)** **R2(ADDLR) BY ADV. SRI.K.V.PREMSANKAR R1 BY ADV.AMJAD ALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1181 of 2015 ()** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE 1:THE TRUE COPY OF THE OP TICKET AND THE CASE SHEET OF THE COMMUNITY HEALTH CENTRA, VILAPPILSALA** **ANNEXURE 2:THE TRUE COPY OF THE COMPLAINT DATED 13.01.2015** **ANNEXURE 3:THE TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAM DAILY DATED 16.01.2015** **ANNEXURE 4:THE CERTIFIED COPY OF THE FIR WITH THE FIS DATED 15.01.2015** **ANNEXURE 5:THE TRUE COPY OF THE SAID ORDER IN BA NO.488/2015 DATED 16.02.2015** **ANNEXURE 6:THE TRUE COPY OF THE DOCUMENT DATED 09.02.2015 EXECUTED BY THE LEGAL HEIRS OF THE DECEASED SHOWING SETTLEMENT** **ANNEXURE 7:THE TRUE COPY AFFIDAVIT DATED 09.02.2015** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **ANNEXURE R2(A)-TRUE COPY OF AGREEMENT EXECUTED BETWEEN THE RESPONDENTS 1 AND 2 HEREIN AND THE PETITIONER DT 18.3.2015.** **TRUE COPY** **SKS** **P.A TO JUDGE** ## **RAJA VIJAYARAGHAVAN.V, J.** **.................................................... CRL.M.C. NO. 1181 of 2015** **..................................................... Dated this the 5[th] day of August, 2016** ## **ORDER** 1.The petitioners herein are the accused Nos.1 & 2 in Crime No.49/2015 of Vilappilsala Police Station. In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioners seek to quash the above proceedings on the ground that the disputes have been amicably resolved. 2.The prosecution allegation is that the petitioners herein, who are father and son respectively, were operating a quarry at Manali. On 15.1.2015, at about 7.15 a.m, while one Joseph @ Raju and one Sundaran were engaged in work at the quarry, some pieces of boulders, fell on them causing serious injuries. The aforesaid Joseph died at the spot itself and Sundaran sustained serious injuries. The specific prosecution allegation is that the accused had carried out the work with jack hammers and without 2 CRL.M.C. NO. 1181 of 2015 - adopting precautionary measures. Initially, the crime was registered under Section 304, 338 read with Section 34 of the IPC. Later, 338 of the IPC was deleted and Section 308 of the IPC was added. - 3.It is submitted by the learned counsel for the petitioner that the matter has been settled between the petitioners with the injured persons and the relatives of the deceased. It is also submitted that the de facto complainant has filed an affidavit wherein it is stated that the petitioners had no role to play in the functioning of the quarry. The learned counsel urges that the petitioners had expended large sums of money for the funeral and treatment expenses and Annexure-6 document is relied upon to contend that the legal heirs of the deceased have been compensated. - 4.The learned Public Prosecutor vehemently opposed the submission made by the learned counsel and submitted 3 CRL.M.C. NO. 1181 of 2015 - that the investigation is at the early stages and offence under Section 304 falls under the grave category of offences and cannot be quashed on the ground of a reported settlement of the disputes. It is also submitted that the 1[st] accused is also accused in Crime No 548 of 2014 of the Vilappisala Police Station registered under section 304 (A), 286 r/w Section 34 of the IPC for negligent use of Explosive substances which consequently resulted in the death of a lady . - 5.Heard the rival submissions and have perused the materials on record. The investigation is at the preliminary stage and the contention of the petitioners that the ingredients of the offences are not made out cannot be accepted. - 6.In so far as the reported settlement with the legal heirs of the deceased and the settlement with the injured is concerned, this Court is of the view that the said 4 CRL.M.C. NO. 1181 of 2015 settlement cannot be taken note of by this Court while exercising powers under Section 482 of the Code of Criminal Procedure as the offence alleged falls into the grave category. The offence under Section 304 of the IPC cannot be settled on the basis of an affidavit filed by the near relatives or on the affidavit of the de facto complainant. 7. **In Gian Singh v. State of Punjab (2012 (10) SCC** **303)** , Apex Court has held that powes under Section 482 of the Code cannot be exercised to quash the proceedings in those prosecutions which involve 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. I am of the firm view that offences under Section 304 of the IPC, will fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society 5 CRL.M.C. NO. 1181 of 2015 and not against the individual alone unless special circumstances come to the notice of the Court to take a different view _._ 8. The Apex Court in **State of M.P. v. Manish and Others (2015 (8) SCC 307)** and also in **State of M.P. v. Deepak and Others (2014 (10) SCC 285** ) has held that certain grave offences such as Section 307 of the IPC cannot be treated as a private dispute between the parties _inter se_ but is to be held to be a crime against the society. - 9.After hearing the rival submissions and taking note of the directions issued by the Apex Court, it is felt that, the powers under section 482 of the Code cannot be invoked to grant relief to the petitioners. The 1[st] petitioner is also accused of an offence under Section 304 (A) of the IPC. - 10.The inherent power under S.482, Cr.P.C. though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in 6 CRL.M.C. NO. 1181 of 2015 appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The same has to be exercised sparingly, carefully and with great caution. Having regard to the facts and circumstances, I am of the view that this petition is liable to be dismissed and I do so. ## **RAJA VIJAYARAGHAVAN.V, JUDGE** _sks/8/8/2016_