George Henry and Cleetus v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935 Crl.Rev.Pet.No. 1254 of 2009 ( ) --------------------------------- CRL.APPEAL NO.124/2008 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III),N.PARAVUR CC 208/2002 of J.M.F.C., NORTH PARAVUR REVISION PETITIONER(S)/APPELLANTS/ACCUSED: --------------------------------------------- 1. GEORGE HENRY, S/O.SANSILAVOS, KALAPURACKAL HOUSE, EAST OF S.N.HIGH SCHOOL, 42/211 AYYAPPANKAVIL, ERNAKULAM. 2. CLEETUS, S/O.SANSILAVOS, KALAPURACKAL HOUSE, EAST OF S.N.HIGH SCHOOL, 42/211 AYYAPPANKAVIL, ERNAKULAM. BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------- 1. STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2 IMPLEADED : 2. JOSHY, S/O.MARTIN, RESIDING AT ARAKKAL HOUSE, THOTTAKKATTUKARA P.O., ALUVA, ERNAKULAM DIST. (IMPLEADED AS PER ORDER IN CRL.M.A.NO.1454/2014 DT. 4.3.2014) R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. R2 BY ADV. SRI.VIVEK.JOY.K THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-03-2014, THE COURT ON 06/03/2014 PASSED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------Crl.R.P. No.1254 of 2009 ----------------------------------------------Dated 6[th] March, 2014** ## **O R D E R** The revision petitioners are accused Nos.1 and 2 in C.C.No.208 of 2002 on the file of the Judicial First Class Magistrate, North Parur. C.C.No.208 of 2002 was charge sheeted by the Sub Inspector of Varappuzha Police station in Crime No.80/2001 against four accused persons, alleging offences under Sections 452, 324 and 323 read with Section 34 of the Indian Penal Code. 2. The trial court found accused Nos.1 and 2 guilty of the offences and convicted and sentenced them to undergo simple imprisonment for one year each and to pay fine of `1,000/- each, in default to undergo simple imprisonment for two months each under Section 452 of the Indian Penal Code, simple imprisonment for 9 months each under Section 324 of the Indian Penal Code and simple imprisonment for three months each under Section 323 of the Indian Penal Code. The sentences were ordered to run concurrently. Accused Nos.1 and 2 preferred Crl. Appeal No.124 of 2008 before the Crl.R.P.No.1254/09 2 Additional District and Sessions Court (Ad-hoc III), North Paravur and the learned Judge dismissed the appeal, confirming the conviction and sentence imposed on them by the trial court. Against that judgment, the appellants/accused Nos.1 and 2 filed this Criminal Revision Petition. 3. During the pendency of the Criminal Revision Petition, the additional 2[nd] respondent (PW1 - defacto complainant) filed an affidavit stating that the matter is settled between the parties and that he has no objection in setting aside the conviction and sentence imposed on the revision petitioners. 4. The offence under Section 323 of the Indian Penal Code is compoundable. The offence under Section 324 of the Indian Penal Code was compoundable with the permission of the court, at the time of occurrence. Since the parties have settled all their disputes, permission is granted to compound the offences under Sections 323 and 324 of the Indian Penal Code. 5. It is well settled that inherent powers under Crl.R.P.No.1254/09 3 Section 482 of the Code of Criminal Procedure can be exercised to quash the proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. The High Court can do so while exercising other jurisdiction, such as appellate or revisional jurisdiction. 6. The learned counsel for the revision petitioners invited my attention to paragraph 13 of the decision reported in "Shiji v. Radhika" [2011 (4) KLT 682(SC)], in which it was held : “13. It is manifest that simply because an offence is not compoundable under Section 320 of Cr.P.C. is by itself no reason for the High Court to refuse exercise of its power under Section 482 of Cr. P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Cr. P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be Crl.R.P.No.1254/09 4 competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are noncompoundable. The inherent powers of the High Court under Section 482 Cr. P.C. are not for that purpose controlled by Section 320 Cr. P.C. Having said so, we must hasten to add that the plenitude of the power under Section 482 Cr. P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an Crl.R.P.No.1254/09 5 appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.” 7. The learned counsel for the revision petitioners invited my attention to paragraph 3 of the decision of this Court reported in **Bijukumar v. State of Kerala** (2013 (3) KLJ 38), in which it was held : “3. The offence under Section 498A of the Indian Penal Code is not a compoundable offence. The question to be considered is whether in view of the petition filed by the revision petitioner and defacto complainant, a noncompoundable offence can be compounded or not invoking power under Section 482 CrPC. The learned counsel for the Revision Petitioner cited Gian Singh v. State of Punjab 2012 KHC 4530 :: 2012 ICO 1135 and Thankamma v. State of Kerala 2006 KHC 866 :: 2006 ICO 5118. Going by the 2006 (3) KLT 846 2006 KHC 866, it could be seen that the Division Bench of this Court under a reference held that in appropriate cases the Court could exercise its inherent powers under Section 482 to Crl.R.P.No.1254/09 6 set aside conviction entered and sentence imposed under noncompoundable offence to secure the ends of justice on the request of both offender and victim. In Gian Singh's case (supra), the Bench of the Supreme Court comprising of three Judges held that it is within the powers of the Court under Section 482 CrPC to quash criminal proceedings involving noncompoundable offences on the basis of compromise reached between the offender and the victim, if it is for the interest of the justice. The Court further held that “if they continues the criminal proceedings that would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of Justice, it is appropriate that criminal case is put to an end.” 8. Since the parties have settled their disputes amicably, I am of the view that in order to secure the ends of justice, the conviction and sentence of accused Nos.1 and 2 in C.C.No.208/2002 on the file of the Judicial First Class Magistrate, North Parur under Section 452 of the Indian Penal Code is to be quashed. Crl.R.P.No.1254/09 7 Accordingly, this Criminal Revision Petition is allowed. The offences under Sections 323 and 324 of the Indian Penal Code is compounded. The conviction and sentence of accused Nos.1 and 2 in C.C.No.208/2002 on the file of the Judicial First Class Magistrate, North Parur under Sections 323 and 324 of the Indian Penal Code is set aside and they are acquitted under Section 320 (8) of the Cr. P.C. The conviction and sentence of accused Nos.1 and 2 under Section 452 of the Indian Penal Code is quashed and they are acquitted. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)