Hareesh Kumar v. State of Kerala and Nisha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 CRL.MC NO. 3997 OF 2023** **AGAINST LP 78/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS** ## **-I,KOYILANDY** ## **PETITIONER/ACCUSED:** HAREESH KUMAR, AGED 56 YEARS, S.O. RAGHAVAN, HRUDHYA HOUSE, PANTHALAYANI AMSOM, KOYILANDY. P.O, KOZHIKODE, PIN - 673305 BY ADV K.DEEPA (PAYYANUR) ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 NISHA, AGED 43 YEARS, W.O. PRADEEP KUMAR, PUTHUKKUDI HOUSE, POYIKAVU, EDAKKULAM. P.O, KOYILANDY, KOZHIKODE, PIN - 673306 BY ADV SRI.SANGEETHARAJ, PUBLIC PROSECUTOR ANU ROOPA JAYADEVAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.3997 of 2023 2 ## K.BABU, J . -------------------------------------Crl.M.C.No.3997 of 2023 --------------------------------------Dated this the 2[nd] day of June, 2023 ## O R D E R This Criminal M.C has been filed to quash all further proceedings in L.P No.78/2013 on the file of the Judicial First Class Magistrate Court, Koyilandy. The petitioner is the accused. Respondent No.2 is the defacto complainant. The offences alleged against the petitioner are punishable under Sections 454, 461 and 380 of the Indian Penal Code. 2. The prosecution case is that on 06.12.2010 around 11.10 a.m the petitioner committed house trespass and stole a gold chain weighing three sovereigns that belonged to the defacto complainant. ## 3. Heard both sides. 4. The learned counsel for the petitioner submitted that the prosecution records do not reveal the offences as alleged. It is further submitted that the prosecution failed to establish that the gold chain belonging to the defacto complainant was actually Crl.M.C.No.3997 of 2023 3 stolen, as there was no recovery. It is the contention of the petitioner that respondent No.2 lodged the FIS on a misunderstanding. It is submitted that on realising the fact that no gold ornament was actually stolen by the petitioner from the residence of the defacto complainant, she submitted a statement before the Police and an affidavit stating that the prosecution was initiated based on a mistake of fact. 5. The learned counsel for respondent No.2 supported the contentions of the petitioner. Respondent No.2, the defacto complainant, filed an affidavit stating that she filed the complaint, which formed the basis for registration of the crime, on a misunderstanding, and she realised the mistake later. In the affidavit, respondent No.2 stated that the dispute between her and the petitioner has been settled and that she has no grievances against him. She further stated that she has no objection in terminating the proceedings by this Court exonerating the petitioner. 6. The learned Public Prosecutor, on instructions, submitted that the matter was enquired into through the Investigating Officer, Crl.M.C.No.3997 of 2023 4 who has taken the statement of the defacto complainant, and it is reported that the dispute between the parties has been amicably settled. 7. The Apex Court in Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)], Narinder Singh and others v. State of Punjab and Others [(2014) 6 SCC 466], and State of Madhya Pradesh v. Laxmi Narayan and Others [(2019) 5 SCC 688] considered the power of the High Court to quash criminal proceedings in FIR/complaint in exercise of its inherent jurisdiction where the offences are not compoundable under Section 320 Cr.P.C. ## 8. In Gian Singh (supra) the Apex Court held thus:- “57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, Crl.M.C.No.3997 of 2023 5 rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” ## 9. In Narinder Singh and others (supra) the Apex Court held thus:- “29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction Crl.M.C.No.3997 of 2023 6 is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. 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 proving 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. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to Crl.M.C.No.3997 of 2023 7 start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” ## 10. In State of Madhya Pradesh v. Lakshmi Narayan and Others (supra), approving the ratio in Gian Singh and Narinder Singh a three-Judge Bench of the Apex Court held that in the exercise of powers under Section 482 Cr.P.C., on the ground that the parties have resolved their entire dispute between themselves, High Court would not rest its decision merely because there is a mention of a penal section of a heinous crime in the FIR or charge. The Apex Court added that it would be open to the High Court to examine as to whether incorporation of a penal section of heinous 8 Crl.M.C.No.3997 of 2023 crime is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to framing of charges under the said penal section. 11. In Kapil Gupta v. State of NCT of Delhi and Another (2022 SCC OnLine SC 1030), following Narinder Singh and others (supra), the Apex Court held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the charge for the offence charged with. The Apex Court further observed that High Court has also to consider whether the settlement between the parties will result in harmony between them, which may improve their mutual relationship. The Supreme Court added that the stage of the proceedings at which the application for quashing the proceedings is brought before the Court is also to be taken into account. 12. In Kapil Gupta the Apex Court was considering the legality of quashing an FIR wherein the offence alleged was Section 376 Crl.M.C.No.3997 of 2023 9 ## IPC. In paragraphs 15, 16 & 17 the Apex Court observed thus:- “15. The facts and circumstances as stated hereinabove are peculiar in the present case. Respondent No. 2 is a young lady of 23 years. She feels that going through trial in one case, where she is a complainant and in the other case, wherein she is the accused would rob the prime of her youth. She feels that if she is made to face the trial rather than getting any relief, she would be faced with agony of undergoing the trial. 16. In both the cases, though the charge sheets have been filed, the charges are yet to be framed and as such, the trial has not yet commenced. It is further to be noted that since the respondent No. 2 herself is not supporting the prosecution case, even if the criminal trial is permitted to go ahead, it will end in nothing else than an acquittal. If the request of the parties is denied, it will be amounting to only adding one more criminal case to the already overburdened criminal courts. 17. In that view of the matter, we find that though in a heinous or serious crime like rape, the Court should not normally exercise the powers of quashing the proceedings, in the peculiar facts and circumstances of the present case and in order to give succour to Respondent No. 2 so that she is saved from further agony of facing two criminal trials, one as a victim and one as an accused, we find that this is a fit case wherein the extraordinary powers of this Court be exercised to quash the criminal proceedings.” 13. Both sides concede that the allegations in the FIR and the Final report were made on a misunderstanding. There are no concrete materials to show that the gold chain that belonged to the defacto complainant was stolen. Admittedly, there is no recovery. 14. On a perusal of the materials made available, this Court concludes that the statement given by the defacto complainant was Crl.M.C.No.3997 of 2023 10 based on a misunderstanding and that she realised the same later. It is submitted by respondent No.2 that she is not intending to prosecute the matter further. 15. The continuation of the criminal proceedings against the petitioner will only end in acquittal. This Court, therefore, feels that all further proceedings pursuant to the registration of FIR in Crime No.1016/2010 of Koyilandy Police Station are liable to be quashed. Resultantly, the Crl.M.C is allowed. Annexure 1 Final report in Crime No.1016/2010 of Koyilandy Police Station and all further proceedings in L.P.No.78/2013 on the file of the Judicial First Class Magistrate Court, Koyilandy stand hereby quashed. Sd/K.BABU, JUDGE KAS Crl.M.C.No.3997 of 2023 11 ## **APPENDIX OF CRL.MC 3997/2023** PETITIONER ANNEXURES Annexure1 CERTIFIED COPY OF THE FINAL REPORT OF CRIME NO.1016/2010 OF KOYILANDY POLICE STATION, KOZHIKODE RURAL. Annexure2 AFFIDAVIT DATED 27.04.2023 FILED BY THE 2ND RESPONDENT/DE-FACTO COMPLAINANT TO THE EFFECT OF SETTLEMENT OF DISPUTES.