Hashim and others v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, ``` ## **`1945`** ``` CRL.MC NO. 9765 OF 2023 ``` ``` CRIME NO.575/2023 OF Mukkom Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT CR 575/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THAMARASSERY ``` ## **`PETITIONERS/ACCUSED 1 TO 4:`** - `1 HASHIM AGED 20 YEARS S/O AHAMMED KUTTY, RESIDING AT PUTHUKUDI HOUSE, THATHOOLPOYIL, MAVOOR, KOZHIKODE., PIN - 673661` - `2 ADHIL K V AGED 20 YEARS , S/O MUHAMMED, KAPPUVEEDU, ANAYAMKUNNU, KUMMARANELLUR, KOZHIKODE., PIN - 673602` - `3 FAHAD AGED 20 YEARS S/O. ABDUL KAREEM, PERINGAMPURAM, CHENNAMANGALOOR, MUKKAM, KOZHIKODE., PIN - 673602` - `4 ROSEBIN AGED 20 YEARS S/O MANSOOR, CHEPPALI, PUTHANPEEDYEKKAL, KODIYATHUR, KOZHIKODE., PIN - 673602 BY ADV T.H.ARAVIND` ## **`RESPONDENTS/STATE, COMPLAINANT AND DEFACTO COMPLAINANTS:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 THE STATION H0USE OFFICER MUKKAM POLICE STATION, KOZHIKODE ,DISTRICT., PIN - 673602` - `3 SHUKOOR AGED 41 YEARS S/O HUSSAIN, PRINCIPAL OF MUHAMMAD ABDU RAHIMAN` ## **CRL.M.C.No.9765/2023** **==> picture [20 x 9] intentionally omitted <==** ``` MEMMORIAL ORPHANAGE COLLEGE, MANASSERY P 0, KOZHIKODE., PIN - 673572 4SHAMIL ROSHAN AGED 19 YEARS S/O RIHAS BABU, VALAKKUNDAN HOUSE, VALLATHAYIPPARA, ALLI POST, KOZHIKODE., PIN - 673602 SMT SREEJA V, PP SRI NABIL KHADER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **CRL.M.C.No.9765/2023** ..3.. ## **P.V.KUNHIKRISHNAN, JUDGE ========================= Crl.M.C. No.9765 of 2023 ========================== Dated this the 5[th] day of December, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners are the accused in Crime No.575/2023 of Mukkam Police Station which is now pending before the Judicial Magistrate of First Class – II, Thamarassery. The above case is registered alleging offences punishable under Sections 323, 324 read with Section 34 of the Indian Penal Code (IPC). The offence under Section 4 of the Kerala Prohibition of Ragging Act is also alleged. 3. The prosecution case is that the accused assaulted the victim and victim sustained injury. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. The counsel relies on the affidavits filed by the victims in support of his contention. The ## **CRL.M.C.No.9765/2023** ..4.. counsel appearing for the victims also submitted that the matter is settled and the victims have no objection in quashing the prosecution. 5. The learned Public Prosecutor, on instructions, has expressed reservations about quashing the proceedings solely on the basis of the settlement. But the Public Prosecutor conceded that the matter is settled between the parties. 6. This Court has considered the submission of the petitioners, victims and the Public Prosecutor and has also gone through the records including the affidavits filed by the victims. 7. In **State of Madhya Pradesh v Laxmi Narayan and Others (2019 (5) SCC 688),** three judge bench of the Hon'ble Supreme Court has summarized the situation in which non compoundable offences can be quashed invoking the powers under Section 482 of the Code. The apex court in _**Laxmi Narayan**_ 's case (supra) also relied on the law laid down in **Gian Singh v. State of Punjab and another (2012 (10) SCC 303)** and **Narinder Singh and others v. State of Punjab and another (2014 (6) SCC 466)** . The apex court in paragraph 13 of the _**Laxmi Narayan**_ 's case discussed the law **CRL.M.C.No.9765/2023** ..5.. in detail and the same is extracted hereunder: _“13. Considering the law on the point and the other decisions of this Court on the point, referred to herein above, it is observed and held as under:_ _i) that the power conferred under S.482 of the Code to quash the criminal proceedings for the non - compoundable offences under S.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;_ _ii) 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;_ _iii) similarly, such power is not to be exercised for the offences under the special statutes like 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; iv) offences under S.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 S.307 IPC and / or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under S.482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High_ **CRL.M.C.No.9765/2023** ..6.. _Court would not rest its decision merely because there is a mention of S.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 S.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 S.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 / delegate 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 ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated herein above;_ _v) while exercising the power under S.482 of the Code to quash the criminal proceedings in respect of non- compoundable offences, which are private in nature and do not have a serious impart 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.”_ 8. Keeping in mind the above dictum laid down by the ..7.. ## **CRL.M.C.No.9765/2023** apex court, this court perused the facts in this case and also perused the documents produced by the parties. After going through the entire facts and circumstances I am of the considered opinion that the dispute is private in nature and the settlement can be accepted. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in Crime No.575/2023 of Mukkam Police Station including the final report pending before the Judicial Magistrate of First Class – II, Thamarassery are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** ACR **CRL.M.C.No.9765/2023** ..8.. ## **`APPENDIX OF CRL.MC 9765/2023`** ``` PETITIONER ANNEXURES Annexure A 1COPY OF THE FIR NO 575 OF 2023 DATED 08.09.2023 OF MUKKAM POLICE STATION Annexure A 2AFFIDAVIT SWORN BY THE 3RD RESPONDENTS DATED 15.09.2023 Annexure A 3AFFIDAVIT SWORN BY THE 4TH RESPONDENT DATED 15.09.2023 ```