JAGARAJAN @ JAYAN and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Crl.MC.No. 4260 of 2008() ------------------------CP.34/2008 of CHIEF JUDITIAL MAGISTRATE COURT, THALASSERY .................... PETITIONERS: ACCUSED ---------------------- 1. JAGARAJAN @ JAYAN, S/O. KANNAN, AGED 28 YEARS, KANDAMBATH HOUSE, CHELORA AMSOM, MACHERY DESOM. 2. V.C. SUNILKUMAR, S/O. NARAYANAN, AGED 35 YEARS, CHEMBILOD AMSOM AND DESOM, KOMBATH KUNNUMBRAM. 3. V.C.VIPIN, S/O. PANKAJAKSHAN, AGED 22 YEARS, PRANAVAM, CHEMBILOD AMSOM AND DESOM. 4. V.C. RIJIN, S/O. BHASKARAN, AGED 19 YEARS, CHEMBILOD AMSOM AND DESOM. 5. V.C. NIDHIN, S/O. PADMANABHAN, AGED 22 YEARS, MATHA, CHEMBILOD AMSOM AND DESOM. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.S.ANISH RESPONDENT(S): - --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KIRAN, S/O.PRADEEP, AGED 19 YEARS, NARAYANEEYAM, CHEMBILOD AMSOM DESOM. (IMPLEADED AS PER ORDER.12.11.08 IN CRL.M.A. 6337 OF 2008) 3. PRADEEP KUMAR N.T., S/O.NARAYANAN, AGED 50 YEARS, NARAYANEEYAM CHEMBILOD AMSOM, KOMATH KUNNUMBRAM. 4. REENA.C.T., W/O.PRADEEP KUMAR, AGED 30 YEARS, NARAYANEEYAM, CHEMBILOD AMSOM, KOMATH KUNNUMBRAM. 5. NADUKOTH MAHESH, SAVITHA NIVAS CHEMBILOD AMSOM, KOMATH KUNNUMBRAM. (ADDL.R3 TO R5 IMPLEADED AS PER ORDER DT.5.12.2008 IN CRL.M.A.NO. 6870 OF 2008) ADV. SRI.P.PAULOCHAN ANTONY FOR ADDL.R2 R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4260 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of December, 2008 ## **O R D E R** The petitioners along with the 5[th] respondent are accused 1 to 6 in a prosecution for offences punishable, inter alia, under Sections 452 and 308 r/w. 149 I.P.C. Respondents 2 to 4 are the alleged victims/ injured in the case. 2. The crux of the allegations is that on account of political animosity the accused persons trespassed into the residential building of respondents 2 to 4 on the night of 10.4.2008 and indulged in wanton acts of violence resulting in serious injuries to the second respondent, a political activist. The rival contestants belong to Congress and B.J.P. A prior incident, in respect of which a complaint had been laid before the police, had operated as the alleged motive for the incident. 3. Investigation is complete. Final report has already been filed. Committal proceedings has been registered by the learned Magistrate and it is at this stage that the petitioners have come 2 Crl.M.C.No. 4260 of 2008 before this Court with a prayer that the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. as enabled by the dictum in **Madan Mohan Abbot v. State of Punjab** (2008 (3) KLT 19), **Nikil** **Merchant v. C.B.I.** (2008 (3) KLT 769) and **Manoj Sharma v. State** (2008 (4) KLT 417 (SC) may be invoked to bring to premature termination this prosecution against the petitioners and the 5[th] respondent, which has now become irrelevant and unnecessary. 4. Respondents 2 to 4 have entered appearance before this court through a counsel. They have confirmed that the disputes have been settled and the offences have been compounded by them. 5. Notice was given to the learned Prosecutor, who opposes the application. The learned Prosecutor submits that the offences alleged include serious and grave offences. They include non-compoundable offences punishable under Sections 452 and 308 I.P.C., not to speak of Sections 143, 147 etc. There is nothing personal or private between the parties. Interests of public justice and issues of public interest are involved. In a democratic polity law must frown upon attempts to Crl.M.C.No. 4260 of 2008 3 resort to violence to settle political scores. In these circumstances the learned Prosecutor submits that the State is unable to agree that the composition can be accepted and the prosecution against the petitioners and 5[th] respondent can be quashed. 6. I have considered all the relevant inputs. The learned Prosecutor has placed the case diary before me. I have gone through the final report and the wound certificate describing the injuries suffered by the principal injured, the second respondent. After considering all the relevant inputs, I am persuaded to agree that there is merit in the opposition by the learned Prosecutor. 7. All crimes are offences against the State and composition by individual aggrieved person cannot in pure theory of law justify discontinuance of the indictment against those culpably responsible. The law specifies certain offences to be compoundable and only in such offences can composition by victims ipso facto lead to termination of criminal prosecution against the indictees. 8. In a line of decisions it has now been held that the mere fact that the offence is not compoundable under Section 320 Cr.P.C. would Crl.M.C.No. 4260 of 2008 4 not fetter the extra ordinary inherent jurisdiction available to this Court under Section 482 Cr.P.C. to quash the proceedings. Reliance is placed in the decisions in **B.S. Joshi v. State of Haryana (** AIR 2003 SC 1386) as also the decisions referred above in support of this proposition. The learned Prosecutor argues that the mere fact that the parties have compounded the offences even when the offences are noncompoundable is not sufficient to invoke the jurisdiction under Section 482 Cr.P.C. The crucial question is whether the dispute is one which is private and personal between the indictees and the victims. Even when the offence is not compoundable, in an appropriate case, it will be open to the court to hold that the dispute is one which is private and personal between the parties. This court has alertly got to verify whether any issues of public justice or the interests of public are involved. Only if those questions are answered in the negative, can the jurisdiction under Section 482 Cr.P.C. be invoked on the ground that there has been a composition of the non-compoundable offences. Crl.M.C.No. 4260 of 2008 5 9. I have adverted to this aspect of the matter in the decisions in **Santhoshkumar v. Mohanan** (2008 (3) KLT 461 and **Babeesh @ Babin Kumar v. S.I. of Polic** e (2008 (3) KHC 713). I am satisfied, in the facts and circumstances, that it is impossible to come to a conclusion that the dispute is one which is private and personal between the parties. Going by the materials collected, it is political animosity which has prompted the accused persons to trespass into the residential building of the victims after making sufficient prior preparations and to indulge in the acts of violence. I am, in these circumstances, satisfied that the mere fact that the victims i.e. R2 to R4, have compounded the offences is no reason for this court to mechanically invoke the jurisdiction under Section 482 Cr.P.C. 10. This Crl.M.C. is accordingly dismissed. Needless to say dismissal of this petition will not fetter the option of the petitioners to raise all relevant contentions before the trial court. The learned counsel for the petitioner submits that in the peculiar facts and circumstances of this case there may atleast be a direction for 6 Crl.M.C.No. 4260 of 2008 expeditious completion of the trial. After appearance, the petitioners can make that request before the trial court. Needless to say, such request must be considered by the learned Magistrate on merits and in accordance with law. **(R. BASANT)** Judge tm