Jayaraj s/o Jagadeesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 2ND DAY OF JUNE 2014/12TH JYAISHTA, 1936** ## **Crl.MC.No. 2448 of 2014 ()** ## **--------------------------SC 675/2011 of ASSISTANT SESSIONS COURT, NORTH PARAVUR** **------------** ## **PETITIONER/ACCUSED:** **---------------------------------** **JAYARAJ S/O JAGADHEESH, SOORANAD HOUSE, NEAR VAYANASALA STOP ELAMAKKARA KARA, EDAPPILLY SOUTH, ERNAKULAM DISTRICT.** **BY ADVS.SRI.C.P.PEETHAMBARAN SRI.M.X.ANTONY LIJO** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANTS(PWS 1 TO 4):** **----------------------------------------------------------------------------------------------** ## **1. STATE OF KERALA** - **REPRESENTEDBY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **2. PRADEEP, AGED 25 YEARS,** - **S/O. CHANDRAN, KAIPPALLIL VEETTIL, BEHIND ST. GEORGE CHURCH ELAMAKKARA EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT-682026.** **3. VIJESH, AGED 25 YEARS, S/O. VENU, KAIPPALLIL VEETTIL, BEHIND ST. GEORGE CHURCH, ELAMAKKARA EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT-682026.** **4. RENJITH, AGED 27 YEARS, S/O. PARAMESWARAN, KAIPPALLIL VEETTIL, BEHIND ST. GEORGE CHURCH, ELAMAKKARA EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT-682026.** **5. VARGHESE, AGED 25 YEARS, S/O. RAPHAEL, VADAKEDATHU VEETTIL, NEAR PERANDOOR TEMPLE, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT-682026.** **R1 BY PUBLIC PROSECUTOR SMT. S. HYMA R2 TO R5 BY ADV. SMT.MINI.V.A.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: BP** **Crl.MC.No. 2448 of 2014 () ---------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-------------------------------------**|| |**ANX.A1:**|**TRUE COPY OF THE CHARGE SHEET IN S.C. NO. 675/2011 OF**| ||**PRINCIPAL ASSISTANT SESSIONS JUDGE, NORTH PARAVUR.**| |**ANX.A2:**|**TRUE COPY OF THE JUDGMENT DATED 31-7-2013 IN S.C. NO. 675/2011**| ||**OF PRINCIPAL ASSISTANT SESSIONS JUDGE, NORTH PARAVUR.**| |**ANX.A3:**|**AFFIDAVITS DATED 22-4-2014 SWORN BY THE RESPONDENTS 2 TO 5.**| |**RESPONDENT(S)' EXHIBITS**<br>**:**<br>**NIL.**|| |**---------------------------------------**|| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| ## **BP** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.2448 of 2014 .................................................. Dated this the 2[nd] day of June, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioner, who is the accused in SC.No.675/2011 to quash the proceedings on the basis of a settlement under Section 482 of the Code of Criminal Procedure. 2. It is alleged in the petition that the petitioner was charge sheeted by the Sub Inspector of Police, Kalamassery police station in Crime No.1401/2011 which was registered on the basis of a statement given by the de facto complainant alleging that the petitioner had inflicted injuries on respondents 2 to 5 and committed the offences under Sections 324 and 308 of the Indian Penal Code. After investigation, final report was filed and after committal, the case was taken on file as S.C.No.675/2011 by the Sessions Court and it was made over to Principal Assistant Sessions Court, North Paravur for disposal. After evidence, the learned Principal Assistant Sessions Judge found the petitioner not guilty under Section 308 of the Indian Penal Code and acquitted him of that charge, but found him Crl.M.C.No.2448 of 2014 2 guilty under Section 324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. Aggrieved by the same, the petitioner filed Crl.A.No.390/2013 before the Sessions Court, Ernakulam and which was made over to the Additional Sessions Court, North Paravur for disposal and it is pending before that court. In the mean time, the matter has been settled between the parties and they have filed Annexure A3 series affidavits. Since the case has already been ended in conviction and the offence for which he was convicted is non compoundable now, the petitioner has no other remedy except to approach this Court seeking the following relief: For these and other grounds that may be urged at the time of hearing, it is humbly prayed that this Hon'ble Court may be pleased to quash all further proceedings in S.C.No.675/2011 on the files of Principal Assistant Sessions Judge, North Paravur, so as to secure the ends of justice. 3. The counsel for the petitioner submitted in view of the settlement, no purpose will be served and as such powers of this Court under Section 482 is not curtailed because there is a conviction. He had relied on the decision reported in **Narinder Singh and others v. State of Punjab and another** (ILR 2014 3 Crl.M.C.No.2448 of 2014 ## (2) Kerala 85). 4. Respondents 2 to 5 also appeared through counsel and submitted that they have no grievance against the petitioner now in quashing the proceedings. 5. The application was opposed by the Public Prosecutor on the ground that since the petitioner has already been convicted, the power under Section 482 cannot be invoked at this stage. ## 6. Heard both sides. 7. It is true that Hon'ble Supreme Court has in several decisions held that compounding of case under Section 320 of the Code and quashing the proceedings under Section 482 of the Code stands in a different footing and even in case of non compoundable offences of certain type, if the parties have settled the dispute and restored their relationship just like business transaction, family disputes, property disputes etc, then even if the offences are non compoundable in nature, power under Section 482 can be invoked to quash the proceedings to promote settlement and restore relationship between the parties as pendency of such crime should not be a hurdle for the same. This was so held in the decision reported in 4 Crl.M.C.No.2448 of 2014 **Gian Singh v. State of Punjab** (2012 (4) KLT 108 (SC). 8. In the decision relied on by the counsel for the petitioner namely **Narinder Singh's case** (cited supra), the scope of quashing the proceedings under Section 307 of the Indian Penal Code was considered and it is also considered at what stage it can be done. In paragraph 31 in sub clause 7, it was dealt with as follows: (VII). 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 charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to 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 a conclusion as to whether the offence under Section 307 5 Crl.M.C.No.2448 of 2014 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.” 9. The counsel for the petitioner relied on an unreported decision of this court in **Anil Kumar v. State of Kerala** (Crl.M.C.No.3182/2011), where a case under Section 498 A was quashed by this Court when an appeal was pending before the Sessions Court after withdrawing the same to this Court. But it is thereafter that the decision in **Narinder Singh's case** (cited supra) has come. So under the circumstances, this Court feels that it is not a fit case to quash the proceedings invoking the power under Section 482 of the Code and the Sessions Judge can decide the case on merit and if the petitioner is entitled for acquittal for non availability of proper evidence, then the learned Sessions Judge is at liberty to consider the same and dispose of the appeal on merits. But ultimately if the Sessions Court found that conviction is proper, then the Crl.M.C.No.2448 of 2014 6 Sessions Court is at liberty to consider the subsequent settlement entered into between the parties for showing leniency in imposing sentence. With the above observations and directions, the petition is disposed of. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.2448 of 2014 7