Jose and Lissy v. Davis, Station House Officer, Kalady Police Station, and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 25[ TH ] DAY OF AUGUST 2023 / 3RD BHADRA, 1945`** ``` CRL.MC NO. 5218 OF 2021 ``` ``` CRIME NO.1110/2019 OF KALADY POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT CC 24/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IV, PERUMBAVOOR ``` ## **`PETITIONER/S:`** ``` 1 JOSE, AGED 67 YEARS S/O.DEVASSY, KANNIMANGALAM KARA, AYYAMPUZHA VILLAGE, ALUVA TALUK, NOW RESIDING AT THIRUTHANATHY, KANAN DESOM, MUKKANNUR VILLAGE, ERNAKULAM, PIN-683 577. 2 LISSY AGED 62 YEARS W/O.JOSE, KANNIMANGALAM KARA, AYYAMBUZHA VILLAGE, ALUVA TALUK, NOW RESIDING AT THIRUTHANATHY, KANAN DESOM, MUKKANNUR VILLAGE, ERNAKULAM, PIN-683 577. BY ADVS. ATUL SOHAN VINAI JOHN SREEJA SOHAN K. K.V.SOHAN ``` ## **`RESPONDENT/S:`** ``` 1 DAVIS, AGED 48 YEARS CHIRAMEL HOUSE, ANAPARA, MANJAPRA, KALADY, ERNAKULAM, PIN-683 581. 2 STATION HOUSE OFFICER, KALADY POLICE STATION, (CRIME NO.1110/2019), KALADY MALAYATTOOR ROAD, MEKALADY, KALADY, KERALA-683 574. ``` ``` CRL.MC NO. 5218 OF 2021 ``` ``` 2 ``` ``` 3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA-682 035. BY ADVS. T.SAJI RAPHEL RAPHAEL THEKKAN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5218 OF 2021 ``` ``` 3 ``` ## **ORDER** The petitioners herein are the accused in C.C. No. 24 of 2021 on the file of the Judicial Magistrate of the First Class-IV, Perumbavoor. In the aforesaid case, they are facing prosecution for having committed offences punishable under Sections 417, 418, 420, 427, 120B r/w Section 34 of the IPC. 2. The prosecution allegation is that the petitioner herein persuaded the party respondent to believe that they are the holders of a power of attorney in respect of certain items of the property. It is alleged that claiming that they have the authority to sell the properties, the petitioners entered into an agreement for sale. Later it was revealed that the undertakings given by the petitioners were false and made with intent to defraud the party respondent. It is also alleged that certain constructions carried out by the party respondent for the purpose of running a farm were destroyed by the petitioners with a view to causing them wrongful loss. 3. Sri. Atul Sohan, the learned counsel appearing for the petitioners, submitted that the party respondents filed O.S. No. 69/2019 before the Additional Sub Court, Paravur, seeking various reliefs. The ``` CRL.MC NO. 5218 OF 2021 ``` ``` 4 ``` learned counsel points out that the matter was resolved between the parties, and reference is made to Annexure-VII affidavit filed by the party respondent before the learned Subordinate Judge. Reliance is also placed on the statement issued by the Federal Bank, which discloses that the amounts covered under the settlement agreement were transferred to the party respondent. The learned counsel submits that in view of the above, the continuance of criminal Proceedings is a clear abuse of process. 4. I have also heard the learned counsel appearing for the party respondent who submitted that the disputes have been resolved. 5. I have considered the submissions and have gone through the records. 6. In **State of M.P. v. Laxmi Narayan,[ 1 ]** , a three-judge bench of the Hon’ble Supreme Court has summarized the law as laid down in **Gian Singh v. State of Punjab[ 2 ]** , **Narinder Singh v. State of Punjab[ 3 ]** and in subsequent cases. It was laid down as under: 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove, it is observed and held as under: > 1 (2019) 5 SCC 688 > 2 (2012) 10 SCC 303 > 3 2014 (6) SCC 466 ``` CRL.MC NO. 5218 OF 2021 ``` ``` 5 ``` 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 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; - 15.2. 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; - 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the 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; - 15.4. Offences under Section 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 Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its ``` CRL.MC NO. 5218 OF 2021 ``` ``` 6 ``` 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 framing 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. 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 paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [ Narinder Singh v. State of Punjab , (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact 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. ``` CRL.MC NO. 5218 OF 2021 ``` ``` 7 ``` 7. Having carefully analyzed the prayer sought in the light of the principles laid down above and also the nature of the allegations, the gravity of the offence, antecedents of the accused, and the amicable relationship that now exists between the parties, I am of the considered opinion that quashing the proceedings on the basis of the settlement will not have any adverse impact on society. In fact, it would only serve to bring about peace and secure the ends of justice. Additionally, persisting with the prosecution would be a waste of time, as the prospects of conviction are bleak. In light of all of the relevant circumstances, I am of the considered view that this Court would be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. This petition is allowed. Annexure-IX Final Report in Crime No. 1110 of 2019 of the Kalady Police Station and all further proceedings against the petitioners pending as C.C. No. 24 of 2021 on the file of the Judicial Magistrate of First Class-IV, Perumbavoor, are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` CRL.MC NO. 5218 OF 2021 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 5218/2021`** ## **`PETITIONER ANNEXURES`** |`Annexure I`|`TRUE COPY OF THE AGREEMENT FOR SALE EXECUTED BY`| |---|---| ||`PETITIONERS AND RESPONDENT NO.1 DATED`| ||`22.12.2018.`| |`Annexure II`|`TRUE COPY OF THE LETTER DATED 15.07.2019 ISSUED`| ||`BY RESPONDENT NO.1 TO SHRI. LIJO JOSE AND`| ||`SMT.DHANYA.`| |`Annexure III`|`TRUE COPY OF THE REPLY LETTER GIVEN TO`| ||`RESPONDENT NO.1 DATED 16.07.2019 WITH TRUE`| ||`TYPED COPY.`| |`Annexure IV`|`TRUE COPY OF THE PLAINT IN OS 69/2010 ON THE`| ||`FILE OF SUBORDINATE DATED 25.07.2019 (FILED ON`| ||`26.07.2019).`| |`Annexure V`|`TRUE COPY OF THE WRITTEN STATEMENT ALONG WITH`| ||`COUNTER CLAIM DATED 13.01.2020 (FILED ON`| ||`14.01.2O20).`| |`Annexure VI`|`TRUE COPY OF THE REPLY TO THE COUNTER CLAIM`| ||`DATED 24.02.2021.`| |`Annexure VII`|`TRUE COPY OF THE COMPLAINT DATED 18.09.2019.`| |`Annexure VIII`|`TRUE COPY OF THE FIRST INFORMATION REPORT`| ||`REGISTERED BEFORE THE KALADY POLICE STATION AS`| ||`CRIME NO.1110 DATED 21.09.2019.`| |`Annexure IX`|`TRUE COPY OF THE POLICE CHARGER/REPORT UNDER`| ||`SECTION 173 OF CR.PC DATED 20.12.2020.`| |`ANNEXURE X`|`TRUE COPY OF THE RECEIPT ALONG WITH THE`| ||`PETITION FOR WITHDRAWING CRIMINAL AND CIVIL`| ||`CASES FILED BEFORE THE SUBORDINATE JUDGES COURT`| ||`IN O.S 69/2019`|