Kesav Vijay and Others v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 25[TH] DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 CRL.MC NO. 6940 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT SC 525/2019 OF PRINCIPAL SUB COURT / ``` ## **`COMMERCIAL COURT, KOTTAYAM`** ``` CRIME NO. 293/2019 OF VELLOOR POLICE STATION ``` ## **`PETITIONERS:`** ``` 1KESAV VIJAY AGED 26 YEARS S/O VIJAYAN, KOLLAMPARAMBIL HOUSE, PALLIPPADY BHAGAM, MULAKKULAM NORTH KARA,PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686664 2SREEHARI @KANNAPPAN AGED 25 YEARS S/O SURENDRAN, UZHATHUMALAYIL HOUSE, PALLIPPADY BHAGAM, MULAKKULAM NORTH KARA,PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686664 3ALBIN TITUS AGED 26 YEARS S/O TITUS, NAYARUKUZHIYIL HOUSE, VADUKUNNAPUZHA BHAGAM, VADUKUNNAPUZHA KARA, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686610 4SUVEESH AGED 25 YEARS S/O RAVI, PULPRA HOUSE, VADUKUNNAPUZHA BHAGAM, VADUKUNNAPUZHA KARA, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT., PIN - 686610 5NIKHIL MOHAN AGED 26 YEARS S/O MOHANDAS, NEDUMTHARAYIL HOUSE, MULAKKULAM SOUTH BHAGAM, MULAKKULAM SOUTH KARA, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686610 6SYAMKUMAR AGED 26 YEARS S/O ANANDAN, VATTAKKERIYIL HOUSE, MULAKKULAM SOUTH BHAGAM, MULAKKULAM SOUTH KARA, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686610 7NIDISH BABY AGED 25 YEARS S/O BABY, AMMAMKUZHIYIL HOUSE, ARUNOOTTIMANGALAM BHAGAM, ARUNOOTTIMANGALAM KARA, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686612 BY ADV JITHIN BOSE ``` Crl.M.C. No. 6940 of 2023 2 ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 THE STATION HOUSE OFFICER, VELLOOR POLICE STATION VELLOOR P.O, VAIKOM, KOTTAYAM DISTRICT, PIN - 686616` - `3 AMAL K.K AGED 29 YEARS S/O K.K KUNJUKUNJU, KALATHURATHU THEKKEMALAIL HOUSE, MEVELLOOR BHAGAM, MEVELLOOR KARA, VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686609` - `4 RAHUL K.S AGED 27 YEARS S/O SOMAN K.A, KANJIRAKATTIL HOUSE, MEVELLOOR BHAGAM, MEVELLOOR KARA, VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686609` - `5 RAHUL G AGED 32 YEARS S/O GOPALAKRISHNAN, THEKKEKALAYIL HOUSE, MEVELLOOR BHAGAM, MEVELLOOR KARA, VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686609` - `6 BINOJ T.D AGED 39 YEARS S/O DAMODHARAN, THATTUMPURATH HOUSE, MEVELLOOR BHAGAM, MEVELLOOR KARA, VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN - 686609` ## **`OTHER PRESENT:`** ``` SRI.RENJITH TR PUBLIC PROSECUTOR SMT. K.R MONISHA ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No. 6940 of 2023 3 ## **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No. 6940 of 2023** ## **---------------------------------------------Dated this the 25[th ] day of September, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioners are the accused in S.C No 525/2019 on the file of the Assistant Sessions Court Kottayam arising from Crime No. 293/2019 of the Velloor Police Station. The above case is charge sheeted alleging offences punishable under sections 143,144,147,148,323,324,326, and 308 read with 149 of the IPC. 3. The prosecution case is that accused formed themselves into an unlawful assembly and assaulted the victim. 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 Crl.M.C. No. 6940 of 2023 4 the affidavit filed by the victims in support of his contention. The 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 petitioner, 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.** Crl.M.C. No. 6940 of 2023 5 **State of Punjab and another (2014 (6) SCC 466)** . The apex court in paragraph 13 of the _**Laxmi Narayan**_ 's case discussed the law 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_ Crl.M.C. No. 6940 of 2023 6 _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 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.”_ Crl.M.C. No. 6940 of 2023 7 8. Keeping in mind the above dictum laid down by the 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 in S.C No 525/2019 on the file of the Assistant Sessions Court Kottayam arising from Crime No. 293/2019 of the Vellor Police Station as against the petitioners are quashed. **Sd/P.V.KUNHIKRISHNAN JUDGE** Asw Crl.M.C. No. 6940 of 2023 8 ## **`APPENDIX OF CRL.MC 6940/2023`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`Annexure A1`|`CERTIFIED COPY OF FIRST INFORMATION`| ||`REPORT CRIME NO. 293 OF 2019 OF THE`| ||`VELLOOR POLICE STATION, VAIKOM ALONG`| ||`WITH STATEMENT OF THE 3RD RESPONDENT`| |`Annexure A2`|`CERTIFIED COPY OF THE CHARGE SHEET IN`| ||`S.C. NO. 525 OF 2019 ON THE FILE OF THE`| ||`ASSISTANT SESSIONS COURT KOTTAYAM`| |`Annexure A3`|`THE CERTIFIED COPIES OF THE WOUND`| ||`CERTIFICATES OF 3 TO 6 RESPONDENTS DATED`| ||`10.03.2023`| |`Annexure A4`|`THE AFFIDAVIT SWORN TO BY THE 3RD`| ||`RESPONDENT DATED 31.05.2023`| |`Annexure A5`|`THE AFFIDAVIT SWORN TO BY THE 4TH`| ||`RESPONDENT DATED 12.05.2023`| |`Annexure A6`|`THE AFFIDAVIT SWORN TO BY THE 5TH`| ||`RESPONDENT DATED 01.03.2023`| |`Annexure A7`|`THE AFFIDAVIT SWORN TO BY THE 6TH`| ||`RESPONDENT DATED 31.05.2023`|