Mahesh and Sanal Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 19[TH] DAY OF SEPTEMBER 2023 / 28TH BHADRA, 1945** **CRL.MC NO. 3541 OF 2023** **AGAINST THE ORDER/JUDGMENT CC 1760/2018 OF JMFC - VIII, ERNAKULAM (TEMPORARY)** ## **PETITIONER/ACCUSED 1 & 2:** 1 MAHESH AGED 52 YEARS S/O RAMANATHAN, SOUPARNIKA, PALLATHU ROAD, THAMMANAM, ERNAKULAM, PIN - 682032 2 SANAL KUMAR AGED 48 YEARS S/O RAGHAVAN, PALAMATTAM HOUSE, PALLATHU ROAD, THAMMANAM, ERNAKULAM, PIN - 682032 BY ADVS. C.Y.VINOD KUMAR C.ANILKUMAR (KALLESSERIL) ## **RESPONDENTS/STATE, INVESTIGATING OFFICER & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 SUB INSPECTOR OF POLICE KADAVANTHRA POLICE STATION, KADAVANTHRA, ERNAKULAM, PIN - 682020 3 MARTIN M.J. @ SHAJI MADAMAKKAL AGED 54 YEARS S/O JOSEPH, 645, LIG 54/112, MADAMAKKAL, PANAMPILLY NAGAR, ERNAKULAM, PIN - 682036 BY ADV.SREEJA V., PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.3541 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.3541 of 2023 ---------------------------------------------Dated this the 19[th] day of September, 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. Petitioners are the accused in C.C.No.1760 of 2018 on the file of the Judicial First Class Magistrate Court - VIII, Ernakulam arising from Crime No.1665/2012 of Kadavanthra Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 323, 324, 341, 294(b) r/w 34 IPC. 3. The prosecution case is that the accused Crl.M.C.No.3541 of 2023 3 wrongfully restrained the victim and assaulted him and used filthy languages and thereby committed the above said offfences. 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 affidavit filed by the victim in support of his contention. The counsel appearing for the victim also submitted that the matter is settled and the victim has 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 Crl.M.C.No.3541 of 2023 4 the petitioners, victim and the Public Prosecutor and has also gone through the records including the affidavit filed by the victim. 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 in detail and the same is extracted hereunder: Crl.M.C.No.3541 of 2023 5 _“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 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_ Crl.M.C.No.3541 of 2023 6 _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 apex court, this court perused the facts in this case and also perused the documents 7 Crl.M.C.No.3541 of 2023 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 C.C.No.1760 of 2018 on the file of the Judicial First Class Magistrate Court - VIII, Ernakulam arising from Crime No.1665/2012 of Kadavanthra Police Station are quashed. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.3541 of 2023 8 ## **APPENDIX OF CRL.MC 3541/2023** PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT IN C.C. NO. 1760/2018 ON THE FILE OF THE JUDICIAL FIRST-CLASS MAGISTRATE'S COURTVIII, ERNAKULAM ANNEXURE A2 A TRUE COPY OF THE AFFIDAVIT DATED 23/03/2023, SWORN IN BY THE 3RD RESPONDENT/DEFACTO COMPLAINANT RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE