Micheal Thomas and V. T. Scaria v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945** **CRL.MC NO. 9760 OF 2023** **AGAINST THE ORDER/JUDGMENT CC 498/2020 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS ,CHANGANACHERRY** ## **PETITIONER(S)/ACCUSED NO. 1 & 2:** 1 MICHEAL THOMAS AGED 67 YEARS S/O. LATE THOMAS, VADAKEKKARA (H), THRIKODITHANAM VILLAGE, KOTTAMURI P.O, KOTTAYAM DISTRICT, PIN - 686105 2 V.T SCARIA AGED 75 YEARS S/O. LATE THOMAS, VAZHACHIRA HOUSE, THRIKODITHANAM VILLAGE, KOTTAMURI P.O, KOTTAYAM - VS., PIN - 686105 BY ADVS. JOBY JACOB PULICKEKUDY ANIL GEORGE SMITHA PHILIPOSE ASHIK TOM ALEX KEVIN GEORGE ## **- RESPONDENT(S)/STATE DEFACTO COMPLAINANTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 ELSAMMA @ ELSY AGED 64 YEARS, W/O LATE JOSE THOMAS, MAVELI HOUSE, VAZHAPPILLY WEST P.O, VAZHAPPILLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, PIN - 686103 3 VISAKH TOM JOSE AGED 33 YEARS, S/O LATE JOSE THOMAS, MAVELI HOUSE, VAZHAPPILLY WEST P.O, VAZHAPPILLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, PIN - 686103 4 VINCHU MICHEAL JOSE Crl.M.C.No.9760 of 2023 2 AGED 30 YEARS, S/O LATE JOSE THOMAS, MAVELI HOUSE, VAZHAPPILLY WEST P.O, VAZHAPPILLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT, PIN - 686103 BY ADV.SRI. M.P PRASANTH, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.9760 of 2023 3 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.9760 of 2023** **---------------------------------------------Dated this the 11[th] day of December, 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.498/2020 on the file of the Judicial First Class Magistrate Court, Changanacherry. The above case is charge-sheeted against the petitioners alleging offences punishable under Sections 120B, 463, 465, 468, 420 r/w 34 IPC. 3. The prosecution case is that the accused cheated the victims and also criminally conspired with each other. 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 4 Crl.M.C.No.9760 of 2023 the affidavits 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. The Public Prosecutor submitted that the original defacto complainant is no more and the legal heirs are the party and a statement is recorded from them and they have no objection in quashing the proceedings. But the Public Prosecutor conceded that the matter is settled between the parties. 6. This Court has considered the submission of the petitioners, 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 Crl.M.C.No.9760 of 2023 5 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: _“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_ Crl.M.C.No.9760 of 2023 6 _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 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 noncompoundable 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.9760 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 against the petitioners in C.C.No.498/2020 on the file of the Judicial First Class Magistrate Court, Changanacherry are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM Crl.M.C.No.9760 of 2023 8 ## **APPENDIX OF CRL.MC 9760/2023** PETITIONER ANNEXURES |ANNEXURE A1|THE CERTIFIED COPY OF THE F.I.R IN| |---|---| ||CRIME NO.1510/2019 OF THRIKODITHANAM| ||POLICE STATION DATED 15.09.2019| |ANNEXURE A2|THE CERTIFIED COPY OF THE ORIGINAL| ||COMPLAINT SUBMITTED BY THE DE FACTO| ||COMPLAINANT DATED 09.09.2019| |ANNEXURE A3|THE TRUE PHOTOCOPY OF RELATIONSHIP| ||CERTIFICATE DATED 22.09.2020 ISSUED BY| ||THE TAHSILDAR CHANGANASSERY| |ANNEXURE A4|THE TRUE PHOTOCOPY OF THE DECREE IN O.S| ||NO. 349/2019 DATED 12.09.2023 BEFORE| ||THE MUNSIFF COURT CHANGANASSERY| |ANNEXURE A5|THE TRUE PHOTOCOPY OF AFFIDAVIT SWORN| ||TO BY THE 2ND RESPONDENT DATED| ||18.10.2023| |ANNEXURE A6|THE TRUE PHOTOCOPY OF AFFIDAVIT SWORN| ||TO BY THE 3RD RESPONDENT DATED| ||19.10.2023| |ANNEXURE A7|THE TRUE PHOTOCOPY OF THE AFFIDAVIT| ||SWORN TO BY THE 4TH RESPONDENT DATED| ||19.10.2023| |ANNEXURE A8|. THE CERTIFIED COPY OF THE FINAL| ||REPORT IN C.C NO.498/2020 ON THE FILES| ||OF THE JUDICIAL FIRST CLASS MAGISTRATE| ||COURT, CHANGANASSERY DATED 28.02.2020| RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE