M.T. Thomas @ Tomy v. State of Kerala; Ajomon N.I v. State of Kerala (CRL.M.C. Nos. 7240/2023 and 6891/2023)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945 CRL.MC NO. 7240 OF 2023 ``` ``` CC 765/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ``` ## **`ERNAKULAM (TEMPORARY)`** ## **`PETITIONER/ACCUSED:`** ``` M T THOMAS @ TOMY AGED 65 YEARS S/O THOMAS, MANTHANATHU PUTHUPARAMBIL HOUSE, 34/2301B KANNAYATHU 2ND CROSS ROAD, MAMANGALAM, PALARIVATTOM P O, ERNAKULAM -, PIN - 682025 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN ``` ## **`RESPONDENTS/STATE/DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2AJOMON N I S/O N J ISSAC, NEDUMPARAMBIL HOUSE, MALAKUNNAM P O, KURUCHI VILLAGE, CHANGANASSERY, KOTTAYAM -, PIN - 686535 ``` ## **`OTHER PRESENT:`** ``` HRITWICK CS PP, S. RAJEEV ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.09.2023, ALONG WITH Crl.MC.6891/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. Nos.7240 & 6891 of 2023 **2** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023/5TH ASWINA, 1945 CRL.MC NO. 6891 OF 2023 ``` ``` CC 343/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IX, ERNAKULAM (TEMPORARY) ``` ## **`PETITIONER/ACCUSED:`** ``` AJOMON N.I AGED 37 YEARS S/O.ISSAC N.J, NEDUMPARAMBIL HOUSE, MALAKKUNNAM P.O.KURICHI, CHANGANASSERY, KOTTAYAM, PIN - 686552 BY ADVS. JOSSY KURIAN ARUN KUMAR M.A ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER PALARIVATTION POLICE STATION, KOCHI CITY, PIN - 682025 ADDL.R3M.T. THOMAS @ TONY S/O. THOMAS, MANTHANATHU PUTHUPRAMBIL HOUSE, 34/230 1 B, KANNAYATHU 2ND CROSS ROAD, MAMANGALAM, PALARIVATTOM P.O IS IMPLEADED AS PER ORDER DATED 27.09.2023 IN CRL.M.APPL. NO.2/2023 BY ADVS.S.RAJEEV S V.VINAY(K/355/2009) M.S.ANEER(K/644/2013) SARATH K.P.(K/001467/2021) PRERITH PHILIP JOSEPH(K/000736/2015) ``` Crl.M.C. Nos.7240 & 6891 of 2023 **3** ``` ANILKUMAR C.R.(K/001190/2020) K.S.KIRAN KRISHNAN(K/3514/2022) SRI.S.HRITHWIK, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSIONON27.09.2023,ALONGWITH Crl.MC.7240/2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. Nos.7240 & 6891 of 2023 **4** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------Crl.M.C. Nos.7240 & 6891 of 2023 ---------------------------------------------Dated this the 27[th] day of September, 2023** ## **ORDER** These Criminal Miscellaneous Cases are connected and therefore, I am disposing these cases by a common order. 2. Crl.M.C.No.7240/2023 is filed to quash the proceedings in C.C.No.765/2017 on the file of the Judicial First Class Magistrate Court-IX, Ernakulam. Crl.M.C.No.6891/2023 is filed to quash the proceedings in C.C.No.343/2022 on the file of the Judicial First Class Magistrate Court-IX, Ernakulam. 3. 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 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. It is also submitted that these are case and counter case. The parties are relatives and the matter is settled. Crl.M.C. Nos.7240 & 6891 of 2023 **5** 4. 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. 5. 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. 6. 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: “13. Considering the law on the point and the other decisions of this Court on the point, referred to Crl.M.C. Nos.7240 & 6891 of 2023 **6** 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 Crl.M.C. Nos.7240 & 6891 of 2023 **7** 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 / Crl.M.C. Nos.7240 & 6891 of 2023 **8** 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.” 7. 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, Crl.M.C.No.7240/2023 is allowed by quashing the proceedings in C.C.No.765/2017 on the file of the Judicial First Class Magistrate Court-IX, Ernakulam and Crl.M.C.No.6891/2023 is also allowed by quashing the proceedings in C.C.No.343/2022 on the file of the Judicial First Class Magistrate Court-IX, Ernakulam, arising from Final Report No.1518/2018 of Palarivattom Police Station. sd/- JV **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C. Nos.7240 & 6891 of 2023 **9** ## **`APPENDIX OF CRL.MC 6891/2023`** ``` PETITIONER ANNEXURES Annexure ICERTIFIED COPY OF THE CHARGE SHEET NO.1518/2018 OF PALARIVATTION POLICE STATION Annexure IITRUE COPY OF THE ORDER DATED 4.11.2022 IN CRL.M.C NO.6149/2022 OF THIS HON'BLE COURT ANNEXURE AIIITHE NOTARIZED AFFIDAVIT SWORN TO BY THE DEFACTO COMPLAINANT DATED 04.09.2023 ``` Crl.M.C. Nos.7240 & 6891 of 2023 **10** ## **`APPENDIX OF CRL.MC 7240/2023`** ``` PETITIONER ANNEXURES Annexure ICERTIFIED COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT IN CC NO 765/2017 PENDING ON THE JFCM-IX, ERNAKULAM Annexure IITHE NOTARIZED AFFIDAVIT SWORN BY THE 2ND RESPONDENT ```