Muhammed Aslam v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945** ## **CRL.MC NO. 695 OF 2022** ## **PETITIONER/1ST ACCUSED:** MUHAMMED ASLAM, AGED 35 YEARS, NAIMATH MANZIL, UPPALA POST & VILLAGE, KASARAGOD DISTRICTKASARGOD, PIN - 671322 BY ADVS. UMMUL FIDA C.IJLAL R.UDAYA KUMAR ## **RESPONDENTS/STATE AND COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 2 THE SUB INSPECTOR OF POLICE, MANJESHWAR POLICE STATION, KASARAGOD DISTRICT-KASARGOD, PIN – 671323 ADDL.3 RAMESH SHETTY, S/O MAHABALA SHETTY, R/AT 1-184, NIKITHA, NILAYA, NEERE, KARKALA,UDUPI DISTRICT, KARNATAKA – 574102 ADDL.4 SATHEESH KUMAR, S/O SURAPPA GOWDA, R/AT KALIGE HOUSE, KAIKAMBA BILLINEYA VILLAGE, MANGALORE, KARNATAKA -574151 ADDL.5 JAGANNATHA GOWDA K, S/O KRISHNAPPA GOWDA, R/AT H.NO.4-77,KUDTHAJE HOUSE, NELIYADI POST, AND VILLAGE, KADABA TALUK,PUTHUR, DAKSHINA KANNADA, KARNATAKA -574229 ADDITIONAL R3, R4, R5 IMPLEADED AS PER ORDER DATED 12.04.2023 IN CRL.MA NO.1/2023 IN CRL.MC NO.695/2022. BY ADVS. THAREEQ ANVER K. K.SALMA JENNATH NIMMY JOHNSON CRL.MC No.695 of 2022 2 RASSAL JANARDHANAN A. ## **OTHER PRESENT:** SRREJA . V PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.695 of 2022 3 ## **P.V.KUNHIKRISHNAN** **- - - - - - - - - - - - - - - - - - - - -** CRL.MC No.695 of 2022 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 18[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. The petitioner is the accused in S.C.No.424/2020 of the District Sessions Court, Kasaragod arising from Crime No.326/2007 of Manjeswar Police Station. The above case is charge sheeted against the petitioner alleging offences punishable under Sections 143, 147, 148, 341, 323 & 308 r/w Section 149 IPC. 3. The prosecution case is that the accused formed themselves into unlawful assembly and assaulted the victims. The case of the petitioner is that the co-accused Nos.A3 to A7 were acquitted as per Annexure A2 and the 2[nd] accused was acquitted as per Annexure A3. Now, it is also submitted that the matter is settled. 4. The learned counsel for the petitioner submits CRL.MC No.695 of 2022 4 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 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 affidavit 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 CRL.MC No.695 of 2022 5 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 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 /_ CRL.MC No.695 of 2022 6 _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.”_ 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 CRL.MC No.695 of 2022 7 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 petitioner in S.C.No.424/2020 of the District Sessions Court, Kasaragod arising from Crime No.326/2007 of Manjeswar Police Station are quashed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** bng CRL.MC No.695 of 2022 8 ## **APPENDIX OF CRL.MC 695/2022** PETITIONER ANNEXURES |Annexure1|THE CERTIFIED COPY OF THE FINAL REPORT| |---|---| ||IN CRIME NO. 326/2007 OF MANJESHWAR| ||POLICE| |Annexure2|THE CERTIFIED COPY OF THE JUDGMENT| ||DATED 29/09/2012 IN SC NO. 83/2009| ||PASSED BY ADDITIONAL SESSIONS COURT AD-| ||HOC I| |Annexure3|THE TRUE COPY OF THE JUDGMENT DATED| ||2/09/2014 IN SC NO. 777/2012 PASSED BY| ||THE ADDITIONAL SESSIONS COURT I| |RESPONDENTS|ANNEXURES| |Annexure B1|TRUE COPY OF THE AFFIDAVIT SWORN BY THE| ||DEFACTO COMPLAINANT/FIRST PETITIONER| |Annexure B2|TRUE COPY OF THE AFFIDAVIT SWORN BY THE| ||SECOND PETITIONER| |Annexure B3|TRUE COPY OF THE AFFIDAVIT SWORN BY THE| ||THIRD PETITIONER|