Muhammed Fadhil v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH AGRAHAYANA,`** ## **`1945`** ## **`CRL.MC NO. 10428 OF 2023`** ``` CRIME NO.3693/2010 OF ALUVA EAST POLICE STATION, Ernakulam AGAINST THE ORDER/JUDGMENT CC 698/2017 OF JUDICIAL ``` ``` MAGISTRATE OF FIRST CLASS -I, ALUVA ``` ## **`PETITIONER/S:`** ``` MUHAMMED FADHIL AGED 31 YEARS S/O JAMAL, KAVILAN HOUSE, ULIYANNOOR, KADUNGALLUR, ALUVA, ERNAKULAM, PIN - 683108 BY ADV C.Y.VINOD KUMAR ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER ALUVA EAST POLICE STATION, SUB JAIL ROAD, ALUVA, ERNAKULAM, PIN - 683101 3ALI AKBAR AGED 32 YEARS S/O ABDUL HAKKEEM, PALAKKAPRAMBIL HOUSE, KUZHUVELIPPADY, ALUVA, ERNAKULAM, PIN - 683561 4SHAFEEK AGED 31 YEARS S/O SALIM, KOPPRAMBIL HOUSE, THAMMANAM, ERNAKULAM, PIN - 682032 5MOHAMMED FASIL AGED 31 YEARS S/O ABDUL KAREEM, VALLIKKALIL HOUSE, PALAPPRASSERY, CHENGAMANAD, ALUVA, ERNAKULAM, PIN - 683578 ``` -2- Crl.M.C No. 10428 of 2023 ``` 6ABDUL RASHEED AGED 32 YEARS S/O ABOOBECKER, KANIYAMPURATH HOUSE, EDATHALA, ALUVA, ERNAKULAM, PIN - 683561 7SUDHIN AGED 31 YEARS S/O KUTTAN, CHIRAKKUDI HOUSE, KODIKUTHUMALA, ALUVA, ERNAKULAM, PIN - 683101 8ASHKAR AGED 31 YEARS S/O HAMSA, KUZHIPPRAMBIL HOUSE, EDACHIRA, KAKKANAD, ERNAKULAM, PIN - 682030 9MOHAMMED AFNAN AGED 31 YEARS S/O HUSSAIN, KARIMPINKATIL HOUSE, METHANAM, ELOOR, ERNAKULAM, PIN - 683501 10SHAFI AGED 31 YEARS S/O KAREEM, MANNAYATH HOUSE, CHUNANGAMVELI, ALUVA, ERNAKULAM, PIN - 683112 11ALTHAF AGED 31 YEARS S/O SHAHUL HAMEED, KALATHARA HOUSE, THOPPUMPADY, ERNAKULAM, PIN - 682005 ``` ## **`OTHER PRESENT:`** ``` SRI RENJITH TR, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -3- Crl.M.C No. 10428 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No. 10428 of 2023 ============================================================= Dated this the 21[st] 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. Petitioner is the accused in CC No.698 of 2017 on the file of the Judicial First Class Magistrate Court-I, Aluva, arising from Crime No.3693 of 2010 of Aluva East Police Station, Ernakulam. The above case is charge sheeted alleging offences punishable under Sections 143, 147, 148, 149, 341, 323, 324 read with 149 IPC. 3. The prosecution case is that the accused formed themselves into an unlawful assembly and assaulted the victims and the victims sustained injuries. It is submitted that the co-accused were already acquitted. 4. The learned counsel for the petitioner 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 victims in -4- Crl.M.C No. 10428 of 2023 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. State of Punjab and another (2014 (6) SCC 466)** . The apex court in paragraph 13 of the -5- Crl.M.C No. 10428 of 2023 _**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 / or the Arms Act etc. which have a serious impact on the society_ -6- Crl.M.C No. 10428 of 2023 _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_ -7- Crl.M.C No. 10428 of 2023 _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 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 CC No.698 of 2017 on the file of the Judicial First Class Magistrate Court-I, Aluva, arising from Crime No.3693 of 2010 of Aluva East Police Station, Ernakulam are quashed. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -8- Crl.M.C No. 10428 of 2023 ## **`APPENDIX OF CRL.MC 10428/2023`** |`PETITIONER ANNEXURES`|`PETITIONER ANNEXURES`| |---|---| |`Annexure A1`|`CERTIFIED OF THE FIR IN CRIME NO.`| ||`3693/2010 OF ALUVA EAST POLICE STATION`| |`Annexure A2`|`CERTIFIED COPY OF THE FINAL REPORT IN`| ||`C.C. NO. 698/17 ON THE FILE OF THE`| ||`JUDICIAL FIRST-CLASS MAGISTRATE'S`| ||`COURT-I, ALUVA, ERNAKULAM`| |`Annexure A3`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 3RD RESPONDENT/DEFACTO COMPLAINANT`| |`Annexure A4`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 4TH RESPONDENT/CW2`| |`Annexure A5`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 5TH RESPONDENT/CW3`| |`Annexure A6`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 6TH RESPONDENT/CW4`| |`Annexure A7`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 7TH RESPONDENT/CW5`| |`Annexure A8`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 8TH RESPONDENT/CW6`| |`Annexure A9`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 9TH RESPONDENT/CW7`| |`Annexure A10`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 10TH RESPONDENT/CW8`| |`Annexure A 11`|`TRUE COPY OF THE AFFIDAVIT SWORN IN BY`| ||`THE 11TH RESPONDENT/CW9`| |`Annexure A12`|`TRUE COPY OF THE JUDGMENT DATED`| ||`15/05/17 IN CC NO. 6/12 ON THE FILES OF`| ||`THE JUDICIAL FIRST-CLASS MAGISTRATE`| ||`COURT - I, ALUVA`|