Nazmal and others v. State of Kerala

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE31[ST]DAYOFJULY2023/9THSRAVANA,1945 CRL.MCNO.3065OF2023 INSC1139/2018OFADDITIONALSUBCOURT,ATTINGAL PETITIONERS/ACCUSED1TO3AND5TO12: ``` ``` 1NAZMAL AGED24YEARS S/ONAHARI,RESIDINGATALFALAQVEEDU,NEARPARAYILSCHOOL, KURAKANNY,VARKALAVILLAGE,THIRUVANANTHAPURAM, - PIN695141. 2AJEEBHAZARI@KUNJAN AGED25YEARS S/OBABUHAJARI,THODIYILVEEDU,NEARVILAKULLAMGROUND, KURAKANNY,VARKALAVILLAGE,THIRUVANANTHAPURAM, - PIN695141. 3JAISAL AGED23YEARS S/OJAZEER@DAVOOD,J.J.HOUSE,NEARVILAKULLAMGROUND, KURAKANNY,VARKALAVILLAGE,NOWRESIDINGATROSEVILLA, NEARAMMACHILMUKKU,PALACHIRA,CHERUNNIYOORVILLAGE, - VARKALATALUK,THIRUVANANTHAPURAMDISTRICT,PIN695143. 4SALMANSALIM AGED23YEARS S/OSALIMSHAMSHUDDIN,FAJEERVEEDU,NEAROODAYAMPARAMBIL TEMPLE,KURAKANNY,VARKALAVILLAGE,THIRUVANANTHAPURAM, - PIN695141. 5NAZIM AGED23YEARS S/ONAZAR,AYIKKARAKUDIVEEDU,NEARVILAKULLAMGROUND, KURAKANNY,VARKALAVILLAGE,THIRUVANANTHAPURAM, - PIN695141. 6SALIMSHA@KUNDAPPU AGED23YEARS S/OKABEER,ARAYALUVEEDU,NEARBORNIYAMUKKU,KURAKANNY, - VARKALAVILLAGE,THIRUVANANTHAPURAM,,PIN695141. 7ALI AGED25YEARS S/OSINUDHEEN,PADINJATTETHEKKEVILAVEEDU,BODAYAM, - EDAVAVILLAGE,THIRUVANANTHAPURAM,PIN695311. 8ANEESH AGED23YEARS S/OTHAMPI,VILAKULLATHILVEEDU,NEARVILAKULLAMGROUND, KURAKANNY,VARKALAVILLAGE,THIRUVANANTHAPURAM, - PIN695141. ``` ``` CRL.MCNO.3065OF2023 ``` ``` 2 ``` ``` 9MUHAMMEDRASHIN AGED23YEARS S/OABDULRASHEED,ATHIVILARAHIYANATHMANZIL,KURAKANNY, - VARKALAVILLAGE,THIRUVANANTHAPURAM,PIN695141. 10NAZAL AGED23YEARS S/OSHAJAHAN,SHAHANAMANZIL,NEARBORONIYAMUKKU, KURAKANNY,VARKALAVILLAGE,THIRUVANANTHAPURAM, - PIN695141. 11PRINCE AGED24YEARS S/OJAHANGIR,BISMIVILLA,NEARVILAKULLAMGROUND, KURAKANNY,VARKALAVILLAGE,THIRUVANANTHAPURAM, - PIN695141. BYADVM.DINESH ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOFKERALA, - ERNAKULAM,PIN682031. 2FEBINNIZAM AGED29YEARS S/ONIZAMUDEEN,NOWRESIDINGATROOMNO.303,BUILDING NO.219,HATTASTREET,AL-DANELZONE-1,ABUDHABI,FROM KUNNUMPURATHUVEEDU,THERUVUMUKKUDESOM,EDAVAVILLAGE, - VARKALATALUK,THIRUVANANTHAPURAM,,PIN695141. ADDLR3ABDULRAHUMANFAZIL S/OMARANVILAKOM,ABDULHAMEEDFAZIL,NOWRESIDINGATROOM NO.303,BUILDINGNO.219,HATTASTREET,ALDANAZONE-1,ABU DHABI,UAE,FROMKOYIMANAZHIKOM,EDAVA,VARKALATALUK, THIRUVANANTHAPURAMDISTRICT,PIN695141. ADDLR4NIYAS S/ONIZAR,MUSTHUMANAZHIKAM,EDAVA,VARKALATALUK, THIRUVANANTHAPURAMDISTRICT,PIN695141. ADDLR5NINA S/OA.R.FAMI,HIRANAHOUSE,EDAVA,VARKALATALUK, THIRUVANANTHAPURAMDISTRICT,PIN695141. *ADDLR3TOR5AREIMPLEADEDASPERORDERDATED31.7.2023 INCRL.M.ANO.2OF2023INCRL.M.CNO.3065OF2023. ``` ``` CRL.MCNO.3065OF2023 ``` ``` 3 ``` ``` BYADVS. SRI.M.DINESH SRI.T.RRENJITH,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 31.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.3065OF2023 ``` ``` 4 ``` ## **ORDER** This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners herein are the accused in S.C No.1139 of 2018 on the files of the Assistant Sessions Court, Attingal, registered for the offences punishable under Sections 143, 147, 148, 149, 294(b), 323, 324, and 308 of the IPC. 3. The prosecution allegation, as borne out from the records, are as under:- On 5.1.2018 at 8.30 p.m., the accused persons formed themselves into an unlawful assembly and in prosecution of a common object, restrained the de facto complainant and attacked them, causing injuries. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. He relies on the affidavits filed by the party respondents in support of his contention. Counsel argues that if the proceedings are terminated, with the recording of the amicable settlement, the parties can move forward in an atmosphere of peace and mutual respect. 5. The learned Public Prosecutor, on instructions, has expressed reservations about quashing the proceedings solely on the basis of the settlement. He argues that the facts and circumstances may not warrant the exercise of the court's inherent jurisdiction under Section 482 of the Code of ``` CRL.MCNO.3065OF2023 ``` ``` 5 ``` Criminal Procedure. However, it is fairly submitted that no other crimes of serious nature have been registered against the petitioners to date. It is further submitted that the statement of the party respondents have been recorded, and they have unequivocally stated that they do not have any lasting grievances. 6. I have considered the submissions and have gone through the records. 7. In **State of M.P. v. Laxmi Narayan,[1]** , a three-judge bench of the Hon’ble Supreme Court has summarized the law as laid down in **Gian Singh v. State of Punjab[2]** , **Narinder Singh v. State of Punjab[3]** and in subsequent cases. It was laid down as under: 15. Considering the law on the point and the other decisions of this Court on the point referred to hereinabove, it is observed and held as under: - 15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 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; - 15.2. 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; - 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely > 2 (2012) 10 SCC 303 > 3 2014 (6) SCC 466 > 1 (2019) 5 SCC 688 ``` CRL.MCNO.3065OF2023 ``` ``` 6 ``` on the basis of compromise between the victim and the offender; - 15.4. Offences under Section 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 Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 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 Section 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 Section 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 Section 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/delicate 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 paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; - 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offenses, which are private in nature and do not have a serious impact 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. Having carefully analyzed the prayer sought in the light of the ``` CRL.MCNO.3065OF2023 ``` ``` 7 ``` principles laid down above and also the nature of the allegations, the gravity of the offense, the severity of injuries inflicted, antecedents of the accused, and the amicable relationship that now exists between the parties, I am of the considered opinion that quashing the proceedings on the basis of the settlement will not have any adverse impact on society. In fact, it would only serve to bring about peace and secure the ends of justice. Additionally, persisting with the prosecution would be a waste of time, as the prospects of conviction are bleak. In light of all of the relevant circumstances, I am of the considered view that this Court would be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings This petition is allowed. Annexure-A2 Final Report in Crime No.24 of 2018 of the Ayiroor Police Station, and all further proceedings against the petitioners pending as S.C No.1139 of 2018 on the files of the Assistant Sessions Court, Attingal, are quashed. Sd/- ## **RAJA VIJAYARAGHAVAN V JUDGE** Sru ``` CRL.MCNO.3065OF20238 ``` ## **`APPENDIX OF CRL.MC 3065/2023`** |`PETITIONERS ANNEXURES`|| |---|---| |`Annexure A1`|`CERTIFIED COPY OF THE F.I.R. IN CRIME`| ||`NO.24/2018 OF AYIROOR POLICE STATION,`| ||`THIRUVANANTHAPURAM DISTRICT DATED 6.1.2018.`| |`Annexure A2`|`CERTIFIED COPY OF THE FINAL REPORT IN S.C.`| ||`NO.1139/2018 ON THE FILE OF ASSISTANT SESSIONS`| ||`COURT, ATTINGAL (RE-FILED FROM C.P. NO.52/2018`| ||`ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE`| ||`COURT-I, VARKALA) WHICH AROSE FROM CRIME`| ||`NO.24/2018 OF AYIROOR POLICE STATION,`| ||`THIRUVANANTHAPURAM DISTRICT.`| |`Annexure A3`|`NOTARIZED AFFIDAVIT OF THE 2ND`| ||`RESPONDENT/DE-FACTO COMPLAINANT DATED 30.3.2023`| ||`WHICH RELATE TO THE SETTLEMENT OF ISSUES IN`| ||`CRIME NO.24/2018 OF AYIROOR POLICE STATION,`| ||`THIRUVANANTHAPURAM DISTRICT.`| |`Annexure A4`|`EMBASSY OF INDIA - ABU DHABI ATTESTED AFFIDAVIT`| ||`OF 3RD RESPONDENT HEREIN DATED 5.7.2023.`| |`Annexure A5`|`NOTARY ATTESTED AFFIDAVIT OF RESPONDENTS 4 & 5`| ||`HEREIN DATED 26.6.2023.`|