Nithin Raj and others v. State of Kerala and others

``` CRL.MC NO. 1751 OF 2022 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944 ``` ``` CRL.MC NO. 1751 OF 2022 ``` ## **`AGAINST S.C.NO.915/2017 OF THE ASST.SESSIONS COURT, KOTTARAKKARA PETITIONERS/ACCUSED:`** - `1 NITHIN RAJ, AGED 28 YEARS S/O.PUSHPARAJAN, NITHIN BHAVANAM, ELAYAM MURI, KAREEPRA VILLAGE, KOLLAM DISTRICT, PIN - 691509` - `2 SUMESH KUMAR @ ANJU, AGED 35 YEARS S/O.SASIDHARAN PILLAI, SUMESH BHAVAN, NORTH OF DARMASASTHA TEMPLE, PLAKKOD MURI, KAREEPRA VILLAGE, KOLLAM DISTRICT, PIN - 691509` - `3 AJITH @ JITH, AGED 29 YEARS S/O.JANARDHANAN PILLAI, AKHIL BHAVAN, NEAR DARMASASTHA TEMPLE, PLAKKOD MURI, KAREEPRA VILLAGE, KOLLAM DISTRICT, PIN - 691509 BY ADVS. PRATHEESH.P ANJANA KANNATH T.S.SREEKUTTY` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 STATION HOUSE OFFICER EZHUKONE POLICE STATION, KOLLAM DISTRICT, PIN - 691505` - `3 VISHNU, AGED 32 YEARS S/O.VASUDHARAN, VISHNU MANDIRAM, NEAR NEDUMANCAVU CHC, VAKKANAD P.O, KAREEPRA, KOLLAM, PIN - 691509` - `4 VALSALA, AGED 50 YEARS W/O.VASUDHARAN, VISHNU MANDIRAM, NEAR NEDUMANCAVU CHC, VAKKANAD P.O, KAREEPRA, KOLLAM, PIN - 691509` ``` CRL.MC NO. 1751 OF 2022 ``` ``` 2 ``` ``` BY ADVS. ``` ``` R1 & R2 BY SMT.M.K.PUSHPALATHA-PUBLIC PROSECUTOR R3 & R4 BY SRI.A.MUHAMMED RAFFI RENUKA VENU NIRMAL V NAIR(K/000492/2009) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 1751 OF 2022 ``` ``` 3 ``` ## K.BABU, J . -------------------------------------- ## Crl.M.C.No.1751 of 2022 --------------------------------------- Dated this the 20[th] day of February, 2023 ## O R D E R This Crl.M.C has been originally filed by the petitioners, who are accused Nos.1, 3 and 4 in S.C.No.915/2017 on the file of the Assistant Sessions Court, Kottarakkara (for short ‘the court below’). 2. Original petitioner Nos.2 and 3 faced trial in the court below and they were acquitted as per Annexure 5 judgment. The case against petitioner No.1 was re-filed as S.C.No.2288/2022. 3. Petitioner No.1 faces charges under Sections 324, 307 and 34 of IPC. 4. The victims in the crime, who are respondent Nos.3 and 4 entered appearance through counsel. Separate affidavits have been sworn to by them stating that they have settled the dispute with the petitioners. 5. Heard the learned counsel for the petitioners and the learned ``` CRL.MC NO. 1751 OF 2022 ``` ``` 4 ``` Public Prosecutor. 6. I have perused the averments in the affidavits sworn to by the victims. The learned Public Prosecutor, on instructions, submitted that the investigating officer enquired into the matter and obtained statements of the victims wherein they stated that they have settled the dispute with petitioner No.1. They have categorically stated that they have amicably settled the entire dispute. 7. In Narinder Singh and others v. State of Punjab and Others [(2014) 6 SCC 466] the Apex Court held that the High Court, invoking Section 482 of Cr.P.C., can quash criminal proceedings in relation to noncompoundable offences, where the parties have settled the matter between themselves in the cases not falling within the category of serious offences or ## heinous offences. In Narinder Singh (supra), the Apex Court held thus: "29. No doubt that the learned ASG is right in relying on various judgments of this Court which reiterate the legal position that in heinous and serious offences like murder or rape, the Court should not quash the proceedings. It will be relevant to refer to paragraph 29.5 to 29.7 of the judgment of this Court in the case of Narender Singh v. State of Punjab 1 , which read thus: 29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be ``` CRL.MC NO. 1751 OF 2022 ``` ``` 5 ``` caused to him by not quashing the criminal cases. 29.6 Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. 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 proving 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/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the ``` CRL.MC NO. 1751 OF 2022 ``` ``` 6 ``` conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime." 8. The Apex Court held that the High Court shall be slow in quashing the proceedings wherein heinous and serious offences are involved. The Apex Court, however, clarified that the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which, if proved, would lead to proving the charge for the offence alleged. The Apex Court further observed that the High Court has to take into consideration as to whether the settlement between the parties would result into harmony between them. 9. In the present case, the petitioners face charge under Section 307 of IPC also. I have gone through the accident register-cum-wound certificate ``` CRL.MC NO. 1751 OF 2022 ``` ``` 7 ``` and other materials placed before the Court. It is discernible that the victims have not suffered any grievous injuries. A counter case has also been registered based on the statement given by the petitioners herein. Both parties agreed to settle that case and based on that settlement, this Court in Crl.M.C.No.6345/2021 quashed the proceedings against the victims in this case. As I have mentioned above, accused Nos.3 and 4 were acquitted by the court below for want of evidence. I am of the view that, even if, the criminal trial against petitioner No.1 is permitted to go ahead, it will end in acquittal. If the request of the petitioners and the victim is denied, it would only amount to harassment of both the petitioners and the victim. Therefore, I find that though one of the offences alleged against the petitioners is under Section 307 of IPC, in the peculiar facts and circumstances of the case, the proceedings are liable to be quashed. 10. In the result, Annexure 2 Final Report and all further proceedings in S.C.No.2288/2022 on the file of the Assistant Sessions Court, Kottarakkara stand hereby quashed. The Crl.M.C is allowed. Sd/K. BABU ab JUDGE ``` CRL.MC NO. 1751 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 1751/2022`** ``` PETITIONER ANNEXURES Annexure1THE CERTIFIED COPY OF FIR WITH FIS IN CRIME NO.1247/2013 OF EZHUKONE POLICE STATION DATED 26.7.2013 Annexure2THE CERTIFIED COPY OF FINAL REPORT DATED 30.10.2016 SUBMITTED BY THE SUB INSPECTOR OF POLICE, EZHUKONE IN CRIME NO.1247/2013 Annexure3THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT REGARDING THE COMPROMISE DATED 20.11.2021 Annexure4THE AFFIDAVIT SWORN BY THE 4TH RESPONDENT REGARDING THE COMPROMISE DATED 20.11.2021 Annexure 5THE COPY OF THE JUDGMENT IN S.C NO.915/2017 ON THE FILE OF ASST. SESSIONS COURT, KOTTARAKKARA DATED 17.12.2022 ``` RESPONDENTS ANNEXURES: NIL