Noorudheen and others v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE GOPINATH P.` ``` TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 ``` ## `CRL.MC NO. 4642 OF 2023` ``` CRIME NO.105/2016 OF Perinthalmanna Police Station, Malappuram ``` ``` TO QUASH CONVICTION AND SENTENCE DATED 12.04.2019 IN CC 565/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PERINTHALMANNA\nCRA 89/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI / III ADDITIONAL MACT, MANJERI ``` ## `PETITIONERS/ACCUSED 1 TO 5:` ``` 1NOORUDHEEN, AGED 57 YEARS S/O. KOYAMU, KAPPUMUGATHU HOUSE, THAZHEKODE, THEKKEKARA -, PIN - 679341 2HAMZAKUTTY, AGED 63 YEARS S/O. KOYAMU, KAPPUMUGATHU HOUSE, THAZHEKODE, THEKKEKARA -, PIN - 679341 3MOIDEENKUTTY, AGED 59 YEARS S/O. KOYAMU, KAPPUMUGATHU HOUSE, THAZHEKODE, THEKKEKARA, PIN - 679341 4NOUFAL, AGED 36 YEARS S/O. MUHAMMAD, CHEMMANKUZHI HOUSE, THOOTHA, VAZHENKADA-, PIN - 679357 5NOUSHAD, AGED 32 YEARS S/O. MUHAMMAD, CHEMMANKUZHI HOUSE, THOOTHA, VAZHENKADA, PIN - 679357 BY ADV E.C.AHAMED FAZIL - COMPLAINANT: 1THE STATE OF KERALA , REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER, PERINTHALMANNA POLICE STATION, PERINTHALMANNA, MALAPPURAM -, PIN - 679322 3JABBAR, AGED 44 YEARS S/O. HAMZA HAJI, KAVUTHAN HOUSE, THAZHEKODE, KAPPUMUGHAM, THEKKEKARA, MALAPPURAM DISTRICT -, PIN - 679357 4SAMEERALI, AGED 33 YEARS S/O. LAILA, KAVUTHAN HOUSE, THAZHEKODE, KAPPUMUGHAM, THEKKEKARA, MALAPPURAM DISTRICT -, PIN - 679357 5NABEESA, AGED 71 YEARS W/O. HAMZA HAJI, KAVUTHAN HOUSE, THAZHEKODE, KAPPUMUGHAM, THEKKEKARA, MALAPPURAM DISTRICT -, PIN - 679357 6LAILA, AGED 46 YEARS D/O. HAMZA HAJI, KAVUTHAN HOUSE, THAZHEKODE, KAPPUMUGHAM, THEKKEKARA, MALAPPURAM DISTRICT -, PIN - 679357 SRI VIPIN NARAYAN (SR PP) ``` ## `- RESPONDENTS/STATE COMPLAINANT:` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 2 ``` ## **ORDER** Petitioners, who are the accused in Crime No.105 of 2016 of Perinthalmanna Police Station, Malappuram District were tried and convicted for the offences under Sections 143, 147, 148, 452, 323, 324, 354 and 506(II) read with Section 149 of the I.P.C. through judgment dated 12.04.2019 in C.C.No.565 of 2016 on the file of the Judicial First Class Magistrate Court-I, Perinthalmanna. This petition has been filed under Section 482 of the Cr.P.C., stating that all issues between the petitioners and the 3[rd] respondent (who is the defacto complainant and respondents 4 to 6 (who are the victims) have been settled and therefore, the conviction and sentence imposed on the petitioners in C.C.No.565 of 2016 on the file of the Judicial First Class Magistrate Court-I, Perinthalmanna, may be set aside in exercise of the jurisdiction vested on this Court under Section 482 of the Cr.P.C. 2. Learned counsel appearing for the ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 3 ``` petitioners would submit that the offences alleged against the petitioners are not of a heinous nature, which would require this Court to refrain from exercising jurisdiction under Section 482 of the Cr.P.C. It is submitted that Annexures A3 to A6 affidavits executed by the injured persons in the case will indicate that the entire issues between the petitioners and the injured persons had been settled and they had no objections in the proceedings against the petitioners being set aside. 3. The learned counsel has placed reliance on the judgment of the Supreme Court in **Ramgopal and Another v. State of Madhya Pradesh** (2021 SCC Online SC 834) and **Ramawatar v. State of Madhya Pradesh and another;** (2021 SCC OnLine SC 966) to contend for the proposition that the jurisdiction under Section 482 Cr.P.C can be exercised even at the post conviction stage. The learned counsel also placed reliance on the judgment of this Court in **Soban v. State of Kerala;** [2021 (3) KHC 383] where this court had also ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 4 ``` exercised jurisdiction under Section 482 to quash the proceedings on the ground of settlement even at the post conviction stage. 4. Learned counsel appearing for respondents 3 to 6, confirms that the entire issues have been settled and they `h` ave no objection on the proceedings against the petitioners being set aside. 5. Having heard the learned counsel for the the petitioners, the learned Public Prosecutor and the learned counsel appearing for respondents 3 to 6 as above, I am of the view that the proceedings against the accused can be quashed on the ground of settlement in exercise of the jurisdiction vested in this court under Section 482 Cr.P.C. In _**Ramgopal**_ ## (supra) the Supreme Court held as follows; “15. Given these settled parameters, the order of the High Court of Madhya Pradesh culminating into Criminal Appeal No. 1489 of 2012, to the extent it holds that the High Court does not have power to compound a non-compoundable offence, is in ignorance of its inherent powers under Section 482 Cr.P.C. and is, thus, unsustainable. ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 5 ``` However, the judgment and order dated 9 January, 2009 of the High Court of Karnataka, giving rise to Criminal Appeal No. 1488 of 2012 cannot be faulted with on this count for the reason that the parties did not bring any compromise/settlement to the notice of the High Court. ## xxx xxx xxx 19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences ‘compoundable’ within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind : (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.” Following the judgment in _**Ramgopal**_ (supra) the Supreme Court in _**Ramawatar**_ (supra) held as ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 6 ``` ## follows; “10. So far as the first question is concerned, it would be ad rem to outrightly refer to the recent decision of this Court in the case of Ramgopal v. The State of Madhya Pradesh , wherein, a twoJudge Bench of this Court consisting of two of us (N.V.Ramana, CJI & Surya Kant, J) was confronted with an identical question. Answering in the affirmative, it has been clarified that the jurisdiction of a Court under Section 320 Cr.P.C cannot be construed as a proscription against the invocation of inherent powers vested in this Court under Article 142 of the Constitution nor on the powers of the High Courts under Section 482 Cr.P.C. It was further held that the touchstone for exercising the extra-ordinary powers under Article 142 or Section 482 Cr.P.C., would be to do complete justice. Therefore, this Court or the High Court, as the case may be, after having given due regard to the nature of the offence and the fact that the victim/complainant has willingly entered into a settlement/compromise, can quash proceedings in exercise of their respective constitutional/inherent powers. 11. The Court in Ramgopal (Supra) further postulated that criminal proceedings involving non-heinous offences or offences which are predominantly of a private nature, could be set ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 7 ``` aside at any stage of the proceedings, including at the appellate level. The Court, however, being conscious of the fact that unscrupulous offenders may attempt to escape their criminal liabilities by securing a compromise through brute force, threats, bribes, or other such unethical and illegal means, cautioned that in cases where a settlement is struck post-conviction, the Courts should, inter-alia, carefully examine the fashion in which the compromise has been arrived at, as well as, the conduct of the accused before and after the incident in question. While concluding, the Court also formulated certain guidelines and held: “19... Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.” ## [Emphasis Applied] 12. In view of the settled proposition of law, we affirm the decision of this Court in Ramgopal (Supra) and re-iterate that the powers of this Court under Article 142 can be invoked to quash a ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 8 ``` criminal proceeding on the basis of a voluntary compromise between the complainant/victim and the accused.” ## This court in _**Soban**_ (supra) held as follows; “10. It is settled that the plenary power possessed by the High Court u/s 482 of Cr.P.C. are very wide, though to be exercised sparingly and with circumspection. It is equally settled that the said power could be exercised irrespective of the nature of the proceedings and concurrently with appellate or revisional jurisdiction. Criminal proceedings commence from the lodging of FIR and would continue till the order of conviction, if passed, attains finality. When the order of conviction by the trial Court is under challenge before the appellate or revisional Court, it cannot be said that the order of conviction did attain finality. The presumption of innocence would continue till the order of conviction attains finality despite the conviction by the trial Court. An appeal challenging the order of conviction has the effect of continuation of trial itself. Since the power u/s 482 of Cr.P.C. is not controlled by S.320, such power could be exercised at any stage of the criminal proceedings including at the appellate or revisional stage. The section does not contemplate or specify any particular stage when the powers u/s 482 could be invoked. S.320 also does not contemplate any stage or specific mode by which Court can permit compounding of the offences. ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 9 ``` Subsections (5) and (6) of S.320 permit composition of the offences even during appellate or revisional stage. Thus, there is no reason whatsoever to restrict exercise of powers u/s 482 of Cr.P.C. only to cases where an order of conviction was not passed. The inherent power u/s 482 for quashing criminal proceedings being of a wide magnitude for being exercised with the object of securing the ends of justice, there cannot be limitation on such powers for being exercised only prior to conviction of an accused. Merely because the order of conviction was pending adjudication at the appellate or revisional stage, the same could not be a ground for refusing to exercise powers u/s 482 of Cr.P.C. to quash the criminal proceedings especially when the parties to the dispute had arrived at a settlement. Hence, I hold that if requirements of S.482 of Cr.P.C were satisfied in the sense that it was necessary to prevent abuse of the process of any Court or to secure the ends of justice, the criminal proceedings involving non-compoundable offence could be quashed notwithstanding the fact that the order of conviction was already passed against the accused provided offence in question does not fall in the category of offences prohibited for compounding in terms of the pronouncement of the Apex Court in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra).” Paragraph No.14 of the judgment in ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 10 ``` C.C.No.565 of 2016 shows that the injuries reported are not serious in nature. The offences alleged are also not offences against the society in general. There is nothing to suggest that the compromise is not voluntary. Therefore, I am of the view that the proceedings can be set aside in the light of the law laid down in the judgments referred to above. Therefore the entire proceedings initiated against the accused in Crime No.105 of 2016 of Perinthalmanna Police Station, Malappuram are quashed. Consequently the conviction and sentence imposed on the appellants vide judgment dated 12.04.2019 in C.C.No.565 of 2016 on the file of the Judicial First Class Magistrate Court-I, Perinthalmanna, will stand set aside. Criminal M.C. will stand disposed of in the above terms. **Sd/GOPINATH P. JUDGE** SSK/31/10 ``` Crl.M.C. NO.4642 OF 2023 ``` ``` 11 ``` ## `APPENDIX OF CRL.MC 4642/2023` ## `PETITIONER ANNEXURES` ``` Annexure A1TRUE COPY OF THE FINAL REPORT DATED 10-05-2016 IN CRIME NO. 105 OF 2016 OF PERINTHALAMANNA POLICE STATION Annexure A2TRUE COPY OF THE JUDGMENT DATED 12-04-2019 IN CC NO. 565 OF 2016 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA Annexure A3NOTARIZED AFFIDAVIT DATED 26-04-2023 EXECUTED BY RESPONDENT NO. 3 Annexure A4NOTARIZED AFFIDAVIT DATED 26-04-2023 EXECUTED BY RESPONDENT NO. 4 Annexure A5NOTARIZED AFFIDAVIT DATED 26-04-2023 EXECUTED BY RESPONDENT NO. 5 Annexure A6NOTARIZED AFFIDAVIT DATED 26-04-2023 EXECUTED BY RESPONDENT NO. 6 ```