N.P. Rajesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935** **Crl.Rev.Pet.No. 968 of 2013 () -------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 267/2012 of SESSIONS COURT, KOZHIKODE.** **AGAINST THE JUDGMENT IN CC 417/2008 of J.M.F.C. I, PERAMBRA.** ## **REVISION PETITIONER(S)/PETITIONER/ACCUSED:** **------------------------------------------** **N.P.RAJESH, AGED 40 YEARS, S/O.KANNAN, NELLIYULLAPARAMBIL HOUSE, MEPPAYYOOR AMSOM CHANGARAMVALLY DESOM, KALPATHUR, KOYILANDY TALUK.** **BY ADV. SRI.K.B.ARUNKUMAR** ## **RESPONDENT/RESPONDENT/STATE:** **----------------------------** **1. STATE OF KERALA REPRESENTED THROUGH THE SUB INSPECTOR OF POLICE PERAMBRA POLICE STATION, KOZHIKODE DISTRICT REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN 682032.** **ADDL. 2. VIJAYARAJAN, AGED 50 YEARS, S/O. PADMANABHAN, RESIDING AT KATTAPPURATH, KOZHIKODE DISTRICT.** **ADDITIONAL 2ND RESPONDENT IS IMPLEADED AS PER ORDER IN CRL.M.A.NO.5325/13 DATED 19/7/2013.** **RADDL.R-R2 BY ADV. SRI.MOHANAN V.T.K. R BY PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 968 of 2013 -----------------------------------------------------Dated this the 19[th] day of July, 2013** ## **ORDER** The learned counsel for the revision petitioner is the accused in C.C.No.417/08 on the files of the Judicial First Class Magistrate's Court-I, Perambra. He was prosecuted for the offences punishable under Secs.279, 337 and 304(A) of the Indian Penal Code. After trial, the learned Magistrate found that the revision petitioner guilty of the said offences and convicted thereunder. He was sentenced to undergo simple imprisonment till rising of the court and to pay a fine of Rs.1,000/- under Sec.279 IPC and in default of payment of fine, to undergo simple imprisonment for 15 days. For the offence punishable under Sec.337 Indian **Crl.R.P. No. 968 of 2013** -: 2 :- Penal Code, he was sentenced to undergo simple imprisonment till rising of the court and to pay a fine of Rs.500/-. In default of payment of fine, to undergo simple imprisonment for 7 days. For the offence punishable under Sec.304(A) IPC, he was sentenced to undergo simple imprisonment for six months. The substantive sentences shall run concurrently. Though the revision petitioner had preferred Crl.A. No.267/12 before the Sessions Court, Kozhikode Division, the appellate court, after appreciating the evidence, confirmed the conviction and sentence, as such, without any interference. This revision petition is filed challenging the concurrent findings of the conviction and sentence. 2. The prosecution case is that at about 12.45 p.m. on 12/5/2008, the revision petitioner/accused drove his jeep bearing registration No.KL-11/Q 1528 rashly and negligently along the Kuttiady - Perambra public road in such a way as to endanger human life, that due to the said rashness and negligence, the said jeep hit down two boys who were **Crl.R.P. No. 968 of 2013** -: 3 :- walking along the side of the road, and due to the fatal injuries sustained in the accident, one of the boys by name 'Vishnu' died in the hospital and the other boy by name 'Rafas' escaped miraculously with minor injuries. On the basis of the complaint filed by the father of the deceased boy, a crime was registered by the police and, after investigation, charge sheet was filed for the said offences. This revision petition has been filed on various grounds. 3. During the pendency of the revision petition, the de facto complainant, the father of the deceased boy, filed a petition - Crl.M.A. No.5325/13, along with an affidavit to get impleaded in this revision petition as additional 2[nd] respondent. In that petition, it is stated that he is not interested in prosecuting this revision petition and he is ready to compound the offences alleged against the revision petitioner. He has no objection in setting aside the judgments in Crl.A.No.267/12 on the files of the Sessions Judge, Kozhikode and C.C.No.417/08 on the files of the Judicial First Class Magistrate's Court-I, Perambra, and **Crl.R.P. No. 968 of 2013** -: 4 :- conviction and sentence imposed on the revision petitioner by these judgments. Crl.M.A. No.5325/13 is allowed by this Court vide separate order. 4. The learned counsel for the revision petitioner submits that in view of the averments in the affidavit filed by the de facto complainant, the conviction and sentence imposed on the revision petitioner may be set aside. Among the findings for which the revision petitioner has been convicted, the offences under Secs.279 and 304(A) IPC are non-compoundable offences. 5. The question to be considered is whether these offences can be compounded in view of the averments in the accompanying affidavit filed by the additional 2[nd] respondent. 6. This Court in **Scariah v. State of Kerala** (2002 (3) KLT Case No.29 at page 20) has considered this question whether in motor accident cases a non-compoundable offences can be compounded, if the victim is compensated by the offender. In the above decision, this Court held that **Crl.R.P. No. 968 of 2013** -: 5 :- in appropriate cases, considering the facts and circumstances of the case, in motor accident cases, even though the offences are not compoundable, if the victims are adequately compensated, the offences can be compounded and the accused can be acquitted of the offences under Sec.320(8) of the Cr.P.C. 7. Recently, the Supreme Court in the decision reported in **Gian Singh v. State of Pubjab** [2012 (4) KLT 108 (SC)] also considered the question whether noncompoundable offences can be compounded invoking the jurisdiction under Sec.482 of the Cr.P.C. In that decision, the Supreme Court categorised the offences on the basis of nature and gravity and held that in the case of serious offences that cannot be compounded and quoted such offences. Secs.304(A) and 279 IPC do not find a place in the said category of offences for which the power under Sec.482 of the Cr.P.C. cannot be invoked. 8. Another question to be considered is whether this Court can be justified in invoking the power under Sec.482 **Crl.R.P. No. 968 of 2013** -: 6 :- of the Cr.P.C. under the revisional jurisdiction. This question was also considered by a Division Bench of this Court in **Thankamma v. State of Kerala** (2006 (3) KLT 846) and held that, in appropriate cases, considering the facts and circumstances of the case, the power under Sec.482 of the Cr.P.C. can be invoked and exercised under the revisional jurisdiction also. 9. The learned counsel for the revision petitioner submits that the revision petitioner is a driver by profession and his earning is the only source of income and he has no other source of income and he has to maintain his family consisting of his wife and children. If he is incarcerated, as ordered by the courts below, his entire family will be put in difficulty. 10. There cannot be a general proposition permitting to quash or compound non-compoundable offences either under Sec.482 or 320 of the Cr.P.C. But going by the decision in **Gian Singh v. State of Pubjab** [2012 (4) KLT 108 (SC)], invocation of such power can be exercised **Crl.R.P. No. 968 of 2013** -: 7 :- sparingly depending upon facts and circumstances of each case. Having regard to the facts and circumstances of this case and the affidavit filed by the de facto complainant stating that the entire matter has been settled and the de facto complainant is adequately compensated, I find that this a fit case coming under the rare category discussed in the above decision. The conviction entered and sentence imposed on the revision petitioner for all the offences are quashed invoking the power under Sec.482 of the Cr.P.C., the revision petitioner is acquitted of the offences under Sec.320(8) of the Cr.P.C. This revision petition is disposed of accordingly. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge