Omanakuttan and others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 ``` ``` CRL.MC NO. 8874 OF 2023 ``` ``` CRIME NO.0919/2018 OF Anchalummoodu Police Station, Kollam AGAINST THE ORDER/JUDGMENT SC 553/2020 OF SPECIAL COURT- OFFENCES UNDER SC/ST (POA) ACT,1989,KOTTARAKKARA ``` ``` PETITIONERS/ACCUSED 1 TO 3: ``` - **`1 OMANAKUTTAN AGED 40 YEARS`** - **`S/O RAJAN, RESIDING AT MULLILAZHIKATHU LAKSHAM VEEDU, NJARAKKAL CHERRY, THRIKKARUVA VILLAGE, ANCHALUMOODU P.O, KOLLAM DISTRICT, PIN – 691 601`** - **`2 SURESHKUMAR AGED 45 YEARS`** ``` S/O GOPALAKRISHNAN ACHARY, RESIDING AT MULLILAZHIKATHU LAKSHAM VEEDU, NJARAKKAL CHERRY, THRIKKARUVA VILLAGE, ANCHALUMOODU P.O, KOLLAM DISTRICT, PIN – 691 601 ``` - **`3 SANTHOSHKUMAR AGED 42 YEARS`** - **`S/O THANKAPPAN, RESIDING AT MULLILAZHIKATHU LAKSHAM VEEDU, NJARAKKAL CHERRY, THRIKKARUVA VILLAGE, ANCHALUMOODU P.O, KOLLAM DISTRICT, PIN – 691 601`** ``` BY ADVS. A.JANI(KOLLAM) NISA FASIL(KOLLAM) ``` ## **`RESPONDENTS/DEFACTP COMPLAINANTS-STATE:`** - **`1 SREEJITH AGED 40 YEARS`** ``` S/O SASIDHARAN PILLAI, RESIDING AT LAKSHAM VEEDU, NJARAKKAL CHERRY, THRIKKARUVA VILLAGE, ANCHALUMOODU P.O, KOLLAM DISTRICT, PIN – 691 601 ``` - **`2 ANOOP AGED 29 YEARS S/O APPUKKUTTAN, RESIDING AT THEKKEVILATHEKKETHIL, NJARAKKAL CHERRY, THRIKKARUVA VILLAGE, ANCHALUMOODU P.O, KOLLAM DISTRICT, PIN – 691 601`** ``` CRL.MC NO. 8874 OF 2023 ``` ``` 2 ``` ``` 3STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 ``` ## **`SRI MP PRASANTH ,PP`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 8874 OF 2023 ``` ``` 3 ``` **P.V.KUNHIKRISHNAN, J. --------------------------------Crl.M.C. No.8874 of 2023** **------------------------------------Dated this the 13[th] day of November, 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. Petitioners are the accused in SC.No.553/2020 of Special Court for Offences under the SC/St (POA) Act, 1989, Kottarakkara. arising from Crime No.919/2018 of Anchalummoodu Police Station, Kollam. The case is charge sheeted alleging offences punishable under Sections 3(1)r, 3(1)s and 3(1)u fo the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also under Section 27 of the Arms Act. 3. The prosecution case is that the accused committed the offence under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. It is also submitted by the counsel for the petitioners that even if the entire allegations are accepted, the ``` CRL.MC NO. 8874 OF 2023 ``` ``` 4 ``` offence under Section 27 of the Arms Act is not attracted. It is further submitted that the area is not notified as per the Arms Act. It is also submitted by the counsel for the petitioners that the counter case is also settled. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. The counsel relies on the affidavits filed by the victims in 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 ``` CRL.MC NO. 8874 OF 2023 ``` ``` 5 ``` 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 _**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 cannot be quashed in exercise of powers_ ``` CRL.MC NO. 8874 OF 2023 ``` ``` 6 ``` _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 noncompoundable 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 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. ``` CRL.MC NO. 8874 OF 2023 ``` ``` 7 ``` Therefore, this Criminal Miscellaneous case is allowed. All further proceedings pursuant to the petitioners in SC.No.553/2020 on the file of Special Court for Offences under the SC/ST (POA) Act, 1989, Kottarakkara arising from Crime No.919/2018 of Anchalummoodu Police Station, Kollam are quashed. Sd- ## **P.V.KUNHIKRISHNAN** **JUDGE** sn ``` CRL.MC NO. 8874 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 8874/2023`** ## **`PETITIONERS’ ANNEXURES`** |**`Annexure A1`**|**`THE CERTIFIED COPY OF THE F.I.R IN IN CRIME`**| |---|---| ||**`NO. 0919/2018 DATED 03/06/2018 REGISTERED BY`**| ||**`ANCHALUMOODU POLICE STATION, KOLLAM DISTRICT`**| |**`Annexure A2`**|**`THE CERTIFIED COPY OF THE FINAL REPORT IN`**| ||**`CRIME NO. 0919/2018 DATED 03/06/2018`**| ||**`REGISTERED BY ANCHALUMOODU POLICE STATION,`**| ||**`KOLLAM DISTRICT`**| |**`Annexure A3`**|**`A A TRUE COPY OF THE F.I.R. IN CRIME NO.`**| ||**`0921/2018 OF ANCHALUMMOODU POLICE STATION`**| ||**`DATED 03/08/2018`**| |**`Annexure A4`**|**`A TRUE COPY OF THE ACCIDENT CUM WOUND`**| ||**`CERTIFICATE DATED 01/08/2018 ISSUED BY`**| ||**`DISTRICT HOSPITAL, KOLLAM`**| |**`Annexure A5`**|**`A TRUE COPY OF THE COMMUNITY CERTIFICATES`**| ||**`DATED 11/02/2019 ISSUED BY THE TALUK OFFICE,`**| ||**`KOLLAM`**| |**`Annexure A6`**|**`THE FIRST RESPONDENT SWORN IN AN AFFIDAVIT ON`**| ||**`17/10/2023`**| |**`Annexure A7`**|**`THE SECOND RESPONDENT SWORN IN AN AFFIDAVIT`**| ||**`ON 17/10/2023`**| ## **RESPONDENT’S ANNEXURES : NIL** **//TRUE COPY// PA TO JUDGE**