Rashif, Musabhir, Jafsal, Shemeesap, Muhammed Ashique and Raheeb v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945`** ## **`CRL.MC NO. 1557 OF 2023`** ``` CP118/2022OFJUDICIALMAGISTRATEOFFIRSTCLASSI,TIRURIN CRIMENO.548OF2022OFTIRURPS,MALAPPURAM ``` ## **`PETITIONERS/ACCUSED 1 TO 6:`** ``` 1RASHIFCP AGED22YEARS S/O.ABDULRASHEED,CHEKKINTEYPURACKALHOUSE, AKKARAVALAPPIL,PARAVANNAPO,MALAPPURAM, - PIN676502 2MUSABHIR AGED24YEARS S/OMUHAMMEDKUTTY,ARAYANTEYPURACKAL, - VELAPURAM,PARAVAANNAPO,MALAPPURAM,PIN676502 3JAFSAL AGED25YEARS S/OSAIDHU,ARAYANTEYPURACKALHOUSE,PARAVANNAPO, - MALAPPURAM,PIN676502 4SHEMEESAP AGED26YEARS S/OABBAS,ARAYANTEYPURACKALHOUSE,NMARKET, - PARAVANNAPO,MALAPPURAM,PIN676502 5MUHAMMEDASHIQUE AGED25YEARS S/OSAVAD,CHEKKINTEYPURACKALHOUSE,PARAVANNAPO, - TUR,MALAPPURAM,PIN676502 6RAHEEB AGED26YEARS S/OABDULLAKUTTY,AGED26YEARS,MARAKARKANDY HOUSE,NRBANATHAUDITORIUM,PARAVANNAPO, ``` Crl.M.C No.1557 of 2023 2 ``` - MALAPPURAM,PIN676502 BYADVS. P.C.ANILKUMAR MUHAMMEDK. P.SREESHA ``` ## **`RESPONDENTS/STATE & DE-FACTO COMPLAINANT/INJURED 2 AND 3:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,PIN682031 2MUHAMMEDASLAM S/OBASHEERKP,AGED20YEARS, KUTTUSSANTEPURAKKALHOUSE,PARAVANNAPO,TIRUR, - MALAPPURAM,PIN676502 3MUHAMMEDAJMALP S/OMOIDEENBAVA,AGED21YEARS,PALLATHHOUSE, PUTHANGADI,PARAVANNAPO,TIRUR,MALAPPURAM, - PIN676502 4JAMSHADKP S/OMUHAMMEDALI,AGED20YEARS, KAMMAKKANTEPURAKKALHOUSE,PUTHANGADI, - PARAVANNAPO,TIRUR,MALAPPURAM,PIN676502 SRIPRASHANTHMP,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 26.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.1557 of 2023 3 ## **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 accused Nos. 1 to 6 in C.P No.118 of 2022 on the file of the Judicial First Class Magistrate Court I, Tirur. In the aforesaid case, they are facing prosecution for having committed offences punishable under Sections 143, 147, 148, 341, 324, 427, and 308 r/w Section 149 IPC. 3. The prosecution allegation is that on 26.6.2022 at about 5.30 pm, the accused formed themselves into an unlawful assembly and in prosecution of their common object, intercepted respondents 2 to 4, while they were travelling in a car and attacked them with weapons such as iron rods and caused injuries. It is also alleged that the petitioners caused extensive damages to the car driven by CW4 and caused loss to the tune of Rs. 70,000/- 4. Sri. P.C.Anilkumar, the learned counsel appearing for the Crl.M.C No.1557 of 2023 4 petitioners, submitted that the parties have settled their disputes and they are not desirous of pursuing the prosecution proceedings. Reliance is placed on the affidavits filed by respondents 2 to 4, and it is argued that they have stated in unequivocal terms that they have no subsisting grievance against the petitioners. According to the learned counsel, if the proceedings are terminated, recording the amicable settlement, the parties can embark upon their future paths in an atmosphere of tranquility and mutual respect. At any rate, the possibility of conviction is remote and bleak and the continuance of criminal proceedings would only put the parties to great oppression and prejudice. 5. The learned Public Prosecutor has vehemently opposed the prayer for quashing the criminal proceedings. It is submitted that the Apex Court in **State of M.P. v. Laxmi Narayan,[1]** has laid down the principles and had observed that quashing of proceedings on the basis of settlement would depend on the facts and circumstances of each case. He would point out that the Apex Court had observed that while quashing the proceedings, the Court will have to consider whether the crime is against the society or against an individual alone > 1 (2019) 5 SCC 688 Crl.M.C No.1557 of 2023 5 and also the character, conduct, and antecedents of the accused. He would point out that the 3rd accused is involved in Crime No. 916 of 2021 registered inter alia under Section 353 of the IPC. The 5th accused, on the other hand, is involved in six other crimes, viz., Crime Nos.591/2022, 355/2020, 354/2020, 9/2020, 1/2020 and 300/2018 registered inter alia under Section 307 of the IPC of the Tirur Police Station. Insofar as the 6th accused is concerned, he is accused in Crime No. 1139/2022 registered inter alia under Section 308 of the IPC and Crime No. 591/2022 registered inter alia under Section 380 of the IPC. 6. I have considered the submissions and have gone through the records. 7. In **State of M.P (supra),** a three-judge bench of the Hon’ble Supreme Court has summarised the law as laid down in **Gian Singh v. State of Punjab[2]** , **Narinder Singh v. State of Punjab[3]** , **State of Rajasthan v. Shambhu Kewat[4]** , **State of M.P. v. Deepak[5] , State of M.P. v. Manish[6]** , **J. Ramesh Kamath v.** > 2 (2012) 10 SCC 303 > 3 2014 (6) SCC 466 > 4 (2014) 4 SCC 149 > 5 (2014) 10 SCC 285 > 6 (2015) 8 SCC 307 Crl.M.C No.1557 of 2023 6 **Mohana Kurup[7]** ; **State of M.P. v. Rajveer Singh[8]** , **Parbatbhai Aahir v. State of Gujarat[9] , State of M.P. v. Kalyan Singh[10] and State of M.P. v. Dhruv Gurjar[11]** . 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 > 7 2016) 12 SCC 179 > 8 (2016) 12 SCC 471 > 9 (2017) 9 SCC 641 > 10 (2019) 4 SCC 268 > 11 (2019) 5 SCC 570] Crl.M.C No.1557 of 2023 7 servants while working in that capacity are not to be quashed merely 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 Crl.M.C No.1557 of 2023 8 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. The petitioners 3, 5 and 6 are involved in a multitude of crimes during the past several years. Needless to say, their continuous involvement necessarily has societal ramifications. It will have to be construed as a transgression infringing upon the fabric of society rather than a private dispute. Consequently, it is infeasible to terminate the ongoing criminal proceedings on the basis of a settlement arrived at with the de facto complainant. This Court is also unsure whether the settlement was arrived at with a free or open mind or whether it was obtained by threat or coercion, given the criminal antecedents of the Crl.M.C No.1557 of 2023 9 accused and their propensity to involve in crimes disturbing the peace, one after the other. I have no doubt in my mind that the action of the petitioners in continuously engaging in crimes has a significant and adverse societal impact. The Apex Court had also observed that while considering the prayer for quashing on the basis of settlement, this Court is bound to consider the antecedents and conduct of the accused and the manner in which the accused had managed to enter into a compromise. It would also not be feasible to quash the proceedings by leaving out the accused with criminal antecedents. Having considered the facts and circumstances and the antecedents of the petitioners, I am not inclined to exercise the powers conferred on this Court under Section 482 of the Code to put a premature end to the prosecution. This petition is accordingly dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.1557 of 2023 10 ## **`APPENDIX OF CRL.MC 1557/2023`** ``` PETITIONERS’ANNEXURES ``` ``` AnnexureA1 ``` ``` PHOTOCOPYOFTHEFIRNO.548/2022OF TIRURPOLICESTATION,MALAPPURAM ``` ``` AnnexureA2 ``` ``` PHOTOCOPYOFTHEFINALREPORTINCRIME NO.548/2022OFTIRURPS,MALAPPURAM ``` ``` AnnexureA3AFFIDAVITDATED09.02.2023SIGNEDBYTHE 2NDRESPONDENT ``` ``` AnnexureA4AFFIDAVITDATED09.02.2023SIGNEDBYTHE 3RDRESPONDENT ``` ``` AnnexureA5AFFIDAVITDATED09.02.2023SIGNEDBYTHE 4THRESPONDENT ```