Salamma and Mercy v. State of Kerala

CRL.MC NO. 390 OF 2017 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 24[TH] DAY OF NOVEMBER 2023 / 3RD AGRAHAYANA, 1945 CRL.MC NO. 390 OF 2017** **CRIME NO.848/2015 OF ALAPPUZHA NORTH POLICE STATION, Alappuzha AGAINST THE ORDER/JUDGMENT SC 222/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, ALAPPUZHA / II ADDITIONAL MACT/ LAND ACQUISITION REHABILIEATION AND RE-SETTLEMENT AUTHORITY, ALAPPUZHA** ## **PETITIONER/S:** 1 SALAMMA AGED 50 YEARS AGED 50 YEARS, W/O. BABU, SALOM HOUSE, POONTHOPPU WARD, ALAPPUZHA MUNICIPALITY. 2 MERCY AGED 54 YEARS AGED 54 YEARS, W/O. JAMES, JINJU VILLA, KARUKAYIL WARD, ALAPPUZHA MUNICIPALITY. BY ADV SRI.B.PRAMOD ## **RESPONDENT/S:** 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 PRABEESH S/O. RAVEENDRAN, VAISYAMPARAMBU HOUSE, WARD NO. 8 MARARIKKULAM SOUTH PANCHAYATH, ALAPPUZHA DISTRICT. 3 REMANI AGED 53 YEARS W/O ANGADHAN,KOLLASSERI VELLIYIL HOUSE,POONTHOPPU CRL.MC NO. 390 OF 2017 2 WARD,ALAPPUZHA,688013 4 LAKSHMI AGED 19 YEARS D/O ANGADHAN,KOLLASERI VELLIYIL HOUSE,POONTHOPPU WARD,ALAPPUZHA,688013 5 SETHU LAKSHMI AGED 26 YEARS D/O ANGADHAN,KOLLASSERI VELLIYIL HOUSE,POONTHOPPU WARD,ALAPPUZHA,688013 BY ADVS. EMMANUAL SANJU P.SHANES METHAR ## **OTHER PRESENT:** SRI RENJITH TR, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 390 OF 2017 3 **P.V.KUNHIKRISHNAN, J --------------------------------------Crl.M.C. No. 390 of 2017 -------------------------------------Dated this the 24[th] day of November, 2023** ## **O R D E R** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. The petitioners are the accused in SC No.222/2016 of Addl.Sessions Court-II, Alappuzha arising from Crime No. 848/2015 of Alappuzha North Police Station. The above case is chargesheeted against the petitioners alleging offences punishable under Secs. 306 and 393 r/w 34 IPC and also under the provisions of the Money Lenders Act and the Prohibition of Charging Exorbitant Interest Act, 2012. 3. The prosecution case is that the 1[st] petitioner lent Rs.4,00,000/- to the deceased on high rate of interest without any security documents and was in receipt of the interest. But CRL.MC NO. 390 OF 2017 4 the deceased could not repay the same, when the amount of Rs.4,00,000/- was demanded back by the 1[st] petitioner. So, it is the case of the prosecution that the petitioners 1 and 2 started coming to the house of the deceased and since the deceased did not give the money, they engaged accused Nos. 3 to 5, allegedly workers of a political party by name BJP for getting back the money from the deceased. It is submitted that the accused Nos. 3 to 5 came the residence of the deceased and got a written undertaking from the deceased to the effect that the amount would be repaid in two instalments. It is also stated that they threatened the deceased to the effect that in case the money is not paid, his household articles would be thrown out and he would be forcibly ousted from the house. Hence, the deceased out of fear and desperation, committed suicide. 4. It is submitted by the learned counsel for the petitioners that even if the entire allegations are accepted, no offence is made out against the petitioners. Public Prosecutor supported the case of the prosecution, and relied on the judgment of the Apex Court in **Daxaben v. State of Gujarat and others** [2022 KHC Online 6752] 5. This Court carefully perused the statement in the final CRL.MC NO. 390 OF 2017 5 report. A perusal of the above final report would show that no offence under Sec. 306 IPC is made out against the petitioners. Therefore, the dictum laid down in **Daxaben's** case (supra) is not applicable. Even if, any other offence is made out, it is to be noted that, the victims in this case have no grievance against the petitioners and they filed affidavits before this Court stating that they have no grievance against the petitioners. 6. 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 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 CRL.MC NO. 390 OF 2017 6 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 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 CRL.MC NO. 390 OF 2017 7 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 non- compoundable 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.” 7. 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. 390 OF 2017 8 Therefore, this Criminal Miscellaneous case is allowed. All further proceedings against the petitioners in SC No.222/2016 of Addl.Sessions Court-II, Alappuzha arising from Crime No. 848/2015 of Alappuzha North Police Station are quashed. **sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS CRL.MC NO. 390 OF 2017 9 ## **APPENDIX OF CRL.MC 390/2017** PETITIONER ANNEXURES ANNEXURE I TRUE COPY OF THE CHARGE-SHEET IN CRIME NO.848/2015 OF ALAPPUZHA SOUTH NORTH POLICE STATION. ANNEXURE II TRUE COPY OF THE F.I.S. IN CRIME NO.848/2015 OF ALAPPUZHA NORTH POLICE STATION. ANNEXURE III TRUE COPY OF THE F.I.R. IN CRIME NO.848/2015 OF ALAPPUZHA NORTH POLICE STATION. ANNEXURE IV TRUE COPY OF THE ADDITIONAL STATEMENT OF THE 2ND RESPONDENT RECORDED IN CRIME NO. 848/2015 OF ALAPPUZHA NORTH POLICE STATION. ANNEXURE V TRUE COPY OF THE STATEMENT OF THE WIFE OF THE DECEASED RECORDED IN CRIME NO.848/2015 OF ALAPPUZHA NORTH POLICE STATION.