Samseer Kallayi and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941** ## **Crl.MC.No.5870 OF 2019(C)** **IN CC NO.685/2019 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, HOSDRUG** ## **CRIME NO.348/2019 OF HOSDURG POLICE STATION, KASARAGOD** ## **PETITIONERS/ACCUSED 1 TO 4:** - **1 SAMSEER KALLAYI, AGED 31 YEARS, S/O.ANDUMAYI PALAKKAL, RESIDING AT KALLAYI HOUSE, PAZHAYA KADAPPURAM, KANHANGAD POST AND VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** - **2 UVAIS.K, AGED 23 YEARS, S/O.ABDUL KHADER.P.K., RESIDING AT UVAIS MANZIL, PAZHAYA KADAPPURAM, KANHANGAD POST AND VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** - **3 HASEEB.M.K., AGED 19 YEARS, S/O.HASSIM.T., RESIDING AT HAZEENA MANZIL, PAZHAYA KADAPPURAM, KANHANGAD POST AND VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-671315.** - **4 MUHAMMED MUBASHIR, AGED 19 YEARS, S/O.ABDUL SATHAR, RESIDING AT C.P.HOUSE, PAZHAYA KADAPPURAM, KANHANGAD POST AND VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT-671315.** **BY ADVS. SMT.G.SANGEETHA SRI.SHAHID AZEEZ** ## **RESPONDENTS/STATE:** - **1 THE STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, HOSDURG POLICE STATION, KASARAGOD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 MUHAMMED HASHIR K.A., AGED 21 YEARS, S/O.USMAN.K.A., RESIDING AT IRSHAD MANZIL, MUNDATHODU, KALLURAVI, KANHANGAD POST AND VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** CRL.MC:5870/2019 2 - **3 IRSHAD P.M., AGED 26 YEARS, S/O.IBRAHIM, RESIDING AT PUTHIYAKANDAM HOUSE, KALLURAVI, KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** - **4 HASSAIN T., S/O.ABDULLA.T., AGED 24 YEARS, RESIDING AT THALAYILLATH HOUSE, MUNDATHODU,KANHANGAD POST AND VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** - **5 ISAHAK C.P., S/O.ABDUL RAHIMAN, AGED 22 YEARS, RESIDING AT C.P.HOUSE, MUNDATHODU, KANHANGAD VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **R2 TO R5 BY ADV. SRI.T.MADHU** ## **OTHER PRESENT:** ## **SRI. AJITH MURALI PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:5870/2019 3 ## **ORDER** Invoking the powers of this Court under Section 482 of the Code of Criminal Procedure (“the Code”, for short), the petitioners have approached this Court seeking to quash the criminal proceedings initiated against them by the 2[nd] respondent herein, which is now pending on the files of the Judicial First Class Magistrate Court-I, Hosdurg as C.C. No.685 of 2019. In the above proceeding, they face indictment for offences punishable under Sections 341, 323, 324 r/w. Section 34 of the IPC. 2. From the prosecution records, it is discernible that the allegation against the petitioners is that on 19.05.2019 at 10.30 p.m., the petitioners, in prosecution of their common intention, wrongfully restrained CW1 and assaulted him. When CWs.2 to 4 intervened, they were also attacked. 3. Heard Smt.G.Sangeetha, the learned counsel appearing for the petitioners, Sri.T.Madhu, the learned counsel appearing for respondents 2 to 5, and the learned Public Prosecutor. 4. The learned counsel appearing for the party respondents submitted that after much deliberations, the victims have resolved their disputes and differences with the petitioners and they have now decided that the continuance of criminal proceedings is an unwanted exercise. He refers to the affidavits filed CRL.MC:5870/2019 4 by the victims before this Court and asserts that they have no objection in bringing the prosecution proceedings to a premature termination. 5. The learned counsel appearing for the petitioners urged that in view of the compromise arrived at between the victims and the offenders, the possibility of conviction is bleak and the continuation of the criminal proceedings will only inure to put both the parties to oppression and prejudice. Both sides submit that the wrong is basically private in nature and no public interest is involved. 6. The learned Public Prosecutor, on instructions, submitted that the investigating officer has reported that the petitioners are not involved in any other crimes. It is further submitted that the State has no serious objection in quashing the proceedings against them in view of the settlement arrived at between the parties. 7. I have considered the submissions advanced and have gone through the records. 8. The factors that are to be borne while exercising the powers conferred on this Court by Section 482 of the Code in the context of considering a prayer for quashing criminal proceedings on the basis of resolution of disputes between the offender and the victim have been laid down by the Apex Court in CRL.MC:5870/2019 5 **Gian Singh v. State of Punjab and Anr** .[1] ; **Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another[2]** ; **Narinder Singh and Others v. State of Punjab and Another[3]** ; **Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others v. State of Gujarat and Another[4]** and **State of Madhya Pradesh v. Laxmi Narayan and others[5]** . It was held that the inherent jurisdiction vested in the High Court, as recognized and preserved by Section 482 of the Cr.P.C, is primarily to prevent abuse of the process of court or to secure the ends of justice. The guiding light behind the exercise of inherent power is to do real, complete and substantial justice. It was also held that while examining the prayer for quashing of a non compoundable offence, on the basis of settlement of the dispute between the wrongful doer and the victim, this Court must necessarily consider whether the possibility of conviction is remote and oblique and further as to whether the continuation of the criminal proceedings would lead to oppression and prejudice. The courts were reminded that the antecedents of the accused, possible lack of bona fides, his past conduct, including his earlier abscondance, and as to how he had managed to enter into a compromise with the victim are some of the factors which are to reckoned while exercising this extraordinary power. The Apex Court had also cautioned that this Court, when called upon to exercise the power under Section > 1 [(2012) 10 SCC 303] > 2 [(2013) 4 SCC 58] > 3 [(2014) 6 SCC 466] > 4 [(2017) 9 SCC 641] > 5 [(2019) 4 SCALE 200] CRL.MC:5870/2019 6 482 of the Cr.P.C to bring the criminal case to an end on the basis of settlement, must steer clear of intervention in heinous or serious offences, including those involving mental depravity, as indeed economic offences affecting the financial and economic well being of the State, such as murder, attempt to murder, extortion, forgery, rape, dacoity, financial or economic frauds, cases under Arms Act, etc. Those offences were held as having a tendency to have a serious impact upon the society and continuation of trial thereof is essential due to overriding element of public interest. It was also held that the mere fact that the police have incorporated a grave offence in the FIR or the final report would not be a deterrent if the records reveal that the ingredients of the offence are not made out. 9. In the light of the above principles, I have perused the prosecution records. The injuries allegedly inflicted by the petitioners cannot be said to be grave and serious having ingredients of extreme mental depravity. I have also noted the submission of the learned Public Prosecutor that the statement of the victims have been recorded by the investigating officer and that they have asserted that it is not in their best interest that the prosecution proceedings continue. Having considered the case in hand on the touchstone of the aforementioned parameters, I am of the view that quashing of proceedings on account of compromise would bring about peace. In a case such as the instant CRL.MC:5870/2019 7 one, even if the prosecution is allowed to continue, it would not serve any purpose as the possibility of conviction is remote and bleak. It can only result in putting the victims and the accused to unwanted oppression and prejudice. Settlement will augur well for the interest of the community and will enable the parties to live in peace and harmony. In the result, this petition is allowed. Annexure-A2 final report and all further proceedings pursuant thereto against the petitioners now pending as C.C. No.685 of 2019 on the files of the Judicial First Class Magistrate Court-I, Hosdurg are quashed. **SD/-** ## **RAJA VIJAYARAGHAVAN V.,** ## **JUDGE** krj //TRUE COPY// P.A. TO JUDGE CRL.MC:5870/2019 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 THE TRUE CERTIFIED COPY OF THE FIR IN CRIME NO.348/2019 OF HOSDURG POLICE STATION. ANNEXURE A2 THE TRUE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.348/2019 OF HOSDURG POLICE STATION. ANNEXURE A3 THE AFFIDAVIT DATED 10.8.2019 SWORN IN BY THE SECOND RESPONDENT. ANNEXURE A4 THE AFFIDAVIT DATED 10.8.2019 SWORN IN BY THE THIRD RESPONDENT. ANNEXURE A5 THE AFFIDAVIT DATED 10.8.2019 SWORN IN BY THE FOURTH RESPONDENT. ANNEXURE A6 THE AFFIDAVIT DATED 10.8.2019 SWORN IN BY THE FIFTH RESPONDENT.**