Santosh Kumar and others v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 4[TH] DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945 ``` ``` CRL.MC NO. 6128 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT CP 30/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III (FOREST OFFENCES), ``` ## **`NEDUMANGAD`** ## **`PETITIONER/S:`** - `1 SANTOSH KUMAR, AGED 50 YEARS S/O. RAMAN PILLA, NANDU BHAVAN, VAVUPURA, THENOOR VILLAGE, NEDUMANGAD, PIN - 695563` - `2 MAHIL @ MAKKU, AGED 40 YEARS S/O. BABU, MEENAKSHI TOWER, MELAEKOPPAM, THOLICODE, VITHURA, THIRUVANANTHAPURAM, PIN - 695541` - `3 ANIL KUMAR, AGED 59 YEARS S/O. SHIVARAMAPILLA, SARASWATHY MANIDRAM, CHAYAM, THOLICODE, VITHURA, NEDUMANGAD, THIRUVANANTHAPURAM, KERALA, PIN - 695541` - `4 VENU KUMAR PILLA, AGED 60 YEARS S/O. RAMAN PILLAI, SARASWATHY VILASOM, MUDHIYAMPARA, VITHURA, CHETTACHAL, NEDUMANGADU, THIRUVANANTHAPURAM KERALA, PIN - 695551` - `5 RAMESH KUMAR, AGED 47 YEARS S/O. PRABHAKARAN NAIR, SREE NILAYAM, DARPPA, MARUTHUMMOODU, THOLICODE, VITHURA, THIRUVANANTHAPURAM, PIN - 695562` - `6 ABHILASH, AGED 27 YEARS S/O. VENU KUMARA PILLA, SARASWATHY VILASOM, MUDHIYAMPARA, VITHURA, CHETTACHAL, NEDUMANGADU, THIRUVANANTHAPURAM KERALA, PIN - 695551` - `7 SREELAL, AGED 27 YEARS S/O. PRABHAKUMARI, PRABHA VILASOM VEEDU, VAVUPURA, VITHURA, CHETTACHAL, NEDUMANGADU, THIRUVANANTHAPURAM KERALA, PIN - 695551` - `8 CHITRA RAJAN, AGED 55 YEARS S/O. KRISHNAN NAIR, ATTUARIKATHUVEEDU, MUDHIYAMPARA, VITHURA, CHETTACHAL, NEDUMANGADU,` -2- Crl.M.C No. 6128 of 2023 ``` THIRUVANANTHAPURAM KERALA, PIN - 695551 ``` - `9 AJAY KUMAR, AGED 51 YEARS S/O. BHASKARAPILLA, ATTUARIKATHUVEEDU, MUDHIYAMPARA, VITHURA, CHETTACHAL, NEDUMANGADU, THIRUVANANTHAPURAM KERALA, PIN - 695551 BY ADV N.P.ASHA` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031` - `2 ANIL KUMAR, AGED 47 YEARS S/O. AYYAPPAN NAIR, RESIDING AT NANDANAM HOUSE, KUNNUMPURAM, VILAPPILSALA, THIRUVANANTHAPURAM, PIN - 695573` - `3 MANOJ KUMAR, AGED 48 YEARS S/O. VELAYUDHAN PILLAI, RESIDING AT MELAEVEEDU, T.C. 35/720, THAMAROTTUKONAM, VATTIYOORKAVU, THIRUVANANTHAPURAM,, PIN - 695013` - `4 SUJITH KRISHNAN @ SUJITH KRISHNA AGED 47 YEARS S/O. M. THULASIDHARAN, RESIDING AT ANJANAYAM, VAZHAVILA, KARIKKAKOM P.O, THIRUVANANTHAPURAM, PIN - 695542` ## **`OTHER PRESENT:`** ``` VIPIN NARAYAN. PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` -3- Crl.M.C No. 6128 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== Crl.M.C No. 6128 of 2023 ============================================================= Dated this the 4[th] day of September, 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. The petitioners are the accused in Crime No.304 of 2022 of Vithura Police Station, Thiruvananthapuram district. The above case was charge sheeted by Vithura Police alleging offences punishable under Sections 341, 294(b), 323, 324, 308 read with 34 IPC. Annexure A2 is the final report. 3. The prosecution case is that on 25.03.2022 at 4.30 pm the accused formed themselves into an unlawful assembly and uttered obscene words and attacked respondents 2 to 5 with dangerous weapons. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution -4- Crl.M.C No. 6128 of 2023 proceedings. The counsel relies on the affidavit filed by the victims in support of his contention. The counsel appearing for the victims also submitted that the matter is settled and the victim 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, victim/s 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 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** -5- Crl.M.C No. 6128 of 2023 **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 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_ -6- Crl.M.C No. 6128 of 2023 _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 -7- Crl.M.C No. 6128 of 2023 facts and circumstances I am of the considered opinion that the dispute is private in nature and the settlement can be accepted. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings in CP No.30 of 2022 on the file of the Judicial First Class Magistrate Court -III (Forest Offences), Nedumangad, arising from Crime No.304 of 2022 of Vithura Police Station, Thiruvananthapuram district are quashed. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -8- Crl.M.C No. 6128 of 2023 ## **`APPENDIX OF CRL.MC 6128/2023`** ## `PETITIONER ANNEXURES` ``` Annexure A 1TRUE COPY OF THE FIR Annexure A 2CERTIFIED COPY OF THE FINAL REPORT ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT (FO), NEDUMANGAD Annexure 3TRUE COPY OF THE AFFIDAVIT FILED BY 2ND RESPONDENT DATED 19.07.2023 Annexure 4TRUE COPY OF THE AFFIDAVIT FILED BY 3RD RESPONDENT DATED 19.07.2023 Annexure 5TRUE COPY OF THE AFFIDAVIT FILED BY 4TH RESPONDENT DATED 19.07.2023 ```