SHAIJAN JOSEPH v. STATE OF KERALA

1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 12[TH] DAY OF JULY 2023 / 21ST ASHADHA, 1945`** ## **`CRL.MC NO. 3297 OF 2023`** ``` CC401/2022OFCHIEFJUDICIALMAGISTRATECOURT,THODUPUZHA ``` ## **`PETITIONER/ACCUSED:`** ``` SHAIJANJOSEPH AGED48YEARS ADVOCATE,S/OJOSEPH,EDAVAZHIKKALHOUSE, KUMARAMANGALAMVILLAGE,THODUPUZHATALUK, - IDUKKIDISTRICT,,PIN685608 BYADVS. SANILKUMAR VARGHESEMUNDACKAL SURUMISHAKEEL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYCIOFPOLICE, THODUPUZHAPOLICESTATION,THROUGHPUBLICPROSECUTOR, - HIGHCOURTOFKERALA,PIN682031 2*ADDLR2 VINODAMOS S/O.AMOS,KUZHIKKAPLAKALHOUSE,MATTUPARAKARA, KUMARAMANGALAM,IDUKKIDISTRICT *ADDLR2IMPLEADEDASPERORDERINCRL.M.ANO.3/2023 DATED3.7.2023 BYADVS. PUBLICPROSECUTOR SANILKUMAR SREEKANTHS.NAIR ``` Crl.M.C No.3297 of 2023 2 ``` JUANJACOBT.J. ``` ``` SRI.MPPRASHANTH,PUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 12.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.3297 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 petitioner herein is the accused in Crime No.185 of 2022 of the Thodupuzha Police station registered for the offences punishable under Sections 294(b), 324 and 326 of the IPC. 3. The prosecution allegation, as borne out from the records, are as under: On 23.01.2022 at about 6.30 p.m., the petitioner is alleged to have assaulted the de facto complainant and thereby committed the offense. 4. The learned counsel for the petitioner submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. He relies on the affidavit filed by the party respondent in support of his contention. Counsel argues that if the proceedings are terminated, with the recording of the amicable settlement, the parties can move forward in an atmosphere of peace and mutual respect. 5. The learned Public Prosecutor, on instructions, has expressed Crl.M.C No.3297 of 2023 4 reservations about quashing the proceedings solely on the basis of the settlement. He argues that the facts and circumstances may not warrant the exercise of the court's inherent jurisdiction under Section 482 of the Code of Criminal Procedure. However, it is fairly submitted that there have been no other crimes of serious nature registered against the petitioner to date. It is further submitted that the statement of the party respondent has been recorded, and he has unequivocally stated that he does not have any lasting grievances. 6. I have considered the submissions and have gone through the records. 7. In **State of M.P. v. Laxmi Narayan,[1]** , a three-judge Bench of the Hon’ble Supreme Court has summarized the law as laid down in **Gian Singh v. State of Punjab[2]** , **Narinder Singh v. State of Punjab[3]** and in subsequent cases. 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 > 1 (2019) 5 SCC 688 > 2 (2012) 10 SCC 303 > 3 2014 (6) SCC 466 Crl.M.C No.3297 of 2023 5 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 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 Crl.M.C No.3297 of 2023 6 307 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 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. Having carefully analyzed the prayer sought in light of the principles laid down above and also the nature of the allegations, the gravity of the offense, the severity of injuries inflicted, antecedents of the accused, and the amicable relationship that now exists between the parties, I am of Crl.M.C No.3297 of 2023 7 the considered opinion that quashing the proceedings on the basis of the settlement will not have any adverse impact on society. In fact, it would only serve to bring about peace and secure the ends of justice. Additionally, persisting with the prosecution would be a waste of time, as the prospects of conviction are bleak. In the light of all of the relevant circumstances, I am of the considered view that this Court would be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings This petition is allowed. Annexure-5 Final Report in Crime No.185/2022 of Thodupuzha Police Station and all further proceedings against the petitioner pending as C.C.No.401/2022 on the files of the Chief Judicial Magistrate, Thodupuzha, are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP Crl.M.C No.3297 of 2023 8 ## **`APPENDIX OF CRL.MC 3297/2023`** ``` PETITIONER’SANNEXURES: ``` |`Annexure `|`1`|`TRUE COPY OF THE O.P TICKET ISSUED TO THE`| |---|---|---| |||`PETITIONER FROM DISTRICT HOSPITAL`| |||`THODUPUZHA ON 23-1-2022`| |`Annexure `|`2`|`TRUE COPY OF THE COMPLAINT DATED 23-1-2022`| |||`SUBMITTED BEFORE THODUPUZHA POLICE STATION`| |`Annexure `|`3`|`TRUE COPY OF THE RECEIPT ISSUED BY`| |||`THODUPUZHA POLICE STATION DATED 27/1/2022`| |||`ON ANNEXURE 2 COMPLAINT`| |`Annexure `|`4`|`CERTIFIED COPY OF THE FIR DATED 26-1-2022`| |||`IN CRIME NO.185/2022 OF THODUPUZHA POLICE`| |||`STATION`| |`Annexure `|`5`|`CERTIFIED COPY OF THE CHARGE SHEET DATED`| |||`15-2-2022 OF THODUPUZHA POLICE STATION IN`| |||`CRIME NO.185/2022`| |`Annexure `|`6`|`TRUE COPY OF THE BAIL APPLICATION NO.`| |||`881/2022 DATED 31/1/2022 FILED BEFORE THIS`| |||`HON'BLE COURT WITHOUT ANNEXURES`| |`Annexure `|`7`|`TRUE COPY OF REPORT DATED 23/12/2022 FILED`| |||`BEFORE THE DISTRICT POLICE CHIEF, IDUKKI`| |`Annexure `|`8`|`TRUE COPY OF THE COMPLAINT DATED 10/3/2023`| |||`SUBMITTED BY THE PETITIONER BEFORE THE`| |||`SUPERINTENDENT OF POLICE IDUKKI`| |`Annexure `|`9`|`AFFIDAVIT DATED 29.5.2023 SWORN IN BY THE`| |||`DEFACTO COMPLAINANT/CW1`|