Shali, Varghese CA and Sindhu 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. 6097 OF 2023** ## **PETITIONERS/ACCUSED NO.1 TO 3:** 1 SHALI AGED 45 YEARS W/O JOLI, KILIYELKKUDI HOUSE, CHULLI KARA, ANGAMALY PO, ERNAKULAM DISTRICT, PIN - 683572 2 VARGHESE CA AGED 75 YEARS S/O ANTONY, CHATHANATTU HOUSE, CHULLI KARA, AYYAMPUZHA PO, ERNAKULAM DISTRICT, PIN - 683581 3 SINDHU AGED 43 YEARS W/O THANKACHAN, NARIPPARA HOUSE, ILANJI KARA, MUTHOLAPURAM PO, ERNAKULAM DISTRICT, PIN - 686665 BY ADVS. P.B.MUHAMMED AJEESH RAIEEZ M ASHRAF ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER SANTHANPARA POLICE STATION, SANTHANPARA PO, IDUKKI DISTRICT, PIN - 685619 3 ROBINS S/O THANKACHAN, ORAVALAKKUDI, ADIMALI KARA, MANNAKANDAM VILLAGE, IDUKKI DISTRICT, PIN - 685561 BY ADV. SRI.M.A.AHAMMAD SAHEER, SRI. T.R.RANJITH, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.6097 of 2023 2 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **Crl.M.C.No.6097 of 2023 ---------------------------------------------Dated this the 04[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. Petitioners are the accused in Crime No.636 of 2022 of Santhanpara Police Station, Idukki District. The above case is registered against the petitioners alleging offences punishable under Section 420, 406 and 120 B r/w 34 of IPC. 3. The prosecution case is that, the petitioners by promising the 3[rd] respondent to believe that the petitioners along with the 4[th] accused in the above crime will arrange a job for the 3[rd] respondent in Crl.M.C.No.6097 of 2023 3 Israel and on believing the promise, the 3[rd] respondent transferred an amount of Rs.5,94,000/into the account of the petitioners. Thereby the petitioners cheated the 3[rd] respondent. 4. The learned counsel for the petitioners submits that the parties have settled their dispute and do not wish to pursue the prosecution proceedings. The counsel relies on the affidavit filed by the victim in support of his contention. The counsel appearing for the victim also submitted that the matter is settled and the victim has 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. Crl.M.C.No.6097 of 2023 4 6. This Court has considered the submission of the petitioners, victim and the Public Prosecutor and has also gone through the records including the affidavit filed by the victim. 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 another (2014 (6) SCC 466)** . The apex court in paragraph 13 of the _**Laxmi Narayan**_ 's case discussed the law in detail and the Crl.M.C.No.6097 of 2023 5 ## 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_ Crl.M.C.No.6097 of 2023 6 _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 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.”_ ## 8. Keeping in mind the above dictum laid 7 Crl.M.C.No.6097 of 2023 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. Therefore, this Criminal Miscellaneous case is allowed. All further proceedings in Crime No.636/2022 of Santhanpara Police Station, Idukki District are quashed. DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.6097 of 2023 8 ## **APPENDIX OF CRL.MC 6097/2023** PETITIONER ANNEXURES ANNEXURE A1 THE CERTIFIED COPY OF FIR NO. 636 OF 2022 DATED 02.08.2022 OF SANTHANPARA POLICE STATION, IDUKKI DISTRICT ANNEXURE A2 THE AFFIDAVIT EXECUTED BY THE 3RD RESPONDENT DATED 19.07.2023 RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE