Sharaf @ Sharafudheen and others v State of Kerala

1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945`** ``` CRL.MCNO.3366OF2023 CRIMENO.1121OF2011OFHOSDURGPOLICESTATION SCNO.488OF2020ONTHEFILESOFADDLDISTRICT&SESSIONS - JUDGEII,KASARAGODAGAINSTACCUSEDNO.2 S.C.NO501OF2021ONTHEFILESOFADDLDISTRICT&SESSIONS - JUDGEII,KASARAGODAGAINSTACCUSEDNOS.4,5&6 C.P.NO.54OF2021ONTHEFILESOFJUDICIALFIRSTCLASS - MAGISTRATEI,HOSDURGAGAINSTACCUSEDNOS.1,3,7&8 ``` ## **`PETITIONERS/ACCUSED NO.1 TO 8:`** ``` 1SHARAF@SHARAFUDHEEN AGED31YEARS S/OABOOBACKER,NEARIQBALSCHOOL,ITTAMMAL,AJANUR, - KASARAGOD,KERALA,PIN671531 2MANSOOR.V AGED35YEARS S/OABDULRAHMAN@ANDHUMAYICHAALIYANNAALIL VALAPPIL(H),NR.M.AQUARTERS,ITTAMMAL,AJANUR, - KASARAGOD,KERALA.,PIN671531 3BASHIDC.P AGED30YEARS S/OABOOBACKER,PATTILLATHHOUSE,MANEESHQUARTERS, NR.IQBALSCHOOL,ITTAMMAL,AJANUR,KASARAGOD, - KERALA,PIN671531 4FAROOQC.P AGED33YEARS S/OABDULLAC.P,C.PHOUSE,NR.IQBALSCHOOL, - ITTAMMAL,AJANUR,KASARAGOD,KERALA.,PIN671531 5ASEES.M.M AGED38YEARS S/OABDULRAHMAN,ASEESMANZIL, NR.IQBALSCHOOL,ITTAMMAL,AJANUR,KASARAGOD, ``` Crl.M.C No.3366 of 2023 2 ``` - KERALA.,PIN671531 6THANSEER.V AGED31YEARS S/OABDULRAHMAN,CHAALIYANNAALILVALAPPIL(H), NR.M.AQUARTERS,ITTAMMAL,AJANUR,KASARAGOD, - KERALA,PIN671531 7MUSAMMILC.P, AGED37YEARS S/OABDULLAC.P,C.PHOUSE,NR.IQBALSCHOOL, - ITTAMMAL,AJANUR,KASARAGOD,KERALA,PIN671531 8NISAMUDHEENC.P AGED30YEARS S/OSUHARAP.P,PUTHANPURAYILHOUSE,NEARPADYAM CLUB,ITTAMMAL,AJANUR,KASARAGOD,KERALA, - PIN671531 BYADVC.JOSEPHANTONY ``` ## **`RESPONDENTS/STATE/DE FACTO COMPLAINANT & INJURED WITNESSES:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR,HIGHCOURTOF - KERALA,ERNAKULAM,PIN682031 2ANILKUMAR.M AGED38YEARS S/OPARADESHI,HOUSENO.27/11,MATTUMMALHOUSE, - MATTUMMAL,CHITHARI,KASARAGOD,KERALA.,PIN 671531 3BABU.K AGED52YEARS S/OKARUNAKARAN,HOUSENO.41/11,KOLAVAYAL, - CHITHARI,KASARAGOD,KERALA,PIN671531 ``` Crl.M.C No.3366 of 2023 3 ``` 4KARUNAN.P AGED52YEARS S/OKOTTAN,HOUSENO.36/11,KOLAVAYAL,CHITHARI, - KASARAGOD,KERALA,PIN671531 ``` ``` SRITRRENJITH,SRPUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 05.06.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.3366 of 2023 4 ## **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 petitioners 1, 3, 7 and 8 are the accused in C.P.No. 54/2021 on the files of the Judicial Magistrate of First Class-I, Hosdurg. Petitioners 4, 5 and 6 are the accused in S.C.No. 501/2021 on the files of the Additional District and Sessions Judge-II, Kasaragod and the 2nd petitioner is the accused in S.C.No. 488/2020 on the files of the Additional District and Sessions Judge-II, Kasaragod. All these cases have arisen from Crime No.1121/2011 of the Hosdurg Police Station. In the aforesaid case, they are accused of having committed offenses punishable under Sections 143, 147, 148, 323, 324, 326, and 307 r/w Section 149 of IPC. 3. The prosecution allegation is that on 11.10.2011 at about 1.30 pm, the petitioners formed themselves into an unlawful assembly and in the prosecution of their common object, attacked respondents 2 to 4 with iron pipes, wooden sticks, and stones on vital parts of the body and caused serious injuries. 4. Sri. Joseph Antony, the learned counsel appearing for the Crl.M.C No.3366 of 2023 5 petitioners, submitted that the parties have settled their disputes and they are not desirous of pursuing the prosecution proceedings. Reliance is placed on the affidavits filed by respondents 2 to 4, and it is argued that they have stated in unequivocal terms that they have no subsisting grievance against the petitioners. According to the learned counsel, if the proceedings are terminated, recording the amicable settlement, the parties can embark upon their future paths in an atmosphere of tranquility and mutual respect. At any rate, the possibility of conviction is remote and bleak, and the continuance of criminal proceedings would only put the parties to great oppression and prejudice. 5. I have considered the submissions and have gone through the records. 6. In **State of M.P (supra),** a three-judge bench of the Hon’ble Supreme Court has summarised the law as laid down in **Gian Singh v. State of Punjab[1]** , **Narinder Singh v. State of Punjab[2]** , **State of Rajasthan v. Shambhu Kewat[3]** , **State of M.P. v. Deepak[4] , State of M.P. v. Manish[5]** , **J. Ramesh Kamath v.** > 1 (2012) 10 SCC 303 > 2 2014 (6) SCC 466 > 3 (2014) 4 SCC 149 > 4 (2014) 10 SCC 285 > 5 (2015) 8 SCC 307 Crl.M.C No.3366 of 2023 6 ## **Mohana Kurup[6]** ; **State of M.P. v. Rajveer Singh[7]** , **Parbatbhai Aahir v. State of Gujarat[8] , State of M.P. v. Kalyan Singh[9] and** ## **State of M.P. v. Dhruv Gurjar[10]** . 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 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 > 6 2016) 12 SCC 179 > 7 (2016) 12 SCC 471 > 8 (2017) 9 SCC 641 > 9 (2019) 4 SCC 268 > 10 (2019) 5 SCC 570] Crl.M.C No.3366 of 2023 7 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 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 Crl.M.C No.3366 of 2023 8 ## 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. 7. The Apex Court in **Laxmi Narayan** (supra) had clearly held that offences under Section 307 of the IPC and the Arms Act, etc., would fall in the category of heinous and serious offenses and therefore are to be treated as crimes against the society and not against the individual alone, and therefore, the criminal proceedings for the offense 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. After perusing the wound certificate, the nature of the injury and its severity, I am not inclined to quash the proceedings on the basis of a purported settlement. Furthermore, the petitioners are persons with criminal antecedents, Crl.M.C No.3366 of 2023 9 their continuous involvement necessarily has societal ramifications. It will have to be construed as a transgression infringing upon the fabric of society rather than a private dispute. Consequently, it is infeasible to terminate the ongoing criminal proceedings on the basis of a settlement arrived at with the de facto complainant. This Court is also unsure whether the settlement was arrived at with a free or open mind or whether it was obtained by threat or coercion, given the criminal antecedents of the accused and their propensity to involve in crimes disturbing the peace, one after the other. Having considered the facts and circumstances and the criminal antecedents of the petitioners, I am not inclined to exercise the powers conferred on this Court under Section 482 of the Code to put a premature end to the prosecution. This petition is accordingly dismissed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP Crl.M.C No.3366 of 2023 10 ## **`APPENDIX OF CRL.MC 3366/2023`** ``` PETITIONERANNEXURES ``` ``` Annexure-A1 ``` ``` TRUECOPYOFTHEFINALREPORTINCRIME NO.1121OF2011OFHOSDURGPOLICE STATION ``` ``` Annexure-A2 ``` ``` THEORIGINALOFTHEAFFIDAVITSUBMITTED BYTHE2NDRESPONDENTDATED30.03.2023 ``` ``` Annexure-A3 ``` ``` THEORIGINALOFTHEAFFIDAVITSUBMITTED BYTHE3RDRESPONDENTDATED30.03.2023 ``` ``` Annexure4 ``` ``` THEORIGINALOFTHEAFFIDAVITSUBMITTED BYTHE4THRESPONDENTDATED30.03.2023 ```