Shelvi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 CRL.REV.PET NO. 2797 OF 2011** **AGAINST THE ORDER/JUDGMENT CRA 552/2009 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR CC 896/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR** ## **REVISION PETITIONER/S:** SHELVI AGED 52 YEARS S/O SREEDHARAN, POLAKULATH HOUSE, WEST OF POTHENVALAVU, MUNAMBAM KARA, KUZHUPPILLY VILLAGE, KOCHI TALUK BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 31 (CRIME NO.183/2002 OF MUNAMBAM POLICE STATION, ERNAKULAM DISTRICT) 2 ADDL R2. SHANMUGHAN S/O SREEDHARAN, POLAKULATHU HOUSE, MUNAMBAMKARA, KUZHIPALLY VILLAGE, KOCHI TALUK-682032(IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 25.11.2011 IN CRL.M.A.NO.10186/2011). BY ADV ANAND KALYANAKRISHNAN SMT.S.SEETHA PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.REV.PET NO. 2797 OF 2011 2 ## **ORDER** The revision petition is filed challenging the illegality and correctness of the judgment passed in Crl.A. No.552/2009 by the Court of the Additional Sessions Judge, North Paravur (Appellate Court), whereby the appeal filed by the revision petitioner was dismissed confirming the judgment passed by the Court of the Judicial First Class Magistrate-I, North Paravur, in C.C.No.896/2003, convicting the revision petitioner for the offences under Sections 448 & 324 of the Indian Penal Code (in short, ‘IPC’) and sentencing him to undergo simple imprisonment for a period of four months and pay a fine of Rs.7,500/- and in default to undergo simple imprisonment for a further period of three months. Prosecution case in brief: 2. Prosecution case was that the accused and PW1 are brothers. On 26.07.2002, when the officials of the local Panchayat went to visit the house of the accused, CRL.REV.PET NO. 2797 OF 2011 3 for allotting the house number, a dispute arose between the accused and PW1 in respect of the title of the property. The Panchayat officials refused to number the house and directed the siblings to settle their dispute. With this animosity in mind, the revision petitioner inflicted injury on his brother – PW1 and thereby, committed the above offences. ## Trial Court proceeding: 3. The Police after investigation, filed the final report before the learned Magistrate. The revision petitioner denied the substance of accusation made against him. In the trial, PWs 1 to 10 were examined and Exts.P1 to P9 were marked in evidence. Defence marked Exts. D1 and D2. The revision petitioner denied the incriminating circumstances put against him in the statement recorded under Section 313 of the Code of Criminal Procedure (in short, ‘Cr.P.C’). ## Trial Court judgment: 4. The Trial Court, after analysing the materials placed on record, convicted the revision petitioner for CRL.REV.PET NO. 2797 OF 2011 4 the offences under Sections 448 and 324 of the IPC and sentenced him to undergo simple imprisonment for a period of six months and one year and also pay a fine of Rs.500/- and Rs.7,000/-, respectively and in default to undergo simple imprisonment for a further period of one month and three months, respectively. The sentences were directed to be run concurrently. 5. Aggrieved by the said judgment, the revision petitioner preferred Crl.A. No.552/2009 before the Appellate Court. ## Appellate Court judgment: 6. The Appellate Court, after re-appreciating the materials placed on record, partly allowed the appeal by confirming the conviction of the revision petitioner under Sections 448 and 324 of the IPC; but reduced the sentence by directing the revision petitioner to undergo simple imprisonment for a period of three months and pay a fine of Rs.500/- for the offence under Section 448 of the IPC and four months and pay a fine of Rs.7,000/for the offence under Section 324 of the IPC. Default CRL.REV.PET NO. 2797 OF 2011 5 sentences were also imposed. 7. It is assailing the concurrent judgments of the courts below, that the revision petition is filed. 8. Heard; Sri. S. Rajeev, the learned counsel appearing for the revision petitioner; Sri. Smt.Seetha S., the learned Public Prosecutor appearing for the 1[st] respondent – State and Sri. Anand Kalyanakrishnan, the learned counsel appearing for the 2[nd] respondent – de facto complainant (PW1). 9. Today, when the revision petition was taken up for consideration, the learned counsel appearing for the parties submitted that the subject matter in dispute between the parties has been settled and the 2[nd] respondent has filed an affidavit in Crl.M. Application No.1/2023, which was sworn before a Notary public, inter alia, stating that the entire dispute between him and his brother has been amicably settled due to the intervention of family members and respected persons of the society. Therefore, the 2[nd] respondent has no objection in the revision petitioner being acquitted in CRL.REV.PET NO. 2797 OF 2011 6 C.C.No.896/2003, which was confirmed in Crl.A. No.552/2009. 10. The learned Public Prosecutor on instructions submitted that the settlement arrived between the revision petitioner the 2[nd] respondent is genuine and bonafide and the State has no objection in the revision petitioner being allowed. 11. This Court in **Soban v. State of Kerala** [2021 (3) KLT Online 1179], after referring to the decisions of the Hon'ble Supreme Court in **Joshi v. State of Haryana** [2008 (2) KLT 1062]; **Gian Singh v. State of Punjab** [2012 (4) KLT 108 (SC)]; **Bitan Singh Gupta & Anr. v. State of West Bengal & Anr.** [2018 (1) KLT Online 3156 (SC)] and decisions of this Court in **Renjith v. State of Kerala** [2019 (4) KLT 5N41 (C. No.56] has held that if the requirements of Section 482 of the Cr.P.C. are satisfied, in the sense that it is necessary to prevent abuse of the process of the Court or to secure the ends of justice, criminal proceedings involving noncompoundable offences can be quashed, CRL.REV.PET NO. 2797 OF 2011 7 notwithstanding the fact the order of conviction has been passed against the accused provided the offence does not fall within the category of offences prohibited to be quashed as per the guidelines laid down in **Gian Singh** (Supra) and the other decisions on the point. 12. I am in total agreement with the principles laid down in **Soban** (Supra). 12. Having considered the facts and the law stated above and also reading the affidavit of the 2[nd] respondent, I am inclined to invoke the plenary powers of this Court under Section 482 of the Cr.P.C and set aside the conviction and sentence imposed by the courts below by the impugned judgments which will augur the relationship between the brothers and the harmony in the society, which in turn will meet the ends of justice. In the result; - (i) The conviction and sentence imposed by the Court of the Judicial First Class Magistrate-I, North Paravur in C.C.No.896/2003 and confirmed by the Court of the Additional Sessions Judge, CRL.REV.PET NO. 2797 OF 2011 8 North Paravur in Criminal Appeal No.552/2009 are set aside. - (ii) All proceedings in Crime No.183/2002 of Munambam Police Station are quashed. - (iii) The bail bonds executed by the revision petitioner/accused and his sureties are hereby cancelled. - (iv) The fine amount, if any, remitted by the revision petitioner/accused pursuant to the orders passed by this Court and the court below shall be released to the revision petitioner, in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc/09.10.23 CRL.REV.PET NO. 2797 OF 2011 9 ## **APPENDIX OF CRL.REV.PET 2797/2011** PETITIONER ANNEXURES Annexure I THE NOTARIZED AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 15.09.2023