Shibu Philip and Saji v. Thomas and the State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 1808 of 2013 () --------------------------------** **AGAINST THE JUDGMENT IN CRL.A. 69/2013 & 70/2013 of ADDL.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 19-06-2013** **AGAINST THE JUDGMENT IN CC 206/2008 of J.M.F.C.-II, PATHANAMTHITTA DATED 28-02-2013** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **------------------------------------------** **1. SHIBU PHILIP, AGED 30 YEARS, S/O.PHILIP, PUTHEN VEEDU, ATTACHACKAL, KONNI THAZHAM MURI & VILLAGE, KOZENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **2. SAJI, AGED 41 YEARS, S/O.BABY, PALLIKKATTU HOUSE, ATTACHACKAL, KONNI THAZHAM MURI & VILLAGE, KOZENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.V.SETHUNATH** **RESPONDENTS/DAFACTO COMPLAINANT/STATE:** **---------------------------------------** **1. THOMAS, AGED 58 YEARS, S/O.DAVID RESIDING AT VALUPARAMBIL HOUSE, ANJILIMUTTOM, KONNI THAZHAM MURI & VILLAGE, KOZENCHERRY TALUK, PATHANAMTHITTA DISTRICT-689 691.** **2. SUB INSPECTOR OF POLICE, KONNI POLICE STATION, PIN 689 691.** **3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN 682 031.** **R1 BY ADV. SRI.S.JUSTUS R2 & 3 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-11-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No. 1808 of 2013 -----------------------------------------------------Dated this the 27[th] day of November, 2013** ## **ORDER** The revision petitioners are the 1[st] and 2[nd] accused in C.C.No.206/08 on the files of the Judicial First Class Magistrate's Court-II, Pathanamthitta. They were prosecuted, along with the 3[rd] accused, for the offences punishable under Secs.120B, 452, 323, 324 and 427 read with Sec.34 of the Indian Penal Code. After trial, the learned Magistrate found the revision petitioners guilty of the said offences, except the offence under Sec.120B of the IPC, and convicted thereunder. They were sentenced to undergo simple imprisonment for six months each for the offences under Secs.452, 323, 324 and 427 read with Sec.34 **Crl.R.P. No. 1808 of 2013** -: 2 :- of the IPC. They were also sentenced to pay a fine of `5,000/- each. In default, simple imprisonment for the offence under Sec.452 read with Sec.34 of the IPC. If the fine amount is realised, a sum of `5,000/- shall be paid to P.W.1 under Sec.357(1)(b) of the Cr.P.C. Set off is also allowed to A1 and A2. 2. Feeling aggrieved, they have preferred Crl. Appeal Nos.69 and 70 of 2013 before the learned Additional District & Sessions Judge, (Ad hoc)-II), Pathanamthitta. The learned Sessions Judge, after appreciating the evidence on record, confirmed the conviction and sentence, as such, without any interference. This revision petition is filed challenging the concurrent findings of conviction and sentence. 3. Though this revision petition has been filed on various grounds challenging the concurrent findings of conviction and sentence, now the revision petitioners, along with the de facto complainant, filed Crl.M.A.No.8476/13 under Sec.320(6) of the Cr.P.C. for compounding the **Crl.R.P. No. 1808 of 2013** -: 3 :- offences. 4. In the affidavit filed by the de facto complainant, it is specifically stated that the dispute between the revision petitioners and the de facto complainant is settled and he had no objection in terminating the prosecution and setting aside the conviction entered and the sentence imposed on the revision petitioners. It is also stated in the petition filed by both parties that they intend to compound the above offences. 5. The learned counsel for the revision petitioners submits that among the offences, the offence under Sec.452 of the IPC is not a compoundable offence. The learned counsel for the revision petitioners cited a decision reported in Gian Singh v. State of Punjab [(2012 (4) KLT 108 (Supreme Court)] and drew my attention to paragraph-57 of the said judgment and submits that non-compoundable offences can also be compounded in exercise of the jurisdiction under Sec.482 of the Cr.P.C. Paragraph-57 of **Crl.R.P. No. 1808 of 2013** -: 4 :- the said judgment is extracted below: “57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or **Crl.R.P. No. 1808 of 2013** -: 5 :- offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High **Crl.R.P. No. 1808 of 2013** -: 6 :- Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding”. **Crl.R.P. No. 1808 of 2013** -: 7 :- Going by the above judgment, it is seen that the Apex Court considered the question whether a non-compoundable offence can be compounded in exercise of the jurisdiction under Sec.482 of the Cr.P.C. and held that no straight jacket formula can be formulated for the same; but a noncompoundable offence can also be compounded considering the facts and circumstances of each case. The Apex Court categorised certain non-compoundable offences as offences for which the jurisdiction under Sec.482 of the Cr.P.C. can never be invoked. Sec.452 of the IPC is not included in the said category of offences. 6. Having regard to the facts and circumstances of this case, in view of the compounding petition filed by the revision petitioners, along with the affidavit of the de facto complainant, I am inclined to compound the offence under Sec.452 of the IPC also in exercise of the jurisdiction under Sec.482 of the Cr.P.C. for the interest of justice. 7. In the result, the sentence imposed on the revision **Crl.R.P. No. 1808 of 2013** -: 8 :- petitioners for all the offences including the offence under Sec.452 of the I.P.C. will stand compounded and the revision petitioners are acquitted of under Sec.320(8) of the Cr.P.C. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge