Shibu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 5TH DAY OF MARCH 2014/14TH PHALGUNA, 1935 Crl.Rev.Pet.No. 2185 of 2011 ( ) --------------------------------- CRL.A 168/2010 of ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT-1), THRISSUR CC 2049/2010 of J.M.F.C.,KUNNAMKULAM ## REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------ SHIBU, S/O.VELAYUDHAN, ANGADIPARAMBIL HOUSE, KOCHANNUR MADATHIL, NEAR DIARY VADAKKEKKAD VILLAGE. BY ADVS.SRI.SANTHEEP ANKARATH SRI.SUMODH MADHAVAN NAIR RESPONDENT/STATE & COMPLAINANT: -------------------------------------------------------------------- ## 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## 2. THOMAS K.STEEPHAN, S/O.S.KUNJAPPY, PUSHPAVILASAM, PULIMOODU, KULAPPADA P.O.-695542 THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.SHERRY J. THOMAS BY PUBLIC PROSECUTOR, SMT P MAYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-2-2014, THE COURT ON 5-3-2014 PASSED THE FOLLOWING: ## **M.L. JOSEPH FRANCIS J.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** Crl.R.P. No.2185 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 5[th] day of March 2014 ## **ORDER** The petitioner is the accused in C.C. No.2049 of 2005 on the file of the Judicial First Class Magistrate Court, Kunnamkulam and the appellant in Criminal Appeal No.168 of 2010 on the file of the Additional District and Sessions Judge, Fast Track Court No.1, Thrissur. 2. The offences alleged against the petitioner were under Sections 452 and 332 of the Indian Penal Code (for short 'the IPC'). Subsequently during the course of the trial, the learned Magistrate altered the charge and substituted Sections 451 and _Crl.R.P. No.2185 of 2011_ **==> picture [14 x 10] intentionally omitted <==** 353 in place of sections 452 and 332. It was alleged that on 20.10.2005, the petitioner, who is a student of the de facto complainant restrained PW3/de facto complainant in the educational institution, where the de facto complainant was a teacher, and assaulted him. 3. The trial court convicted the accused under Sections 353 and 451 of the IPC and sentenced to undergo simple imprisonment for three months and to pay a fine of `500/- in default to undergo simple imprisonment for 15 days under Section 451 of the IPC and he was also sentenced to undergo simple imprisonment for three months under Section 353 of the IPC. Substantiative sentence was ordered to run concurrently. Against that conviction and sentence, the accused filed Criminal Appeal No.168 of 2010 before the Additional District and Sessions Judge (Fast Tack Court No.1), Thrissur which was dismissed. Against that judgment, the appellant/accused filed _Crl.R.P. No.2185 of 2011_ **==> picture [14 x 10] intentionally omitted <==** this Criminal Revision Petition. 4. During the pendency of this Criminal Revision Petition, PW3/de facto complainant filed an affidavit stating that the matter was settled between the parties and that he has no grievance against the accused and that he does not want to prosecute the case. Offences under Section 451 of the IPC is compoundable with the permission of the Court. 5. It is well settled that inherent power under Section 482 of the Code of Criminal Procedure can be exercised to quash the proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. The High Court can do so while exercising other jurisdiction such as appellate or revisional jurisdiction. Learned counsel for the revision petitioner invited my attention to paragraph 13 of the decision reported in **Shiji v. Radhika** (2011(4) KLT 682 the S.C.), in which it was held that: _Crl.R.P. No.2185 of 2011_ :4: “13.It is manifest that simply because an offence is not compoundable under Section 320 of the Code of Criminal Procedure is by itself no reason for the High Court to refuse exercise of its power under Section 482, Cr. P.C. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482, Cr. P.C. on the other. While a Court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482, Cr. P.C. are not for that purpose controlled by Section 320, Cr. P.C. Having said so, we must hasten to add that the plenitude of the power under Section 482, Cr. P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the _Crl.R.P. No.2185 of 2011_ :5: power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence, for, it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.” The learned counsel for the revision petitioner further invited my attention to paragraph 3 of the decision of this court reported in **Bijukumar v. State of Kerala** (2013(3) KLJ 38, in which it was held that: _Crl.R.P. No.2185 of 2011_ :6: “3. The offence under Section 498A of the Indian Penal Code is not a compoundable offence. The question to be considered is whether in view of the petition filed by the revision petitioner and de facto complainant, a noncompoundable offence can be compounded or not invoking power under 482 Cr.P.C. The learned counsel for the revision petitioner cited Gian Singh v. State of Punjab 2012 KHC 4530 :: 2012 ICO 1135 and Thankamma v. State of Kerala 2006 KHC 866 :: 2006 ICO 5118. Going by the 2006(3) KLT 846 2006 KHC 866, it could be seen that the Division Bench of this Court under a reference held that in appropriate cases the Court could exercise its inherent powers under Section 482 to set aside conviction entered and sentence imposed under non-compoundable offence to secure the ends of justice on the request of both offender and victim. In Gian Singh's case (supra), the Bench of the Supreme Court comprising of three Judges held that it is within the powers of the Court under Section 482 Cr.P.C. to quash criminal proceedings involving non-compoundable offences on the basis of compromise reached between the offender and the victim, if it is for the interest of the justice. The Court further held that “if they continues the criminal proceedings that would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the _Crl.R.P. No.2185 of 2011_ **==> picture [14 x 10] intentionally omitted <==** ends of Justice, it is appropriate that criminal case is put to an end.” 6. Considering the facts and circumstances of the present case, I am of the view that as the parties have amicably settled their disputes, it is in the interest of justice, that permission to compound the offence under Section 451 of the IPC has to be given and the conviction and sentence of the accused under Section 353 of the the IPC has to be quashed. Accordingly permission is granted to compound the offence under Section 451 of the the IPC. The conviction and sentence against the accused under Section 353 of the the the IPC, is quashed. Accordingly this Criminal Revision Petition is allowed. The offence under Section 451 of the IPC in C.C. No.2049 of 2005 on the file of the Judicial First Class Magistrate Court, Kunnamkulam is compounded and the conviction and sentence under section 451 of the IPC is set aside and the accused is _Crl.R.P. No.2185 of 2011_ **==> picture [14 x 10] intentionally omitted <==** acquitted under section 320(8) of the Code of Criminal Procedure. The conviction and sentence of the accused under Section 353 of the IPC is quashed and he is acquitted. Sd/- **M. L. JOSEPH FRANCIS, (JUDGE)** dl/ // TRUE COPY // PA TO JUDGE